During the session, the Arkansas General Assembly passed Act 1227, the Public School Choice Act of 2013, which allows for open school choice with two main limitations. First, it allows school districts to declare an exemption if the district is subject to a desegregation order or mandate of a federal court of agency remedying the effects of past racial segregation. This decision is left entirely to the school districts, with no real approval necessary from state education officials. There’s increasing discussion about how broad this provision really is. It can be argued, at least in my opinion, that every district in the state could declare an exemption under this provision. Every school district in the state, or its predecessors, once operated legally segregated schools pursuant to state law, and in turn, every school district is subject to the mandate of Brown v. Board of Education to remedy the effects of that segregation. I don’t think this is what the General Assembly intended, but there’s certainly an argument to be made. Several school districts have already declared such an exemption.
Second, the Act caps the number of transfers outside of the school district, less any transfers into the district, to no more than 3% of the school district’s third-quarter average daily membership for the preceding school year. Current transfers under the old school choice law are specifically not voided by the new law, and are to be considered transfers under the new law going forward. There’s no mention about what happens if current transfers under the old law already surpass the 3% cap. I don’t know if this is potentially a problem for any school district.
In addition, the Act repealed the old school choice law, which was challenged by students seeking to transfer out of the Malvern School District and was declared unconstitutional by Judge Dawson last year. Both parties cross-appealed to the Eighth Circuit Court of Appeals, and just last week, the Eighth Circuit asked for supplemental briefing from the parties, intervenors, and interested amici about whether the case is moot or if the voluntary cessation doctrine applies, in light of the legislature’s repeal of the law. Courts don’t issue advisory opinions, and in this case, because the state has voluntarily stopped operating under the law at issue, I think there’s a very good chance the Eighth Circuit will rule that the case is moot and avoid issuing a ruling on the merits. Either way, transfers will proceed next year under the new law, with the applications for new transfers, June 1, fast approaching. I suspect that in the coming weeks, we’ll see more school districts opt out.