In addition, racial imbalance in a school district eligible for Chapter 220 aid that already had a district-wide nonminority group enrollment of less than 30% would increase if the school board were to allow a minority group student to transfer out of that district through open enrollment. If a nonminority group member sought to transfer out of that district through open enrollment, however, section 118.51(7)(a) would not prohibit the transfer. Moreover, racial imbalance in a school district eligible for Chapter 220 aid that already had a district-wide minority group enrollment of 30% or more would increase if the school board were to allow a nonminority group student to transfer out of that district through open enrollment. If a minority group member sought to transfer out of the district through open enrollment, however, section 118.51(7)(a) would not prohibit the transfer. As illustrated above, 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 only factor in determining whether the applicant will be permitted to transfer to fill an available space in the receiving district. The transfer limitation in section 118.51(7)(a) has all of the essential features of the Louisville school assignment policy invalidated in the Seattle School Dist. No. 1 case. First, in Louisville, after a student was assigned to a school based on the location of the student’s residence, school district policy allowed the student to request a transfer to a school in a different location, which request could be denied because of a lack of available space or because the transfer would adversely affect the district’s racial balance policy, which required a 15% minimum and 50% maximum black enrollment at the district’s non-magnet schools. 127 S. Ct. at 2749-50. Under Wisconsin’s open enrollment program, a student may request an open enrollment transfer to a different school district, and such requests may be denied because of a lack of space in the receiving district, or for school districts eligible for Chapter 220 aid, because the transfer would increase the racial imbalance of the Chapter 220 district. Second, the Louisville school district defined racial diversity in a binary way; as “black” and “other”—a category that included primarily white students, but also included a small percentage of Asian and non-black Hispanic students. Id. at 2754. Section 121.845(2) similarly employs a binary racial classification system; i.e., nonminority and “minority”—a category that includes black, African American, Hispanic, American Indian, Alaskan native, and persons of Asian or Pacific Island origin. Third, under the Louisville school assignment plan, the race of a student seeking a transfer to another school was not a factor unless the school reached “the extremes of the racial guidelines,” id. at 2749-50; i.e., reached either the 15% minimum or 50% maximum enrollment thresholds. For most of the state’s 425 school districts, race is not a factor in making decisions about open enrollment transfer applications. For residents of the 28 school districts eligible for Chapter 220 interdistrict or intradistrict transfer aid, however, the racial classification (i.e., minority or nonminority) of an otherwise-qualified resident determines whether the school board may approve the application for open enrollment transfer out of the district. In addition, otherwise-qualified residents of school districts not eligible for Chapter 220 aid who apply for open enrollment transfer into one of the 28 Chapter 220-eligible districts can be approved or denied exclusively because of the effect the applicant’s minority or nonminority racial classification would have on the receiving district’s racial imbalance. It is my opinion 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 district would increase the district’s racial imbalance is inconsistent with the equal protection guarantee of the United States Constitution, as those guarantees were applied in the Seattle School Dist. No. 1 case. The binary racial classification system of section 121.845(2) and the provision of section 118.51(7)(a) that conditions the approval of an open enrollment application for transfer into or out of a school district eligible for Chapter 220 aid on the individual applicant’s race are not narrowly tailored to achieve a compelling government interest, under the Court’s holding in the Seattle School Dist. No. 1 case. 127 S. Ct. 2751-54, 2759-61. I note that legislation was recently introduced in the Wisconsin Legislature that would repeal section 118.51(7)(a). 2007 Assembly Bill 517 (introduced October 2, 2007). The history and text of the bill can be located on the Legislature’s website, http://www.legis.state.wi.us/2007/data/AB517hst.html (last accessed December 20, 2007). Because this opinion may have a bearing on legislative action on AB 517, I am sharing it with the bill’s authors and Assembly leadership for their information.
Sincerely,
J.B. Van Hollen
Attorney General
JBVH:BAO:ajw
c: The Honorable Stephen Nass
The Honorable Scott Suder
The Honorable Gary Tauchen
The Honorable John Nygren
The Honorable Garey Bies
The Honorable Robin Vos
The Honorable Eugene Hahn
The Honorable Carol Owens
The Honorable Daniel LeMahieu
The Honorable Jeffrey Mursau
The Honorable Don Pridemore
The Honorable Alvin Ott
The Honorable Suzanne Jeskewitz
The Honorable Sheryl Albers
The Honorable Michael Huebsch
The Honorable James Kreuser
