Teachers have questions about the Arkansas LEARNS bill, and so do we.

After holding a premature press conference last week to roll out a poster and then publishing a strange “Myths vs. Facts” flier about a bill that didn’t yet exist, Gov. Sarah Sanders finally revealed her long-awaited omnibus education bill on Monday.

Senate Bill 294, known as Arkansas LEARNS, was filed by Sen. Breanne Davis (R-Russellville) and already has loads of Republican co-sponsors, meaning the bill will likely sail through the legislature without much pushback or independent vetting from the Republican supermajority in the General Assembly. In fact, there are rumors swirling that SB294, despite being 144 pages long and full of sweeping changes that could have devastating consequences (both intended and unintended) for Arkansas schools, may come up for a committee vote as early as tomorrow.

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Surely that can’t be? Just last summer, many of the same lawmakers who are now sponsors of this bill opposed Governor Hutchinson’s plan to raise teacher salaries, arguing that any big changes to education funding would need to be extensively studied before they could be implemented. Why are they moving so fast now? The short answer is that it is a lot easier for politicians to vote yes on a set of vague talking points – the kind found on an infographic poster, for example – than it would be for them to justify voting yes on some of the details actually found in the bill. So, for Republican lawmakers, the clock is ticking. If they give the public enough time to discover all the devilish details lurking in the Arkansas LEARNS bill, they will have a much more difficult time getting it passed.

So let’s dig in to what is actually in the bill! First, an important caveat. Like most Arkansans, I didn’t see this bill until last night. Despite being a lawyer with 18 years’ experience, much of it in the realm of education law, and currently serving on a school board, I still found this bill so dense that, when I finally went to bed at 1:30 a.m., I had only made it through 55 of the bill’s 144 pages, and my mind was swirling with unanswered questions about how all of this would actually work. I have now read as quickly as I can through the rest of it, and I’m here to share some thoughts.

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But I want to be clear that there just hasn’t been enough time to thoroughly analyze all of the hundreds of new changes and revisions to Arkansas education law that SB294 would enact. So, while I need to say up front that this is not an exhaustive analysis (in fact, I am guessing that I missed some pretty big stuff in my quick read of the bill), I hope that my challenges in writing this piece will illustrate how crazy it is that lawmakers could vote on such a massive document less than two days after it was filed.

Instead of providing a bullet-point list of what this bill does (I tried that, and it very quickly got too long and unwieldy to be useful), I am going to point out some big questions the bill leaves unanswered. These questions absolutely need to be answered before any legislator casts a single vote.

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  • Does the Arkansas Children’s Education Freedom Account voucher bring participating private schools under the umbrella of the state’s constitutional obligation to provide all Arkansas students with an adequate and equitable free public education?

We really need to get some clarity on how the voucher scheme (euphemistically dubbed “Education Freedom Accounts”) outlined in Arkansas LEARNS fits with the state’s constitutional obligation to educate students and the legal precedents established in the Dupree and Lake View cases. Article 14, section 1 of the Constitution of the State of Arkansas of 1874 states that “Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education.” While the Arkansas Supreme Court has avoided declaring education a fundamental right under the Arkansas constitution, in Lake View it held that discrepancies in student achievement, curriculum, facilities and teacher pay rendered the state’s school-funding system inadequate and inequitable. Under the Education Article of the Arkansas Constitution and cases like Lake View, the courts have made it clear that it is the state’s obligation to provide for the education of Arkansas students.

So how do vouchers fit in? Does outsourcing its education responsibility to private schools by way of vouchers meet the constitutional requirement? Until now, that provision in the Arkansas constitution has only ever applied to public schools. Now, though, with the governor arguing that in order to educate Arkansas students, we must publicly fund private schools, essentially converting them into public schools, where will the courts land? By requiring private schools to meet a laundry list of requirements – like offering a full academic curriculum, as defined by what public schools are required to offer, and operating on an academic calendar that is also defined by what public schools are required to do – are we opening up a new set of questions about equity? Given that previous school-funding models have been struck down as being inadequate and inequitable, if the Arkansas LEARNS voucher scheme is being presented as a way for the state to meet its constitutional obligations, it may face some of the same legal challenges.

