LITTLE ROCK — The constitutional challenge to a state enrollment law that bans any transfer that would lead to more racially segregated schools is headed to trial after a federal judge on Wednesday set a November court date.
While the state prepares to defend the 1989 School Choice Act and its race restrictions, state lawmakers are working on amending the law in light of the federal challenge.
"We basically made the decision we're going to have to make some changes in our law," said Sen. Jimmy Jeffress, D-Crossett, chairman of the Senate Education Committee. "At this point, we're still working on what they're going to be."
Parents of roughly 50 white students in Hot Spring County are suing the state Board of Education and five school districts, hoping to strike down the race provisions that have thwarted their children from legally attending the mostly white schools of their choice.
The parents live within theboundaries of the Malvern School District, with a black student body of about 34 percent. Over the years, though, the parents have illegally sent their children to nearby districts where the white student enrollment exceeds 90 percent.
The act says school districts cannot permit transfers that "adversely affect the desegregation of either district," and it outlines specific formulas to be used in calculating the racial balance and what constitutes further segregation.
Those restrictions are a violation of students' civil rights, the parents are arguing in the lawsuit that was filed in U.S. District Court in Hot Springs in October. Attorneys for the parents point to recent U.S. Supreme Court decisions that restrict race-based enrollment decisions.
But some attorneys said theydon't think the recent rulings apply to the school choice statute. One reason is because the law does not require results based upon race but rather considers racial balance during studentinitiated transfers.
"That's just designed to keep white flight from impacting school districts," said Donn Mixon, attorney for the Jonesboro School District, which is not a party to the lawsuit. Mixon, like education officials across the state, is watching the case closely, knowing changes to the law could mean dramatic enrollment shifts.
Attorney General Dustin Mc-Daniel's office plans to defend the act on behalf of the state Board of Education, which was added as a defendant earlier this month.
"We still intend to defend the law to the best we can," said Chief Deputy Attorney General Justin Allen, who declined to give specifics on why he thinks the law meets constitutional muster.
Despite his contention the law is constitutional, Allen said it's "probably a good idea" for lawmakers to change it during this session. And he says his office will consult with legislators onany proposed changes.
Jeffress said he's in favor of giving families some freedom in choosing schools but said he thinks it's in the best interest of districts to carefully control it.
"School choice without any restraints, that would, I think, tend to serve to resegregate the schools in most of Arkansas," he said. "I don't think you'd find anyone in this legislative body who thinks we need to resegregate the schools."
The parents originally sued only the Malvern School District after it began a campaign to round up students who lived in the district but were attending school elsewhere. The school hired private investigators to identify those students and a law firm that sent parents letters threatening criminal penalties for violating enrollment laws.
Until then, the students had been attending nearby schools unchallenged, though parents admitted to using false addresses.
Later, attorneys for the parents switched legal tactics and added to the lawsuit the education board and the mostly white school systems where they wanted their children to attend: Ouachita, Glen Rose, Magnet Cove and Bismarck school districts.
Some of the students, especially 10th-, 11th- and 12th-graders who were actively involvedin their schools, have become depressed after being uprooted in the middle of the school year, said Andi Davis, a Hot Springs attorney representing the parents.
"The kids are pretty heartbroken," she said.
She said the trial being set for the fall means it will be too late for students to legally leave Malvern schools if they prevail in their case.
The trial before U.S. District Court Judge Robert. T. Dawson is scheduled for Nov. 30.
Arkansas, Pages 7, 12 on 01/22/2009