All Appellants timely filed applications for their children to open enroll out of the Des Moines District to attend school elsewhere during the 1998-99 school year.The Appellants' children are among the group of nonminority students deemed ineligible by the District for open enrollment because their transfer would adversely affect the District's desegregation plan. The action to deny the applications for open enrollment was taken by the Des Moines Board at its meeting on January 20, 1998. Two very important interests conflict in this case: the right of parents to choose the school they feel would be best for their children under the open enrollment law, and the requirement that school districts affirmatively act to eliminate segregated schools.

As the parents in this case point out, the open enrollment law gives parents a great deal of choice in the schools their children may attend. Originally enacted in 1989, the open enrollment law was intended to allow parents of students who did not have educational opportunities in one district to transfer to another district. Since then, the law has been amended several times, and has progressively given parents more and more ability to open enroll their children in the schools they prefer. In re Evan Wiseman, 13 D.o.E. App. Dec. 325. Parents may now open enroll their children for any reason, or for no reason at all, unless there is a desegregation plan in place, or unless one of the specific narrow exceptions in the statute exists. In fact, although parents are required to fill out an "application" for open enrollment, the term application is a misnomer, and the sending school district may not deny a timely-filed application, unless the transfer of the student will negatively impact the district's desegregation plan. Id. This is the reason the requirement that parents state a reason for the request on the application was taken out of the statute in 1996. Compare Iowa Code 282.18(2)(1995) with section 282.18(2)(1997).

The District's open enrollment/desegregation policy imposes race-conscious remedies to further its desegregation efforts. Use of race in this manner is not prohibited. Des Moines Independent School District v. Iowa Department of Education, Ruling on Petition for Judicial Review, June 30, 1995.

The circumstances have not changed since Judge Bergeson's Ruling two years ago. The District continues to have buildings with minority percentages more than 20% above District percentages, and the minority population of the Des Moines District remains significantly higher than that of surrounding districts. Therefore, the compelling governmental interest of the District remains, the remedies upheld by Judge Bergeson as substantially related to the important governmental interest are the same, and the District's application of its open enrollment/desegregation policy and plan conforms with the requirements of applicable law.

The question presented is whether the provisions of the statute which provide for parental choice and State Board discretion override that provision which allows a district to deny open enrollment if it finds the transfer would adversely impact the district's desegregation plan. While Judge Bergeson's Ruling seems to indicate they do not, the Judge did not specifically address the question. Last year, the State Board held that they do not. In re Charles Ashley, et al., 14 D.o.E. App. Dec. 123(1997); In re Jesse Bales, et al., 14 D.o.E. App. Dec. 143(1997).Therefore, section 282.18(3), which specifically says that dis-tricts subject to desegregation plans may deny open enrollment if the transfer would negatively impact the desegregation plan, prevails in this case.

That the decision of the Board of Directors of the Des Moines Independent Community School District made on January 20, 1998, which denied the Appellants' requests for open enrollment for their children for the 1998-99 school year, on the grounds the transfers would adversely impact the District's desegregation plan, was affirmed.