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Leaning toward litigation?

by John Brummett | March 12, 2023 at 1:43 a.m.

On Wednesday Gov. Sarah Sanders gathered another all-white group around her as she signed that big school bill that conceivably could redistribute pupil attendance in a racially segregating way.

It also would use our taxpayer money to subsidize well-off parents' private-school tuition.

Naturally, a normally non-litigious man's thoughts turned to litigation.

Yes, it was I, speaking to the weekly "Behind the Headlines" class for retirees and explaining that it might be that someone could file for an injunction against immediate effectiveness of the school-choice and voucher section of that law.

One of my favorite class conservatives--and I have a few out there--asked what would happen to the big teacher raises in the event of an injunction against the three-year voucher phase-in. He might have thought he had me there.

But I explained that bills often carry "severability clauses" providing that, should any section of the act be declared invalid, the rest would remain valid. I said I was going to hope and assume this bill had such a clause, but would need to check and get back with him after spring break.

I can get back with him now, and tell the rest of you: There is a severability clause. That means a lawsuit could be filed against the school-choice section alone and, if that section was temporarily enjoined or eventually invalidated, the rest of the bill--big teacher raises, expansion of early-childhood education, a big emphasis on literacy by the third grade--would remain intact.

You'd have a good law, sullied only by the repeal of a fair-dismissal process for firing teachers.

Plaintiffs' lawyers and courts could thus accomplish in part what the Legislature should have done. That is break up this arrogant "omnibus" bill into individual bills on singular subjects alone. That's how we did things in Arkansas until Sanders brought Washington-styled hyperpartisan power plays into our state Capitol.

I'm not saying litigation will happen. I'm saying many join me in hoping it will happen and that it might. But fervent desire to sue is not a legal argument.

"There is a lot bubbling on that subject," a lawyer and school case veteran told me of litigation talk. "But no one yet knows just how to proceed."

You'd have to argue that the law as written clearly portends unconstitutional harm to public schools, parents and children. But you wouldn't yet have a record of that harm, as has been demonstrated in previously successful school-funding and school-desegregation lawsuits.

Some lawyers tell me they would be averse to going to the now-Republicanized Arkansas Supreme Court to argue that this new law--by encouraging some schools to be better than others and lure students from schools left to wither--violates the operative Lake View case law that the state is wholly responsible for adequate and equitable educational opportunities for all children. They fear this band of state supreme justices might well use the occasion of Lake View's reopening to throw out the "adequate and equitable" standard.

Other lawyers say that failing to sue on operative case law for fear of losing that case law amounts to having lost it already.

I am uncertain on who would, or could, bring such a suit and be allowed standing. We've had two big school-funding lawsuits in Arkansas over the last half-century, both brought by school districts showing that they had been unfairly underfunded in the state funding formula.

But, in this case, school choice with vouchers--meaning the potentially illegal diversion of public school per-pupil funding--would be phased in slowly beginning this fall and not reach full effectiveness to provide evidence of actual harm until some period of observation after three years.

But legal sources tell me that, in the LEARNS situation, the diversion of taxpayer money from public schools to private, parochial and home schools is codified in this law for effectiveness June 30 by the emergency clause. So, I'm told, a group of taxpayers--probably taxpaying parents of public-school children--presumably would have standing immediately on the basis that their tax money is imminently to be misspent.

Meantime, a federal suit is similarly conceivable by the precedent of the Little Rock school desegregation case.

Federal case law forbids practices that serve to re-segregate schools racially. A plaintiff might need evidence gathered through a period of enforcement of school choice to make a case for actual re-segregating effect.

But maybe it would be enough that the established record of other voucher states shows clearly that white children already in private schools get most of the voucher money.

All of that is to say that litigation is (1) fervently desired by public school advocates, and (2) perhaps likely but not certain, and (3) challenging in terms of requiring really good lawyers with expertise and resources.

Speaking of what's conceivable, a court loss of the voucher-choice section of this law could be politically helpful to Sanders.

It could head off the rural-Arkansas havoc that section could well wreak. And, because she's mostly about right-wing national talking points, Sanders could wind herself up and blame woke liberal justices.

And, if it matters to her, the balance of the law--meaning the parts other than the voucher section--might do actual good for Arkansas kids.

John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at [email protected] Read his @johnbrummett Twitter feed.

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