In the fall, 78 public schools were rated as failing. Alabama had 719 students transfer to non-failing public schools within their school system, 18 move to public schools in other school systems, and 52 move to private schools.
Katzerman told the judge that city and county school systems can refuse to accept any students from a nearby school system with failing schools. She argued the law provides an incentive for them to do that because they don't want to accept students who might pull down a school's academic achievement and then get it on the failing schools list.
The judge said he has questions about that part of the law, as well as a part of the law that always classifies 6 percent of public schools as failing. He said Alabama could still have failing schools even if every school in Alabama performed above the national average.
The judge also questioned whether the courts should get involved. "Isn't this a policy decision the Legislature is entitled to make? I'm not a superintendent," he said.
He told Katzerman that if he should block the law, he might not be helping her clients get a better education. "That leaves your students exactly where they are now," he said.