Two joint resolutions filed in the Arkansas Senate call for constitutional amendments that would fundamentally alter oversight of the public school system and the balance of powers between the branches of state government. If either is approved by the legislature, it would appear on the 2018 ballot for consideration by voters.
In one of the amendments, the “responsibility” of maintaining public schools would be shared between the state and individual school districts. In both measures, judicial review of the public school system would be altered or even eliminated, potentially contravening the standards established by the Lake View school funding case.
“We’re getting the courts out of our education system,” said Sen. Alan Clark (R-Lonsdale), lead sponsor of Senate Joint Resolution 5, which addresses judicial review of public education. It proposes a constitutional amendment that would make the General Assembly the exclusive evaluator of the public school system.
Retired judge Annabelle Imber Tuck was the trial court judge who first ruled the state was violating the Arkansas constitution in the Lake View case, leading to an increase in education funding and other reforms. “It’s basically saying the courts will no longer be involved in judicial review of any statute concerning public education,” she said of Clark's proposal. “So there will be no check. There will not be equality in the ways public funds are expended to fund our students.”
Arkansas’s current funding model for public education was determined after decades of litigation, reaching as far back as the 1980s, when the Arkansas Supreme Court ruled in Jim Dupree v. Alma School District that the state had failed to provide a suitable education for all of its children.
In 1992, the issue of school funding was revived when the Lake View School District sued the state, claiming that the school-funding system was unconstitutional. Ten years later, the Supreme Court ruled that the state’s school-funding system was unconstitutional and inadequate.
“Adequacy” was the term the court used to define the state’s obligations as set out in the Arkansas Constitution to “maintain a general, suitable and efficient system of free public schools.”
The Supreme Court ruling forced the state to commit to spend a significant amount of new state money to fix its chronically troubled schools. It also led to several other reforms enacted by the General Assembly, including a mandate that prioritizes the state to fund public schools before anything else in government, and a round of legislative hearings conducted every two years to determine the funding increases necessary to ensure the schools are adequate.
“What Lake View did with respect to adequacy and equal protection … really revolutionized the public school system here in the state,” said retired Justice Robert L. Brown, who, as a member of the Arkansas Supreme Court, wrote the majority opinions in the Lake View decision. “I would hate to see that undermined in any respect.
“We have a system of government, we have three branches, and interpreting the Constitution falls to the judicial branch, not to the legislative branch.”
But not everyone agrees the court’s involvement has been good for the state.
“Lake View did some good things, but it has made the process not what it ought to be,” Clark said. “I have no doubt that education in Arkansas would be better off at this point, and for the foreseeable future, with the legislature deciding what adequacy is.”
Tuck said, “It goes against everything I was taught in law school in terms of the checks and balances of what we are proud of: our republic and its checks and balances between the executive branch, the legislative branch and the judiciary.
Sen. Joyce Elliott (D-Little Rock), vice-chair of the Senate Education Committee, said, “That is very, very bothersome. If the state is the one who’s responsible for making sure that we have a suitable, adequate education, and then the state also evaluates itself, you can see where that might be a problem.”
Elliott said that was what was happening during segregation. “The state was deciding that we’ve got these two separate school systems, and we deem them as equal. That didn’t change until the courts got involved.”
Clark, asked if there were any drawbacks to his proposed amendment, said it was a question of unintended consequences.
“There’s almost always unintended consequences,” Clark said. “Obviously, that depends on future legislatures.”
If the legislation passes, and the proposed amendment is put on the 2018 ballot, “the simple question will be – and you can answer it either way – is, do you want the courts to decide what an adequate education is, or do you want the people’s branch, the people you voted to represent you, to decide what an adequate education is,” Clark said.
Clark’s proposed amendment is not the only one that seeks to change oversight of public education.
In the constitution’s present form, the state alone holds the responsibility to ensure an adequate public education. Senate Joint Resolution 3, the “Public Education Partnership Amendment of 2018,” proposes to make school districts share in the responsibility of maintaining the school system by amending Article 14, Section 1 of the state constitution, which addresses public education.
“This is us working together for public education,” said Sen. Blake Johnson (R-Corning), lead sponsor of the resolution. “This is just a partnership like we did for years and years in education … that’s what we need to get back to, is an amicable relationship, and not have the courts and everything in the middle of it and having takeovers and stuff.”
But Brown said, “[It] would take away the state control, which was the cornerstone of the Lake View decision. It might give the school districts … veto power over what the state wants to do since it is a shared responsibility.” Brown added that the amendment would have to be interpreted by courts if it passed.
Johnson, when asked if the amendment would prevent school takeovers, said it could be “a good vehicle for that not to happen.” He said right now, the state has the ultimate responsibility when it comes to public schools. “I don't think that is what any Arkansan believes public education is,” Johnson said. “I think it's local-driven and local-controlled, and whenever we get in a situation like that, like where we are now, that's not what's happening.”
The proposed amendment could also be interpreted as having an effect on school funding.
"The state of Arkansas would not be the sole one on the hook for the funding of public education,” Tuck said of the proposed amendment. “The drafters want to make sure the public school districts are liable as well as the state, so the state would not have full responsibility for free public schools.”
The resolution also asserts that the General Assembly, in its supervision of public education, cannot be held in violation of Article 2 of the state constitution, which details the rights of citizens including equal protection and due process.
Tuck said, "[Under Johnson's proposal], whatever the General Assembly does as supervision of public schools will not violate the Arkansas Constitution, meaning there can be no judicial review of anything the legislature does as part of its supervision of public schools,” Tuck said. “Basically, it says the judicial system won't be involved with making sure the legislature complies with the Arkansas Constitution."
Johnson said he did not know if the amendment would eliminate court review of public education. “I’m not going to speculate on that,” he said.
Brown said, “I think right now there would have to be more specificities as far as what is being offered in the way of an amendment to the Constitution. If they are saying this is a way of blunting any kind of cause of action for violation of the equal protection clause, I think it would have to be more specific.”
Both Johnson and Clark said via email that they do not know when their proposed amendments will be heard in committee.
A simple majority vote in both chambers is necessary for an amendment to be referred to the 2018 ballot. The Senate may only recommend one proposed constitutional amendment for the House to consider, according to the Parliamentary Manual of the Senate for the 91st General Assembly. There are competing constitutional amendments in the Senate, including a voter ID proposal, a so-called tort reform measure and an appeal to Congress to propose a constitutional convention to amend the U.S. Constitution to define marriage between one man and one woman.