Appeals court asked to allow school transfers

LITTLE ROCK — Attorneys for parents who challenged the state’s School Choice Act asked a federal appeals court Monday to allow their children and others to attend schools outside of their home districts despite a racial restriction in the law barring such transfers.

U.S. District Judge Robert Dawson previously ruled that racial restriction unconstitutional, saying it used race too broadly as a factor.

He threw out the entire 1989 law, which allows students to freely transfer between districts, after he determined the racial restriction couldn’t be severed without disturbing lawmakers’ original intent.

Dawson later stayed his decision, suspending its application until a panel of judges at the 8th U.S. Circuit Court of Appeals in St. Louis can consider appeals.

Under Dawson’s stay, the racial restriction also will remain in place.

That restriction forbids a student from transferring “to a nonresident district where the percentage of enrollment for the student’s race exceeds that percentage in the student’s resident district.”

The plaintiffs’ children, who are white, were previously denied transfer from the 2,094-student Malvern School District, which is 60 percent white, to the 636-student Magnet Cove School District, which is 95 percent white, under the racial restriction.

Their attorney, Andi Davis, asked the 8th U.S. Circuit Court of Appeals on Monday evening to amend Dawson’s stay, allowing the decision to strike down the racial provision to stand while keeping the rest of the transfer law in effect.

The racial restriction “violates the Fourteenth Amendment [to the U.S. Constitution],” she wrote. “It should not stand for one moment longer. The district court’s stay order breathes new life into [the restriction] and allows unconstitutional discrimination to continue unabated.”

The Arkansas attorney general’s office, representing defendants the Arkansas Department of Education and the state Board of Education, has said the racial restriction cannot be severed from the law.

Intervening school districts in El Dorado and Camden Fairview have said leaving the law in place without the racial restriction could allow for “near immediate” resegregation of some rural districts in the southern part of the state.