"School choice" may appear a rather simple and straight forward concept for Arkansas school districts, but in Blytheville it certainly is not.
Confusion, anger and misinformation has surrounded the Blytheville School Board's (BSD) actions relating to school choice transfers this year.
"I think there is a big misunderstanding that the Blytheville School Board decided to not participate under the 2015 Act. It is really not any choice on our part," said Blytheville School Board Counsel Bobby Coleman.
The only choice the board had was to comply with the law or face the possibility of the district losing state accreditation, he said.
The board's view is it simply followed current state law, federal court orders and various federal mandates imposed upon the district.
"My feeling is that this law [Arkansas Code Annotated §6-18-317 (a)(1)-(2)], combined with this law [Arkansas Public School Choice Act of 2015], states that we're prohibited from granting transfers," Coleman explained.
They are not alone in their opinion.
A letter dated June 30, 2015 sent to the Blytheville School District from Armorel School District states that Armorel rejected 18 new transfer applications to their district from Blytheville School District students wishing to transfer there.
The letter, with names redacted, was obtained by the CN and states in part, "The Armorel School District received 18 new applications for transfer to our district under the Arkansas School Choice Act of 2015.
However, we are aware that the applications for transfer are prohibited under the Public School Choice Act of 2015 (Act 560 of 2015) due to a conflict between the provisions of the Act and the provisions of the Blytheville School District's desegregation court order or plan."
The Gosnell School District, however did accept students requesting transfer as evidenced by a similarly redacted letter from the Gosnell School District dated June 23, 2015.
One must fully understand the historical perspective of not only desegregation, but also past legal proceedings against the Blytheville School District and recent school choice laws in Arkansas to understand why the Blytheville School Board was legally prohibited from participating in choice transfers.
Court orders, state law and federal mandates have taken away all "choice" by the Blytheville School District the school contends.
Segregation in the South
Segregation in the South has been attempted numerous times, using a variety of techniques methods for many years. The "Black Codes" from 1800-1860 were designed specifically to segregate the races and restrict the civil rights and civil liberties of African Americans.
With the conclusion of the American Civil War and once southerners were allowed to replace appointed carpetbagger governments with actual natives of their states, southern politicians successfully returned to a segregated way of life through the "Jim Crow laws".
In 1896, Plessy v. Ferguson, a landmark U.S. Supreme Court decision upheld the constitutionality of state laws that required racial segregation under a doctrine of "separate but equal".
"Separate but equal" remained standard practice for more than another half century.
In 1954 the Supreme Court ruled in Brown v. Board of Education of Topeka, that state laws establishing separate public schools for black and white students were unconstitutional.
They ruled that "separate but equal" violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. Chief Justice Earl Warren wrote the opinion of the Court and said that, "Separate educational facilities are inherently unequal." The Court, anticipating the resistance and purposeful delay of southern school districts, placed within the court order the mandate to desegregate "with all deliberate speed."
Choice System
"All deliberate speed" apparently is not necessarily fast. A new effort across the South was to begin implementing a "choice system" for southern schools. The problem with the "choice system" was that it typically resulted in segregated schools under the guise of choice rather than statute. The Blytheville School District, in fact, was still segregated for all practical purposes in 1971.
Therefore, in 1971, Mrs. Emanuel Franklin, Mrs. Johnetta McKinney and Mrs. Bertha Thigpen sued the Blytheville Board of Education on behalf of their six minor children in Federal Court. The class action lawsuit, known in case law as the Franklin case, sought "injunctive relief enjoining defendant from continuing to operate a dual school system in any and all respects and requiring defendants to implement a totally unitary school system".
This included "covering all facets of school operations, including school administrative staff, administrative personnel within each of the schools, and coaching, band and other quasi-teaching personnel." There were a few other issues involved as well.
On August 19, 1971 U.S. District Judge Garnett Thomas Eisele ruled that Blytheville's new desegregation plan was approved with certain exceptions.
Those exceptions included "The court reserves, for future determination, its ruling with respect to the following: the alleged racial imbalance of the administrative staff; the alleged racial imbalance of faculty assignments in the one school facility of the former Burdette District, which is now incorporated into the Blytheville School District No. 5; the alleged racial imbalance of student and faculty assignments at the Harrison Learning Center in the Blytheville School District NO. 5 with respect to "special education' classes only; the application of the plaintiffs for an award of reasonable attorney's fees and their costs." The order went on further to say, "The Court retains jurisdiction of this case for the purpose of reviewing at a later date those issues specifically reserved herein".
Exhibits attached to the Franklin case, include federal mandate letters dated July 19, 1968 and February 11, 1971 from the Civil Rights Division of the former U.S. Department of Health, Education, and Welfare instructing the school district of changes that must be made in order to comply civil rights law at the time. Another letter, dated June 18, 1971 from the Acting Assistant Attorney General of the Civil Rights Division of the United States Department of Justice was sent informing the Blytheville School District that it's "choice system" had failed and that violated the law. It ordered the district to respond within ten days with a plan that, "ensured that the Blytheville School Board was, without delay, converting to a unitary system and that compliance can be brought about by voluntary means rather than by resort to the coercion of the courts."
