The state Supreme Court heard arguments Thursday on whether the Department of Education can be sued over its takeover of LRSD.

The government of Arkansas cannot do whatever it likes and face zero legal consequences, attorney Ross Noland argued at the state Supreme Court Thursday in an ongoing bid to liberate the Little Rock School District.

Noland and Clarke Tucker filed their case to free the district from state occupation last year, but the state Board of Education tried to get the case dismissed by asserting sovereign immunity, which means the state cannot be sued for violating state laws. (Tucker has since been elected to the Arkansas Senate and withdrawn from the case, but was a reliable champion for LRSD independence during the 2021 legislative session).

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There are exceptions to sovereign immunity that shields state government from legal actions, and Circuit Judge Mary McGowan denied the state’s motion to dismiss last August. The Arkansas Department of Education and members of the State Board of Education appealed McGowan’s decision. Thursday’s hearing sought to determine whether the civil suit against the state can move forward in circuit court. Supreme Court justices heard arguments from both sides Thursday and met afterward to discuss them, but didn’t yet render a decision. The hour-long hearing happened via Zoom, and was streamed on YouTube.

Arguing on behalf of the Department of Education and members of the State Board of Education, Kat Hodge-Guest of the Arkansas attorney general’s office said that after five years under state control, the Little Rock School District failed to show it could operate independently. The state is simply doing its duty of overseeing public education, and attempts to use the courts to return Little Rock schools to full local control violate sovereign immunity, she argued. She acknowledged that the five years allotted for state control is up but said the statute allows for the district to be reconstituted, and that reconstitution allows for ongoing control by the state.

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What the district could have done to regain independence during those years spent under the thumb of the state remains unclear. Arkansas Education Secretary Johnny Key didn’t offer exit criteria until February 2019, when the five years of state control allowed by law was nearly up anyway. And while Little Rock voters did elect a new school board in 2020, that board’s powers are limited. The State Board put up what it calls “guardrails” that bar the new school board from being able to hire or fire a superintendent, to negotiate with teachers’ unions and to file any lawsuits.

Justices chimed in throughout the hearing with questions for Hodge-Guest and Noland, and it was clear that the Justices Courtney Hudson, Robin Wynne and Rhonda Wood didn’t think the state takeover did anything to improve LRSD.

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What did the state do to bring the district out of  distress? Wynne asked. “It obviously didn’t work,” he said.

Hudson also said the state didn’t do a good job while overseeing LRSD, and noted that the law allows the state only a 5-year period of control with a takeover. The state took LRSD over in 2015. “Time’s up,” Hudson said. “Doesn’t that mean the state should step out of the picture?”

Wood also classified the state takeover as a failure, but suggested the state’s ongoing chaperoning of the district is appropriate. She said the board in place at the time of the state takeover couldn’t help students achieve academically, and the state failed in the same way during the takeover. “It’s an abysmal failure for a decade, probably, or more,” she said.

There is no statutory basis for the state to maintain control of the district beyond the five years allowed, said Noland, who is working on the case without pay on behalf of Amber Booth McCoy, Don Booth, Katherine and Dr. Gene Lu and Skye Adams. These plaintiffs are all family members of students in the Little Rock School District. Noland asked the justices to uphold the circuit court ruling denying sovereign immunity and let the plaintiffs’ case proceed. Noland is married to Ali Noland, a longtime volunteer and advocate for Little Rock schools who was elected to the LRSD board in November.

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While the justices’ decision will clearly have a big impact on the Little Rock School District, it could also reverberate far beyond it, Ross Noland said. “If the state gets their interpretation, there are no parameters. The state can do whatever they want.”

A decision from the state Supreme Court is expected within weeks.

Meanwhile, debates over how long the state can maintain its hold on LRSD rage on. While the state initially took the district over for academic reasons, it cites financial reasons for holding the reins beyond five years. Rep. Andrew Collins (D-Little Rock), who represents a large chunk of LRSD, requested clarity early in 2021 on when LRSD could free itself of state control. Schools have met exit criteria regarding academic performance, Governor Hutchinson said in response to Collins’ question, but deficit spending in the district’s budget is an ongoing concern, Hutchinson said. The current budget in question was, of course, crafted under state leadership and adopted by Arkansas Education Secretary Johnny Key.

The governor said LRSD could be granted full independence as early as June. But the state Board of Education’s agenda for its June meeting does not include any items related to LRSD.