Sen. Breanne Davis of Russellville looks at Education Secretary Jacob Oliva, right, as he answers questions about the LEARNS Act during a meeting of the Senate Education Committee Feb. 22, 2023 in Little Rock. (John Sykes/Arkansas Advocate)
Arkansas Attorney General Tim Griffin on Tuesday asked the state Supreme Court to lift a lower court’s ruling blocking implementation of the LEARNS Act.
A Pulaski County circuit judge on Friday issued a temporary restraining order for Gov. Sarah Huckabee Sanders’ signature education law. The state quickly filed a notice within hours.
Tuesday’s filing by the state asks for an expedited review by the Supreme Court, arguing the temporary restraining order “effectively shutters” the Arkansas Department of Education and “threatens to delay the start of school” by delaying work on the LEARNS Act’s many provisions.
Griffin said the court should issue a stay because the state is likely to succeed in the case, the public will suffer irreparable harm absent a stay and a stay won’t injure the plaintiffs.
Both House Speaker Matthew Shepherd and Senate President Pro Tempore Bart Hester said they’re confident the court will ultimately side with the state.
“One activist judge out of Little Rock met expectations, but the Supreme Court will respond with reason,” Hester said. “I fully expect the Supreme Court to overturn the ruling against LEARNS.”LEARNS Emergency Stay Motion
A lawsuit filed on May 8 claims the state Board of Education took unconstitutional action when it authorized a “transformation contract” between the Marvell-Elaine School District and the Friendship Education Foundation.
The complaint argues the LEARNS Act is not yet in effect because the legislation’s emergency clause wasn’t passed by a separate roll-call vote garnering a two-thirds majority, as required by the state Constitution. An emergency clause allows new laws to take effect immediately instead of 91 days after the Legislature adjourns.
Under the LEARNS Act, public school districts with a “D” or “F”-rating or in need of Level 5 – Intensive Support can partner with an open-enrollment public charter school or another state board-approved entity in good standing to create “a public school district transformation campus.”
Marvell-Elaine, which was at risk of consolidation due to low enrollment, has a Level 5 classification and both of its schools have an “F”-rating. The district was also in fiscal distress from April 2019 to September 2021.
The temporary restraining order expires on June 20 after a scheduled hearing in the case, unless otherwise extended.
“The circuit court didn’t just block the transformation contract; it blocked ADE from using its preexisting authority to contract for Marvell-Elaine or consolidate it,” Griffin said in an email to the Arkansas Advocate. “Essentially, then, the order preserves Marvell-Elaine exactly as-is, but blocking reforms in a school with few licensed teachers and a dismal academic record hurts kids.”
If a judge rules in favor of the plaintiffs next month, the LEARNS Act would not be effective until Aug. 1. Delaying the transformation contract harms children, teachers and staff, Education Secretary Jacob Oliva said in an affidavit.
“Even successful schools and districts begin taking actions in the spring each year to ensure a productive beginning to the next school year,” Oliva said in the court filing. “For a failing district like Marvell-Elaine, this time is even more critical.”
State officials argued that an emergency clause is necessary because delaying the effective date of the LEARNS Act to Aug. 1 would not give schools enough time to prepare for its many provisions.
“A timeline of the necessary steps for full implementation in August has been established and a delay greatly diminishes the state’s ability to have processes and resources in place and ready for schools,” Oliva said.
Among those provisions is increasing the minimum teacher salary from $36,000 to $50,000. Under the LEARNS Act, the state will provide funding to help meet the cost of increased salaries to the new minimum for districts that meet certain criteria, such as adopting a salary schedule. The law abolishes the statewide salary schedule.
If the LEARNS Act is not in effect until Aug. 1, districts that have adopted new salary schedules would be responsible for covering those costs until then, Lucas Harder, Arkansas School Boards Association policy services director, said Tuesday.
The appropriation that handled the funds for these increases is not being challenged, so unless something in the court order invalidates all emergency clauses, the funding would be available on July 1, the start of the fiscal year, Harder said.
“It’s just technically the statutory authorization for how that would be expended wouldn’t be in effect until Aug. 1,” he said. “So you may end up with some districts having to dip temporarily into their fund balances in order to cover that gap and then likely get reimbursed for that time period from the state.”
Another provision that could be postponed is the creation of the Educational Freedom Account Program, which will provide state funding for allowable educational expenses like private school tuition.
EFA applications were scheduled to be released on June 1, but have now been delayed and may not be available for the 2023-24 school year, Oliva said.
Arkansas’ education secretary also argued that delayed implementation could negatively affect the law’s literacy initiatives. ADE is currently accepting applications for 120 literacy coaches who will support schools with “D” and “F” ratings. The application deadline is May 31.
Arkansas is also one of five states awarded a $1 million grant to support high-impact tutoring, but a delay could result in a loss of this grant, Oliva’s affidavit said in support of the state’s motion.
Additionally, ADE is developing rules to provide a shared-coast program for 12 weeks of paid maternity leave for educators. School districts must update their leave policy by July 1 to participate and receive funding.
“Districts, teachers, staff, families and children are planning on the promises and resources made available through LEARNS and will all be negatively impacted by delay of its implementation,” Oliva said.
Emergency clause implications
Invalidating the Legislature’s longstanding practice of simultaneously voting on both legislation and the emergency clause, but recording it separately could also affect a number of laws passed during this year’s legislative session, not just the LEARNS Act, Griffin’s motion argues.
For example, Act 59 allows the Arkansas Department of Health to authorize the licensure of rural emergency hospitals, while Act 586 permits a health care professional to supply naloxone to homeless shelter and harm reduction organization employees, and to family members of an individual at risk of experiencing an opioid-related overdose.
Upholding the temporary restraining order would not reverse these laws, but it would prevent them from becoming effective until Aug. 1, the state argued.
Act 752 authorizes certain people to carry a weapon on Department of Corrections property, but without the emergency clause, Griffin argued, prison guards who carry a gun in their car would now be breaking the law.
The logic used in the temporary restraining order could also jeopardize criminal convictions and sentences, he said.
The Fair Sentencing of Minors Act, which contains an emergency clause enacted like the one in the LEARNS Act, is not retroactive, so juveniles sentenced between its signing in 2017 and the effective date of non-emergency legislation would no longer be parole eligible and require resentencing, Griffin said.
The judge’s reasoning for why the LEARNS Act’s emergency clause is invalid means every emergency clause for decades was defective, “opening the floodgates to claims that everything from this Court’s budget to long-final criminal convictions is invalid,” Griffin said.
The attorney general asked the Supreme Court to immediately stay the order or to order the original plaintiffs to respond by noon on Thursday.
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