A new lawsuit filed Friday in Pulaski County Circuit Court directly challenges the school voucher program created by Arkansas LEARNS, saying it “represents a radical and unconstitutional departure from a public school system that has endured since the establishment of the State of Arkansas.”
LEARNS, the sweeping K-12 education package championed by Gov. Sarah Huckabee Sanders, was passed by the state Legislature last spring. Though it makes a multitude of changes to the school system, its centerpiece is a program that allows families to use public funds to pay for private school or home schooling costs. In its first year, the vouchers covered costs up to $6,672 per student, and around 5,400 students participated.
Participation is expected to grow in the upcoming 2024-25 school year, as more categories of families become eligible for the vouchers — and then explode in 2025-26, when every student in the state will be eligible for the program. The funding set aside by the Legislature for vouchers has already increased from $31.7 million in the 2023-24 school year to $97.5 million in the 2024-25 school year.
The lawsuit is brought by four plaintiffs: Gwen Faulkenberry, a college instructor and former Democratic legislative candidate from Franklin County; Special Sanders, a public school teacher in Drew County; Dr. Anika Whitfield, an activist in Little Rock; and Kimberly Crutchfield, a Little Rock public school teacher. All are parents or guardians of children in public schools, the lawsuit says. They’re represented by Little Rock attorney Richard Mays.
The complaint names as defendants Gov. Sanders, Education Secretary Jacob Oliva, members of the state Board of Education, and the state agencies responsible for education and taxation.
The lawsuit says LEARNS vouchers violate both Article 14 of the state constitution, which requires the state to maintain a “system of free public schools,” and Article 16, which concerns taxation. Article 14 says that, “No money or property belonging to the public school fund, or to this State, for the benefit of schools or universities, shall ever be used for any other than for the respective purposes to which it belongs.”
Article 16 says money collected under a specific tax must not “be used for any other purpose” than the one described in the law imposing the tax. The plaintiffs say this creates a problem for LEARNS because the Arkansas public school system is funded in part by property taxes imposed by local school districts, supplemented by state funding. Those property taxes must go to public schools. (The math is complicated, but for a more detailed look at the argument that vouchers indirectly shuffle a higher proportion of school costs onto local taxpayers, read Baker Kurrus’ recent column on the subject.)
The state funding mechanism in the LEARNS voucher program appears to be designed in part to avoid these constitutional obstacles, as the Legislature has appropriated money for vouchers separately from the public school budget. But the lawsuit argues this amounts to a “shell game,” because the money is ultimately diverted from public schools.
“If a student leaves a public school, or never enrolls in a public school in the first instance, and enrolls in a private school, or chooses to home school, the LEARNS Act transfers from the taxes belonging to the State for the use and benefit of the public schools the amount of money calculated by the State as the cost of that student’s education to the private school, home school or other private provider of that student’s tuition, fees, uniforms, supplies, equipment, access to technology and other materials,” it says.
The lawsuit says the genesis of the LEARNS voucher program lies in efforts to resist federal desegregation orders in the wake of the 1954 U.S. Supreme Court decision in Brown v. Board of Education. A bill passed by the Arkansas Legislature in 1958 allowed the governor to close public schools “threatened with integration,” and created a means for funding to flow “to private schools that would be set up to accommodate children whose public schools were closed,” it says. But federal courts barred the scheme.
The complaint suggests the effect of the LEARNS Act would be similar, if fully implemented. The law “will drain valuable and necessary resources from the public school system and create a separate and unequal dual school system that discriminates between children based on economic, racial and physical characteristics and capabilities,” it says.
The case was assigned to Pulaski County Judge Morgan “Chip” Welch. No hearing date had been set as of 1 p.m. Monday.
The lawsuit is at least the third to challenge some portion of LEARNS. Shortly after the law was passed, a group of plaintiffs filed a lawsuit arguing that the effective date of the law should be delayed by several months due to a procedural issue in how the Legislature held a vote on the bill. Though a circuit judge initially found in favor of the plaintiffs, the state Supreme Court later reversed the ruling.
In March, a group of students, parents and teachers from Little Rock’s Central High School sued over a separate section of LEARNS aimed at prohibiting “indoctrination” and the teaching of “critical race theory” in Arkansas classrooms. The Arkansas Department of Education cited the “indoctrination” restriction in its decision last August to pull state support for a pilot AP African American Studies course, days before the beginning of the 2023-24 school year.
The federal judge assigned to the case, U.S. District Judge Lee Rudofsky, issued an injunction in May that partially blocked the “indoctrination” section of the law. He stopped short of issuing a broader order, in part based on arguments from the state that the ban on indoctrination should be interpreted very narrowly. An attorney for the plaintiffs celebrated the state’s retreat on the issue at the time, saying it had “rendered the law virtually meaningless.”