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And if the answer is that the Arkansas LEARNS voucher program isn’t intended to meet the State’s constitutional obligation on education, then what exactly is the purpose of all of this? We are talking about spending millions of dollars and creating entirely new bureaucratic systems to administer this program. Why do that if it is not a way for the state of Arkansas to satisfy its constitutional obligations regarding education? This question is a double-edged sword for Republicans. Admitting that these Education Freedom Accounts aren’t about helping Arkansas meet its constitutional education obligations would mean admitting that vouchers are, as so many critics have argued, just expensive kickbacks for wealthy parents whose children are already in private school.

“School-choice” advocates bristle at that claim, saying that voucher programs are about making private schools accessible for all students and accountable to the state. That sure sounds like public school to me. But claiming that the state will use vouchers to meet its education obligations means the private schools taking that money must provide an adequate and equitable education open to all. That’s going to be a problem for a lot of private schools. Theresa Hall, superintendent of Arkansas Catholic Schools, is quoted in today’s Arkansas Democrat Gazette as objecting to a mandate that private schools accepting voucher money accept all students who apply, saying “that’s not going to work for us.”

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The bottom line is, either the private schools accepting vouchers become, for all practical purposes, part of the public-school system in Arkansas, in which case they would be subject to that pesky equity requirement from Lakeview, OR the state must admit that vouchers are not actually a mechanism for meeting the state’s obligation to educate all students.

  • Why are so many of the bill’s provisions applicable only to public schools and not to private schools accepting voucher money?

A glaring problem after just a cursory read of the bill is the fact that so many provisions of the Arkansas LEARNS bill apply only to public and charter schools and not to private schools taking taxpayer money.

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For example, the bill requires public school superintendents and principals to base all employment-related decisions on an applicant’s (1) performance, (2) effectiveness and (3) qualifications, with effectiveness being the primary consideration. This provision says seniority and tenure shall not be used as a primary factor for decisions regarding the hiring, placement or dismissal of public-school employees. The bill specifically prohibits the use of seniority as a deciding factor in who gets laid off when a district does a reduction in force. Okay, aside from how distressing that is for teachers, what about private schools accepting Education Freedom Account vouchers? Are those schools still free to base employment decisions on any criteria they so choose, be it religious piety, popularity, ability to recruit new students or whatnot? Other similarly one-sided requirements are new rules that public schools must adopt regarding school safety, children’s mental health, community service, career-readiness pathways, sexual-abuse-prevention curricula, restrictions on what can be taught in the classroom to prohibit “indoctrination” and “CRT,” the creation of a new “Course Choice Program,” paid maternity leave and a new requirement that third-graders not reading at or above grade level cannot advance to fourth grade.

Before voting to approve this bill, every single lawmaker should explain to his or her constituents why reading at grade level is so important for public school third-graders but not for private school third-graders. In practice, requiring public school districts to hold back third graders while not requiring the same of private schools accepting vouchers will serve only one purpose: It will encourage public school families to move their child to a private school to avoid being held back. Same for the career-readiness pathways, the new 75-hour community service requirement for graduation and the creation of a newly required curriculum focusing on the prevention of sexual abuse and human trafficking. If these things are so good for students, why not also require them of all private schools accepting voucher money? What is the justification for funding vouchers for private, church or home schools at 90% of the state’s per-pupil foundation funding amount if the receiving schools are not obligated to provide the same educational content as traditional public schools?

  • “School Transformation Contracts” raise more questions than they answer.

