A lawsuit challenging Arkansas’s new publicly funded school voucher program is still standing, despite the Sanders administration’s attempt to get it thrown out of court.
On Monday, Pulaski Circuit Court Judge Morgan “Chip” Welch denied an attempt by the defendants named in the lawsuit — Gov. Sarah Huckabee Sanders, Education Secretary Jacob Oliva, Department of Finance and Administration Secretary Jim Hudson and members of the state Board of Education — to have the case dismissed.
In a July 11 filing, state officials asked the court to dismiss the case on grounds of sovereign immunity and because the lawsuit’s central assertion — that school vouchers created by the Arkansas LEARNS Act illegally divert money from public schools — is supposedly not true. Welch accepted neither argument, meaning the lawsuit remains alive.
The state Supreme Court has held that the state of Arkansas cannot be sued in Arkansas courts. But there are exceptions to the sovereign immunity defense, one being illegal exaction. Since the lawsuit contends the government is misusing taxpayer funds, the defendants are not covered by sovereign immunity, Welch found. You can read his order denying the motion to dismiss here.
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. They’re represented by Little Rock attorney Richard Mays.
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.”
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.
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 state Department of Education cited the “indoctrination” restriction in its decision last year 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.”