LITTLE ROCK — The Little Rock School Board voted Thursday to take its legal challenge against state-approved, independently run charter schools in Pulaski County to the 8th U.S. Circuit Court of Appeals in St. Louis.
Acting on the recommendation of its attorney, the board voted 5-2 to appeal U.S. District Judge D. Price Marshall Jr.’s Jan. 17 decision, which rejected the Little Rock district’s claim that the state violated a 1989 desegregation agreement with the three Pulaski County districts when it authorized the establishment of charter schools.
That 1989 agreement obligated the state to make annual desegregation payments to the three districts and otherwise support their desegregation efforts.
Marshall’s order on the charter schools preserves the dozen or so existing charter schools in Pulaski County and clears the way for new ones.
The state and Pulaski County districts committed to support a limited number of special-program magnet schools that are located in Little Rock but are open to students throughout the county, Chris Heller, the district’s attorney, told the board.
“Everyone agreed to that ... and that means you don’t support a competing system [of charter schools] that undermines the magnet schools you agreed to support,” he said.
The district has until Monday to notify the 8th Circuit of the appeal. The written arguments supporting that appeal would be submitted later based on a schedule set by that court.
“Our simple argument is that the state establishing this charter-school system with the vast number of the charter schools being located in Pulaski County ... we think that violates the requirement of the settlement agreement that we all support this system of magnet schools,” Heller said.
“The district court said no. The 8th Circuit Court, in reviewing that, would have the opportunity to say yes without any deference to the district court’s view,” he added.
At the very least, the district, in its appeal, will ask the 8th Circuit Court to direct Marshall to hold a trial on the charter-school issue to develop a complete record of the issues, Heller said.
The district, which is likely be joined in its appeal by the Joshua intervenors, who represent black students in the district, could go further and ask that the 8th Circuit overturn Marshall’s decision and make its own decision about the charter schools and the 1989 settlement.
Marshall’s decision was based on written briefs and the oral arguments that were made in a one-day meeting with attorneys last March. The judge ultimately granted the request for summary judgment that was made by the state attorney general’s office and by the charter school operators who intervened in the legal dispute.
The judge did not hold a trial in which witnesses would testify and offer supporting data.
The 8th Circuit standard for reviewing the case would be “de novo,” Heller said, meaning the appeals court panel “would be free to make its own decision as to whether charter schools violate the settlement agreement.”
That’s in contrast to some other cases where the standard of review is limited to whether a district court judge abused his discretion under the law in making a decision.
In its appeal, the school district will dispute arguments made by attorneys for the state and charter schools, and adopted by Marshall, that charter schools had little effect on magnet school enrollment or participation in the majority-to-minority interdistrict student transfer program.
Heller said the judge considered only the students who went directly from a magnet school to a charter school, but not the overall charter-school enrollment in the county, which totals some 5,000 students.
“All of these 5,000 students have made a choice,” Heller said. “They are exactly the kind of students - students who opted for charter schools - to be the most likely to attend magnet schools or make m-to-m transfers. I think the district court significantly underestimated the impact.”
Heller said he also will argue against Marshall’s finding that the district and the Joshua intervenors waited too long to challenge the charter schools, the first of which opened in 2001. But Heller said a party can’t argue a breached contract until that breach is significant. He also said the district did object to at least nine of the charter schools at the time they were proposed to the state Board of Education for approval.
Heller urged the School Board to appeal in part to receive guidance from the 8th Circuit on whether the district appropriately waited to legally challenge the charter schools.
He said the state’s attorneys are using a similar argument - that the district waited too long to complain about the state’s inaction - in their separate bid to win the state’s release from the 1989 settlement obligations.
School Board President Dianne Curry and board members Michael Nellums, Greg Adams, Norma Johnson and Tommy Branch Jr. voted to appeal the charter-school decision.
Board members Jody Carreiro and Leslie Fisken voted against it.
Adams made the motion to appeal, saying the district needs to be in as strong a position as possible in advocating for the district and that an appeal would help the district in the charter case as well as in the case regarding the state’s release from the 1989 settlement.
Carreiro asked Heller whether the appeal would hinder the opportunity for parties in the desegregation case to attempt to negotiate an end to the case. Heller said the appeal would have the opposite affect. Without the appeal, the district would have to negotiate from a weaker position.
Carreiro said he believes that the district’s case is strong, but he voted against the appeal.
“I feel like that we have lots of distractions,” he said. “If we get all our students educated, then all of this doesn’t matter.”
Fisken agreed, saying the potential for the case to move from the 8th Circuit back to the District Court and possibly back to the appeals court seemed to be “an exhaustive effort when there are so many other things going on.”
Curry said she supported the appeal because “I want the fairness of being heard. If we don’t go forward, we won’t know the possibilities.”
She said the district is obligated to help all students.
“We have a tough task,” Curry said. “Traditional public schools are not like some of the charter schools. The conditions are totally different, and I’m not bashing charter schools. Some are good. A lot of the kids that have opportunities are the ones that have transportation [to charter schools]. Their parents take them to school.
“The point is that poor kids will never have a chance.”
Front Section, Pages 1 on 02/15/2013