by Cynthia Howell
Arkansas Democrat-Gazette
September 25, 2011
LITTLE ROCK - The 1989 financial settlement, the magnet schools and the majority-to-minority interdistrict student transfer program — all elements of the long-running Pulaski County school desegregation lawsuit — are unconstitutional and unenforceable, attorneys for a group of public charter schools contend.
Eleven public, open-enrollment charter schools in Pulaski County are asking U.S. District Judge D. Price Marshall Jr. to allow them to become an intervening party in the 28-year-old lawsuit so the group can argue that the 1989 multimillion-dollar settlement between the state and the districts “should be terminated and extinguished in its entirety.”
A team of attorneys headed by former Rep. Mike Wilson, D-Jacksonville, and Jess Askew III of Little Rock filed the motion to intervene earlier this month on behalf of the independently run charter schools.
The attorneys attached to their motion a 34-page draft complaint saying that charter schools “have begun to stanch the flow of families out of public education in Little Rock” and challenging the legality of the settlement agreement, magnet schools and the majority-to-minority student transfer program.
The Little Rock School District “clings to notions of racial quotas and enforcement of the stale, failed 1989 settlement agreement to try to protect itself from competition from open-enrollment public charter schools,” the attorneys said.
They will officially submit the complaint to Marshall if and when the judge allows the charter schools to intervene.
The draft complaint contends that the 1989 settlement and the court-approved agreements that established the six original magnet schools and the majority-to-minority student transfer program contain and/or perpetuate racial quotas that “are unconstitutional, unnecessary and unenforceable.”
The charter school representatives also argue that the settlement, the magnet schools and the majority-tominority program are illegal and not enforceable “because they do not contain any time limit on the racial quotas.”
The arguments raised by the charter school group are the latest in a series of efforts to bring an end to the $70 million a year in state desegregation aid that goes to the three Pulaski County school districts.
The money, which is not available to other Arkansas school districts, is used by the districts for the magnet schools, the majority-tominority transfer program, teacher retirement and health insurance costs, and general operating expenses.
Lawmakers in 2007 took steps to negotiate a phaseout of the state aid, but no agreement was reached. Earlier this year, U.S. District Judge Brian S. Miller relieved the state of its obligation to continue paying most of the desegregation aid.
The school districts appealed that order to the 8th U.S. Circuit Court of Appeals in St. Louis. Oral arguments in the appeal were heard Sept. 19, and a decision is pending but could be several months away.
The charter school motion to intervene comes in response to the Little Rock School District’s May 19, 2010, motion asking the federal court to enforce the terms of the 1989 settlement against the state.
Attorneys for the state’s largest school district argued that the state Board of Education gave unconditional approval to the establishment of charter schools in Pulaski County without regard to their effect on desegregation efforts in the traditional schools and failed to meet other obligations spelled out in the settlement.
An open-enrollment charter school is a taxpayer-supported school run by a nonprofit organization other than a traditional school district. Each charter school operates according to the terms of a contract, or charter, with the state Board of Education.
Charter schools are exempted from some state laws and rules that govern other traditional public schools but, in return for that flexibility, are held to tougher academic achievement requirements.
DRAWING STUDENTS?
The Little Rock district contends that the charter schools draw students who would otherwise choose to attend magnet schools or participate in the majority-to-minority transfer program. The district further argued that more affluent, higher-achieving students move to charter schools, leaving the districts with greater concentrations of high-need students and fewer resources to serve them.
No action was taken on the Little Rock district’s 2010 complaint for more than a year while the court and parties dealt with other issues in the lawsuit, but Marshall recently set up a schedule for the parties to collect evidence.
The judge has scheduled a hearing for next March to determine the next steps.
Askew, Wilson and their attorney team in the draft complaint said charter schools are not parties to the 1989 settlement and are not within the jurisdiction of the court.
They also argue that the charter schools have contracts to operate with the state Board of Education, and the Little Rock district is not entitled to interfere with those contracts. They also say that the operation of the charter schools “doesn’t impair any aspect of the 1989 settlement agreement that may remain viable in 2011.”
