The Honorable James T. Jordan State Representative Post Office Box 518 Monticello, Arkansas 71655-0518
Dear Representative Jordan:
This is in response to your request for an opinion concerning an issue facing the Monticello School District. Your question is as follows: If a child has one black parent and one white parent, what race should that child be classified as for purposes of evaluating "Freedom of Choice" applications?
In my opinion, this is a decision that must be made by the individual school districts.
By "Freedom of Choice," I will assume you are referring to the "Arkansas Public School Choice Act of 1989," codified at A.C.A. § 6-18-206 (Repl. 1993). The act provides that a student may attend school in a district in which he or she does not reside, provided the transfer of that student would not affect the racial desegregation of either district. Section6-18-206(b)(1)(A) requires the student's parent or guardian to submit an application to the nonresident district. The student must, necessarily, indicate his or her race on the application. You indicate that the Monticello School District is concerned that if the parents are allowed to designate the student's race, then the denial of applications could be circumvented by arbitrarily changing the race designation and resubmitting the application.
As noted in your correspondence, your question is not addressed by statute or caselaw. It is my understanding that the Arkansas Department of Education follows the advice of the Office of Civil Rights ("OCR") of the United States Department of Education in matters pertaining to race classification and the reporting of such information for statistical purposes. The OCR has stated that the method of determining the race of individual students should fall to the individual school districts. This should, in my opinion, also apply to the designation of race for purposes of school choice applications as long as the method is not unreasonable or contrary to constitutional principles. I would suggest that you contact the Arkansas Department of Education regarding further guidance from the OCR or the attorney for the Monticello School District.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Sarah L. James.
Sincerely,
WINSTON BRYANT Attorney General
WB:SLJ/cyh