Cut race clause in law, brief asks

School transfer filing hits court

A federal judge should not have struck down the entire Arkansas Public School Choice Act after he found a portion of it unconstitutional, lawyers for plaintiffs in that case said in a brief filed Tuesday.

They asked the 8th U.S. Circuit Court of Appeals in St. Louis to overturn that decision, allowing the student-transfer law to remain in effect, and only kill a race clause that the lower court called a violation of the 14th Amendment.

Because the race-based restriction “does not serve any of the General Assembly’s stated legislative goals” in creating the Public School Choice Act, “this court should have no trouble holding that the remainder of the act can be effectuated by severing the unconstitutional racebased provision,” wrote Jess Askew III, an attorney for a group of Malvern parents who sued over the statute.

At stake in the appeal is the future of thousands of Arkansas students who transfer under the act.

The Arkansas Public School Choice Act allows students to transfer out of their home school districts, stating that freer movement of students will encourage schools to improve their programs to retain enrollment.

Arkansas Department of Education officials said in June that 13,666 students attended school outside their home districts in the school year that just ended, a majority of those as the result of the law.

U.S. District Judge Robert Dawson, who struck down the entire law in June, later issued a temporary halt of his ruling, allowing the law to remain in effect until the 8th Circuit court can consider appeals.

The racial restriction — which Dawson deemed overly broad and unconstitutional — says that “no student may transfer to a nonresident district where the percentage of enrollment for the student’s race exceeds that percentage in the student’s resident district.”

At issue for the plaintiffs — a group of parents who sued when their children were denied school transfers because of the restriction — is the legal issue of severability.

When a judge finds a portion of a statute unconstitutional or unenforceable, he must then decide whether he should “sever” that portion, striking it down on its own, or whether he should block the entire statute.

Dawson ruled the race restriction could not be severed from the School Choice Act because the surrounding language in the law made clear that Arkansas legislators “seriously considered the prospect that unlimited choice would defeat integration and create liability on the part of the state.” Instead, he struck down the entire law.

The plaintiffs’ attorneys argued in Tuesday’s filing that Dawson should have left the rest of the law intact because defendants in the case — the Arkansas Board of Education — never took a position on severability.

Rather, the Camden Fairview and El Dorado school districts intervened in the case specifically to assert that keeping the law in place without the racial restriction would cause “near immediate resegregation” of some Arkansas school districts.

Those intervenors — who “seek to hold their students captive” in their schools by refusing them transfer — didn’t have proper standing to opine on severability, Askew wrote.

In addition, Arkansas code favors severability of offending clauses unless otherwise noted in a specific statute, he wrote, citing Arkansas Code Annotated 1-2-117.

Dawson said in his 32-page ruling that leaving the rest of the law in place without the racial restriction would interfere with the School Choice Act’s purpose of allowing students to transfer out of their resident school districts “provided that the transfer by this student would not adversely affect the desegregation of either district.”

Askew said that that purpose would be served by another portion of the School Choice Act, which prohibits students from transferring if their transfers would violate federal desegregation orders.

“Only by conflating ‘desegregation’ with [the racial restriction’s] illegitimate scheme of ‘ racial balance’ could the district court justify its conclusion that [the restriction] served any of the purposes of the act,” he wrote.

The plaintiff parents in the school-choice case sought to transfer their children, who are white, from the 2,094-student Malvern School District, which is 60 percent white, to the 636-student Magnet Cove School District, which is 95 percent white.

They have asked the 8th Circuit Court to allow those transfers and others that would have been previously barred under the race restriction while it hears appeals of Dawson’s ruling.

The Arkansas attorney general’s office, which represented the state Board of Education in the case, has defended the transfer law and its race- based restriction.

Assistant attorney general Scott Richardson plans to file a separate appeal of Dawson’s decision.

In previous court arguments, Richardson has said the racial restriction is necessary to honor federal court obligations in previous desegregation