Let suit continue, takeover foes urge

Attorneys for plaintiffs in the lawsuit challenging the Arkansas Board of Education's Jan. 28 takeover of the Little Rock School District are asking the state Supreme Court to finish a hearing in a lower court.

The attorneys -- representing voters in the school district and three displaced Little Rock School Board members -- filed a brief late Tuesday, saying Pulaski County Circuit Judge Wendell Griffen was right to turn down the state's request to dismiss the lawsuit. The argument lies in whether Education Commissioner Johnny Key has sovereign immunity, which protects the state and its agencies from being named defendants in court.

Arkansas Department of Education attorneys contend Key has that immunity, citing the state's constitution. But the plaintiffs' attorneys allege Key is not immune because state officials did not follow Arkansas law and that the law allowing for state takeover of a school district is unconstitutional.

"The plaintiffs' position is, of course, that the state Board of Education acted outside of its authority in the takeover of the Little Rock School District," one of the plaintiffs' attorneys, Marion Humphrey, said Tuesday. "It acted in an unconstitutional manner. In fact, we believe the statute under which they claim to operate is itself unconstitutional."

The state has 15 days, or until June 10, to respond to the plaintiffs' brief.

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 vote came after 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 plaintiffs initially filed suit against the state Feb. 20, and Griffen had begun a preliminary injunction hearing to weigh on the merits of the takeover. But he stopped the hearing midway as Little Rock's former superintendent, Dexter Suggs, was on the stand testifying, when the state's Supreme Court issued a stay.

If justices for the high court uphold Griffen's decision to deny the state's motion to dismiss the lawsuit, the parties would then finish up the hearing, allowing for Griffen to decide on the legality of the takeover. If the justices don't, the lawsuit would be dismissed.

Attorneys for the Education Department have also asked the Supreme Court to hear arguments on the case.

In written arguments, those attorneys have said the complaint against the state was "fatally lacking the necessary factually support to establish a sovereign immunity exception." The complaint had "many opinions, theories, conclusory allegations, and speculation," but no facts, the argument said.

They have said that state laws on schools and districts in academic distress give the state Education Board broad authority, not limiting language that would address just those in academic distress.

The plaintiffs' lawyers say the law -- Arkansas Code Annotated 6-15-430 -- gives the state Education Board "the absolute, unregulated and undefined power to take a range of actions when dealing with academically distressed schools ... without providing guidance on which option within the range it may choose," court documents say.

Humphrey added that the law is unconstitutional because it gives the state Education Board authority to waive laws except for the Teacher Fair Dismissal Act of 1983 and the Public School Employee Fair Hearing Act.

"This violates Article II, Section 12 of the Arkansas Constitution which provides that no power of suspending or setting aside the law or laws of the State, shall ever be exercised except by the General Assembly," the brief states.

Dianne Curry, a former Little Rock School Board member and plaintiff in the case, said Tuesday that the current leadership -- under Superintendent Baker Kurrus and the state -- doesn't have a plan almost five months after the takeover. Kurrus was appointed as the district's leader after Suggs resigned after allegations from The Blue Hog Report that he plagiarized his doctoral dissertation.

The principal and faculty members at Baseline Elementary, one of the six academically distressed schools, will be reconstituted, meaning all the jobs will be vacated and opened to applicants. An improvement plan has been drafted for the school, and the same "continuous improvement plan" will be used at the other schools needing to improve student achievement, Kurrus has said.

Another former School Board member and plaintiff, Jim Ross, said Tuesday it was heartbreaking that only one of the schools had an improvement plan. The plaintiffs' attorneys and some of the displaced school board members again urged the high court to return the state's largest district to a locally elected board -- one that they said had a plan to fix all schools.

"While we're fighting this battle ... kids are not getting the education they need," Ross said. "Right now is when we should be working. [Johnny Key] ought to right now give our lawyers a call and make this stop so we can get to work."

Metro on 05/27/2015