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Judge Invalidates Arkansas Choice Law Over Race Provision

A federal district judge has struck down a 23-year-old Arkansas public school choice law because some student transfers between districts are barred on the basis of race.

The Arkansas Public School Choice Act of 1989 was designed to give parents more options for their children by permitting interdistrict transfers of students. But in a state with a lengthy history of desegregation challenges, and with many districts still under court supervision at that time, the statute contained provisions meant to prevent such transfers from harming desegregation efforts in either the sending or receiving district.

The main such provision is that no student may transfer to a district where the percentage of enrollment for that student's race would exceed that proportion in the student's home district. (The state passed a separate school choice law in 2004 designed to foster transfers away from underperforming schools, and it amended that law in 2011 to soften race considerations in such transfers.)

The law was challenged by two white families who had sought to transfer their children from the Malvern school district, where enrollment in the 2010-11 school year was 60 percent white, to the Magnet Cove district, which was 95 percent white. The Magnet Cove district denied the transfers, and the Arkansas state board of education, citing the provisions of the school choice law, upheld the denials.

The families challenged the consideration of race in that way as a violation of the equal-protection clause of the 14th Amendment.

The state argued that there is no right to transfer guaranteed by the choice law, only a right to an equitable education.

In his June 8 decision in Teague v. Arkansas Board of Education, Senior U.S. District Judge Robert T. Dawson of Fort Smith, Ark., took note of the state's complicated history of desegregation efforts. And he noted that the state continues to fund desegregation efforts in two districts, Little Rock and Pulaski County, while many other districts are also under court supervision.

But the judge said neither the Malvern nor Magnet Cove districts appear to be operating under court orders for desegregation.

"The state must employ a more nuanced, individualized evaluation of school and student needs, which, while they may include race as one component, may not base enrollment or transfer options solely on race," Judge Dawson said.

The plaintiffs had hoped for the judge to strike down only the race provision and an order requiring the Magnet Cove district to accept their children.

But the judge said that because the race provision could not be severed from the rest of the school choice law, he had no choice but to strike down the entire law as a violation of the equal-protection clause.

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