Karen Higgins wants her daughter to start high school at New School for the Arts, which is one of Arizona's new charter schools. The school welcomes her.

But Higgins lives in the Phoenix Union High School District (PUHSD), which operates under a desegregation order and an agreement with the federal Office of Civil Rights. And because of that, Higgins' daughter may not be able to transfer out of the district, even though the incoming freshman has not yet spent so much as one day in a PUHSD school.

"She wants to go to this school and I want her to go to this school. It's the closest to my personal philosophy that I've found," Higgins says. "But, basically, my child cannot go to a charter school."

So much for choice.
Charter school advocates sold their whole program on the notion of providing alternatives to the traditional public school system, especially for those children in urban, inner-city school districts. Now they may be the very students who can't go to a charter school.

It seems that Arizona can make all the laws it wants about charter schools, but the federal government has the final say, at least on the matter of race. And federal desegregation regulations have thrown charter schools a curve ball.

The state earlier this year approved the first 51 charter schools, which, for the most part, operate independently from the public school system, but receive public funding. Attendance at these schools is optional, much like that of private school.

Since its approval by the Legislature last year, the charter school movement in Arizona has swollen fast and is second only to California in number of schools.

But some of the kinks aren't worked out yet.
Basically, charter schools are required to admit any student who wants to attend so long as there is room. But if the school district those children are leaving determines that the move will upset the racial balance, the charter school cannot receive state funds for those children.

Under desegregation law, it matters more which school a student is leaving than where he or she is going. For example, an Anglo student is not likely to be released from a school with a high percentage of minorities nor is a Hispanic student likely to be released from a school with a low number of Hispanic students. In either case, the student's departure would tip the ethnic scales in the wrong direction.

"I think it's wrong to use desegregation orders against minority groups who are trying to improve the education of minority children," says Armando Ruiz, a board member and founder of Esperanza Montessori School, a South Phoenix charter school. "That was never the intent of the law."

There are 33 school districts in Arizona that operate under some kind of court order or agreement for desegregation. Most of them, including Phoenix Union High School, Phoenix Elementary, Roosevelt Elementary and Tucson Unified School districts, are in inner-city areas where charter schools are likely to be most popular.

This also affects students who have never attended a single class in schools with desegregation regulations. In the eyes of the law, once a student graduates from the eighth grade, that student belongs to the high school district in which he or she lives. And most of the high school districts in the Valley operate under some sort of desegregation agreement.

If the school district under order does not release a student to attend a charter school, there is no state funding for that student. And charter schools are prohibited from charging tuition. So there is no way to pay to educate these children at a charter school.

And that brings up yet another unanswered legal question. Does the charter school have to accept the student with or without funding?

William Brammer, a Tucson attorney who handles most of the desegregation issues for Arizona public school districts, says yes.

"I think the charter school is obliged to enroll the student if the student wants to go," he says. "They have initially made a choice to attend a charter school."

The state, however, is still researching the issue.
"No one knew how this was going to play out," says Kathryn Kilroy, who heads up the charter schools division at the Arizona Department of Education. "We've been in contact with Washington, D.C., and OCR [Office of Civil Rights]. We're researching it to find out if there are any other alternatives."

Meanwhile, school is about to start with a lot of kids in limbo about where they will attend. Karen Higgins says she's waiting for a definitive answer. If it's no, she'll pay tuition and send her daughter to private school, where the government has no say.

So far, PUHSD has received 103 applications for transfers to charter schools and has released 23 students. Most of the rest are scheduled for interviews to address a "special problem transfer." But unless they can come up with a compelling problem or a particular hardship, they can't go.

"We will not release kids if it will negatively affect the ethnic balance of their school," says Jim Cummings, a spokesman for Phoenix Union. "We can't."

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