LITTLE ROCK — Four rural, mostly white school districts in Hot Spring County are being asked to defend the race restrictions in a school transfer law that they'd rather see changed.
A group of white parents has sued the districts over the School Choice Act, which forbids the four schools from accepting white students from the racially diverse Malvern district, which they're supposed to attend.
So when the Ouachita, Glen Rose, Magnet Cove and Bismarck districts were named in the federal lawsuit, they offered no defense of the 1989 law.
With that, they've sided withthose who favor more choice in selecting schools and against many racially diverse school systems in urban areas where administrators fear white students will flee if the race provisions are removed.
The divide between various school systems presents a challenge for lawmakers who plan to reconsider the law this session while the parents continue their fight in U.S. District Court in Hot Springs.
On one side, with higher percentages of white students, are the many rural and suburban schools who want to open their doors to anyone who wants to transfer. On the other side, with higher percentages of black students, are more urban schoolssuch as Hope, Jonesboro, El Dorado, Camden-Fairview and Hot Springs, where administrators say they fear "white flight."
"It's hard to please everybody," said Rep. Bill Abernathy, D-Mena, who leads the House Education Committee. "It's going to be difficult to find middle ground."
CONSTITUTIONAL CHALLENGE
Parents of at least 50 white students in Hot Spring County have sued the Ouachita, Glen Rose, Magnet Cove and Bismarck districts along with the state Board of Education and the Malvern School District, claiming the transfer law violates their civil rights.
The parents live within the boundaries of Malvern schools, where roughly one-third of the student body is black, but they want their children to attend the other schools, where the number of white students exceeds 90 percent.
The school choice law bans transfers that "adversely affect the desegregation of either district," and it outlines specific formulas to be used in calculating the racial balance.
The lawsuit points to a 2007 U.S. Supreme Court ruling that restricted race-based enrollment decisions.
But there is no consensus among education attorneys in Arkansas on whether the ruling means Arkansas' law is constitutional. The state attorney general's office plans to defend the law in the Malvern case, which is scheduled for a Nov. 30 trial. Still, lawmakers say they intend to propose changes.
"This is the biggest policy issue, in my opinion, that this state faces this session," said Tom Kimbrell, executive director of a state association that represents school administrators.
FEW USE CHOICE ACT
When lawmakers passed the choice act, they intended to increase competition among schools by freeing parents, to some extent, to pick schools, regardless of where they live.
In the past few years, fewer than 1 percent of students acrossthe state have transferred out of their home districts under the law, according to the Arkansas Department of Education. This school year, 2,718 of the state's 465,801 students took advantage of the law.
There is no way to know how many more would transfer if the race restrictions were removed, and the Department of Education is not studying the matter, a spokesman said.
But Allen Roberts, an attorney for several school districts including El Dorado and Camden Fairview in south Arkansas, says he's convinced that large numbers of white students would leave the more urban schools.
"If students were permitted to go to school wherever they wanted to, at school districts in south and east Arkansas, that would result in total segregation to the education system in that area," he said.
Superintendents at districts that stand to gain more students under loosened rules, however, say race should not be a factor in enrollment decisions.
"The playing field is not level right now," said Nathan Gills, superintendent of the Glen Rose School District, where the student body is about 98 percent white.
The Glen Rose School Board in Hot Spring County even passed a resolution stating their view that the race provisions in the act are unconstitutional.
And when Glen Rose and the other area schools were forced to respond to the federal lawsuit that originally named just Malvern, their attorney simplyoffered that the districts "admit that the race-based provision of the school choice statute is unconstitutional at this time."
In St. Francis County, one district made a bold move this school year to buck the state transfer law and turn a blind eye to the color of the skin of the students seeking transfer.
The Palestine-Wheatley School District in the Delta can't accept more white students from its nearby districts, under the choice act. Its student body is about one-third black, compared with the two other districts in the county where the student bodies are nearly 80 percent black.
But Superintendent Donny Collins said he thinks the act is unconstitutional, so he took a risk and accepted both black and white student transfers.
Enrollment climbed a couple of dozen students to 626, he said.
"You just can't base something on race," Collins said.
The move was both self-preservation - the district risks being shut down and consolidated if it can't keep enrollment numbers up - and a philosophical stance against the race provisions in the act, Collins said.
"Let them go where they want to go," he said.
A COMPROMISE
Kimbrell's group, the Arkansas Association of Educational Administrators, is advocating a compromise between wide-open enrollment and the race-based restrictions.
He argues that schools canlose local support if they don't reflect their communities.
"That's the killer for school districts," Kimbrell said. "When the community becomes less involved, then the more difficult it is to raise student achievement in that district."
So his group will support districts using some factor other than race to restrict transfers. Socioeconomic status, perhaps as defined by the free- and reducedlunch program for poor children, or the academic performance of students could be used instead, he suggested.
"Our association does not support any legislation that would move our schools back to a segregated system, but we also believe there needs to be some form of choice for parents," Kimbrell said.
Roberts, the attorney for several south Arkansas districts, said school officials he has talked to are open to keeping some sort of out-of-district transfer option, "as long as it's got a segregationproof filter on it."
Devising such a "filter" has its challenges.
"It is a very difficult law to write," said Sam Jones, a Little Rock attorney who represents the Pulaski County Special School District in a decades-old federal desegregation case.
He said that after the Supreme Court ruled on the race-based enrollment cases, he called lawyers at national law firms in search of such a "model" law that could be used in Arkansas.
He found none.
Arkansas lawmakers have yet to propose a bill.
Abernathy and Sen. Jimmy Jeffress, D-Crossett, who is chairman of his chamber's Education Committee, say they are in early discussions about how to proceed. Both lawmakers have indicated they'd be in favor of transfer restrictions. Neither could offer specific plans.
"That's a toughie," Abernathy said.
Arkansas, Pages 17, 20 on 01/25/2009