Originally published in The American Prospect on September 15th, 2015.
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In 2013, a group of white parents in northeast Arkansas tried to transfer their children out of the predominately black Blytheville School District. Like many low-income, majority-black districts, Blytheville’s schools are struggling: state officials recently labeled two of its schools as “academically distressed.”

That same year, the Arkansas state legislature passed a law allowing students to transfer between school districts, unless their local district still had a federal order to desegregate. Blytheville said it was indeed still under federal mandate, and thus the white parents could not transfer their children out. The parents sued, arguing that Blytheville’s desegregation order had ended decades ago, and that they had a constitutional right to switch districts. In 2014, a district court dismissed the case,and on August 31^st, the Eighth U.S. Circuit Court of Appeals upheld the lower court’s decision, ruling that the Constitution doesn’t guarantee public school choice. On September 11^th, the plaintiffs filed a petition for rehearing.

Whether or not the parents prevail, the Blytheville legal battle reveals a lot about the confused state of school desegregation six decades after Brown v. Board. While the appellate judges focused on whether the plaintiffs’ claims were matters of constitutional import, they sidestepped on whether Blytheville is, or isn’t, still under federal desegregation. That question will surely be litigated in the future, but as it turns out, it’s a surprisingly difficult one to answer, and not just for Blytheville.

In hundreds of cities nationwide, parents, school officials, and even legal experts have struggled to figure out exactly where districts once under federal desegregation now stand. Decades of bad record keeping and lax federal oversight have significantly undercut the power of court-ordered desegregation, and a growing movement around school choice has made the policy discussions around structural racism even that much more complex.

IN 1989, ARKANSAS passed a school choice law that permitted students to transfer to neighboring districts, depending on their race. “No student may transfer to a nonresident district where the percentage of enrollment for the student’s race exceeds the percentage in the student’s resident district,” the law stated. It was an attempt to both promote school choice while also prevent the resegregation of Arkansas public schools. But in 2012, a federal court ruled the statute unconstitutional under the Fourteenth Amendment. The Public School Choice Act of 2013, passed to replace the 1989 law, allowed students to transfer between districts regardless of race, but placed several new restrictions on transfers. Legislators said that transfers could not result in a net enrollment change of more than 3 percent for each district, and that districts still under federal desegregation can be exempted from the law.

During the 2013-2014 school year, 23 districts, among them Blytheville, claimed exemption from the new Public School Choice Act, out of a total of 232. To claim exemption, districts just had to notify the Arkansas Department of Education that it planned to do so. “There appears to be no process in place for validation of these exemptions, theoretically allowing any district, regardless of history of desegregation, to claim an exemption,” University of Arkansas researchers wrote in a 2013 report. They found that six of the 23 exempted districts did not even cite a specific court case when they notified the state Department of Education. And some cases that districts did cite raised questions of legitimacy or relevancy. Attorneys representing the Blytheville parents, for example, argue that the school district inappropriately cites Brown v. Board of Education, a local desegregation order that was dismissed in 1978, and a voting rights case from 1996.

“State officials, reluctant to tread on the ground of federal litigation, refuse to challenge these claims,” wrote the attorneys in their petition for rehearing filed last week. “Thus, using old federal cases, districts falsely claim unfinished desegregation obligations to nullify state education policy and rights. Citizens cannot intervene in those closed cases to stop this farce.”

I was surprised to hear that Arkansas state officials could not validate districts’ requests for exemption by referring to a comprehensive list of schools still under federal desegregation. Surely this all must be tracked somewhere? But upon further investigation, I learned that determining which districts are still under federal order turns out to be a far messier and legally murky process than I initially understood.

A report published in 2007 by the U.S. Civil Rights Commission found that as of May 2007, the United States remained party to 266 lawsuits with active court-ordered desegregation mandates. “There are, of course, many more such cases to which the United States is not a party, but no comprehensive list of these cases currently exists,” the authors wrote. “Moreover, many cases were initiated in the late 1960s and early 1970s and the original players have either moved on or in some cases passed away. In such instances, not even the school districts understand the scope of the court orders that bind them and little reliable information exists that can provide a complete picture as to the nature of ongoing court-ordered desegregation.”

I reached out to Sean Reardon, a Stanford sociologist who has been tracking the impacts of school districts released from court-ordered desegregation, to learn more about why people can’t seem to agree on whether districts are still under federal mandate.

