LITTLE ROCK — A testy exchange during a Senate committee hearing last week illustrates the sensitivity of the school choice issue in a state still trying to move beyond its history of racially separate public education.
The exchange followed a lawyer’s suggestion that, if a certain school choice bill becomes law in Arkansas, a judge could conclude that the Legislature’s intent was a return to segregated schools.
"Do you really think the court or anybody here would believe that (the) intention of anyone on this committee is to do something with the intent of leading to segregation?" asked Sen. Jim Hendren, R-Gravette, a member of the Senate Education Committee.
"Yes I do," replied Alan Roberts, a lawyer for two southern Arkansas school districts that intervened unsuccessfully in a lawsuit that resulted in the state’s 23-year-old school choice law being overturned.
"I think, to be honest, that is a cheap shot," Hendren charged. "I think that all of us would agree that none of us want to go to a segregated school system. That’s not what we’re saying, and I think for you to say that is a complete misunderstanding of what we’re trying to do with school choice.
"It’s not about separating blacks from whites, or leading to a school system like it was decades ago" the senator continued. "It’s about trying to make a decision that is best for everybody without regard for race."
Roberts said he agreed with Hendren and understood the committee’s dilemma, but he added, "The point is that it will have the result of creating racially identifiable schools."
The committee has spent nearly four hours over two meetings this session hearing testimony and discussing two proposals offered to address last year’s ruling by U.S. District Judge Robert T. Dawson that a race-based provision in the 1989 Arkansas Public School Choice Act violates the 14th Amendment to the Constitution, which guarantees equal protection under the law.
Dawson sided with parents living in the Malvern School District who challenged the school choice law after the Malvern district cited its desegregation provision in warning them to return their children enrolled in mostly white surrounding districts.
The ruling was appealed to the 8th U.S. Circuit Court of Appeals in St. Louis, where oral augments were heard in January.
The bills before the committee — no votes have been taken on either — are Senate Bill 65 by Sen. Johnny Key, R-Mountain Home, and SB 114 by Sen. Joyce Elliott, D-Little Rock.
SB 65 would remove race as a factor in deciding whether students can transfer between school districts.
SB 114 would keep racial desegregation as a goal, but not a mandate, and would allow school districts to opt out of school choice if they believe it would result in resegregation. It would rewrite the school choice law with a set of guidelines for school districts and school boards to use when considering a student’s request to transfer between districts.
A third measure, House Bill 1507 by Rep. Kim Hammer, R-Benton, also lists a number of guidelines for districts to consider. It stipulates that neither of the districts can have a population of any single minority race of more than 10 percent of its total student population. If the percentage is more than 10 percent, the percentage of enrollment for the transfer student’s race in the receiving district must be less than the percentage in the previous school.
HB 1507 is to be considered Tuesday by the House Education Committee.
Before the Senate education panel last week, Assistant Attorney General Scott Richardson urged the committee to hold off any vote on either SB 65 or 114 until the 8th Circuit rules on the appeal, which he said could be this summer or early fall.
Several school district superintendents also urged the panel wait.
Gov. Mike Beebe would prefer lawmakers wait, spokesman Matt DeCample, adding the governor understands the desire by the Legislature to address the issue but fears that any legislation adopted before the appeals court rules might have to be reviewed after the decision.
"I think you can see what all these bills are attempting to do, and in a vacuum you can probably see merits in all of them. But with the unknown still hanging over our head from the court decision, it’s tough to take any steps because anything we do now could be undone in a couple of months by the court," DeCample said.
Key and Elliott said last week they were unsure when they might seek a vote on their bills. They also planned to discuss developing a compromise proposal.
"We’re probably going to have some discussion to figure out if there is a way we can move forward and not have conflicting bills," Elliott said.
"I think that would be great if we could come together," Key said. "I’m hoping that our ideas aren’t so far apart that we couldn’t do that. If that was possible, I’d be open to it."
While discussing his bill before the Senate committee last week, Key said he has faith in the parents of school-age children in the state to do what is best for their children when it comes to choosing a school for them. He also said he does not think the Legislature needs to wait until the 8th Circuit rules.
"My goodness, we can get into a situation where we’re waiting on some judge or group of judges to rule and never get to the public policy decision," he said. "I don’t think that’s the way we should approach this."
Key likened the school choice issue to Old Testament stories in which God punishes a person’s second and third generation for his sins.
"The sins of the General Assemblies of the past in segregating, purposely, our schools have led us still yet to this point where we’re having to make this a part of our conversation," Key said. "I’m hoping that by the time the third and fourth generation comes along, it’s not even a debate, not even a point of consideration. We have tried to put provisions in this bill to deal with those previous situations of (segregation)"
Key said SB 65 "puts parents in the driver’s seat" when it comes to where their children attend school.
Bob Watson, superintendent of the El Dorado School District, and Jerry Guess, state-appointed superintendent of the Pulaski County Special School District, have each testified twice before the Senate Education Committee and both have said schools would resegregate with an open school choice law if there are no provision to protect that from happening.
"I wish I could tell you that there is a month that goes by that I have not had the request, ‘Mr. Watson, I want to go to one of the neighboring districts and I want to go where the population is white,’" he told the committee in February. "I even had one (parent) say to me, ‘either you are going to have to make that classroom white or I’m leaving.’"
What’s important that "we have some form of competitive environment and have some form of restriction," Watson said in support of SB 114. "I am encouraging (you) to take a close look at it."
Guess said "free and unrestricted choice would result in rapid and complete segregation of schools in Ouachita County, where I served most of my time."
Testifying in favor of SB 114, University of Arkansas law professor Mark Killenbeck acknowledged that school choice is a policy matter that must be made by the Legislature.
"Choice should be informed by educational considerations of the individual," Killenbeck said. "SB 114 makes that particular distinction. It is in fact an advance over the 1989 act in terms of any assumption that you’re going to create what we might call constructive competition.
"The bottom line … anything you do with regard to choice has to take into account both, the potential for undermining enforceable orders from a federal court, a state court or a federal administrative agency, and the problem posed when private acts of choice with discriminatory intent or discrimination are possible."
SB 114 would provide an educationally sound approach that takes into consideration all the things that have been litigated and "all of the things of which you are justifiably concerned," he said.
Elliott noted that her bill specifically states that any school district currently involved in a racial desegregation lawsuit is excluded. It also recognizes "an obvious potential" that school choice could lead to resegregation and admonished districts to be vigilant to avoid that from occurring.