HOT SPRINGS - The Malvern School District's efforts to round up students who had fled to other districts has prompted a federal lawsuit challenging the state's School Choice Act, a law that since 1989 has given parents more freedom in selecting schools regardless of geography.
Parents of at least 45 white students who live in the Malvern district's boundaries but have been sending their children elsewhere are fighting to invalidate the choice law, arguing it's unconstitutional because it uses race as a factor in limiting which schools students can attend.
The act bans transfers that would "adversely affect the desegregation of either district."
The students in the lawsuit filed last month have not been able to transfer to the schools of their choosing under the act because those schools have an even whiter enrollment than Malvern. Just more than onethird of Malvern's students areblack. Up until this year, parents had found other - even deceitful - ways to send their children out of the district, parents' testimony in U.S. District Court in Hot Springs on Thursday revealed.
During the hearing, the parents tried to persuade the court to grant an injunction to strike down the school choice law - or at least the race provisions - until the outcome of the case. Their hope is the ruling would allow the students to remain, or return to, the schools they had been attending prior to Malvern's challenge to enrollments.
U.S. Magistrate Judge Barry A. Bryant said he expected to make a recommendation on the injunction next week, but it's up to a federal judge in Fort Smith to rule on the matter.
Education officials are closely watching the case, which is believed to be the first constitutional challenge to the act, because it could change completely the criteria schools use in making transfer decisions.The state Department of Education has not taken a position on the lawsuit or wagered what this case could mean for enrollment across the state, said Jeremy Lasiter, the department's attorney.
It is widely thought the Legislature will address school choice when it convenes next year in light of a 2007 U.S. Supreme Court case that restricted the use of race as the sole factor in making school assignments.
Attorneys for the district argued that parents are fighting the wrong battle in suing the district. The district neither created the school choice law nor denied the students' enrollment in other districts under the law.
"What we have here is a situation where those parents are wanting to discuss school choice and bring up school choice and it was not up to [The Malvern School District]," attorney Mary Carole Crane said in an interview. "It's the wrong dog in the hunt."
The district is seeking to have the case dismissed. In the meantime, advocates of efforts to ensure schools remain racially diverse are gearing up to defend the school choice law and the race provisions within it.
Allen Roberts, an attorney for the Camden Fairview School District in south Arkansas, is seeking to formally join the case to defend the law. Two other attorneys representing several other districts, including Jonesboro and Hot Springs, attended Thursday's hearing and said their districts are also considering joining the suit.
Striking down the race considerations would lead to more segregated schools as white parents across the state would choose to move their children out of districts with nigh numbers of blacks, Roberts said in an interview.
"I don't think it," he said, "I know it."
Parents in the Malvern case took legal action after becoming angry over the way the district earlier this year tried to boostenrollment numbers and therefore gain more state dollars. Arkansas guarantees districts a minimum of $5,876 per student.
The district hired private investigators and lawyers to help them root out which parents had lied about their addresses or otherwise violated residency rules. They found an estimated 100 students were improperly attending school outside the district, Malvern Superintendent Brian Golden testified.
Andi Davis, attorney for the parents, said in an interview that the district specifically targeted white students in their enrollment challenges and not black students who had transferred out of district, a claim district officials denied in court testimony and interviews.
Malvern's white student population hovers at 61 percent, whereas the schools that the students in the lawsuit have been attending have far fewer black students. The Ouachita, Poyen, Magnet Cove and Glen Rose school districts are between 96 percent and 98 percent white.
Parents testified that they chose those schools because they are smaller, safer, provide a better education for their children and in some cases are closer to their homes. One mother said she thought she lived in the Magnet Cove school district boundaries and was surprised to find out Malvern was challenging her residency.
Malvern school officials countered that their schoolshave the same disciplinary problems as other schools, offer a variety of college preparatory classes and that white students in some grades score similarly on standardized tests as white students in those nearby districts.
When another Malvern school district attorney, Dan Bufford of Little Rock, asked one parent whether her family's renting a trailer in the Ouachita School District to keep her two children there had anything to do with race, she vehemently denied race was a factor.
"I feel like you're trying to call me a racist," Jenna Jordan told Bufford. She testified that her daughter was improving in special speech classes at Ouachita and that she was concerned about disciplinary problems in Malvern.
Another mother, Julie Hathcock, testified that she lied about her address on enrollment forms to get her daughter into Ouachita schools. She purported to be moving from the Glen Rose area to Ouachita's area, a move that was racially neutral under state law.
Hathcock took a deep breath and said in her defense: "You can't transfer out of Malvern if you're white."
Arkansas, Pages 13, 24 on 11/14/2008