Attorney General Tim Griffin‘s office has asked a Pulaski County circuit judge to dismiss a lawsuit challenging the constitutionality of the school voucher program created by Arkansas LEARNS, Gov. Sarah Huckabee Sanders‘ education package approved by the Legislature last year.
The voucher program allows families to access public funds to pay for private school or home schooling expenses. For each student in the voucher program, the state pays thousands of dollars each year into so-called “Education Freedom Accounts,” or EFAs, which are then used to pay private school tuition, fees and other costs.
The lawsuit, filed in June by four plaintiffs with children in public schools, says the voucher program unconstitutionally draws upon funds that otherwise would have been spent on public schools. It cites Article 14 of the Arkansas Constitution, which says, “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.”
In a motion filed Thursday, Jordan Broyles, senior assistant attorney general, said the vouchers are funded entirely by general revenue. “By its very nature, general revenue may be spent for any public purpose,” he wrote. Quoting from a ruling in a 1997 case, Griffin wrote, “‘It is only when a diversion of tax revenues occurs from a specific purpose that has been authorized to an unauthorized purpose that an illegal exaction occurs.'”
In a brief supporting his dismissal motion, Griffin added, “As a matter of law, the tax revenue that funds Education Freedom Accounts (EFAs) is entirely general revenue—with none of it being mixed with special revenues or public-school funds.”
Further, Griffin argued, “The Constitution requires only that the State make available adequate free public schools. The Constitution does not prohibit private schools from receiving state funds. Because no such prohibition exists, EFA funding is not unconstitutional.”
The state Legislature does in fact appropriate money for the voucher program separately from the public school budget. But the lawsuit argues this amounts to a “shell game” and that 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.
Griffin, a Republican like Sanders, said that argument doesn’t hold up.
“The entire premise of general revenue is to pay for all operations of the state, not just public-school education,” he wrote.
“No money appropriated for the EFA program is taken from public-school funds,” Griffin added. “But more significant is that if Plaintiffs’ allegations were true, no State money could be distributed to any state agency or for any other purpose to operate state government—only public schools. This is not only illogical, but an extreme departure from the law.”
Plaintiffs filing the lawsuit are Gwen Faulkenberry, a college instructor, Arkansas Democrat-Gazette columnist 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. Little Rock attorney Richard Mays represents them.
Defendants in the case before Circuit Judge Chip Welch are Gov. Sanders, Education Secretary Jacob Oliva, members of the state Board of Education, and the state agencies responsible for education and taxation.
The vouchers covered costs up to $6,672 per student in the first year of the program, the 2023-24 school year, and about 5,400 students participated. The Arkansas Times’ Benjamin Hardy reported in June that the program — and its costs — will likely expand dramatically in coming years.
“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,” Hardy reported in June.