The Arkansas Supreme Court has kept alive a lawsuit seeking to return the Little Rock School District to local control

It reversed a circuit court finding that parents had standing to challenge continued state control after expiration of the statutory five-year limit because the state hadn’t followed the administrative procedures act. It also reversed the court’s finding that the state had acted illegally in placing limits on the Little Rock School Board’s powers after voters were allowed, after almost six years, to elect a school board again. The Court said no statute prohibited this. In Little Rock’s case, it stripped the board of power to hire and fire the superintendent, negotiate with employees and file lawsuits.

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But, the Supreme Court concluded that plaintiffs had ground to overcome sovereign immunity on its challenge of the constitutionality of the statute applied to the Little Rock District and remanded that part of the case for further hearings.

Here’s the opinion.

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The state took over the district in January 2015 because of low test scores in a handful of the district’s almost four dozen schools. The statute then in place said at the end of five years, local control must resume or a district may be merged or reconstituted. The state Board of Education did none of those things until 2021 when it allowed election of a school board but came up with new standards for exit from  state control (invoking finances, which had not previously been an issue) and placed limits on the school board’s powers. Parents sued. Circuit Judge Mary McGowan agreed plaintiffs had made a sufficient case to go to trial and the state appealed, asking for dismissal of the case.

The lawsuit argued that state statutes on schools in distress were written broadly and vaguely and actions taken by the state Board of Education beyond specifically enumerated powers were unlawful. The court sided with the plaintiffs, at least for now:

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Because this claim involves a direct challenge to the constitutionality of these statutes, and because the parents seek only declaratory and injunctive relief under it, this claim surmounts a sovereign-immunity defense at the motion-to-dismiss stage. And we decline to decide the merits of this constitutional challenge at this interlocutory stage. We therefore affirm the circuit court’s denial of the motion to dismiss based on sovereign immunity as to this claim and remand.

Justices Karen Baker and Shawn Womack filed partial dissents. They would have dismissed all three challenges in the case. Thus five justices sided with keeping it alive — Wood, Chief Justice Dan Kemp and Justices Robin Wynne, Barbara Webb and Courtney Hudson.

Justice Barbara Webb would have affirmed the lower court’s decision on all points. She found no place in the statute for the state Board to put “guardrails” on the school board and said the majority quibbling over the meaning of general and specific rules and the power of the state Board to determine them without following the Administrative Procedures Act was misplaced.

The absence of the APA-promulgated exit-criteria rules and the factual allegation that the commissioner is simply making up the exit-criteria rules for the termination of Level 5—Intensive Support directly offends, and is contrary to, the plain mandate of Ark. Code Ann. § 6-15-2917(c)(2). This is the heart of the parents’ lawsuit, and it does not hinge on whether the parents are challenging general or specific APA-approved rules because the parents are challenging the absence of any APA rules, the refusal of the board to promulgate them as required by Ark. Code Ann. § 6-15-2917(c), and the continued Level 5 designation for more than five years. This court need not delve into the merits of semantics about whether the challenged rules are general or specific because there are no valid rules. This is plainly and factually pled, and simple relief is sought in the parents’ complaint.

Other developments could make this lawsuit moot.

Little Rock has been a special cause for punishment by the Hutchinson administration for more than six years, but many politicians are saying the state Board of Education will return control to the district later this summer. A significant infusion of federal money should help ease the district’s budget concerns, though the continued loss of students through the state-supported expansion of charter schools and voucher programs is an ongoing financial problem.

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Update: Ross Noland, attorney for plaintiffs responded to my questions:

“We made alternative arguments for a reason (first argument is the exit criteria and guardrails don’t comply with law, alternative argument being if the law allows the State to take those actions, then the law is an unconstitutional delegation of legislative power). The Court chose the second, alternative power. That is a reasonable position that we respect and appreciate from the Court.

“As for mootness/looking forward: We intend to keep moving forward with our case. We can’t control timing, and are not certain what the ADE’s next actions will be. We look forward to proving the unconstitutional nature of the relevant laws.”