Changes Made
Great strides and a plethora of changes were implemented to assure that the Blytheville School District complied with the Franklin order. Blytheville consolidated high schools, middle schools and even elementary schools thereby eliminating the ability to inherently segregate students by school assignment.
Additional minority administration, faculty and coaches were hired to make the balance of employed minorities more equitable. Many of these changes were difficulty, emotional and certainly not seamless. However, the school district did indeed follow through with there plan to make the district a unitary school system. There has not, however, been any court ruling officially declaring Blytheville Schools to have reached unitary status.
"After Franklin, there were no racially identifiable assignments. Neither side seems to have objected. I think everybody sort of agreed that no assignments were made based upon race," Coleman said.
A lawsuit initially filed on October 21, 2008, later to be known as Teague v. Arkansas Board of Education took issue with the Arkansas Public Choice Act of 1989. Arkansas children, between the ages of 5 and 17 were required to attend either public, private, parochial or home school. The general rule in Arkansas was and has been that parents must send their children to public schools in the district in which they live. There have been some exceptions to this rule, such as when one of the parents worked more than half time in another school district than the one they lived in. In that case, the child could attend the school where the parent worked.
However, Act 762 of 1987 [Arkansas Code Annotated § 6-18-317 (a) (1)-(2)] stated in part, "Boards of directors of local school districts are prohibited from granting legal transfers in the following situations: (1) When either the resident or the receiving district is under a desegregation-related court order or has ever been under such a court order; and (2) The transfer in question would negatively affect the racial balance of that district which is or has been under such a court order".
In the Teague case the plaintiffs contented that race-based restrictions on the ability of students to transfer between school districts was unconstitutional. U. S. District Judge Robert T. Dawson agreed and ruled that "To meet the definition of narrowly tailored, a school choice plan must allow for an individualized review of each student to determine if his or her transfer would contribute to the overall goal of the district. A decision to deny transfer cannot be based solely on a student's race and must have consideration of their individual circumstances, otherwise the plan is unconstitutional."
The effect of his ruling may be that the the racial litmus test may be unconstitutional, but the first portion of the law, which states that "boards of directors of local school districts are prohibited from granting legal transfers" if "either the resident or the receiving district is under a desegregation-related court order or has ever been under such a court order" has not been found to be so.
It is still current law and no one disputes whether or not the Blytheville School District has ever been under such an order. In fact, one federal judge has ruled that the district still is under a desegregation order, though not under court supervision.
"Federal District Judge Baker said we are subject to the Franklin order. The 2015 School Choice Act requires us to submit this or suffer the consequences, so Blytheville submitted the order," Coleman added.
Recent Ruling
The U.S. District Judge Kristine G. Baker made the ruling in Adkisson v. Blytheville School District No. 5 on December 2, 2014. Judge Baker ruled that the district was still "under the order" and added, "The Court acknowledges plaintiffs' argument that, for many years after 1978, the BSD did not operate as if it were under a desegregation order or agency mandate. The Court views this as irrelevant to the issue of whether the district court declared, explicitly or implicitly, that the BSD achieved unitary status, and the Court views the district court's lack of a finding of unitary status as controlling."
The Arkansas General Assembly passed the 2013 Public School Choice Act which allowed Blytheville to "opt out" of school choice based upon the Franklin Court Order, but it did not contain any standard "general repealer clause". A standard general repealer clause renders all past laws that are in conflict with the new law (including the 1987 Act which forbids school districts that are or have ever been under a desegregation-related order from allowing transfers) as repealed. Absent a repealer, the old laws are still to be enforced.
Lastly, the Arkansas General Assembly passed the 2015 Public School Choice Act. The new act was supposed to correct the issues, conflicts and loopholes found in the 2013 version, however they still did not include a general repealer. The new Act did, however, include a new provision which further boxed in the Blytheville School Board. The new Act stated, "By January 1, 2016, a school district that is subject to a desegregation order or desegregation-related order shall notify the Department of Education in writing." The Act of 2015 further stipulated that if Blytheville failed to submit the Franklin order to the Department in Education on time, the district would be "in violation of the Standards for Accreditation of Arkansas Public Schools and School Districts."
Therefore, the Blytheville School District was forced by law to submit the Franklin order and federal mandates used as exhibits in the Adkisson case and of which was ruled by U.S. District Judge Baker as still being binding. If the Blytheville School District had failed to do that, it would have been in violation of the Standards for Accreditation. Additionally, the 1987 act, Arkansas Code Annotated § 6-18-317 (a) (1)-(2) prohibits the Blytheville School District from allowing transfers based upon the Franklin order.
thenry@blythevillecourier.com