Under the full-time open enrollment program, the Department of Public Instruction is required to determine a per-pupil transfer amount, based on the statewide average of selected costs categories. The 2006-07 per-pupil amount was approximately $5,900. Legislative Fiscal Bureau, Interdistrict Public School Open Enrollment (Informational Paper 30, January 2007) (“LFB Informational Paper 30”) at 5. Basically, a school district’s equalization aid is increased or decreased by an amount equal to the per-pupil transfer amount multiplied by the school district’s net gain or loss of pupils under the open enrollment program. LFB Informational Paper 30 at 5-6. The state aid adjustments resulting from the open enrollment program are not considered in determining a school district’s revenue limits. Thus, if a district has a net gain of students, the aid payment is not included in the district’s revenue limit; i.e., the payment represents an amount that the district can spend over and above its revenue limit. However, if a district has a net loss of students, it may not increase the tax levy to compensate for the loss of state aid. LFB Informational Paper 30 at 6.
Seattle School Dist. No. 1 case: facts and legal principles. On June 28, 2007, the Supreme Court decided Seattle School Dist. No. 1, 127 S. Ct. 2738. The Court reviewed school assignment plans in the public school districts that serve Seattle, Washington and Louisville, Kentucky. Specifically, a group of parents alleged that the Seattle district’s use of race as a factor to determine the assignment of ninth graders to the district’s ten high schools violated equal protection. Id. at 2747-48. In the second case, the parent of a Louisville student challenged on equal protection grounds the Louisville district’s use of race to assign elementary school students to schools in the district, and the Louisville district’s policy that disallowed requests to transfer from an assigned school to a different school where the transfer would have an adverse effect on the racial balance of either school. Id. at 2749-50. In the Louisville case, the school district was operating under a student assignment plan it adopted in 2001, which required all non-magnet schools to maintain a minimum black enrollment of 15% and a maximum black enrollment of 50%. The district as a whole is approximately 34% black, and 66% white. Id. at 2749. Louisville’s plan was adopted after a federal district court in 2000 dissolved a desegregation decree that had been in effect since 1975, after concluding that the district had eliminated the vestiges of its prior segregation policy to the greatest extent practicable. Id. In August 2002, Meredith Crystal moved into the school district and sought to enroll her son Joshua in kindergarten at Breckenridge-Franklin, the school that Joshua would normally attend because of the location of his new residence. BreckenridgeFranklin was only a mile from his new home, but had no space available for Joshua. The Louisville district assigned Joshua to another school in the cluster of schools to which Breckenridge-Franklin belonged, Young Elementary. Young Elementary was ten miles away from Joshua’s new home. Joshua’s mother applied to transfer Joshua to a school in a different cluster, Bloom Elementary—which, like Breckenridge-Franklin, was only a mile from his home. Transfers between schools in different clusters was permitted under Louisville’s policy, and space was available at Bloom Elementary, but Joshua’s transfer request was denied because the transfer would have an adverse effect on desegregation compliance. Id. at 2750.
The Court began its discussion of the Seattle and Louisville school assignment plans by observing that “when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny,” id. at 2751, because “racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” Id. at 2752 (internal quotations omitted). To satisfy the “strict scrutiny” standard, each school district had the burden to demonstrate that its use of individual racial classifications in its school assignment plan was “narrowly tailored” to achieve a “compelling” government interest. Id.
The Court first considered the policy justifications offered by the school districts for their plans, in light of the two interests that the Court had previously qualified as “compelling.” The Court acknowledged that remedying the effects of past intentional discrimination was a compelling governmental interest, but concluded that neither school district could rely on that justification for its school assignment program. Seattle had never segregated its schools by law, and the district was never subject to a court-ordered desegregation decree. And although Louisville had operated segregated schools and was subject to a desegregation decree for many years, that decree was dissolved in 2000 because the district court found that the district had eliminated the effects of its past discrimination. Id. at 2752.