A public school district (but not a charter or private school taking vouchers) with a D or F rating according to the state’s most recent school ratings, or a district classified as in need of Level 5-Intensive Support (the category that the State Board of Education used to take over the Little Rock School District in 2015), can avoid the negative consequences of those classifications and qualify for additional funding if it enters into a “school transformation contract” with a charter school or other approved private entity to essentially take over that D- or F- rated school and turn it into a “transformation campus” governed by the charter school. To be eligible to take over a school, the charter need only be rated a “C.” The bill says that the Department of Education should not penalize the charter for “failure to satisfy academic performance standards” for the first two years after the takeover. The bill also says that the state can provide funding incentives to encourage districts to enter into these contracts.

So, when does this start? Next year? Most school districts in Arkansas, as well as across the country, saw a sharp increase in their number of D- and F-rated schools following the COVID-19 pandemic. Some of this is related to learning loss, but some of it reflects the fact that school ratings include factors like attendance and community service hours, which took a direct hit in the pandemic. Beyond that, there is ample data demonstrating that school ratings directly correlate to the socioeconomic status of the school’s students. Even the notoriously conservative editorial board of the Arkansas Democrat-Gazette and Arkansas’s Republican former Secretary of Education, Johnny Key, have made the case for revising the way the state assigns such grades. Creating a new charter-takeover law that hinges on these flawed letter grades seems aimed at forcing large urban school districts to turn over control of some of their schools to charter companies.

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More importantly, are these charter school takeovers intended to last forever? Arkansas law limits a state takeover to five years, a fact that led to the public outcry for the return of local control of the Little Rock School District when the state exceeded that time frame. These “transformation contracts,” however, seem to have no end. Along with the fact that most Arkansas voters probably don’t realize that this bill could result in the swift and seemingly permanent transfer of their local public schools to charter companies over which local residents would have no democratic control, this provision would also create a huge legal mess.

What happens if and when the charter company suddenly goes out of business, as charter schools in Arkansas have been known to do? Does the school revert back to the public school district? It is also unclear how these contracts would work in practice. Would the “transformation campus” no longer be a part of the school district? Who actually owns the school property during the duration of the contract? Who is responsible for repairs? What happens if and when a “transformation campus” also receives a D or F after the two-year grace period, which is likely given the fact that these letter grades reflect poverty more than anything else and the fact that past state takeovers haven’t demonstrated any magic ability to improve student performance? Would the charter company operating the “transformation campus” then have to give the school to a different charter company? How long are we going to keep going before we accept the fact that slapping a new sign on the front of the building won’t actually fix the underlying societal problems, like poverty, hunger and trauma, that get in the way of student learning?

  • How are public schools going to afford all the unfunded mandates?

I won’t belabor this point. You already get it. There are so many provisions in this bill that either require public schools to do something (implement a new program, monitor compliance with a new requirement, etc.) but do not come with additional funding to offset those costs, or that actually require the district to spend significant amounts of money, with financial help “subject to legislative appropriation.” For example, the bill states that students participating in a career pathway program that involves work-based learning shall be covered by the workers’ compensation insurance of his or her employer. Then it states that the school district shall be deemed to be the student’s employer for purposes of worker’s compensation. So now school districts will need to provide worker’s compensation insurance for students as well as employees. It says that, “subject to legislative appropriation,” school districts may be reimbursed for these additional costs, but there is no guarantee, and the school’s obligation to provide worker’s compensation insurance is not contingent on an appropriation.

The bill also amends section 6-13-620(f) regarding the powers and duties of school boards. The provision currently says that every school board shall employ staff, including a superintendent, Arkansas LEARNS adds “and an assistant superintendent.” While it’s not clear if this was the intended outcome, the language of the statute as amended seems to say that every school district must employ both a superintendent and an assistant superintendent. While employing an assistant superintendent may make sense for some or most districts, it’s a huge added expense for smaller districts who may not have administrative needs warranting such a hire. On top of that, many Republican lawmakers have in recent months attempted to deflect blame away from the legislature for Arkansas’s low teacher salaries by pointing the finger at local school boards and superintendents, arguing that districts are spending too much money on central-office administrators. Now those same lawmakers are sponsoring a bill that requires districts to hire assistant superintendents?

