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The return of 'Freedom of Choice' 

A federal court in El Dorado soon will decide if unalloyed "Freedom of Choice" may be legal state policy, even when it encourages school segregation.

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

The districts, represented by the Allen Roberts Law Firm in Camden, say a 2017 Arkansas law that gives the state Board of Education control is unconstitutional.

Arkansas adopted a law allowing interdistrict school transfers in 1989 as long as they had no harmful racial impact. But law began changing the landscape, with a notable push from the "school choice" lobby led by Walton Family Foundation. 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 was made harder and it reserved final judgment for the state Board of Education.

In March, the state board refused to allow the three school districts to opt out.

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 and block desegregation of Central High School.

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 districts' orders were entered because transfers with racial impact were barred by law. Now the districts ask that their court orders be modified to reflect the changed circumstances.

The districts argue that the state's preference for "school choice" over all other factors is unwise, as abundant evidence still shows the effect of past discrimination in education in Arkansas.

The districts have some powerful numbers to share. In Hope, about 50 percent black, 68 of 69 transfer requests are from white students, mostly hoping to attend the 99 percent white Spring Hill School District. In Lafayette County, 61 percent black, all 42 potential transfers would go to Spring Hill or the 84 percent white Emerson-Taylor-Bradley District. In Camden-Fairview, 13 students, all white, would leave the 60 percent black district for 82 percent white Smackover-Norphlet.

Comments the districts' legal briefs: "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 state has accepted opt-outs only from Jacksonville-North Pulaski, El Dorado, Hot Springs and three small districts linked to Hot Springs in a desegregation case. At the same time, it is encouraging segregation by class and race through charter schools, the end of regulation of home schooling and a new private school voucher program.

A federal court win for the three districts won't alter the bigger picture, a product of the political clout of the Walton forces. Their leading public representative, Gary Newton, has been issuing a steady stream of criticism of the districts trying to prevent resegregation of their districts in court. Newton's organization is a tax-exempt lobbying group for the choice agenda whose major backer is the Walton Family Foundation, a driving force for privatization of the Little Rock School District. He makes $237,000 a year in pay and perks, according to a 2016 tax filing, thanks to the Waltons and an assortment of other Arkansas millionaires. His money is funneled through Arkansans for Education Reform, which also paid more than $205,000 in 2016 to Laurie Lee's Trace Strategies political group, another player in the "choice" movement. Her company recently was both a contributor and beneficiary of independent campaign expenditures to elect several Republican lawmakers friendly to the Walton school agenda.

There's a historical element in the effort to bring the Hope School District to heel. John Walker, the famous civil rights lawyer, went to a segregated high school in Hope. Hope landed in court after "Freedom of Choice" failed to desegregate the schools. There and elsewhere, often through the work of Walker, all students finally became entitled to equal opportunity in Arkansas.

Whatever the failures in producing equal outcomes (and the more we separate students by class the harder that will be to achieve) separate isn't equal. Not then. Not now.

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