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Little Rock schools ruling appealed

Education chief, board immune from suit, state tells court by Rachel Herzog | June 4, 2021 at 7:10 a.m.
Great Seal of Arkansas in a court room in Washington County. Thursday, June 21, 2018,

Attorneys for the state and for a group of parents and educators made their arguments to the state Supreme Court on Wednesday over whether Arkansas Education Commissioner Johnny Key and the state Board of Education can be sued for imposing restrictions on the Little Rock School District after five years of state control.

In March 2020, lawyers Ross Noland and Clarke Tucker filed a lawsuit accusing Key and the seven-member board of violating open-government laws by failing to publicly vet the criteria that the district and its schools needed to demonstrate in order to be released from state control. Tucker, a Democratic state senator from Little Rock, withdrew from the case in January when he took office.

Senior Assistant Attorney General Kat Hodge-Guest, who is representing Key and the board, appealed to the high court Pulaski County Circuit Judge Mary McGowan's denial of her motion to dismiss the case. Hodge-Guest argued in her motion to dismiss the case that the state defendants are entitled to sovereign immunity because none of the state's actions are "unlawful, ultra vires, or arbitrary and capricious."

The state took over the district in January 2015, citing chronically low test scores in six academically distressed campuses in the 48-school district, with Key acting as the school board. In late 2019, the state Education Board voted to return the district to local governance after the election of a new board in fall 2020, but there are some restrictions on that board until the district can exit from the Level 5-Intensive Support category of the state's school district accountability system.

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Hodge-Guest told the justices Thursday that while providing students with an adequate public education is a collaboration between the state and the local government, if the local government cannot bear that burden, then the state is required to act. She added that the district has failed to demonstrate that it met the criteria necessary to exit Level 5.

"In fact, it is never a rational basis to defer solely to local control if the ending result would be an inadequate education for Arkansas schoolchildren," she said.

Some justices were openly critical of the state's approach.

"What you just mentioned is the state has been in control for five years but yet we're still at a Level 5 need. What do you contend that the Little Rock School District has to prove here? The state apparently hasn't done its job well," Justice Courtney Rae Hudson said.

Hodge-Guest said the key question is whether the state Education Board acted within its statutory authority and she cited the state Supreme Court's 2013 decision in Fitzgiven v. Dorey, which states in part that the General Assembly saw fit to give the state Education Board and the Arkansas Department of Education broad authority in addressing deficiencies in Arkansas' public school districts.

Hudson cited the high court's 2020 decision in Harris v. Hutchinson. The opinion, which she wrote, states that sovereign immunity is inapplicable in a suit seeking declaratory or injunctive relief in alleging an illegal, unconstitutional or ultra vires act, which is what the plaintiffs in the case are arguing, she said.

Hodge-Guest said the actions the state has taken aren't an unconstitutional use of its authority, because the precedent "gives the state the authority to take any action to remedy a deficiency" and urged the justices to dismiss the case with prejudice. If the justices dismiss the case wth prejudice, the plaintiffs aren't allowed to file another suit on the same matter.

Justice Robin Wynne asked about the restrictions on the Little Rock School Board the state has in place, which include prohibiting the board from recognizing the Little Rock Education Association as a sole contract bargaining agent for the employees or altering the recently established Personnel Policy Committees that serve as advisory organizations on employee-related issues; instituting litigation; and changing the superintendent.

"How did they assist the local entity in making these improvements? Because it obviously hasn't worked," Wynne said.

Noland asked the justices to deny the state's motion to dismiss the case on basis of sovereign immunity and return it to circuit court. He said the state chose to unilaterally create exit criteria rather than going through a rule-making process.

Under state law, if a public school district has not demonstrated to the state Education Board and to the Division of Elementary and Secondary Education that it meets the criteria to exit Level 5 within five years of the state takeover, the state board shall annex, consolidate or reconstitute the public school district. Statute also gives the state board the authority to promulgate rules to establish the criteria a public school district must meet to exit Level 5.

Noland said state law doesn't define what it means to reconstitute a district, nor do departmental rules.

"Our contention is that there is a very specific list of things that the state can do to control a local school district, and nowhere in this law is there permission or statutory authority to impose guardrails on a district after five years," he said.

Justice Rhonda Wood said she believed that the law is silent on whether the state board is allowed to place those limits.

"You're just asking us to read it your way," she said.

Noland said the state's reading of the statute amounts to "indefinite control of local districts without the involvement of the Legislature or new laws," which he said was an unconstitutional delegation of power.

"Exit criteria require a rule-making process, including public notice and comment, the involvement of the community that is impacted by these decisions," he said.

Justice Shawn Womack said he believed all education issues have operated under the "constitutional umbrella" of adequacy since the Supreme Court's landmark Lake View School District v. Huckabee decision in the early 2000s.

"These arguments feel like pre-Lake View arguments," Womack said, adding that the state has carried the burden of making sure a constitutional system of education is applied since then.

The opening arguments, questions and rebuttal lasted about an hour, after which the court conducted its closed-door case conference. A date for a decision wasn't announced.

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