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