The Arkansas Supreme Court this morning vacated a lower court’s temporary restraining order that has blocked implementation of Arkansas LEARNS, Gov. Sarah Sanders’ signature K-12 education bill, for almost three weeks.
But the justices declined to rule on the larger merits of the case, which has far-reaching implications not just for Arkansas public schools but potentially for other state laws. Instead, the court sent it back to Pulaski County Circuit Judge Herbert Wright, who had previously scheduled a June 20 hearing on the case.
In a press release, Sanders celebrated the ruling as “a huge win for parents, teachers, and most importantly – our kids” and said her administration would “immediately [get] back to implementing the boldest, most transformational education reform in the country.”
Plaintiffs attorney Ali Noland said the ruling was a “temporary setback” but expressed confidence her clients would prevail on the merits at the hearing next Tuesday.
“It is extremely important for the public to understand what the Arkansas Supreme Court did not do in today’s ruling,” Noland said in a statement. “The Arkansas Supreme Court did not rule on the merits of Plaintiffs’ lawsuit and did not hold that the emergency clause in the LEARNS Act is valid or that the LEARNS Act is currently law.” (Noland is also a contributor to the Arkansas Times.)
The high court’s seven justices were split on the decision, 5-2. The majority opinion was authored by Justice Courtney Hudson. Four justices wrote separate concurring opinions — Shawn Womack, Barbara Webb, Karen Baker and Rhonda Wood. Chief Justice Dan Kemp and Robin Wynne dissented and would have upheld the temporary restraining order.
The case was filed by a group of public school advocates and other plaintiffs, including employees of the Marvell-Elaine School District, who object to the state’s plans to hand management of the struggling Arkansas Delta district to a charter school organization as permitted under LEARNS.
The lawsuit itself centers on a procedural question: Whether the legislature improperly voted on an emergency clause attached to LEARNS when it passed the 145-page bill this spring. If an emergency clause is attached, legislation takes effect as soon as it’s signed by the governor, rather than going through the typical 90-day waiting period for new laws. When the House and Senate passed LEARNS, each chamber voted on the bill and its emergency clause in a single vote, rather than the two separate votes required by the state Constitution. (Constitutional or not, the legislature has often held votes in this way.)
On May 26, Wright, the Pulaski County circuit judge, granted the plaintiffs’ request to temporarily freeze LEARNS pending a hearing, saying their suit was likely to succeed and that they had demonstrated “irreparable harm” if the law went into effect. Attorney General Tim Griffin appealed to the Supreme Court and asked the justices to throw out Wright’s temporary restraining order, or TRO, immediately.
The Court declined to do so. But the justices have been fully briefed on the case for a week now, suggesting they’ve struggled to come up with an acceptable solution.
Today’s majority opinion is crafted as narrowly as possible, avoiding any discussion of the merits of the plaintiffs’ arguments and focusing only on whether Judge Wright erred in concluding it would cause “irreparable harm” to not freeze LEARNS. Most of the “harms” detailed by the plaintiffs can in fact be remedied, the majority concluded.
“Because we agree with appellants [defendants, i.e., the state] that appellees [plaintiffs] have failed to demonstrate irreparable harm and reverse on this basis, any discussion of the parties’ arguments regarding likelihood of success would be advisory,” Hudson wrote. “For the same reason, we also do not address appellants’ arguments regarding the facial validity of the TRO.”
That’s enough to show the circuit court “abused its discretion” in granting the TRO, Hudson concluded, meaning the restraining order should be vacated and the case remanded back to Wright.
In his dissent, Kemp said the circuit court did not abuse its discretion in granting the TRO. Though Kemp also avoided wading into the merits of the case, he seemed sympathetic to the plaintiffs. “It appears that they have demonstrated a likelihood of success on the merits” regarding the issue of the separate vote on the bill and the emergency clause, he wrote. As for irreparable harm, he pointed to an affidavit from plaintiff Jesselia Maples, a mother of four children in the Marvell-Elaine district.
“This affidavit and appellees’ request for declaratory judgment in their amended complaint, which was based, in part, on ‘Plaintiffs’ right to . . . educate their children[,]” demonstrate that this plaintiff presently seeks to protect her children’s “right to equal educational opportunity [that] is basic to our society.’ … A violation of a constitutional right is deemed irreparable harm for purposes of injunctive relief,” Kemp said.
The three most conservative-leaning justices, meanwhile, would have reversed and vacated the TRO on the merits as well.
Shawn Womack’s concurrence went the farthest, saying the plaintiffs “have no chance of succeeding” for multiple reasons. He agreed with the attorney general’s arguments that the single vote on LEARNS that took place in each chamber of the legislature actually comprised two votes each, despite video recordings to the contrary, because that’s how they’re recorded in the House and Senate journals. Womack also said the legislature’s process for adopting emergency clauses is a “political question” — something to be resolved by the legislature, not the courts. And he appeared to say the very idea of citizens suing the state over the constitutionality of the legislative process is impermissible under the state Constitution’s sovereign immunity provision.
The Supreme Court has taken a much broader interpretation of sovereign immunity in recent years and thrown out multiple lawsuits on those grounds, but no other justice seems as eager to shield state government from lawsuit as Womack. Justice Barbara Webb concurred with Womack’s opinion on every other issue except sovereign immunity.
Rhonda Wood wrote a narrower concurrence focused solely on the issue of whether counting votes is a “political question.” The core arguments in the case — about what constitutes “separate” votes and what comprises the official record — are for the legislature to decide, she said.
“Answering a political question about whether video has replaced the constitutional journal entries and how the legislature conducts its vote proceedings would violate separation of powers. We cannot usurp the legislative branch’s core functions or threaten its independent institutional integrity. … This is not our role,” Wood wrote.
Karen Baker’s concurrence addressed the sovereign immunity issue as well, though from a somewhat different angle. When the court overturned decades of precedent on the issue in a 2018 case, Board of Trustees of the University of Arkansas v. Andrews, Baker was a loud dissenting voice, warning it could have “astounding” consequences to give the state broader legal immunity. Now that Andrews is law, though, Baker says it must be followed. Until that precedent is overruled, “suit against the State is barred,” she wrote in a terse opinion.
Baker also agreed that the plaintiffs failed to show irreparable harm and the TRO should be thrown out on those grounds, though she did not comment on the merits of the case.
Some of the plaintiffs in the LEARNS lawsuit are also engaged in an effort to repeal the law at the ballot box in 2024, and they had hoped keeping the new law on hold would help their cause. Noland, the plaintiffs’ attorney, said in a statement that today’s ruling was a disappointment on that front:
The Arkansas Supreme Court ruled that the Secretary of Education’s decision to fire the vast majority of Marvell-Elaine School District Employees in furtherance of a charter-school takeover of the district is not the type of harm that warrants legal protection. The Supreme Court was similarly dismissive of the CAPES plaintiffs’ constitutional right to use the referendum process to prevent the LEARNS Act from becoming law. Both of these decisions are deeply troubling. Most Arkansans understand that firing almost all the teachers and staff in a small, poor, rural school district that already struggles to attract and retain quality educators has created significant harm for the employees who were fired, their families, and the entire community. Moreover, the emergency-clause procedures at issue in this case were enshrined in the Arkansas Constitution to protect the rights of the people to repeal an unpopular law like the LEARNS Act through the referendum process. The Supreme Court’s ruling today unfortunately treats the violation of that constitutional right as an insignificant harm.
CAPES, or Citizens for Arkansas Public Education and Students, said it was disappointed in the ruling but believed the June 20 hearing would affirm the group’s position.