He said that when researching whether districts were still, or had ever been, under federal desegregation, he and his colleagues learned it was a harder question to answer than they had originally expected. “We’d call up people at school districts and sometimes we’d talk to them, and we’d talk to the lawyer, or the central office administrator, or the secretary, whoever would answer questions, and sometimes even the legal office didn’t seem to really know the answer,” he said. Nikole Hannah-Jones, a journalist, cited similar issues in a 2014 ProPublica investigation, finding that, “officials in scores of school districts do not know the status of their desegregation orders, have never read them, or erroneously believe that orders have been ended.”

With the passage of time, poor record keeping, and a lack of consistent court oversight, many districts had nobody left who really remembered, or cared, what their legal obligations were. “Districts seemed unable to tell us if they were under a court order more often than you would think, or different people would say different things,” Reardon said.

Poor record keeping helps explain some confusion, perhaps even for many of the 23 Arkansas districts that claimed exemption, but it didn’t quite clarify what’s going on with Blytheville—where attorneys do point to a specific case, Franklin v. Board of Directors of Blytheville School Dist. No. 5, as evidence that the district is no longer under federal desegregation. A district judge dismissed Blytheville’s court order in 1978, without appeal. So what exactly is there to debate here?

“There’s also a fuzziness about what it means to be ‘released’,” said Reardon, largely thanks to judicial developments in the early ‘90s. In its Board of Education of Oklahoma City v. Dowell decision, reached in 1991, the Supreme Court created the concept of “unitary status”—a designation that could be applied to districts found to have complied with desegregation orders “in good faith.” Unitary status meant districts could be released once and for all from court oversight, even if resegregation was likely. And one year later, the justices ruled in Freeman v. Pitts, that districts could be released from desegregation in phases, rather than all at once.

“I’ve never gotten a clear understanding of what it means to be ‘unitary.’ I think it’s a slippery concept, it’s harder to nail down,” said Reardon. “I can imagine, based on the people I’ve talked to in different districts that there could be cases where people think they’d been released and some people think they weren’t because they were relying on different criteria and different definitions.”

Blytheville was released from desegregation before the concept of unitary status came about, and this seems to be at the crux of the contemporary legal dispute. In December 2014, U.S. District Judge Kristine G. Baker found Blytheville to still be under desegregation and wrote, “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.” In other words, the judge said that without a unitary status designation, Blytheville can’t consider itself released from its desegregation mandate.

BLYTHEVILLE-SPECIFIC QUESTIONS aside, Arkansas legislators are still left trying to craft fair and equitable school choice policies. The 2013 law was updated this year, and the new version requires school districts that seek exemptions to “submit proof from a federal court” that they are entitled to one.

But issues still remain. “Districts must show documentation in the new law, but it’s not actually that effective because no one sorted out what it means to have documentation,” said Gary Ritter, a professor of education policy at the University of Arkansas. “People are still citing Brown v. Board.”

Open-enrollment advocates argue that school choice increases healthy competition between districts, and creates more equitable opportunities for disadvantaged students. They also believe that school choice allows more families to access schools that fit their particular needs.

Critics worry that school choice policies will disproportionately hurt low-income students and racial minorities, since the more advantaged students with the means and ability to leave struggling districts are more likely to do so. Social science researchers have found that segregation and school choice policies are often closely linked. When Minnesota instituted an open-enrollment program in 1988, researchers found that it led to increased segregation, as more white students left racially diverse districts to attend predominately white ones

So far, this has not been a major issue in Arkansas. A University of Arkansas policy brief published in February found there to be “very little change in the percent white enrollment due to school choice” since the 2013 law was enacted.

Open-enrollment advocates also note that however well-intentioned, the current law effectively denies choice to students who attend some of the lowest-performing schools in the state—those who might benefit the most from leaving. Exempted districts have a higher proportion of ethnic and racial minorities, have more students eligible for free or reduced lunch, and have lower student achievement and graduation rates, on average, than non-exempt districts.

However, Arkansas does not guarantee free transportation for all students traveling between districts, which suggests that even if no districts were exempt, low-income students whose parents could not afford to transport them to and from school each day would still be less likely to benefit from interdistrict school choice.

Ritter thinks that the state will have to ultimately be clearer about what qualifies as a meaningful reason for exemption. “We have lawyers at the Arkansas Department of Education (ADE). I get that there is some gray area about what exactly constitutes desegregation, but in my view, the ADE should come up with a set of rules, apply those set of rules, and generate a list. And maybe it needs to go to a court and the judges need to figure out if that’s a reasonable set of rules, but I imagine that would be better than go through all this ambiguity.”

The political and legal questions that Arkansas is wrestling with mirror the broad tensions that school districts throughout the country face: how to promote school choice without fostering racial segregation—admirable, but often incongruous goals.