Responses filed to Arkansas AG’s request to toss LEARNS Act restraining order

(Adobe Stock)

The Marvell-Elaine School District is in a bind due to litigation officials say “makes it impossible” for them to begin next school year on time.

The district filed a response with the Arkansas Supreme Court on Thursday in support of Attorney General Tim Griffin’s request for a stay and expedited consideration of a lower court ruling that temporarily blocks implementation of the LEARNS Act, the governor’s signature education law.

A temporary restraining order issued by a Pulaski County circuit judge last Friday prohibits the school district from entering into a “transformation contract” with a charter management company, an option approved by the state Board of Education as an alternative to consolidation. The district was at risk of consolidation due to low enrollment. 

Marvell-Elaine officials argue in their response that doing nothing will not solve their problems. 

“Yet that is precisely what the lower court’s injunction compels MESD to do,” they said. “The court’s ruling dismisses viable solutions — including consolidation, annexation, or outside management — to MESD’s declining numbers and worsening test scores.”

In the original lawsuit filed in May, Little Rock attorney Ali Noland argued the state board didn’t have the authority to issue the contract under the LEARNS Act due to a defective emergency clause, meaning the law is not yet in effect. 

An emergency clause allows new laws to take effect immediately instead of 91 days after the Legislature adjourns. Noland argued the LEARNS Act’s emergency clause wasn’t passed by a separate roll-call vote garnering a two-thirds majority, as required by the state Constitution.

The plaintiffs also argued that the Legislature failed to establish that an emergency existed requiring the law to take immediate effect.

In her response to Griffin’s motion, Noland wrote Thursday that the temporary restraining order “is well supported and is not an abuse of [judicial] discretion” and therefore the high court should deny the requested stay.

Without the restraining order, Noland said, her clients will suffer irreparable harm. 

District employees employed under one-year contracts already have been notified that their contracts are not being renewed for the 2023-24 school year and that, if they wish to continue working at Marvell-Elaine schools, they must apply for new jobs with the Friendship Education Foundation. 

Most employees will be forced to secure other work before courts will reach a final determination on the validity of the emergency clause, which will adversely affect the community, Noland wrote.

“For a small, rural school district and the local community it serves, losing so many teachers and staff would be disastrous,” Noland said. “For many of the affected employees, waiting to eventually be made whole by the courts is not a realistic or feasible option.”

In his response Thursday, Griffin said that in asserting layoffs will leave the district without teachers and staff, the plaintiffs fail to mention they can reapply with Friendship, which was staffing the district until the circuit court’s order stopped that activity.

“Indeed, it’s the circuit court’s order, not the transformation contract, that threatens to leave Marvell-Elaine without staff, by stopping Friendship from hiring a full slate of teachers (that the District has not had for years),” Griffin wrote in his response.

The school district noted in its filing Thursday that only 30% of its staff are licensed and that it has had to depend on rotating education specialists from the Department of Education to help teach students.

“In fact, many Marvell residents see the transformation contract as the only hope of their local school staying open,” the district’s filing states.

Noland argued Thrusday that the LEARNS Act’s emergency clause is invalid not only because it does not state an emergency, but because “it impermissibly attempts” to declare an emergency for parts of the bill, not all of it. 

Additionally, she said the argument that MESD will close without a “transformation contract” is untrue because the state board voted not to consolidate the district at its April 13 meeting after reviewing factors like the distance students would have to travel by bus and the academic performance of surrounding districts. 

“Continued threats to close or consolidate the district in retaliation for this lawsuit prompted the circuit court to include in its temporary restraining order protections against the consolidation, division, or dissolution of the district,” Noland said.

Griffin said the lower court’s ruling impacts other school districts and other provisions of the law, not just the “transformation” contract at Marvell-Elaine.

“Despite filing an overlength response, Plaintiffs barely bother to dispute that the circuit court’s order irreparably harms children, new mothers who were counting on maternity leave, teachers who were counting pay increases or parents who were making decisions for next school year,” Griffin wrote. 

Americans for Prosperity and the yes. every kid. foundation. also filed a brief in support of a stay Thursday. The nonprofits argued the temporary restraining order would delay implementation of the LEARNS Act provisions, including the Educational Freedom Account Program, by a year. 

The new voucher program will be phased in over three years and provide funds for allowable education expenses, such as private school tuition.

The nonprofits argued the restraining order harms more people than it helps because instead of focusing on one contract, it bars the state from moving forward with any part of the new law. 

“By granting the unasked-for relief, the circuit court deprives families of the opportunity that EFAs provide and relegates the interests of those students and their families to the back of the bus by prioritizing the parochial interests of a few who prefer the failing status quo that puts the education of all Arkansas students at risk,” they wrote in their brief. 

In a response, Noland said she opposed the interjection of “two out-of-state political advocacy groups” and the new issues they are attempting to add to the case. The groups have a “self-described interest in promoting ‘education-freedom initiatives,’ but the Supreme Court is only tasked with determining whether the lower court’s findings in support of the restraining order “amount to an abuse of discretion.”

“That inquiry involves a straightforward question of constitutional interpretation, on which the amici groups’ ‘expertise’ is not helpful, and a defined and limited list of alleged ‘irreparable harms’ that are already part of the record and are already before the court,” Noland said. 

Their motion should be denied, she said, because the brief adds little to the legal questions before the court and seeks “to muddy the waters and politicize the judicial process.”

Should the court allow the groups to file their amicus brief, Noland requested permission to fully brief the “irreparable harm” arguments at issue in the case, unconstrained by the 10-page limit imposed on replies to motions.

“If the Court is going to allow out-of-state partisan advocacy groups to introduce new evidence regarding the purported benefits of voucher programs, Appellees fully intend to present counter evidence demonstrating how harmful and damaging privatization can be for students, families, public schools, and poor and rural communities,” she wrote.

Americans for Prosperity and the foundation quickly responded to Noland’s response, saying the nonprofits did not raise new allegation and that instead of highlighting “harm to ‘education-freedom initiatives,” they highlight the harm to people, not initiatives. 

They also claim that Noland inaccurately asserted that they are “out-of-state partisan advocacy groups,” noting that Americans for Prosperity Foundation – Arkansas has been in the state for a decade and that both groups are nonprofits under IRS rules that do not engage in political activity.

Pulaski County Circuit Judge Herb Wright has set a hearing on his restraining order for June 20, but a Supreme Court decision could change that. If the emergency clause is ruled invalid, the LEARNS Act would not be in effect until Aug. 1.