Lawsuit Against LEARNS Act Could Affect Many Laws

Lawsuit Against LEARNS Act Could Affect Many Laws

By David Ferguson

A lawsuit has been filed claiming the LEARNS Act has not yet become effective because of an alleged defect in the procedure used to pass the law’s emergency clause. The first goal of the lawsuit is to delay the effective date of the Act until the effective date of laws without an emergency clause, which is the 91^st day after the Arkansas General Assembly adjourned the legislative session. If so, plaintiffs say it invalidates action already taken by the state under the law ordering the takeover of the Marvell-Elaine School District by a nonprofit charter school group.

I don’t think the plaintiffs will succeed, but you need to know if they win there are possible consequences much bigger than just a delay in the LEARNS Act. A win by the plaintiffs could cause chaos far beyond the LEARNS Act.

Here are some potential consequences should the plaintiffs win.

1. The validity of not just the emergency clause in the LEARNS Act but all laws with an emergency clause would be called into question. This is because the legislature used the same procedure in voting on all the emergency clauses. The effective date of hundreds of bills with emergency clauses would be called into question, which means benefits and obligations already being exercised under those laws could be called into question.
2. All appropriation laws (budget bills authorizing spending from the State Treasury) need an emergency clause so the state will have spending authority at the beginning of the July 1 fiscal year. If those emergency clauses are invalid, then there is no authority for the state to spend general revenue from the beginning of July through July 30. That would have a catastrophic effect and trigger a special session to minimize the damage by repassing hundreds of appropriation laws.
3. The passage of many noncontroversial appropriation bills could be called into question because a similar legislative procedure is used to bundle many noncontroversial appropriation bills into one vote with the vote being recorded separately on the journal for each bill in the bundle. These bills are truly noncontroversial because any one legislator has the right to pull a bill out of the bundle.
4. The plaintiffs are working to completely block the LEARNS Act. This is a combination of their lawsuit to delay the effect of the Act and a referendum petition to block the LEARNS Act for almost a year and a half until a vote by the people at the November 2024 election. That would mean all of the LEARNS Act would be blocked including its teacher raises, literacy programs, and its assistance to parents to exercise real school choice when they see the public school as failing their student. Both the petition drive and a ballot issue would likely be confusing to voters on whether they were supporting or opposing the LEARNS Act. Funding for a referendum petition drive would likely come from liberals who want to stop school choice so low- and middle-income families would have no choice but to stay in the government school.
5. Existing law requires the Marvell-Elaine School District to be consolidated with another school district because it does not have enough students. Consolidation would result in some students having to spend hours each school day on a bus. The LEARNS Act provided an option to consolidation by allowing the transfer of the school to a charter school status under a nonprofit. The plaintiffs are trying not only to block transfer of the school to a charter school under the LEARNS Act but also to block the consolidation law by characterizing its use as “retaliation” and asking the judge to block any retaliation. If the judge buys into their argument it would mean continuation of the status quo, which is a school that appears to be failing its students. The school has been described this way: “The school district has the highest expense per student rate in the state and the lowest overall student achievement rates. Both the district’s high school and elementary school have state-applied “F” grades, and the district is considered to be a “Level-5” district, meaning it is in need of intense support.”[i]

WHAT IS THE ISSUE CONCERNING THE EMERGENCY CLAUSE?

The plaintiffs claim the emergency clause in the LEARNS Act was not properly passed.

An emergency clause allows a bill to become effective immediately. Failure to pass the emergency clause means the new law is not effective until the 91^st day after the legislature adjourns its session. An emergency clause must be passed by both the Arkansas Senate and House of Representatives by a two-thirds majority.

The number of votes the LEARNS Act received is not the question. It was approved by more than a two-thirds vote.

The issue is whether the procedure to approve the emergency clause meets the requirement of the Arkansas Constitution. Concerning the emergency clause, the Arkansas Constitution Article 5, Section 1 says the members, “shall vote upon separate roll call in favor of the measure going into immediate operation, such emergency measure shall become effective without delay.”

The position of the plaintiffs is this means the legislature must vote on the bill and then only after that vote, vote on the emergency clause.

Legislators say their procedure meets the constitution’s requirements of a separate vote. Under their procedure the presiding officer announces the vote will be on both passage of the legislation and on the emergency clause. Then the vote is recorded in their journals as two separate votes. The legislature has followed this procedure for decades. I do not know when the legislature began the practice but to the best of my recollection the procedure was already in use when I went to work for the legislature in 1980.

The legislature has much latitude in determining their procedures and that power is given by the Arkansas Constitution which says each house “shall have power to determine the rules of its proceedings”.[ii] Yet the legislature must abide by rules in the Constitution. The question will be whether the procedure adopted by the legislature is sufficient to meet the Constitution’s requirement on passage of emergency clauses. Whenever the legislature adopted the procedure on voting on emergency clauses, I am sure they did not do it lightly because they knew what the consequences would be if they were wrong. Now we have to wait to see if a judge agrees or disagrees with the legislature’s interpretation.

LIBERAL PROPAGANDA

There is one more aspect of the lawsuit and referendum effort of which you should be aware. The left is trying to characterize the legislative procedure on emergency clauses as being the bad ole Republicans trying to get around the law.  That tactic has nothing to do with reality and everything to do with trying to get liberals to financially support the effort to derail the LEARNS Act. The reality is the legislators who long ago adopted the voting procedure on emergency clauses were all Democrats, and the procedure was used by the Democrat majority for decades before Republicans ever achieved a majority in the legislature.

David Ferguson is a former Director of Arkansas’ Bureau of Legislative Research, having a thirty-two-year career as an attorney for the Arkansas legislature.  After retirement from state service, his primary focus has been beef cattle farming. He is also a former officer of Conduit for Action.

[i] Sanders slams LEARNS suit, Arkansas, Democrat-Gazette, 5/10/2023

[ii] Arkansas Constitution Article 5, Section 12