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
