The Little Rock School District is asking a federal appeals court to reverse a lower court decision that cleared the state of violating a 1989 desegregation agreement when it approved the establishment of nearly a dozen independently run, publicly funded charter schools in Pulaski County.
Attorneys Chris Heller and Clay Fendley for the Little Rock school system argued to a panel of the 8th U.S. Circuit Court of Appeals at St. Louis that the lower court must protect the school desegregation remedy in Pulaski County by imposing conditions on the charter schools to ensure that they don’t adversely affect magnet schools and majority-to-minority inter district student transfer programs.
The inter district student transfer programs were incorporated into the 1989 desegregation agreement between the state and the three Pulaski County school districts to remedy racial segregation in the three Pulaski County school districts.
“LRSD does not seek to ‘bar’ charter schools from Pulaski County,” the attorneys said in a written brief to the appeals court. “LRSD does not expect the district court to order charter schools shuttered. LRSD has simply requested that the district court impose terms and conditions on charter schools as necessary to prevent a negative impact on the M-to-M and magnet programs.”
Those conditions might include requiring the state and charter schools to provide free transportation to the charter schools, the attorneys said, and the use of a weighted lottery system to increase the percentages ofblack students at what the attorneys called “magnet” charter schools that feature special academic programs and are drawing white students and more affluent students away from the traditional school districts.
“These types of terms and conditions will not result in the loss of the State and/or Charter intervenors’ investments,” Heller and Fendley said.
The Little Rock School District filed a federal court challenge in 2010 to the state Board of Education’s approval of charter schools without regard to the effect the new schools would have on the school desegregation programs that the state had committed to support in the 1989 agreement.
U.S. District Judge D. Price Marshall Jr. ruled in January that the establishment of the charter schools did not violate the 1989 settlement.
The judge said the 1989 settlement did not address charter schools, that the charter-school enrollment in Pulaski County has had minimal effect on student participation in the magnet and majority-to-minority student transfer programs and that the Little Rock district waited too long to challenge the charter schools, the first of which opened in 2001.
The Arkansas attorney general’s office and an attorney for the Pulaski County charter schools that intervened in the case are defending Marshall’s ruling at the 8th Circuit.
Aaron Sadler, a spokesman for the attorney general’s office, and Jess Askew III, the attorney for the charter school intervenors, declined to comment Tuesday about the Little Rock district’s written arguments.
The attorney general’s office and the charter school intervenors will submit a response to the 8th Circuit by June 10.
The attorneys for the Little Rock district noted in their 60-page legal brief that the 1989 agreement remains a valid and enforceable contract between the parties, as well as an order of the district court, until the state proves it has complied with it.
And they said the state “is a constitutional violator,” in part because of its past support for segregated schools and neighborhoods.
But instead of taking steps to increase participation in the majority-to-minority and magnet school programs - which lost enrollment while charter-school student counts grew - the state created a competing system of charter schools.
State officials should have obtained district court approval before authorizing the establishment of open-enrollment charter schools in Pulaski County, Heller and Fendley said.
And the judge should have put the burden on the state and charter schools to prove that the charter schools would have no negative effect on the desegregation programs.
The attorneys further argued to the 8th Circuit that the lower-court judge erred in failing to “view the evidence in the light most favorable” to the Little Rock district, and that the evidence presented to the judge should have resulted in a trial on disputed facts rather than the judge’s granting of summary judgment in favor of the state and charter schools.
The attorneys said the judge’s finding in the January order that the 1989 settlement contains no bar against charter schools “fatally infects” the court’s entire decision.
“The state had a duty to more than ‘not interfere materially’ with the remedy it agreed to,” Heller and Fendley said. “The state had a duty to ‘promote’ the interdistrict remedy, including working to increase participation in the M-to-M and magnet programs.”
Magnet schools - six in Little Rock - offer special programs to attract a 50-50 racial mix of students to a school that would be difficult to desegregate.
The majority-to-minority transfer program permits students to transfer from a Pulaski County district in which their race is in the majority to a district and school in the county where their race is in the minority.
Arkansas, Pages 9 on 05/15/2013