OPEN ENROLLMENT SCHOOL DISTRICT TRANSFERS MAY NOT BE DENIED BECAUSE OF APPLICANT'S RACE, ATTORNEY GENERAL J.B. VAN HOLLEN HOLDS IN FORMAL OPINION
Thursday, December 20, 2007
Van Hollen Says Wisconsin Statute Directing School Boards To Reject School District Transfer Applications That Would Increase Racial Imbalance Violates Constitutional Equal Protection Guarantee
MADISON - A state statute that requires school districts to deny an open enrollment school district transfer application if the transfer would increase racial imbalance "cannot be applied in a manner consistent with the equal protection guarantee of the United States Constitution." That is the conclusion of Wisconsin Attorney General J.B. Van Hollen in a formal opinion issued today. The practical holding of the opinion is that open enrollment transfer applications may not be denied because of an applicant's race.
The formal opinion is in response to a request to the Attorney General by Deputy State Superintendent Anthony S. Evers for a legal opinion analyzing the constitutionality of Section 118.51(7) of the Wisconsin Statutes in light of last summer's United States Supreme Court decision Parents Involved in Community Schools, et al. v. Seattle School Dist. No. 1, et al., 127 S. Ct. 2738 (June 28, 2007). Section 118.51(7)(a) directs school districts eligible for Chapter 220 aid to "reject any application for transfer into or out of the school district if the transfer would increase racial imbalance in the school district." In Parents Involved in Community Schools v. v. Seattle School Dist. No. 1, the United States Supreme Court analyzed school assignment plans in public school districts serving Seattle and Louisville. Applied to each district, the Supreme Court held that those school district plans, which treated students differently based on their race in an attempt to achieve racial balance, were unconstitutional because the plans violated the equal protection clause.
Van Hollen's opinion analyzes the application of the statute and concludes that "the effect of section 118.51(7)(a) upon an otherwise eligible open enrollment applicant who resides in or applies to a school district eligible for Chapter 220 aid is to make the applicant's racial classification the determining factor in whether the applicant will be permitted to transfer to fill an available space in the receiving district." Applying Supreme Court precedent, the opinion reasons that the "transfer limitation in section 118.51(7)(a) has all the essential features of the Louisville school assignment policy invalidated in the Seattle School District No. 1 case." Thus, the opinion concludes that "the portion of section 118.51(7)(a) that requires a school district eligible for Chapter 220 aid to reject an open enrollment application if the requested transfer into or out of the school district would increase the district's racial imbalance is inconsistent with the equal protection guarantee of the United States Constitution."
Legislation has been introduced in the State Assembly which would repeal the section of the statute's the Attorney General has determined is incapable of being constitutionally applied. See http://www.legis.state.wi.us/2007/data/AB-517.pdf
The opinion is the fourth formal opinion issued by the Attorney General this year. Though Wisconsin courts do not have an obligation to follow an interpretation provided in an Attorney General Opinion, they often will. As the Wisconsin Court of Appeals has written, "Well-reasoned attorney general's opinions have persuasive value when a court later addresses the meaning of the same statute."
The Attorney General's Opinion
The Request from the Department of Public Instruction
Formal and informal opinions issued by Attorney General Van Hollen are available at http://www.doj.state.wi.us/ag/opinions/opinions.asp.
