Arkansas Board of Ed Caught Between School Choice, Desegregation Order

A new Arkansas law that removes race as a consideration in district transfer decisions is creating headaches for the state Board of Education, says the board’s chairman Brenda Gullet. The School Choice Act of 2013 says that when considering applications for district-to-district transfers, officials can’t consider the race of the student — but the law also allows districts operating under a desegregation order to declare themselves exempt from the law.

Since the law’s passage, 23 of the state’s districts declared that they would take advantage of the exemption provision.

According to John Lyon of the Arkansas News Bureau, at issue are appeals from parents of students denied a transfer that are lodged with the state Board under the law. At its July meeting, the Board spent several hours hearing those appeals, and 13 more appeal applications are on the agenda for the meeting scheduled to take place this month.

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.

Gullett says that the law does not allow board members to vote to overrule the district decision to exempt itself if the exemption is based on a desegregation order. The board is not in a position to determine if the exemption is justified and if the district has already met the standards set by each order. Gullett explained that this means that members spend hours hearing appeals – and they expect the number of appeals on the agenda to grow in the coming months – but without the real power to make any changes.

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.