LITTLE ROCK — Many questions surround a new state school choice law that removes race as a factor in student transfers but exempts school districts that are under desegregation orders, including whether the measure is being implemented properly.
Act 1227, adopted by the Legislature this year, replaces the 1989 Public School Choice Act that a federal district judge in Little Rock struck down last year. The law contained a race restriction on student transfers, which the judge said violated the 14th Amendment guarantee of equal protection under the law. The decision was appealed to 8th Circuit Court of Appeals in St. Louis.
During the recent legislative session, lawmakers decided not to wait for a ruling on the appeal and instead passed Act 1227, which Gov. Mike Beebe signed into law April 16.
Jeremy Lasiter, an attorney for the Education Department, said the agency gets "probably about 10 new questions a day" about the new law.
"We’re still trying to work through all these questions here," Lasiter said.
The state Department of Education has given school districts until Friday to inform the state whether they will implement an opt-out provision of the law during the 2013-2014 school year. The annual opt-out date in the law is listed as April 1, more than two weeks before Beebe signed it. At the end of last week, seven districts — Blytheville, Camden-Fairview, Cutter Morning Star, El Dorado, Hope, Junction City and Lake Hamilton — had notified the state they won’t participate in the school choice program during the next school year. All claim exemptions by being under an active desegregation order or under federal jurisdiction because of past segregation.
One problem, Lasiter said, is that no one is exactly sure how many school districts are under such orders. At a hearing on a school choice bill that failed during the 2011 legislative session, testimony suggested the number could be as high as 48 districts.
"For several years now, at least the last three of four, we’ve been asking, just requesting school districts to send in notice to us about whether they are under a school desegregation order because that applies to a lot of different laws because of school choice. We’ve gotten some, but we know we have not gotten them all," Lasiter said last week.
Along with removing the racial component from a school choice law, Act 1227 also caps the number of transfers to no more than 3 percent of the student population. It bars transfers that would conflict with existing desegregation orders.
It requires annual reports to the House and Senate education committees so lawmakers can monitor student transfers to make sure re-segregation does not occur in some districts.
The new law is set to expire July 1, 2015, to allow lawmakers to review the legislation in light of the 8th Circuit’s eventual ruling.
Lasiter said education officials have struggled with how to calculate the 3 percent cap on student transfers. The percentage is based on a district’s student enrollment the previous school year.
The restriction is a a net cap, he said, "so it takes into account students that you gain and students that you lose."
The law allows the siblings of students who seek transfers to leave their resident school district as well, if they choose.
"That indicates maybe siblings are counted a little bit differently. We’re trying to get our arms around what exactly that means," Lasiter said. "What this is really going to require is some coordination between school districts and their surrounding schools.
"One day you might be at your cap and you might gain two students that afternoon, and so the next day you can take two more. So, because it’s going to be a moving target, it’s going to require some close coordination among school districts."
Chris Heller, attorney for the Little Rock School District who spoke against the school choice bill when it was debated in the Senate and House education committees, questioned whether the department can set a Friday deadline for district to say whether they will opt out because that deadline for this year had already passed when the bill was signed.
The law specifies that school districts must announce plans to opt out of the law by April 1 each year, he said.
"So obviously no district declared an exemption in the time required by the statute, but the state Department of Education has established a new deadline," said Heller.
He said he would expect that "some students who want to transfer into a district which is declaring an exemption this week would raise the issue of whether their transfer can really be prevented by that declaration at this time."
Jess Askew, attorney for the Malvern School District, a party in the school choice case before the 8th Circuit, said last week it should not be difficult to implement the law, which he supports.
"I think the law is very clear," Askew said. "Those districts who are under continuing obligations related to student assignment are exempt, whereas a district that believes that school choice is inconsistent with some other kind of federal order has to make some kind of decision by April 1, and they can’t do that until April 1, 2014. Any other reading of the law is contrary to the plain language of the law."
Lasiter said the May 17 date "is not a new deadline."
"If you look at how the act is set out, you couldn’t really administer this thing in any kind of orderly fashion unless districts actually publicized whether they were going to be under an order that would prevent them from participating," he said.
The department has been receiving calls from school districts inquiring whether another district would be participating or opting out of the new law, he said.
Lasiter said that when school districts call, they are told, "… if you’ve got a desegregation order that would cause you to be exempt, please let us know, let your surrounding district know, just for the purposes of notification, so the people know where they stand," adding that going forward, districts will have until April 1 to declare.
To protect students who have transferred to other districts since last year’s federal court ruling, the Legislature passed House Bill 1294, which became Act 1334 of 2013. Under that law, a student approved for transfer to a non-resident district under a provision of law that is later struck down or repealed are allowed to finish school in the new district, and any present or future sibling could transfer to the district as well.
Last week, , the 8th U.S. Circuit asked attorneys in the school choice case to file briefs by May 22 on how Act 1227 affects the appeal of the 2012 ruling. Askew said the request was not unusual.
"From my reading of that order, the 8th Circuit is concerned about whether the new statute moots any issue in the appeal from the old statute," Askew. "I don’t think that courts live in an ivory tower vacuum. I think they are fairly well situated to know a new law has been adopted and for lawyers and judges it makes all the sense in the world to ask what effect the new law may have on the current lawsuit."