There are other provisions, like the 12-week paid maternity leave, that are not required but that districts can opt into if they choose to pay half the costs. While most districts would love to provide additional paid parental leave (it is styled as maternity leave in the bill, and the language is unclear whether it is also available to fathers), paying for half the costs of this program and paying for long-term subs for the employees who are out on leave may not be feasible without more financial help from the state. So in reality, provisions like this allow politicians to say that they passed 12 weeks of paid maternity leave, even if few districts are able to actually implement it (and in fact, the fewer who opt in, the less it will cost the state).

  • Will voters fight to protect local democratic control of their public schools? 

One theme throughout the Arkansas LEARNS bill is deep distrust of local, democratically elected school boards and a paternalistic assumption that the state knows best. The bill contains several provisions diminishing school boards’ ability to run their own districts.

Currently code states that school boards must vote whether or not to approve salary increases of 5% or more, and their resolution to raise pay must state the basis for the increase, “which may include without limitation” any of the listed reasons. Arkansas LEARNS removes one of the listed reasons – an incentive bonus for teacher recruitment or retention in high-priority school districts. Moreover, the section of the bill that would raise minimum teacher salaries to $50,000 states that, to be eligible to receive the funds, a public school district must revise all teacher contracts to ensure that all teachers are on contract for a minimum of 190 days and a school district cannot “adopt a personnel policy or incorporate terms into a personnel contract that provide more rights to personnel than those provided under state law.” Really? First of all, is it truly a raise if you are also requiring more days worked in exchange for the additional money? Second, in this bill, which the governor touts as making Arkansas the best state for teachers, is Arkansas really going to prohibit local districts from providing their employees with anything more than the bare minimum of rights guaranteed by state law?

This provision aims directly at districts that would likely respond to this bill’s repeal of the Arkansas Teacher Fair Dismissal Act by enshrining the same due-process protections into district policy. Preserving teacher protections would make the district more attractive to prospective employees, and it would help minimize the confusion and chaos that will ensue when the Teacher Fair Dismissal procedures, which have long governed public-school policies regarding employee discipline and termination, suddenly evaporate. If the Arkansas Teacher Fair Dismissal Act is repealed (as Arkansas LEARNS calls for), and school districts can’t provide teachers any sort of additional due-process than what is provided for under Arkansas law for at-will employees (to be clear, that’s basically nothing), then how can districts reestablish reasonable, orderly procedures to govern employee discipline and termination? Without the ATFDA or, alternatively, a district policy (which this section of the bill seems to prohibit), will school boards still have to vote on whether to terminate an employee, or can the superintendent just do it? Can a principal? Can a vice principal? Can it be for any reason? Will the terminated employee have any recourse? If the school board hears that the superintendent or a principal has wrongly terminated an employee, can the school board reinstate him or her, or would that amount to “providing more rights,” thereby jeopardizing the funding needed to raise teacher salaries? And what about “rights” unrelated to the Arkansas Teacher Fair Dismissal Act? Can districts no longer provide their teachers with more representation on personnel policy committees than is required (LRSD has a representative from every school, while the law only requires that the committee have at least 5 classroom teachers)? Can districts no longer create, as a matter of district policy, nondiscrimination policies that go further than state law? LRSD’s non-discrimination policy includes a prohibition on discrimination based on sexual orientation or gender identity. Arkansas has no such statewide law barring employment discrimination based on those characteristics. So, in order to qualify for funding to raise teacher salaries, are districts going to have scale back their nondiscrimination policies?

As you can see, the bill that we first set eyes on Monday evening raises huge questions that need to be answered before any lawmaker, regardless of party, can vote in good faith to pass it. I hope every person reading this will take a moment to call your state representative and senator and urge them to simply pause this process long enough to answer questions from constituents before they cast a vote.

Ali Noland is an attorney and public school advocate in Little Rock.