LITTLE ROCK — A number of white students who have improperly attended small, mostly white schools in Hot Spring County will transfer to the more racially diverse Malvern School District next semester after a ruling Thursday by a federal judge.
U.S. District Judge Robert T. Dawson denied an injunction that parents of at least 45 students were seeking in hopes of keeping their children from being forced to transfer at least until a lawsuit challenging the state's School Choice Act is resolved.
The parents are suing the Malvern School District in federal court in an attempt to invalidate the act - a law that since 1989 has given parentsmore freedom in choosing schools regardless of geography. However, it bans transfers that would lead to further racial segregation. That provision, the parents argue, violates their civil rights.
Thursday's ruling comes after a magistrate who reviewed the case found the parents failed to prove irreparable harm by sending their children to Malvern schools and because they likely don't have legal standing to file the case.
The parents never actually applied for transfer under the act; therefore, they were not wronged by the law, the district's attorneys are arguing.
Possibly a dozen students or more will be forced to transferto Malvern, said Andi Davis, a Hot Springs attorney representing the parents.
Still other parents are opting for private school or homeschooling rather than send their children to a school they argue has academic and discipline problems.
"It would have been nice to let them go back to their school or stay at their school," Davis said about the injunction denial, noting that some students have already transferred.
Malvern's attorneys meanwhile are seeking to have the suit dismissed, saying the district is not the proper entity to sue and that the parents have no legal standing to bring such a case.
Dan Bufford, a Little Rock attorney representing the district, did not return a call seeking comment.
The lawsuit - believed to be the first constitutional challenge to the state's choice law - comes after a U.S. Supreme Court ruling that said school assignments based solely on race were unconstitutional, with few exceptions.
State officials are monitoring the case closely to see what effect there is on the School Choice Act.
A report by the state Bureau of Legislative Research casts doubt on the constitutionality of the race provisions.
They "may not be viewed by a court as being narrowly tailored enough," the report, obtained Thursday by the Arkansas Democrat-Gazette, says.
Researchers offer four ways to change the law:
Repeal the racial-balancing provision.
Use poverty as the determining factor.
Use multiple factors, such as poverty, race and academics.
Cap the number of students who transfer in any one school year.
Sen. Jimmy Jeffress, D-Crossett, who will become chairman of the Senate education committee in January, said he had not yet read the report.
But he said he plans to meet with Attorney General Dustin McDaniel before next year's session to seek guidance in determining whether the transfer rules should be changed.
He said it's important to make sure the law meets federal requirements but it's also important to consider the harm it could cause school districts if students could "transfer anywhere they wish without all the proper reasons and rationale."
"It may be the prudent thing to do is wait and not do anything in Arkansas until the Malvern case is actually heard in court," he said.
Parents in the lawsuit said in court that race played no role in their decision to enroll their children in the Glen Rose, Magnet Cove, Poyen and Ouachita schools, which are between 96 percent and 98 percent white. Malvern's student body, by contrast, is about 61 percent white.
The lawsuit was filed in October after aggressive efforts on the part of Malvern school officials to round up students who were improperly attending school elsewhere.
The district was losing state dollars that are tied to enrollment figures, so newly selected Superintendent Brian Golden hired a law firm to put those families on notice.
Davis, the attorney for the parents, said she is evaluating her legal strategy to try to push the case forward after the court's finding that the parents "likely do not have standing to bring this lawsuit."
Regarding the merits of the case, "we feel great about the lawsuit," she said.
A hearing is scheduled Jan. 5 in Hot Springs.
Arkansas, Pages 15, 18 on 12/19/2008