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LEARNS Act is not yet in effect, judge decides

by Cynthia Howell | May 27, 2023 at 7:37 a.m.
Gov. Sarah Huckabee Sanders' speaks at her signing of the Arkansas LEARNS Act at the state Capitol on Wednesday, March 8, 2023. On her right is state Secretary of the Department of Education Jacob Oliva, who also spoke at the signing. (Arkansas Democrat-Gazette/Stephen Swofford)

The LEARNS Act championed by Gov. Sarah Huckabee Sanders and passed by the Arkansas General Assembly earlier this year is not yet in effect and, as a result, the state Board of Education has no authority to enter into a "transformation contract" for the operation of the Marvell-Elaine School District, Pulaski County Circuit Judge Herbert Wright said Friday.

"Defendants are enjoined from implementing or enforcing any aspect of the Arkansas LEARNS Act, Act 237 of 2023, until such date that it becomes law," ruled Wright in a 10-page order in which he said lawmakers did not properly attach an emergency clause to the newly passed act, nor did the facts stated in the faulty emergency clause constitute an emergency.

"Defendant[s] are enjoined from consolidating, dividing, or dissolving the Marvell-Elaine School District," the judge also said and added, "This order shall expire on June 20, 2023, following the hearing scheduled on Plaintiffs' pending motions."

Arkansas Attorney General Tim Griffin subsequently filed an immediate notice of appeal over Wright's temporary restraining order to the Arkansas Supreme Court.

"The LEARNS Act provides students and parents new opportunities and better performing schools," Griffin said in announcing the appeal to the state's high court.

"It was passed in accordance with the Arkansas Constitution, is currently the law in Arkansas, and I won't allow one erroneous decision by a circuit court judge in Little Rock to deprive the children of Arkansas of the wonderful and lawful opportunities awaiting them under the LEARNS Act," Griffin said.

The governor on Friday called the Marvell-Elaine lawsuit "an absurd lawsuit with zero merit. ... It is sad that the radical left is playing political games with children's futures."

Sanders also said through spokesperson Alexa Henning, "We are focused on making sure that every kid in Arkansas has access to a quality education, teachers have the pay raises they deserve, and parents are empowered.

"We expect to be vindicated at the Supreme Court," the governor said.

Wright issued the 10-page preliminary injunction Friday in response to requests for it from a group of Marvell-Elaine citizens and others -- including at least two employees of the Marvell-Elaine School District -- who had argued in a May 8 lawsuit that lawmakers did not properly pass an emergency clause for enacting Act 237 of 2023.

Ali Noland, the attorney for the plaintiffs, said Friday evening that she was thankful that Arkansas "still has three independent branches of government and that the judicial branch still values the Arkansas Constitution, even if the Legislature does not."

[DOCUMENT: Read Order on Arkansas Learns Act »]

Act 237 or the LEARNS Act revamps the state's prekindergarten-through-12th grade public education system. LEARNS stands for literacy, empowerment, accountability, readiness, networking and safety.

The lawsuit filed against the Arkansas Department of Education, state Education Secretary Jacob Oliva and the nine members of the Arkansas Board of Education was an effort to stop the state-controlled Marvell-Elaine School District from being operated on a day-to-day basis by FEF-Arkansas. FEF-Arkansas is a newly created affiliate of the Friendship Education Foundation Inc. that sponsors open-enrollment charter schools in Little Rock and Pine Bluff and soon in North Little Rock.

Lawmakers tied into one vote the passage of the LEARNS Act and the passage of an emergency clause to enact it, rather than casting separate votes on the bill and then for the emergency clause. Without an emergency clause, new laws go into effect 90 days after the legislative session ends.

The single vote on a bill and an emergency clause has been a longtime legislative practice.

The Marvell-Elaine plaintiffs argued in the lawsuit that the LEARNS Act emergency clause was invalid. And the judge on Friday agreed, citing Article 5, Section 1 in the Arkansas Constitution.

That section calls for a separate roll call vote in favor of a measure going into immediate effect.

"The word 'separate' cannot mean 'the same,'" Wright wrote in his order.

