Thursday, October 29, 2015

UPDATE: Supreme Court dismisses lawsuit challenging Little Rock School takeover

Posted By and on Thu, Oct 29, 2015 at 12:46 PM

The Arkansas Supreme Court today agreed with the state Education Department that it was immune from lawsuit over the takeover of the Little Rock School District.

It reversed Circuit Judge Wendell Griffen's ruling to the contrary and dismissed the lawsuit.

Here's the full opinion. No justice dissented.

The lawsuit, by three members of the School Board abolished by the state and a parent, argued the takeover was unconstitutional. The state claimed sovereign immunity and asked for dismissal. Griffen rejected the claim. The state appealed and today's decision ends the lawsuit. A separate federal action challenging the takeover is underway, led by state Rep. John Walker.

Exceptions to sovereign immunity protection are allowed when a government agency acts outside the law.  The plaintiffs argued that other districts hadn't been treated similarly and that the takeover was not beneficial to the district. They said, too, the state hadn't moved on a plan of improvement for the six schools whose low scores — among 48 schools in the district — had prompted the takeover.

The Supreme Court said these arguments were largely "legal conclusions and speculation," not fact. 

To the extent the assertions contain actual allegations of fact, those allegations are not sufficient to establish that the State Board acted arbitrarily, capriciously, in bad faith, or in a wantonly injurious manner. 

Essentially. appellees pled that the decision of the State Board was arbitrary, capricious, in bad faith, and wantonly injurious because it was not necessary for the State Board to take the action it chose given the number of different options available under the applicable statute. In [an earlier case] plaintiffs alleged in their complaints that actions taken by the ADE in the process of assuming control of a  school district in fiscal distress were arbitrary, capricious and in bad faith because that agency could have taken other, less extreme actions. The plaintiffs, in effect, pled, as appellees did here, that the actions  of the ADE fell within the exception to sovereign immunity because they were unnecessary.. This court held that the allegations did not establish a sovereign immunity exception. Here, we likewise hold that appellees failed to establish in their complaint that the State Board acted arbitrarily, capriciously, in bad faith or in a wantonly injurious manner in assuming control of the District.  

Justice Jo Hart wrote a concurring opinion in which she said she agreed with reversing the judge, but would have done so for a different reason. She said the complainants should have first appealed the takeover decision to the state Board of Education before going to court.

The court declined to take up an argument raised on appeal — that the state statute that allowed the takeover was unconstitutional. The Supreme Court said that argument had not been made in the original lawsuit and so it had only a jurisdictional question to answer — whether the state could be sued.


Education Commissioner Johnny Key has issued a statement on the ruling, which says in full:

We are pleased with the Arkansas Supreme Court’s decision regarding sovereign immunity. We are committed to ensuring the constitutional standard of education is met for all students in Arkansas, and this ruling affirms the state’s duty to act when necessary. We remain dedicated to supporting Superintendent[Baker] Kurrus, educators, and parents to provide a high-quality education to all students in the Little Rock School District.

For further comment, I asked former LRSD board member Jim Ross (one of the appellees in the case) and former state Board of Education chair Sam Ledbetter (one of the appellants)

Ross argued that the court was motivated by influence from the Walton family, who are leading national advocates for charter schools and school choice. Walton influence was assumed to be behind HB 1733, the failed 2015 bill which aimed to charterize schools within struggling districts such as the LRSD.

"The Supreme Court of Arkansas is the best court Walton money can buy, so it's no surprise. ... We're pretending that there's not a big elephant sitting in the middle of this conversation, which is that the Waltons want to fundamentally destroy traditional public schools. And our state Board of Education is leading in that.

"I'm sure on some level they're all altruistic people who think they're doing the right thing, but at the end of the day they're driven by profit, not people," Ross said. "They're driven by the idea that white, educated elites should be in charge, and that black people in our city are irrational, have political agendas, are enslaved to John Walker, whatever it is ... there's a fundamental lack of commitment to democracy."

Ross is also a plaintiff in Walker's ongoing federal suit against the takeover. "The federal courts ... have always been our last hope when it comes to civil rights," he said.

Ledbetter, a Little Rock attorney whose term on the state board expired this summer, cast one of the deciding votes to take over the LRSD in January. He told me he was not surprised by the Supreme Court's decision, and expressed confidence that the district is "headed in the right direction" under the leadership of Kurrus (who was hired by Key to run the district in May)

"All of this business you hear now from these people who want the district to fail now that the state's in control ... it's just so much noise," Ledbetter said. "I think that there is a new attitude about how the district is going to be staffed, and where the priorities are going to be. ... There's a new, cooperative attitude between teachers and the administration." He said Kurrus is addressing long-standing inefficiencies in the district and steering more resources towards classrooms. "I think there's going to be a lot more improvements as far as how the district serves English language-learning students," he added.

Takeover critics say that's not good enough — that the state doesn't have a clear plan for engineering a turnaround and addressing the systemic academic deficiencies that prompted the takeover to begin with. But Ledbetter said Kurrus' approach will bear fruit. "I think there will be a direct correlation between student achievement and the things I described," he said.

As he has in the past, Ledbetter defended January's takeover decision as the state Board of Education fulfilling its responsibility under law. "There was a feeling among the state board that the local [LRSD] board had had ample time, and that more time was not the answer. ... [It's] tough medicine ... but if you're going to turn it around you've got to start somewhere." (There's an irony there, in that supporters of takeover now argue that the state now must be given ample time to show that it can turn around the district ... while critics of takeover now demand to see rapid results in improving student achievement.) He cited the landmark Lake View school case, in which the Arkansas Supreme Court clarified that the state is the entity that ultimately bears responsibility for public education. The Lake View decision compelled the state legislature to make sweeping changes in law, including enhanced power for the state Board of Education in dealing with struggling districts; Ledbetter served in the legislature in the early 2000s when those reforms were being hammered out.

He also argued that making pure antagonists of the business community is no way to run a school district.

"Now, the business community is far, far, far from perfect. The Walton [Family] Foundation is far, far, far from perfect ... I think their decisions on school choice are entirely wrong. I don't think they recognize the role that race plays [in parents 'choicing out' of schools]." But, he said, fixing the LRSD necessitates cooperation: "I've never seen a successful school district without the support of the business community." Ledbetter said he's hopeful that the Forward Arkansas initiative — a partnership between Walton, the Winthrop Rockefeller Foundation and the state — can provide a road map for a more cooperative vision between the business world and traditional public schools. "My hope with Forward Arkansas is that we could bring [the Walton Family Foundation] to a point where they were interested in improving the whole community as a way of improving the schools," he said.

But what about HB 1733, I asked? Which is the vision for the LRSD in the months and years ahead — the inclusive, community-based recommendations of Forward Arkansas, or the top-down, market-centric strategy of HB 1733? "I sure hope it's the Forward Arkansas vision, because I think that the other has not shown success," Ledbetter said. "Listen, HB 1733 was awful. I didn't talk to anyone on the state board ... who thought that was a good idea."

As for the federal suit aiming to reverse the takeover, Ledbetter said, "I have a lot of respect for John [Walker], but [his lawsuit] is an indictment of the district under the now-displaced board. All of the issues in that complaint ... predated January 2015."

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