Justices asked to hear school case

Attorneys with the Arkansas Department of Education asked the state's highest court Monday to hear arguments on the case involving the state takeover of the Little Rock School District.

The attorneys asked the state Supreme Court justices to dismiss a lawsuit against the education commissioner, arguing that he is entitled to sovereign immunity. Sovereign immunity -- according to the state's constitution -- gives the state and its agencies protection from being named defendants in court.

But lawyers for the plaintiffs -- voters in the school district, along with some recently displaced Little Rock School Board members -- have contended that the commissioner went outside his authority in taking over the entire district. The "capricious" and "arbitrary" action, they said, allows for the lawsuit.

In March, the state Supreme Court stopped a Pulaski County Circuit Court hearing at which Circuit Judge Wendell Griffen was to decide whether to grant a preliminary injunction on the state Board of Education's Jan. 28 decision to take over the Little Rock district and dismiss the elected School Board. At the time the high court intervened, Dexter Suggs -- former interim superintendent for the district -- was testifying on the stand.

The Supreme Court is taking written arguments from both parties. The plaintiffs' attorneys have until May 27 to respond to the state's arguments. They are hoping to file their arguments by next week, attorney Willard Proctor Jr. said Monday. The state has 15 days after that to file its response.

If the Supreme Court dismissed the case, the suit would be over. If not, the hearing on the preliminary injunction before Griffen would continue.

In the written arguments submitted Monday, attorneys with the Education Department said the complaint against the state was "fatally lacking the necessary factual support to establish a sovereign immunity exception."

"In denying appellants' Motion to Dismiss, the Circuit Court appears to have erroneously adopted a plethora of non-factual allegations as fact," the argument states. "Although the Amended Complaint contains many opinions, theories, conclusory allegations, and speculation, none of these carry any weight in the sovereign immunity analysis -- because they are not facts."

Proctor had not reviewed the state's arguments late Monday because he was in court on another matter.

But, he said, a complaint needed only to state what someone believed to be factual. The hearing in Circuit Court would have determined whether the facts met the elements of the claims, he added.

The case is based on the Education Board's 5-4 decision for the state to take charge of the entire 24,800-student district. The Education Board took that route because six of the district's 48 schools were labeled as academically distressed, meaning fewer than 49.5 percent of students at those schools scored at proficient levels on state math and literacy exams during a three-year period.

The six schools -- Baseline Elementary; Cloverdale and Henderson middle schools; and J.A. Fair, Hall and McClellan High schools -- fell below that threshold in 2011-13 and again in 2012-14.

The plaintiffs' attorneys have said state officials overreached in taking over the full district.

The Education Department attorneys, however, say the laws governing schools and districts in academic distress give the Education Board broad authority and do not include "limiting language" that requires the panel to address just those in academic distress.

On Monday, Proctor said he wanted to respond quickly in hopes that the Supreme Court justices would take up the case before their summer recess. The justices have once before denied the plaintiffs' attorneys' request to expedite the hearing.

"There's irreparable harm being done," Proctor said of his rush to file. "They still don't have a plan, and in light of what's happened with Dr. Suggs, the people really need a local School Board. We had a School Board that was working, functioning, trying to get things done."

Proctor was referring to Suggs' recent resignation as interim superintendent amid allegations from The Blue Hog Report that he plagiarized his doctoral dissertation. The resignation, Proctor said, strengthened the plaintiffs' case.

"Look at the decision-making process of the individuals that voted for the takeover," he said. "They chose to take over without a plan and place the school district in the hands of someone who really was a large part of what the problem was."

Suggs had made proposals for the district and some schools, including vacating the staff at Baseline Elementary School and replacing it with a largely bilingual staff, and sending notice to more than 60 administrators that their jobs would be eliminated for the 2016-17 school year.

Education Commissioner Johnny Key has said those plans will not be carried out before he and the Education Board have a chance to hear from the district's Civic Advisory Committee. Key has named Marvin Burton, who was the deputy superintendent at the state's largest district, as an interim leader in Suggs' place.

Metro on 04/28/2015