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Arkansas Desegregation Agreement Outlives the Law It Is Based On

This is a guest post by Evie Blad of Rules for Engagement.

Changes in the legal landscape in recent years around school desegregation have created confusion for some school districts.

A clear example of this has played out in Arkansas, where a group of Garland County districts have asked a federal judge to release them from a desegregation settlement agreement they signed onto in 1991. The problem? That agreement requires the districts to abide by a 1989 state school-transfer law that has since been deemed unconstitutional.

That law, called the Arkansas Public School Choice Act of 1989, required all districts in the Natural State to allow for the free transfer of students between districts regardless of where they reside. But it included a race-based provision that said "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." That law was designed to promote "integrative transfers," which would encourage a more even racial balance across districts and protect against further segregation in some areas, the state argued in defense of the law.

But a judge struck down the law, arguing that it violated white plaintiff families' constitutional rights by relying too broadly on their race as a factor in school assignment decisions. Attorneys for the plaintiffs in the case had based their arguments in part on the U.S. Supreme Court's Decision in Parents Involved in Community Schools v. Seattle School District No. 1, in which the court ruled that race-based student assignment plans must be "narrowly tailored" to meet a compelling state interest.

Under that Supreme Court ruling, more broad use of race in such decisions is only allowed in areas with a history of de jure—or intentional state-sponsored—segregation efforts. Critics of the ruling have argued that it will make it more difficult for districts to voluntarily promote diversity in their schools and that it might serve to undo some progress that has been made since the court's landmark Brown v. Board of Education decision.

So, while the rest of Arkansas' districts are following a new school choice law created by the state legislature in 2013, the Garland County districts have been turning down transfer requests under their own zombie version of the 1989 law. Get it? Not confusing at all, right? 

Six of the seven districts involved in the agreement asked a judge to release them from its provisions Monday, arguing that they entered the agreement voluntarily after two years of litigation and that a court had never "made any finding of fact or conclusion of law that there was illegal interdistrict segregation in the Garland County public schools." The districts' filing cited Parents Involved:

"The alleged existence of intentional discrimination more than twenty years ago cannot serve to justify a racial classification for interdistrict transfers of Garland County school children today. The same is true with any generalized assertion of past intentional racial discrimination across the State of Arkansas or in different areas of the State. There is no shortage of historical examples of intentional racial discrimination in the annals of Arkansas history, but those episodes cannot serve as a compelling interest to support the racial classification system required by the Settlement Agreement today in Garland County schools."

My colleagues wrote about shifts in the courts and progress in public schools in this package commemorating the 50th anniversary of the Brown decision earlier this year. Their stories touched on the history of desegregation and the challenges for district leaders who make good faith efforts to nurture integration and diversity while respecting legal precedents.

As this Arkansas case shows, the path forward isn't always clear.

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