The Arkansas Supreme Court granted a request yesterday for an expedited briefing schedule in a case over Arkansas LEARNS that challenges when the new K-12 education law should go into effect.
Update: The court’s newest justice, Cody Hiland, said he would recuse from the case. He did not give a reason. (We noted earlier that Hiland did not participate in yesterday’s order granting the expedited appeal, but his recusal letter to Chief Justice Dan Kemp was not filed until later Friday morning.)
The court asked Arkansas Attorney General Tim Griffin, who represents the state Education Department, to file a brief by July 28. The plaintiffs, a group of public school advocates and others represented by Little Rock attorney Ali Noland, must file their brief by Aug. 11. The state’s reply is due Aug. 18.
That schedule means the court won’t rule on the LEARNS case until the law is presumably already in effect. The lawsuit challenges the validity of the bill’s emergency clause — a piece of language that allows a bill to take effect as soon as it’s signed by the governor, rather than going through the typical 90-day waiting period for new bills. Even without the emergency clause, LEARNS will go into effect Aug. 1.
The case still matters, for two reasons. First, the timing of LEARNS’ effective date may have consequences for a group’s long-shot effort to gather signatures for a statewide referendum on the law, which it hopes to place before voters in 2024. (Leaders of the group, Citizens for Arkansas Public Education and Students, or CAPES, are also among the plaintiffs in the lawsuit.) Second, if the court agrees with the plaintiffs that the LEARNS bill’s emergency clause was not valid, the decision could theoretically lead to new legal challenges associated with the timing of other laws passed in recent decades, many of which had emergency clauses as well.
When the legislature voted on the LEARNS bill this spring, the House and Senate each voted on the bill and its emergency clause in a single vote, rather than the two votes apparently required by the state Constitution. The legislature has long held votes in this way, but the plaintiffs argue it violates constitutional language mandating “separate” votes on a bill and its emergency clause.
Pulaski County Circuit Judge Herb Wright has now twice agreed with the plaintiffs. He first suspended LEARNS in late May. Then, after the state Supreme Court threw out Wright’s temporary restraining order (but declined to weigh in on the merits of the case), the judge held a hearing and on June 30 once again found the emergency clause invalid.
The state immediately appealed to the Supreme Court. It also, at least initially, flirted with the possibility of not following Wright’s latest order, with Griffin’s office saying that the ruling did not prevent the Education Department from implementing LEARNS. But then the state Board of Education changed its plans last week regarding the Marvell-Elaine School District — a small district in the Delta at the center of the current legal fight — indicating the state does feel bound by the Pulaski County circuit court’s ruling after all.
Update: Justice Hiland’s decision to recuse could be consequential, given the divisions that appeared among the justices when they heard the previous appeal in June. Hiland, a fomer U.S. attorney who until recently served as chair of the state Republican Party, was appointed by Gov. Sarah Sanders on July 3 to fill a vacancy left by the death of Justice Robin Wynne. (Wynne was one of two justices who dissented in the decision to throw out Judge Wright’s temporary restraining order.) Hiland also worked on Sanders’ gubernatorial campaign last fall. Though he didn’t give a reason for his recusal, it’s worth noting the LEARNS Act is one of Sanders’ signature legislative accomplishments and her office has been vocal in its condemnation of the lawsuit.