This story has been updated significantly since its original publication.
Senior Arkansas legislative staffers and others testified this morning in a lawsuit over Arkansas LEARNS, Gov. Sarah Sanders’ landmark K-12 education bill, with Pulaski County Circuit Judge Herbert Wright saying he expects to issue a ruling “within a week or two.”
The key witness at the hearing was newly retired Senate Parliamentarian Steve Cook, who told the court he’s had concerns in the past about the General Assembly’s long-held practice of voting on a bill and its emergency clause together in one single vote, despite a state constitutional provision that explicitly requires “separate” votes. He discussed those concerns with other senior legislative staff in recent years, he said.
The question at the heart of the LEARNS lawsuit is whether the state House and Senate both failed to properly vote on the 145-page education bill’s emergency clause when passing it this spring. An emergency clause is required in order for a bill to take effect immediately, rather than going through the typical 90-day waiting period for new laws. If the LEARNS emergency clause is invalid, the law should not take effect until August.
The case was filed by a group of public school advocates and other plaintiffs, including some employees of the Marvell-Elaine School District who object to the state Education Department’s plans to hand management of the struggling Arkansas Delta district to a charter school organization under authority granted by LEARNS. They’re represented by Little Rock attorney Ali Noland. (Noland is an occasional contributor to the Arkansas Times.)
On May 26, Judge Wright granted the plaintiffs’ request for a temporary restraining order, placing LEARNS on hold. Arkansas Attorney General Tim Griffin appealed to the state Supreme Court, which last week in a split 5-2 decision struck down Wright’s temporary restraining order and sent the case back to his court for today’s hearing.
Last week, the attorney general attempted to block Noland’s subpoena of Cook, saying it violated legislative privilege and raised separation of powers issues. Judge Wright did not buy that argument today. As Noland pointed out, the state has entered affidavits from other legislative staffers into the record, seemingly waiving any potential legislative privilege around staff testimony. Nonetheless, the judge limited Cook’s testimony today to discussing conversations he had with other staffers, not legislators.
Cook said he started working at the Capitol in 1979, eventually becoming chief legal counsel and parliamentarian in the Senate. The chamber has routinely voted on a bill and its emergency clause with a single roll-call vote for decades, he said. (An emergency clause requires a two-thirds supermajority vote to pass, while most bills require only a simple majority, so sometimes a bill will pass but its emergency clause will fail.)
When the Senate began livestreaming proceedings in 2015, Cook said, he worried that video recordings might invite closer scrutiny of procedural questions. Cook then “expressed my concerns about how the ‘one vote’ is troublesome’” in conversations with Ann Cornwell, the secretary of the Senate and the chamber’s head staffer. He also spoke with House Parliamentarian Buddy Johnson, he said.
Cook said he didn’t necessarily think the practice ran afoul of the constitution, but he believed it should at least be discussed with legislative leaders and the Bureau of Legislative Research. Part of his concern was that “someone could bring a lawsuit at some point,” Cook told Noland from the stand. “Which you did.”
When asked after the hearing whether he had ever spoken with legislators about the issue, Cook said “I truly don’t remember speaking to any senators directly about it.” Until this court case brought the question to the fore, state lawmakers likely have been entirely unaware of the constitutional provision, he said, which is one reason he thought staff should have a discussion about it.
“The main thing is that I didn’t want anybody to be blindsided and come to staff and say, ‘Why the hell didn’t you tell us about this?’” Cook told the Arkansas Times. He also emphasized that other staffers didn’t “blow him off” when he brought up the issue. Other staffers agreed it was a good idea, he said.
“But it’s like a lot of things — like a wife and husband saying, ‘We really should buy insurance,’ and two years later [they still haven’t],” Cook said.
Justin Brascher, an attorney with Griffin’s office, cross-examined Cook for the state. The Senate routinely holds votes on routine, uncontroversial legislation (such as budget bills) in which it “batches” many bills into a single vote to avoid the hassle of holding repetitive votes. Cook agreed and said members have the ability to pull out a bill from the batch if they object.
Much of the debate is over what ultimately constitutes the “vote” itself — the act of lawmakers casting their ballots (or calling “aye” or “nay”) or the official record generated afterwards. The journals of the House and Senate, which show separate votes for the bill and its emergency clause, ultimately are the vote, according to the state attorneys. As the official record, they can’t be contravened by video recordings, even if those recordings show the act of voting occurred once and not twice, the state says.
Later in the hearing, Johnson was called to the stand as a witness for the state. He’s worked in the House for 38 years and has been its parliamentarian since 2021. The House journal is the official record, he testified. According to the journal, separate votes were taken on LEARNS, Johnson said. He conceded that only one vote was performed “procedurally,” on the floor of the House.
Asked after his testimony whether he recalled having conversations with Steve Cook or any others about potential constitutional pitfalls regarding the longstanding “one vote” practice on emergency clauses, Johnson declined to comment. “He said what he said,” Johnson said, referring to Cook.
Noland also called Sen. Clarke Tucker (D-Little Rock), Rep. Tippi McCullough (D-Little Rock) and Arkansas Education Secretary Jacob Oliva to the stand Tuesday, each of whom offered brief testimony.
The timeline on when the LEARNS Act goes live is important because if a court determines LEARNS is not yet in effect, it would mean the Department of Education and the state Board of Education overstepped their authority to hand the struggling Marvell-Elaine district to a charter management group. The power to outsource public schools to private charter management groups is granted by the LEARNS Act, but if the LEARNS Act wasn’t in effect in May when the contract was signed, the state jumped the gun.
Plaintiffs in the suit have said they want more time to give input on the contract with Friendship Education Foundation, the group chosen to take the reins in Marvell-Elaine. Delaying the law would also benefit Citizens for Arkansas Public Education and Students, or CAPES, a group collecting signatures in an effort to place a referendum on LEARNS before Arkansas voters in 2024. CAPES is one of the plaintiffs in the case.
Community members from the Marvell-Elaine district offered testimony on both sides of the lawsuit at the end of the morning’s hearing. One plaintiff, Jesselia Maples, said she was concerned about how Black history would be taught in the district if Friendship took over. “We have no voice in this process,” she said.
But others from Marvell said they supported LEARNS and the “transformation contract” with Friendship, in part because they see it as their last hope of keeping the district from being consolidated with a neighboring school district. Clyde Williams, the former president of the Marvell-Elaine school board before it was dissolved and the district taken over by the state in April, said he thought the partnership with the charter management group would be the best thing for the kids in his community. He remembers when Marvell and Elaine were separate districts, he said, and saw the harm done by combining the two, including unreasonably long bus rides for students in rural areas.
Friendship has “come in and explained their way of doing the academics. They are not going to take away the name of the mascot or anything — they’re going to make sure the kids are going to get an equitable education and don’t have to be bused any further than they are now,” Williams said.