The charter school attorneys said they believe that magnet school and student transfer programs are illegal and unenforceable under the federal equal protection clause of the fifth and 14th amendments to the Constitution.
They based much of their arguments for terminating the 1989 settlement, the magnet schools and the transfer program on U.S. Supreme Court decisions in the 2003 Grutter v. Bollinger case regarding admissions to the University of Michigan School of Law and the 2007 Parents Involved in Community Schools v. Seattle School District No. 1.
USE OF QUOTAS
Those decisions restrict the use of racial quotas and require any use of quotas to include termination dates.
The charter school attorneys noted that the Little Rock district has been unitary in all respects since 2007 and said that the Pulaski County Special district should be considered unitary regarding its assignment of students to schools.
While racial balancing and quotas may have been encouraged and permissible in the past, no party in the case contends that race-based student assignments are necessary in 2011 to remedy any constitutional violation, the charter school attorneys said.
Yet the Little Rock district and the attorneys for the black students known as the Joshua intervenors say that the racebased student assignment requirements should “continue unchecked and with no end point,” the charter school attorneys said.
The court-approved agreements on the magnet schools, which are incorporated into the 1989 financial settlement, call for a 50-50 black/nonblack student ratio. Similarly, the majority-to-minority agreement permits student transfers across district lines on the basis of race.
The Grutter decision “made clear that, to be constitutionally permissible, ‘a race-conscious admissions program cannot use a quota system,’” the charter attorneys said.
“ Further, the Supreme Court in Grutter stated that ‘race conscious admissions policies must be limited in time. This ‘assures all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.’”
The charter attorneys said the Supreme Court in the Seattle case “rejected race-based student assignment plans for public elementary and high schools that were far more nuanced and sensitive to the use of race as a factor in student assignments than the crude, binary ‘black/non-black’ and ‘black/white’ classifications used in the M-M and Magnet [court-approved agreements].”
The Jefferson County, Ky., school district — which was reviewed by the Supreme Court as part of the Seattle decision — had remedied the constitutional violations that allowed race-based assignments and, like the Little Rock district, had been declared unitary, the charter attorneys said
The Supreme Court said “any continued use of race must be justified on some other basis.” Additionally, the court said that individual racial classifications in a student assignment plan had to be narrowly tailored to achieve a compelling government interest, according to the charter school attorneys.
Askew and Wilson wrote that in Little Rock there is no compelling government interest to justify a 50/50 racial balance and, even if there was, the district does not use student race in a way that is narrowly tailored to achieve the government interest.
END OF THE MONTH
All the parties in the lawsuit — including the Little Rock School District and the Joshua intervenors — have until the end of this month to weigh in on whether the charter schools should be allowed to intervene.
Chris Heller, an attorney for the Little Rock district, has said it isn’t necessary for the charter school group to intervene because the Arkansas attorney general’s office — which is defending the governor and state Department of Education on the matter — can also represent the charter school interests.
Heller said last week that the circumstances in the Pulaski County desegregation case and the Jefferson County, Ky., and Seattle school cases are different and that the 1989 settlement remains legal and enforceable. In the Pulaski County case, the state has to remedy constitutional violations.
“Their argument is that somehow the case is over, and the only purpose of the case was to bring the districts to unitary status and nothing that the state did or didn’t do really matters,” Heller said in an interview.
“The difference is the settlement doesn’t say anywhere in it that its only purpose is to achieve unitary status and ... it doesn’t say anywhere that the state’s constitutional violations will have been remedied just because the districts reached unitary status,” he said.
Heller said the admissions policy in the Grutter case and the student assignment plans in Seattle and Jefferson County weren’t designed to remedy constitutional violations.
“You can still take race into account and courts do all the time when remedying constitutional violations,” Heller said.
“Seattle had never engaged in a constitutional violation. And all the parties in Louisville [Jefferson County] — it was just a single-district unitary status case in Louisville — had remedied the constitutional violations,” he said.
Heller said Arkansas has never claimed — by filing a motion with the court — or proven that it has remedied its constitutional violations that resulted in racial segregation of students in the three Pulaski County districts.
John Walker, the lead attorney for the Joshua intervenors, was out of the state last week for a trial and did not return a message left for him at his office.