The Court acknowledged that it had also held that the interest in diversity in higher education was a compelling governmental interest, but noted that the diversity interest there was not focused on race alone, but encompassed all factors that contributed to student body diversity. Id. at 2753. In the higher education cases, the elements of the desired diversity were so broad that the educational institution conducted an individualized review of each application. Id. Without addressing whether that same kind of interest in diversity was compelling in the context of public elementary and secondary education, the Court determined that in both the Seattle and Louisville plans,
[R]ace is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints”; . . . race, for some students, is determinative standing alone. . . . [U]nder each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter [v. Bollinger, 539 U.S. 306 (2003)]; it is the factor. Id. (internal citation omitted, emphasis in original). In addition, the Court was critical of the “limited notion of [racial] diversity” in the Seattle and Louisville policies. Id. at 2754. The Seattle plan viewed the racial categories of its students exclusively in terms of “white/nonwhite,” and Louisville categorized its students simply as “black/other.” Id. The Court observed that “[w]e are a Nation not of black and white alone, but one teeming with divergent communities knitted together with various traditions and carried forth, above all, by individuals.” Id., quoting Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 610 (1990) (O’Connor, J., dissenting). As an example of the limited concept of racial diversity reflected in the districts’ plans, the Court observed that “under the Seattle plan, a school with 50 percent Asian-American students and 50 percent white students but no African-American, NativeAmerican, or Latino students would qualify as balanced, while a school with 30 percent AsianAmerican, 25 percent African-American, 25 percent Latino, and 20 percent white students would not.” Id. The Court rejected the districts’ arguments that the “diversity” interest they sought to achieve by their school assignment plans justified the means they chose to achieve that end; i.e., assigning a racial classification to each student and making school assignments on the basis of each student’s race. Id. at 2751-55, 2759-61. The four-Justice plurality and Justice Kennedy reached that conclusion for different reasons, however. The plurality rejected the proposition that a school assignment plan designed to approximate in each school the racial demographics of the community could ever state a compelling government interest. Id. at 2755-59. The plurality found authority for that view in the Court’s earlier cases, e.g., Freeman v. Pitts, 503 U.S. 467, 494 (1992) (“[r]acial balance is not to be achieved for its own sake”); Regents of University of California v. Bakke, 438 U.S. 265, 307 (1978) (opinion of Powell, J.) (“If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected . . . as facially invalid”); Grutter v. Bollinger, 539 U.S. 306, 330 (2003) (“outright racial balancing” is “patently unconstitutional”). Seattle School Dist. No. 1, 127 S. Ct. at 2757 (plurality opinion). Justice Kennedy agreed with the general conclusion that the two school districts before the Court had not demonstrated that the racial classifications they used were narrowly-tailored to achieve the districts’ governmental interest in diversity, and focused on the districts’ failure to “establish, in detail, how decisions based on an individual student’s race are made in a challenged governmental program.” Id. at 2789 (Kennedy, J., concurring). However, Justice Kennedy rejected the plurality’s position that diversity could never be a compelling educational goal, id. at 2790-91, and left open the possibility that, upon “a showing of necessity not made here, [the government might be permitted] . . . to classify every student on the basis of race and to assign each of them to schools based on that classification.” Id. at 2797 (Kennedy, J., concurring). A majority of the members of the Court agree that public school districts have a compelling interest in achieving a racially diverse student population. Seattle School Dist. No. 1, 127 S. Ct. at 2796-97 (Kennedy, J., concurring); Id. at 2820-23 (Breyer, J., dissenting, joined by Justices Stevens, Souter, and Ginsburg). A different majority of the members of the Court conclude that binary racial classifications of the sort employed by Seattle and Louisville are not narrowly tailored to achieve that interest, because the districts’ definitions of diversity are too narrowly drawn, id. at 2753-54 (plurality), 2790-91 (Kennedy, J., concurring), and because the use of race as a factor in the districts’ decisionmaking, when race comes into play, is the sole determinant of the decision. Id. at 2273-54 (plurality), 2797 (Kennedy, J., concurring).
Application of Seattle School Dist. No. 1 decision to section 118.51(7)(a). Section 118.51(7)(a) limits the ability of some students to participate in the open enrollment program if the school district into which or out of which they want to transfer is a district that is eligible to participate in the Chapter 220 integration aid program. The statute directs the school board of the Chapter 220-eligible district to “reject any application for transfer into or out of the school district . . . if the transfer would increase racial imbalance in the school district.” Sec. 118.51(7)(a), Wis. Stats. “Racial imbalance in the school district” is not defined in subchapter VI of chapter 121. Since the purpose of Chapter 220 aid is to encourage transfers between school districts to “promote cultural and racial integration in education,” chapter 220, section 1, Laws of 1975, and since Chapter 220 aid is available only for interdistrict transfers of minority group and nonminority group students that satisfy the conditions set by the Legislature, it is reasonable to infer that the Legislature intended that “racial imbalance” would be defined by reference to the circumstances under which state aid is available. Chapter 220 aid is paid for an interdistrict transfer, and “racial imbalance” exists, where a minority group pupil transfers from an attendance area in the student’s district of residence where minority group pupils comprise 30% or more of the enrollment of the school that serves the attendance area to a school in an attendance area in another district which has less than a 30% minority enrollment. Sec. 121.85(2)(a)1., Wis. Stats. Similarly, Chapter 220 aid is paid for an interdistrict transfer, and “racial imbalance” exists, where a nonminority group pupil transfers from an attendance area in the student’s district of residence where nonminority group pupils comprise less than 30% of the school’s enrollment to a school in an attendance area in another district which has a minority enrollment of 30% or more. Sec. 121.85(2)(a)2., Wis. Stats. Although the focus of “racial imbalance” in subchapter VI of chapter 121 is on the minority and nonminority group enrollment at the school that serves an attendance area in the affected sending or receiving school district, the focus of the “racial imbalance” addressed by section 118.51(7)(a) is on the school district as a whole. Thus, an open enrollment request to attend a particular school in a district eligible for Chapter 220 aid might decrease the racial imbalance of that school’s enrollment because the racial composition of the student body is substantially different than the racial composition of the student body of the entire district, but increase the overall racial imbalance of the district as a whole. In such a case, section 118.51(7)(a) would require the school board to deny the open enrollment application. 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 minority group student to transfer into that district through open enrollment. If a nonminority group member sought to transfer into that district through open enrollment, however, section 118.51(7)(a) would not prohibit the transfer. Similarly, racial imbalance in a school district eligible for Chapter 220 aid that already had a district-wide minority group enrollment of less than 30% would increase if the school board were to allow a nonminority group student to transfer into that district through open enrollment. If a minority group member sought to transfer into that district through open enrollment, however, section 118.51(7)(a) would not prohibit the transfer. 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
