Ed Board 'caught in middle' on school choice issue


LITTLE ROCK — Disputes arising from a new state law that removes race as a factor in student transfers are threatening to overwhelm the state Board of Education and putting it in a difficult position, its chairman says.

The School Choice Act of 2013 allows students to transfer from one to district to another with no restrictions based on race, but it also allows school districts to declare themselves exempt from allowing transfers under the law if they are under a desegregation order. Twenty-three districts have declared themselves exempt from the law.

Parents of students who are denied transfers can appeal to the Education Board. The board spent several hours hearing appeals at its July meeting and has 13 appeals on its agenda for this month’s meeting on Monday.

“We have just been absolutely inundated,” Chairman Brenda Gullett of Fayetteville said, adding that she was not sure Monday’s meeting could be concluded in one day.

Gullett said the flood of appeals is frustrating because the board members are being asked to make decisions on fine points of law that they are not qualified to decide, including whether various districts’ desegregation orders are still in effect.

Parents have also questioned whether districts could legally declare themselves exempt since the law set an April 1 deadline for declaring exemptions but was not signed into law until more than two weeks after that date.

The board denied every appeal it heard at its July meeting. Gullett said she did not believe it had a choice.

“I do not think we can overrule a district’s decision to opt out of choice if it’s based on deseg,” she said. “We do not have the ability to know whether or not that order has been satisfied. All we have is the law, and that is the grounds for which a district can opt out. And then the parents have the right to appeal, so you see we’re kind of caught in the middle: We can’t overrule the district, and also we could not deny the parents an opportunity to come and tell us their concerns.”

The Legislature took up the issue of school choice this year in response to a federal judge’s ruling last year, in a lawsuit filed by parents, that the state’s 1989 law on school choice was unconstitutional because it used race as a basis for restricting transfers. The 1989 law prohibited transfers that would lead to racial segregation.

The federal judge’s ruling was before the 8th Circuit U.S. Court of Appeals in St. Louis when lawmakers passed the new school choice law, Act 1227 of 2013. The 8th Circuit ruled last month that the case was moot because of the new law.

Act 1227 has led to more lawsuits. A group of parents has filed a federal lawsuit arguing that the Blytheville district illegally claimed an exemption to the law, and another group of parents has filed a lawsuit in Pulaski County Circuit Court seeking to overturn the Board of Education’s denial of the appeals they filed after the Forrest City School District declared itself exempt.

Darlene Farmer of Hot Springs, one of the parents scheduled to appeal to the board on Monday, said that for years she was prevented by race restrictions from transferring her daughter, who is white, to a school outside the Hot Springs School District. After the 1989 school choice law was struck down, Farmer requested a transfer, thinking her problems had been solved — but the request was rejected because the school districts in Garland County are under a desegregation order in the case Davis v. Hot Springs School District.

The new law “didn’t help Garland County at all, not at all. It’s exactly the same, and that’s what’s so disappointing,” Farmer said. “I just want my child to be able to go to the school that I want her to go to and that she wants to go to.”

Sen. Johnny Key, R-Mountain Home, the sponsor of Act 1227, said he believes that for most of the state, the law is working.

“The thing that’s encouraging to me is that we’re only talking about 23 districts (that have declared themselves exempt) out of roughly 230, so 90 percent of the districts out there are participating. So the students and the parents in 90 percent of the districts in Arkansas have school choice available to them, and I think that’s progress from where we were at this time last year,” he said.

Key expressed some disappointment that the Education Board has not seen fit to determine whether districts’ segregation order are still in effect, which he said could avoid a lot of court battles.

“I had hoped that at least in some cases it would be obvious whether a district was or was not subject to a court order on a deseg issue,” he said.

State Education Commissioner Tom Kimbrell said that “Johnny Key and I … are on different pages there.”

“I don’t think, and our legal counsel doesn’t believe, that the state board has the authority to determine whether a desegregation order is still valid or not,” Kimbrell said.

Act 1227 is valid until 2015, when legislators have said they will revisit it.