Fight Over Arkansas School Choice Law Hits Eighth Circuit

ST. LOUIS (CN) – Lawyers for four Arkansas school districts argued Wednesday before the Eighth Circuit that they should continue to be exempt from a state law allowing minority students to attend schools outside their home district.

The districts filed a lawsuit in the Western District of Arkansas after the state refused to exempt them from a new school choice law in effect for the 2018-2019 school year.

The law allows minority students outside of a particular school district to attend schools in that district. The plaintiffs sought an exemption prohibiting a student from transferring to a nonresident school district where the percentage of enrollment for the transferring student’s race exceeds that percentage in the student’s home district.

“We respect the request of the parents and we want to work with the parents,” Whitney Moore, an attorney representing the school districts, said after the hearing. “But we think our desegregation history in these communities and the obligations that the district court has imposed on us give us kind of a separate status rather than any other district in the state that maybe doesn’t have the desegregation history or obligations.”

The state argued that such an exemption denies those students the right to a better education. Its attorney, Dylan Jacobs from the attorney general’s office, was unavailable for comment following the hearing due to the department’s policy of not commenting on pending litigation.

The lower court sided with the school districts, prompting the state’s appeal to the Eight Circuit. The plaintiffs are the Hope, Junction City, Lafayette County and Camden Fairview school districts.

During the hearing, Moore told the three-judge panel that her clients have received 27 applications for transfer since the district court’s ruling. Of those, 21 were accepted.

“I think it shows good faith on the part of the district,” she said in an interview. “When parents come to us with legitimate concerns, perhaps something has happened to their children in the school or perhaps they are at a school and they moved, that we are willing to work with them.”

Moore used an example during the hear of a child with autism or ADHD whose family had moved out of the school district, but the parents were happy with the child’s education so they wanted to keep them enrolled at the former school. She said the districts’ boards would be sympathetic in such cases regardless of race.

Jacobs, while presenting the state’s case, argued that the exception given to the districts is race-based.

“In every district in the state, parents of children of every race make a choice of where to send their kids, except in these four districts,” Jacobs told the panel.

He argued that the district court has essentially imposed a race-based interdistrict student transfer limitation. The state claims the court’s modification orders violate the equal protection clause because those orders make race, and race alone, the sole factor for determining whether a child can exercise school choice.

“The districts have total discretion to decide,” Jacobs argued. “The legislature decided that decision should be given to the parents.”

The decision carries a financial consequence to the school districts. If the Eighth Circuit reverses the district court’s decision, the districts could theoretically lose 3% of their students each year, which is the cap on the number who can transfer in a given year.

“It would be significant,” Moore said in an interview. “That was something that counsel for the state of Arkansas alluded to, that it was about money, and it is not. It’s about providing a desegregated education to each of our students. But unfortunately state funding is tied to enrollment and a loss [of] 3% of enrollment every year would be significant to our budget.”

Wednesday’s three-judge panel was comprised of U.S. Circuit Judges Ralph R. Erickson and Jonathan A. Kobes, both appointees of President Donald Trump, and Senior U.S. Circuit Judge Michael J. Melloy, a George W. Bush appointee.

A decision is expected before July 1, which is the deadline for school registration in Arkansas next year.

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