June 10, 2012
Federal District Judge Declares Arkansas School Choice Law Unconstitutional
Federal District Judge Robert Dawson declared the Arkansas Public School Choice Act of 1989 unconstitutional on Friday in his opinion in Teague v Arkansas Board of Education. Judge Dawson concluded that the statute's use of race violated the Fourteenth Amendment's Equal Protection Clause, largely relying on the Supreme Court's 2007 opinion in Parents Involved in Community Schools v. Seattle School District No. 1, because while there might be a compelling government interest, the statute was not sufficiently narrowly tailored to serve that interest and therefore survive strict scrutiny.
The statutory scheme is a complex one. Generally, students who attend public school must do so in the school district in which they reside. This general rule has some exceptions, including the Public School Choice Act. However, the choice created is generally subject to a race-based limitation: "No student may transfer to a non-resident district where the percentage of enrollment for the student’s race exceeds that percentage in the student’s resident district." However, even this exception had exceptions. Additionally, the 2011 Legislature amended the School Choice Act to specifically state that the race or ethnicity of a student shall not be used to deny a student the ability to attend a school in the student’s school district of choice if the transfer is "to a school that has been designated by the State as a school performing higher than that in which the student is currently enrolled or to which the student has been assigned." Moreover, the statute provided that if conflicts with the provisions of a federal desegregation court order applicable to a school district, the provisions of the federal desegregation court order shall govern.
Interestingly, Judge Dawson used both the 2011 amendment and the escape clause of federal court desegregation orders to support his conclusion that the statutory scheme was not narrowly tailored. He reasoned that the 2011 amendment was evidence that "some of the state’s lawmakers themselves have determined that the limitation" in the statute "may not pass the strict scrutiny test." He also stressed that the judicial desegregation order exception undermined narrowly tailored because the statutory scheme "applies state-wide without regard to whether a resident or non-resident school district has a history of de jure or de facto segregation." Obviously, however, any limitation to school districts under judicial supervision vitiates the need for the statute.
Not surprisingly then, Judge Dawson declared the statutory provision unconstitutional. More surprisingly, he declared the entre statute unconstitutional, finding that severability is a matter of state law. Looking at legislative intent, he concluded that severing the provision would undermine the legislative interest, including the legislature’s express statement that inter-district transfer is permissible “provided that the transfer by this student would not adversely affect the desegregation of either district."
Judge Dawson was attentive to the history of school segregation in Arkansas, although he sought to expand the portrait beyond the well-known events in Little Rock that resulted in Cooper v. Aaron:
Arkansas has a complicated history with regard to race relations in general, and equal opportunity education in particular. From resistance in the 1950s to minimum compliance in the 1960s, some parts of the state have fought integration even since the Brown v. Board of Education of Topeka decision. . . . Arkansas is home to both the first public school in the former Confederate States of America to implement racial desegregation (Charleston) and the high school which drew the nation’s attention in 1957 when the state National Guard was utilized to keep black students from entering Central High School in Little Rock . . .
The final line of Dawson's 32 page opinion illustrates the continuing legacy of this history: "The Court fully expects this case to be appealed in view of the important issues presented in this case."
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