Anniston Middle School is among 78 "failing" schools where students' families will qualify for a state tax credit under the Alabama Accountability Act, state school officials announced Tuesday. But whether any of those families will be able to collect the tax credits remains very much in doubt. Anniston's school board has already voted to close the middle school. Local private schools have said they won't accept a set of scholarships that are linked to the tax credits. Local public schools say court orders in the state's decades-old desegregation case may prohibit Anniston students from transferring. “I will approve no transfers until we’ve cleared this with our attorneys in Lee v. Macon or the Justice Department,” said Joan Frazier, superintendent of Anniston City Schools. Frazier and school leaders across the state had long awaited the release of a list of schools determined to be "failing" by state school officials. Under the Alabama Accountability Act, passed by the Legislature in February, the state will give tax credits of about $3,500 to families with students in "failing" schools -- if they transfer their children to non-failing public schools or enroll them in private schools. List long awaited Just which schools were "failing" remained a matter of debate for months, as lawmakers debated the criteria and ultimately passed a new definition of failing schools in May and granted the Alabama Department of Education the power to interpret those rules. The final list, released Tuesday morning, contained 78 schools, most of them middle or junior high schools, and nearly all of them in high-poverty areas. Anniston Middle was the only school in Calhoun County that made the list. In a webcast press conference, state schools Superintendent Tommy Bice said middle schools may have figured so heavily in the list because they're the only grade span in which all students are tested under the state accountability system. Anniston Middle School Principal Lynwood Hawkins declined comment on the "failing" rating Tuesday, referring all questions to Frazier. Frazier defended the middle school, pointing to state figures that show improvement in test scores over the past six years. In 2007, 46 percent of the school’s students met or exceeded state standards on the Alabama Reading and Math Test. In 2012, 60 percent of students hit that mark. “We fit the same pattern as other schools on the list,” she said, noting that other “failing” schools had shown improvement in students’ scores on the test. A pathway out? Sen. Del Marsh, R-Anniston, the Accountability Act's primary author, said the designation will give Anniston's families a choice. "Many of them will simply choose to remain," he said. "But those who want to move to another school can do that now." Marsh has long promoted the Accountability Act as a pathway out of failing schools for students who are stuck in them. Transferring out of Anniston Middle may not be so easy, though. The school is the city's only middle-grades institution, which means that students hoping to transfer to another school would have to attend a school outside their district. Even if Anniston's desegregation order allows students to transfer out, nearby school systems are bound by orders that keep them from allowing students in, school officials say. “Due to our desegregation order, we will not be accepting transfer students under the Accountability Act at this time,” Calhoun County Superintendent Joe Dyar said. Oxford City Schools is under a similar order, director of student services Roy Bennett said. Jacksonville City Schools Superintendent Jon Campbell didn't cite a court order, but said the city's school board has already agreed not to alter its admissions policy, which limits admission to Jacksonville residents and children of full-time Jacksonville State University employees. He said board members wanted to keep the city's resources focused on its residents. Scholarship dilemma Desegregation orders don't prevent students from leaving for private schools, but it's still not clear the tax credits will be available for those students either. The state Department of Revenue announced Tuesday that the tax credits won't be available to families zoned for failing schools who are already in private schools. The department also announced that the tax credits won't be available if students transfer to private schools that don't accept scholarships created available a separate program set up under Section 9 of the Accountability Act. Section 9 offers tax credits to businesses if they donate to scholarships programs for low-income children. Leaders of three Anniston private schools -- the Donoho School, Faith Christian School and Sacred Heart of Jesus Catholic School -- told The Star earlier this year that they had no plan to accept the Section 9 scholarships. "It takes away our independence when we have to report information to the state like a public school," Jan Hurd, head of the Donoho School, told The Star on Tuesday. Hurd said Section 9 scholarships would require schools to report test grades and other information to the school system. Hurd said she did not know until Tuesday about the ban on tax credits for schools refusing Section 9. She said the school's board of directors had already decided to decline the scholarships, though the issue would be brought up again at a coming board meeting. Attempts to reach the directors of Faith Christian and Sacred Heart were unsuccessful Tuesday. State revenue director Julie Magee said the decision to link the tax credits to Section 9 was simple. The Accountability Act, she said, defines a private school as one that accepts the Section 9 scholarships. "We're just doing what the law says," she said. School to close Anniston Middle School's place on the failing schools list may be short-lived. The city's school board voted earlier this year to close the school, part of a citywide reorganization being done in response to the city's declining enrollment. City officials have also expressed interest in using the middle school site, across from Lowe's onMcClellan Boulevard, for commercial development. School officials have not set a date for the closure, but Frazier said it will likely happen in two or three years. Marsh said that even with the closure, parents of middle-grades kids in Anniston should continue to qualify for the tax credit. He said the change wasn't a true school closure, but just the closure of a building. "If it was failing in one spot, it's failing in the next," he said. Frazier said the change was indeed a school closure, with Cobb Elementary slated for conversion to a junior high for grades 7-9 and the system's sixth-graders expected to be distributed among the city's elementary schools. If Anniston Middle's families do get the tax credit, that credit would expire once they age out of the middle school -- thus becoming zoned for Anniston High School. Anniston High hasn't met state goals on standardized tests for years, but it wasn't on the failing schools list. Marsh said students using the tax credits who aged out of Anniston Middle wouldn't have to go to Anniston High. "They could continue to go, they'd just have to pay the tuition to go to a private school," he said. Marsh has long maintained that the Accountability Act isn’t perfect, but is the start of a system of school choice for the state’s students. “There’s a bridge there, so that if they don’t want to be in the middle school, they can leave,” he said. Capitol & statewide reporter Tim Lockette: 256-294-4193. On Twitter @TLockette_Star.