Based on the open enrollment/desegregation plan, the Board determined that transfer of the students on the waiting list out of the District would adversely affect the District's desegre-gation plan.The District's practice of denying open enrollment applications under the composite ratio portion of its open enrollment/desegregation policy was upheld by Polk County District Court Judge Bergeson in his Ruling on Petition for Judicial Review, AA2432, filed June 1, 1995. Although parents may be denied open enrollment out of the District, they may still open enroll to another school within the District, unless their child attends one of the buildings closed to open enrollment. 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 districts subject to desegregation plans may deny open enrollment if the transfer would negatively impact the desegregation plan, prevails in this case. The Des Moines District had the authority to deny open enrollment to these students, because their transfer out of the District would negatively impact the District's desegregation plan.

The District does not consider parents' reasons for requesting open enrollment. If the parents attach information to the form regarding reasons for requesting open enrollment, the District considers those reasons to determine if the applicant meets the hardship exception contained in the District's open enrollment/desegregation policy. Dr. Jeschke testified that all of the parents had valid reasons for seeking open enrollment, so the random selection process is the fairest way to choose who may leave and who may not. The District's open enrollment/ desegregation policy (Policy Code No. 639) contains a hardship exception. The District interprets this exception narrowly. The Appellants in this case were not considered for hardship exceptions, since none of them attached information. All of the children of the Appellants in this case are nonminority students.. The actions to deny the applications for open enrollment were taken by the Des Moines Board at its meetings on January 20, 1998, February 17, 1998, March 17, 1998, and April 7, 1998. The first part of the District's open enrollment/desegregation policy and plan does not allow nonminority students to exit a particular building if the building's minority population exceeds the District's minority percentage by more than 15 percentage points. The percent of minority students in the District in the 1997-98 school year is 26%.

Any building with a minority population of 41% or greater was closed to open enrollment next year. The buildings closed to open enrollment for the 1998-99 school year were Brooks, Edmunds, King, Perkins, Longfellow, Lovejoy, McKinley, Moulton, Wallace, Harding, and Hiatt. This portion of the District's open enrollment/desegregation policy was upheld by the State Board of Education in In re Shawna and Joshua Barnett, 10 D.o.E. App. Dec. 35, and approved by Judge Bergeson in his Ruling on Petition for Judicial Review, AA2432, filed June 1, 1995, Des Moines Independent Community School District v. Iowa Dept. of Education. The second part of the District's open enrollment/ desegregation policy and plan uses a ratio of minority to nonminority students for the District as a whole to determine when exit of students would adversely affect the District's desegregation plan. During the 1997-98 school year, minority enrollment in the Des Moines District is 26%.This means that for every minority student who open enrolls out of the District, 2.85 non-minority students were granted open enrollment for the 1998-99 school year. Thirteen applications for open enrollment out of the District were submitted by minority students for the 1998-99 school year. 136 applications for open enrollment out of the District for the 1998-99 school year.

The District has a policy which requires that students with siblings who are already open enrolled out of the District be allowed to open enroll first, unless they are from a building closed to open enrollment. If a student will attend a building closed to open enrollment, there is no sibling preference policy. There were nine applicants with siblings who had previously been allowed to open enroll out of the District, who were not from buildings closed to open enrollment, and who were nonminority students .This left 28 positions, and 96 applicants. The District used a computer program to randomly assign numbers to these remaining 96 applicants, with siblings being placed together, and they were placed on a list in numerical order. The first 28 children on the list were allowed to open enroll. The remaining students were placed on a waiting list. Kindergarten students who applied for open enrollment after January 1st were placed at the end of the waiting list, unless they were assigned to a building closed to open enrollment. The waiting list will be used only for the 1998-99 school year. In this case, the parents have important and valid reasons for requesting open enrollment for their children. The Des Moines District has developed before-and-after school care programs, which helps alleviate some problems, but daycare for half-day kindergarten students is not available. The District offers all-day kindergarten, but the number of children served is limited. These parents are genuinely interested in what is best for their children, and are seeking to obtain it by filing for open enrollment.

Segregation of children in public schools solely on the basis of race denies the children of the minority group equal protection of the law guaranteed by the Fourteenth Amendment of the U.S. Constitution, even when the physical facilities and other tangible factors are equal. Brown v. Bd. of Education of Topeka, 347 U.S. 483(1954)(Brown I). Race discrimination in public schools is unconstitutional. Brown v. Board of Education of Topeka, 349 U.S. 294(1955)(Brown II). School authorities have the primary responsibility to recognize, assess, and solve these problems. Id. Some of the parents questioned how transfer of their children could negatively impact the District's desegregation plan, since their children will attend kindergarten next year, and have never attended school in the District. The District uses the entire student population in an attendance area, not just students who actually attend, to make planning and staffing decisions. These students are residents of the District. Iowa Code ?282.1(1997). They are nonminorities. Therefore, the District correctly determined that even though these children have never attended school in the District, their transfers out of the District could negatively impact the District's desegregation plan.

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' request 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.