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Published in Print: May 24, 2000, as Judge Overturns South Carolina's Charter School Law

Judge Overturns South Carolina's Charter School Law

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A South Carolina judge has ruled that a racial quota in the state's charter school law renders the entire act unconstitutional, leaving lawmakers scrambling to forge a new plan before the legislative session ends next month.

The 1996 law mandates that a charter school's racial composition cannot differ from that of its host school district by more than 10 percent. That requirement violates the U.S. Constitution, according to a May 8 decision by Circuit Court Judge Jackson V. Gregory, because "it may require the school to use racial discrimination in its admission process."

Furthermore, the judge said the racial-diversity requirement could not be separated from the rest of the state charter school law—so the entire act falls.

The ruling is the latest development in a three-year battle between the Beaufort County school district and backers of the proposed Lighthouse Charter School. The local school board rejected Lighthouse's application for a charter in 1997, mainly due to fears that it would become a white enclave in a district split almost evenly between blacks and whites. ("Racial Makeup at Issue in S.C. Charter Debate," April 30, 1997.)

Similar concerns are driving a heated national debate over whether charter schools, which are publicly financed but operate largely independent of district and state regulations, are contributing to the racial isolation of students by attracting families of predominantly one race or ethnicity. Some studies offer preliminary evidence that this is the case, but there is substantial disagreement about the extent of the problem. ("Accountability Measures Vary Widely," May 17, 2000.)

Last June, the South Carolina Supreme Court ruled in favor of the Beaufort County school board. But the court also said Lighthouse officials were entitled to know whether the state's racial provision was constitutional; the justices sent that issue back to Circuit Court.

Judge Gregory's subsequent all-or-nothing ruling was a bittersweet victory for the state's charter school advocates.

"It's fantastic that we finally got this racial-composition requirement ruled unconstitutional," said Edward T. McMullen, the president of a conservative think tank called the South Carolina Policy Council. "This provision was clearly an impediment created to stop charter schools from opening."

Lighthouse lawyer George E. Mullen was also pleased the racial quota was declared unconstitutional. But he did not want the entire charter school law to be thrown out with it, so he filed a request last week for the court to reconsider that part of its decision.

"The question is whether the act can stand alone without that challenged provision and still meet the intent of the legislature," Mr. Mullen said. "We believe that it clearly can."

John M. Reagle, a lawyer for the Beaufort County school board, disagrees.

"The school district didn't want to be responsible for litigating this issue, but we had taken the position that the racial- composition requirement is not severable from the rest of the act," Mr. Reagle said.

Dueling Bills

All eyes are now on the legislature, where many observers believe a new law must be crafted if South Carolina's fledgling charter school movement is to survive. The state has only eight such schools.

"That's the hammer hanging over everyone's head," said Ronald P. Townsend, a Republican who is the chairman of the House education committee.

But South Carolina's legislature is divided, with Democrats controlling the Senate and Republicans holding the majority in the House. When it comes to the issue of race and charter schools, the two chambers are far apart on a solution.

Legislation passed in the House would eliminate the race quota altogether, which charter school supporters say is the only reasonable approach in light of the court ruling. The Senate's bill, on the other hand, would still require a charter school to come within at least 15 percent of its district's racial composition, rather than 10 percent. It also includes a clause that would allow the racial provision to be severed from the rest of the law.

"There's going to be a big battle over this," Rep. Townsend said last week. "I expect the Senate to maintain their version is more politically correct, but the House is just not interested in having any kind of racial-composition requirement."

Vol. 19, Issue 37, Page 25

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