DEFENDANTS: Board Chair Diane Zook and Education Secretary Johnny Key.

A lawsuit was filed today against Education  Secretary Johnny Key and the state Board of Education for limits placed on the school board that is to be elected in November to govern the Little Rock School District.

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The lawsuit, filed on behalf of three plaintiffs by Matthew Campbell, challenges the state Board’s order that prevents the School Board from filing lawsuits;  from negotiating with the teachers union on a contract, and from firing the school superintendent.

The plaintiffs are a parent of a child in the district, Heather Speyer-Rainbolt; Jim Ross, a member of the School Board disbanded by the state five years ago on account of low standardized tests scores in a handful of the district’s almost four dozen schools, and Marshall Sladyen, a teacher at Hall High School.

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The lawsuit argues that the state’s ability to control the district ended by law at the five-year trusteeship period in January. Then, the state had to consolidate, annex or reconstitute the district. The state contended that it had reconstituted the district by allowing the election of a new board at the end of this year. But it put three key limits on its powers. It has since acted in other ways to assert control — including in the naming of a school and designation of a principal and asserting that it could act in any way it found necessary to oversee practices in the district.

The lawsuit contends the state did not lawfully reconstitute the district, as the term is defined in state law. It means only two things: Either removal of a school board or the replacement of a superintendent. By placing additional restrictions, the state board went beyond the limits of the law, the lawsuit said.

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The lawsuit also argues that state law didn’t allow state control beyond the five-year period, which ended in January, but Key still functions as the school board and the state Board continues to wield power over the district.

The lawsuit notes some in state government recognized that control was limited to five years and more authority was required for an extension.

Senate Bill 668 of 2019 would have given that authority, but it failed. See Arkansas Senate Bill 668 of 2019, attached and incorporated as “Exhibit C.” Because a bill was necessary to grant such a power, and because that bill failed to be enacted, it is axiomatic that the General Assembly did not grant that power to the ADE.

The state has long asserted a broad supervisory authority over the district because of low test scores, in even one school. To that, Campbell wrote:

However, to the extent Respondents still strain to argue that they have some undefined authority to do as they please vis-à-vis the LRSD, Rose v. Arkansas State Plant Board, 363 Ark. 281, 213 S.W.3d 607 2005), makes clear that “a statute which in effect reposes an absolute, unregulated, and undefined discretion in an administrative agency bestows arbitrary powers and is an unlawful delegation of legislative powers.” Therefore, the State Board’s assertion of this supposed power after five years would make Arkansas Code Annotated § 6-15-2917 unconstitutional as applied.

The lawsuit asks for an order that the additional limits be struck down.

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It was assigned to Circuit Judge Mary McGowan.

Here’s the lawsuit.

The arguments are not only statutory but constitutional in the case of access to courts and collective bargaining. Wrote Campbell:

The State Board of Education has no authority to bar the Little Rock School District from being in Court. It also cannot prohibit Little Rock School District teachers from collective bargaining. As Thomas Paine wrote in Common Sense, “the power which hath endeavored to subdue us, is of all others, the most improper to defend us.”

I’ve long thought there also was a constitutional equal protection argument against the state’s handling of Little Rock. I asked Campbell about that. He responded:

There is, and it might be the subject of an additional suit. But focusing purely on the procedural part here kept it streamlined and (hopefully) have the court a way to rule more quickly and without having to get into much broader arguments. The fact that the board simply ignored what the law said they had to do and when they had to do it is pretty straightforward.

I’ve sent emails seeking comment from Johnny Key and Diane Zook, chair of the state Board of Education. Both responded that my note was the first they’d heard of the suit. I sent them both copies.

Key added: “When we do get it I would want to review it with ADE Legal before commenting.”

UPDATE: The department provided this response from Key later:

Upon our initial review, we believe the lawsuit filed today is without merit and is based on flawed arguments.  We will consult with the Governor’s office and the Attorney General’s office to develop an appropriate response.