"In order to pass a valid and enforceable emergency clause, the Arkansas General Assembly was required by Article 5, Section 1 to hold a separate roll-call vote, and they failed to do so," Wright said.

Oliva posted on social media, "It's unfortunate adults with political motives are trying to stall progress.

"Once again, people more interested in protecting the status quo are getting in the way of progress," he said on Twitter. "LEARNS is supporting local control and transforming a failed education system into a thriving learning environment where students will excel in their community."

Arkansas House Speaker Matthew J. Shepherd said Friday evening that he disagreed with the preliminary injunction and was pleased with the attorney general's immediate appeal to the Arkansas Supreme Court.

"The LEARNS Act is an important and transformative law for Arkansas that as I have said before was handled consistent with long-standing constitutional practices, which years of Republican and Democratic legislators have followed and participated in," Shepherd said.

"It remains unfortunate that such is now being challenged; however, I am still confident the constitutionality of the law and the legislative process will ultimately be upheld," he said.

Noland said Friday evening that Wright's ruling "sent a clear message that neither the Arkansas General Assembly nor Gov. Sanders are above the law" and that the order "vindicates my clients, who have been unfairly disparaged in the press and have been the target of misinformation by the state."

The Marvell-Elaine parents and residents are trying to protect the district and do what is best for their children by asking that the state follow the law, Noland also said.

The Arkansas Board of Education on May 6 authorized the tiny, state-controlled Marvell-Elaine School District to enter into a first-of-its-kind-in-Arkansas "transformation contract" with an outside entity for the day-to-day management of the academically troubled system in Phillips County.

The board voted 6-0 to permit the 306-student district -- represented by Oliva, who acts in lieu of a school board for the district -- to enter into a three-year contract through June 2026 with FEF-Arkansas.

Transformation contracts between school districts and third-party entities -- including charter school operators -- are permissible for the first time in Arkansas as a provision of the Arkansas LEARNS Act.

The LEARNS Act enables a school district that has a D- or F-rated school or is in need of "Level 5 -- intensive support" to be exempted from related sanctions if the school board contracts with a charter school or another entity to operate a public school district transformation campus.

Marvell-Elaine meets both criteria, as it is in Level 5 of the state's accountability system and both its elementary and high schools have state-applied F grades on an A-F scale.

Prior to the LEARNS Act and the transformation contract with FEF-Arkansas, the Marvell-Elaine district was on a path to being annexed by the state Education Board to one or more other school systems because of its small size and poor student achievement rates.

Noland argued in her motion to the judge this week that there was an urgent need for the temporary restraining order because the Marvell-Elaine School District recently issued letters notifying employees that their contracts were not being renewed for the coming 2023-24 school year because of the transformation contract.

"Obviously, the loss of one's livelihood is an immediate, irreparable harm," Noland argued in the motion.

"The Plaintiffs contend that these nonrenewal notices, which effectively constitute the abrupt termination of the vast majority of Marvell-Elaine School District employees, constitutes new and compelling evidence of an urgent, immediate, and irreparable harm that must be addressed through the issuance of a temporary restraining order or, alternatively, a preliminary injunction, prohibiting the Defendants from terminating or nonrenewing any district employees based on the premature and illegal application of the LEARNS Act.

"The sooner this can be done, the more harm can be averted," she argued.

The plaintiffs in the case are Doris Ivy Jackson, Laverne Sims, Jesselia Maples, Diamacious Sims, Darryl Harris, Sylvia Moore, Danielle Dright, Derashaun McGhee, Vivian Davis, James Carruth, Iola Soskins, Steven Grappe, Veronica McClane, and Citizens For Arkansas Public Education and Students, a ballot question committee.

Two of the plaintiffs, Grappe and McClane, are leading an effort to repeal the LEARNS Act through a referendum.

Grappe and McClane formed Citizens for Arkansas Public Education and Students, also known as CAPES, to get a referendum on the education law on the ballot in 2024.

Information for this article was contributed by Neal Earley of the Arkansas Democrat-Gazette.

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