Judge Griffen denies state motion to dismiss challenge of Little Rock school takeover | Arkansas Blog

Tuesday, March 17, 2015

Judge Griffen denies state motion to dismiss challenge of Little Rock school takeover

Posted By on Tue, Mar 17, 2015 at 3:20 PM

Circuit Judge Wendell Griffen today denied the state's motion dismiss the lawsuit challenging the state takeover of the Little Rock School District. The state had argued it violated sovereign immunity, the constitutional prohibition of lawsuits against the state.

The judge said the law had long recognized an exception to that rule when the state exceeded its authority. A state agency may be enjoined from acting arbitrarily and capriciously, which plaintiffs have argued was the case when the state Board of Education voted to take over the Little Rock School District and abolish the School Board.

Several former Board members and residents sued over the action. The state Education Commissioner is now in charge of the 25,000-student district. Plaintiffs argue that the law doesn't allow the state to take over the entire district rather than just the six schools judged in academic distress. It has alleged a number of constitutional shortcomings in the takeover, including the end of school board elections.

Griffen said the state disagreed with facts of the complaint, but had presented no evidence that its allegations were legally insufficient. The facts are matters to be determiend at trial.

The state also argued that plaintiffs hadn't exhausted administrative remedies. But once the school board was abolished, there was no body with authority to file an appeal with the state Board. "The law does not require people to engage in futile acts," Griffen wrote.

Griffen has scheduled a preliminary injunction hearing Wednesday and Thursday. It comes against a backrop of legislative consideration of a House bill that would allow private companies to operate Little Rock schools. That bill could be discussed in an Education Committee after adjournment today. A state takeover is a necessary precedent for that bill to have immediate use in Little Rock.

UPDATE: The judge wasn't done with that dismissal motion response. Nor was the state.

The judge also ordered the parties to prepare briefs on the question of whether the Constitution gave the legislature the power to delegate to the State Board of Education the powers it has exercised.

In filing the motion to dismiss the case, the state again asked for a continuance of Wednesday's hearing because the Education Department's lead lawyer, Jeremy Lasiter, couldn't be present on account of a family medical issue. Griffen reiterated there'd be no continuance.

Kendra Clay has been added to the case as a lawyer for the state with Lori Freno. No sign of the attorney general's office in this case, which is curious enough that the judge inquired about their absence at Friday's hearing. If he does decide a state statute was unconstitutional, presumably that would change.

One other lawyer was able to disengage from the proceeding. Nate Coulter had represented Baker Kurrus, ultimately removed from the case as a defendant. He's volunteering to help the Education Department with financial matters in the school district, which he served as a board member for 15 years.

After the judge's blast came the state, with an interlocutory appeal to the Arkansas Supreme Court of the judge's refusal to dismiss on the sovereign immunity argument. And, based on that, it renewed a request for a stay of further proceedings until that appeal can be decided.

For now, the Wednesday injunction hearing is still on. Noted: KATV has picked up on the extensive Walton financial involvement in Arkansas school affairs. Plaintiffs intend to call witnesses to establish financial connnections to the Waltons by people who voted to takeover the district, a move that fits into the Waltons desire to create more charter schools and bust unions like the one in Little Rock. 

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