Legal proceedings are underway in federal court in El Dorado that could decide whether Arkansas may legally assist resegregation of Arkansas public schools.

Three school districts — Hope, Camden Fairview and Lafayette County — are challenging a state decision that the districts can’t opt out of the state school choice law, even though they have ongoing federal desegregation cases and even though the transfers demonstrably will promote white flight and resegregation of public schools.

The districts, represented by the Allen Roberts Law Firm in Camden, want a federal judge to rule that their court desegregation cases and segregative impact of transfers allow them to opt out. It further asks for a declaration that a 2017 Arkansas law that gives the state Board of Education control is unconstitutional.

Arkansas adopted a law allowing interdistrict school transfers in 1989, but it specifically prohibited transfers that harmed desegregation in either district. But court cases and state law began changing the landscape, with a notable push from the “school choice” lobby led by the considerable dollars of the Walton Family Foundation. The law changes removed prohibition of transfers on account of racial impact.  In 2015, the law said districts had to prove they remained under an active federal court desegregation order to opt out. Then, in 2017, the standard of proof of an existing case was made harder and it reserved final judgment for the state Board of Education.

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In March, the state Board refused to allow the three school districts now in court and Junction City to opt out. The Roberts firm represents Junction City, too, and it may eventually file a protest, but currently focuses on the other three. Camden Fairview has a partial opt-out for transfers to one nearby district, but not all.

The state decision is an “unconstitutional usurpation” of judicial authority, the districts argue. The districts say that the case is “eerily similar” to the 1958 landmark case, Cooper v. Aaron, that said the state could not usurp the authority of federal courts. That case cleared the way for desegregation of Central High School, opposed in segregationist law and Arkansas constitution. Says the legal pleading: “The Arkansas General Assembly cannot through the 2017 Act vest the ADE with authority to interpret federal court desegregation orders. Nor can the General Assembly assign itself the authority to amend or alter binding federal court orders …”

The state refusal of these districts is based on the assertion that court orders in their cases didn’t specifically bar interdistrict transfers. The court had no need to do this at the time the orders were entered because such transfers were barred by law. Now the districts ask that their court orders be modified to reflect the changed circumstances.

“The state has given ‘school choice’ a prime position regardless of its consequences. That is an unwise policy in a state where the data demonstrate that there are in fact substantial present effects of past invidious discrimination in the structure and delivery of K-12 education.”

The districts have some powerful numbers to share.

Hope in 2017-18 had an enrollment of 2,247, 45.5 percent of whom were black. It educates virtually all black children in Hempstead County. It has 68 requests for interdistrict transfers next year to the 99 percent white Spring Hill School District. 67 of them are white.  ADDITION TO ORIGINAL POST: One black and one white asked to transfer to Nashville. (The state no longer checks race on transfer requests; for what appear to me to be obvious reasons.)

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Lafayette County, with 583 students, is 61 percent black. It has transfer requests for next year (counting a lenient state interpretation of a sibling preference rule) that would send 42 students, all of them white, to either Spring Hill, 99 percent white, or Emerson-Taylor-Bradley, 84 percent white.

Camden-Fairview, with 2,477 students, 60 percent of them black, has requests for transfer of 13 students, all white, primarily to the Smackover-Norphlet district, which is 82 percent white.

Comments the districts’ legal briefs: “Just as a person is held to have intended all of the natural and probable consequences of his intentional conduct, so is the state of Arkansas. … At present, the state intends to have free and unrestricted movement of students between districts .. Put simply, the state, through the General Assembly, the Arkansas Department of Education and the state Board of Education is trying to recreate a 1960s vintage ‘freedom of choice’ system, whether it is constitutional or not.”

The deadline for approving school transfers is July 1 and parties in this case hope for speedy consideration by the federal court.  The larger circumstance won’t go away whatever the outcome. Arkansas is encouraging segregation by class and race through charter schools and school transfer law, aided by financial and political support from the wealthiest people in Arkansas. That won’t stop even if a handful of districts are protected. Jacksonville-North Pulaski, El Dorado and Hot Springs and three of its neighboring school districts currently enjoy protection from the transfer law to the disgruntlement of the Waltons’ chief mouthpiece.

I was drawn to check on the progress of this case by Tweets from Gary Newton, commonly described as a school choice advocate in daily newspaper accounts. He is  paid lobbyist for the Walton Family Foundation and its agenda, work that includes frequent attacks on the state-run Little Rock School District and the segregationists’ bete noire, civil rights lawyer John Walker. Examples:

According to a 2016 tax filing, the most recent available, the Walton Foundation is the primary financial underwriter of Arkansas Learns.  From the Walton Foundation money (with help from Murphy, Dillard and Walton family members), Newton was paid $237,000 in salary and benefits in the most recent year for which records are available. Arkansas Learns also doled out significant sums to promote its agenda to Trace Strategies, the political agency run by Laurie Lee that turned up recently as a contributor and beneficiary of independent campaign spending in support of candidates friendly to the Walton school agenda.

A word about John Walker. There’s a touch of irony in the criticism heaped on Walker by Newton for joining the Hope case. Walker is a native of Hope. He attended a segregated high school, which stayed segregated after “freedom of choice” ensued, as the architects of the scheme expected. Federal courts eventually insured there and elsewhere in Arkansas, thanks often to John Walker, equal education opportunity. Whatever the failures in producing equal outcomes, I don’t accept the argument that a return to the old separate system is an improvement. Will the courts step into the breach one more time?

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Here’s Whitney Moore’s brief on the Hope District argument for a comprehensive look at the history and legal issues in this case.