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OPINION | SAMUEL MCLELLAND: Absurdity on way

HB1218’s chaos and constitutionality by SAMUEL MCLELLAND SPECIAL TO THE DEMOCRAT-GAZETTE | January 30, 2021 at 8:03 a.m.

Arkansas House Bill 1218 is a disaster in the making. HB1218 (as it's commonly referred to) seeks to tell public schools and colleges what they cannot teach, as well as what events or activities they can have.

The bill's most problematic part is section 1(b). This section says that Arkansas public schools and colleges cannot teach material or include events and activities that, among other things, promote division between, resentment of, or social justice for a particular race, gender, political affiliation, social class, or particular class of people; are designed primarily for students of a particular ethnic group; and encourage students to stand in solidarity with one another based on ethnicity, race, religion, gender, or social class.

Now, here's the problem with all that: If HB1218 becomes Arkansas law, it's going to produce absurd results, and it's going to infringe on constitutional rights. I'll use four examples to show how.

First, if a public college hosts events or activities that promote fraternities and sororities, it'll violate HB1218 because it will be promoting division between students based on gender. A related second example are College Republicans and College Democrats -- the college is including activities that divide students based on political affiliation.

Third, what about a public school that sponsors Future Farmers of America? Under HB1218, such sponsorship would not be allowed as it divides students based on a particular class of people (farmers) and, some could argue, based on ethnicity because it divides students based on a shared culture (farming).

Lastly, what about groups like Fellowship of Christian Athletes? Again, including such activities at the school would violate HB1218 because it encourages students to stand in solidarity with one another based on religion.

Although some may see these arguments as absurd, they are nonetheless plausible results if this bill becomes law. What is to stop one group from tattling on another? Does a group that advocates for solidarity based on religion and/or sports get a hall pass, while schools that allow groups advocating solidarity based on just race get sent to the state Board of Education for causing division?

Do local schools, school boards, or parents get a voice in this debate?

And although the absurd results may be laughable, the constitutional implications are serious. The Supreme Court in 1958 ruled that the 14th Amendment to the U.S. Constitution protects all Americans', including all Arkansawyers', "freedom to engage in association for the advancement of beliefs and ideas." (NAACP v. Alabama, 357 U.S. 449, 460) It appears that HB1218 stands in direct opposition to this fundamental freedom. Students would no longer be able to participate in school events or activities -- like clubs -- that center around shared beliefs.

Is the General Assembly really trying to mandate to students what groups they can and cannot join, infringing on their right to associate with groups who share their beliefs?

The remaining constitutional issue is that of parental choice. The Supreme Court also ruled that the 14th Amendment protects parents' fundamental right to oversee their child's upbringing. (Troxel v. Granville, 530 U.S. 57, 66) Now, part of that right doesn't explicitly include parents' right to dictate what's included in their child's curriculum or the activities they attend, but HB1218 certainly seems to bump up against parents' fundamental rights.

So, what if a parent wants their child to participate in Fellowship of Christian Athletes? Or wants them to take a gender studies class as part of their courses?

Seems to me that HB1218 says: "Sorry, the General Assembly knows what's best for your child."

The government overreach is alarming on the face of the bill, but once you start digging into HB1218's practical applications, it is clear that absurdity and constitutional issues await. HB1218 should die in the General Assembly so that fundamental rights can live on.

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Samuel McLelland is a lifelong Arkansawyer, graduate of Emory Law School, and practicing attorney in Little Rock. The views here are his alone.

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