School- choice lawyers clash in court filings

Attorneys for parents, state at odds on new law’s relief

LITTLE ROCK — Attorneys in a court battle over a state school- transfer law disagreed Thursday about whether an appeal of a federal judge’s decision to label that law unconstitutional should continue since Arkansas legislators have repealed and replaced it.

In briefs requested by the 8th U. S. Circuit Court of Appeals in St. Louis — which is considering whether to overturn the lower court’s ruling — an attorney for a group of parents whose children were denied transfer under the old law said the new law hasn’t granted his clients the relief they sought in court or remedied constitutional concerns.

“The State of Arkansas will certainly be ‘ free to return to ( its) old ways’ absent a resolution of the question by this Court,” attorney Jess Askew III of Little Rock wrote in his brief on behalf of the parents.

The Arkansas attorney general’s office, defending the Arkansas Board of Education, disagreed, writing that the new law rendered the court’s deliberations moot.

A federal judge struck down the Arkansas Public School Choice Act of 1989 in June 2012 after deeming unconstitutional a racial restriction that barred transfers if the percentage of enrollment for the student’s race in the new district exceeded that percentage in the student’s resident district.

The plaintiffs — whose white children were denied transfers from the Malvern School District to the Magnet Cove School District because of the restriction — sought to have only the racebased provision removed from the law.

Finding that he couldn’t strike down the race rule independently without disturbing the intent of the law, U. S. District Judge Robert Dawson declared the entire 1989 law unconstitutional. His decision drew appeals from all parties, including the state, which argued that the racial restriction was necessary because of Arkansas’ history of desegregation issues.

State lawmakers have since repealed the 1989 law and replaced it with the Arkansas Public School Choice Act of 2013. The new law removes the offending race provision and allows districts to declare an exemption from allowing schoolchoice transfers if they are “subject to the desegregation order or mandate of a federal court or agency remedying the ef- fects of past racial segregation.” It also limits transfers to 3 percent of a district’s total enrollment and allows transfers granted under the old law to continue.

The new law’s narrower desegregation exemption does not address the plaintiffs’ concerns, Askew said.

The “voluntary cessation” of the racial rule in the 1989 law “does not moot the Equal Protection question under longstanding precedent of the United States Supreme Court,” he wrote. “Further, the question of whether the historical racial segregation in public schools in Arkansas permits a race limit on school- district transfers remains a disputed issue that requires binding resolution.”

Many of the same districts that denied transfers under the now- stricken racial restriction have sought exemptions under the new law, he wrote. Twenty- three of the state’s 239 districts have declared an exemption, some using court decisions that Askew has called irrelevant to their specific situations, such as the landmark civil- rights case Brown v. Board of Education of Topeka.

Although the Malvern and Magnet Cove districts have not declared exemptions, up to 200 parents have sought to transfer their students out of Malvern in the past — more student transfers than would be allowed under the 3 percent limit in the new law, Askew said. And because his clients were denied transfer under the nowunconstitutional law, they can’t be “grandfathered in,” he wrote.

But Assistant Attorney General Scott Richardson said the new law gives the parents “the relief they sought.”

“There is no longer a live case or controversy here,” he wrote in his brief. “Plaintiffs sought only to avoid the application of the racial limitations contained in the Public School Choice Act of 1989. The Arkansas General Assembly has given them complete relief by repealing the Public School Choice Act of 1989 and adopting a new school choice law with no racial limitations. There is nothing left for this Court to do.”

Attorneys for two school districts that have intervened in the case agreed with Richardson in their brief. The districts, Camden Fairview and El Dorado, have declared exemptions from allowing transfers under the new law.

Chris Heller, attorney for the Little Rock School District, which joined the case as a “friend of the court,” also filed a brief, calling the case moot. He joined attorneys for the intervening districts in asking the appeals court to “vacate” Dawson’s original order and end deliberations on the matter.

The Little Rock School District — involved in decades of desegregation litigation with the state and the Pulaski County Special and North Little Rock school districts — also voted to opt out of allowing transfers under the 2013 School Choice Act.

That new law included an April 1 deadline for districts to notify the Arkansas Department of Education of their exemptions from allowing transfers. Because the law was signed by Gov. Mike Beebe on April 16, after the deadline had passed, the Education Department collected exemptions until May 17.

Askew has since filed a separate lawsuit on behalf of a group of Blytheville parents and grandparents, arguing that the district’s exemption is not valid because it reported it to the state after the statutory deadline. The Blytheville district has not yet responded to the lawsuit.

Along with Askew, plaintiffs in that case also are represented by attorney Alec Gaines, the husband of Arkansas Democrat- Gazette Assistant Publisher Eliza Gaines.