4 file suit seeking to halt school voucher program, calling LEARNS provision unconstitutional | Arkansas Democrat Gazette

A group of Arkansas citizens has asked a Pulaski County circuit judge to stop what they say is the state’s unconstitutional Educational Freedom Account that provides taxpayer funding for tuition and other private and home school costs.

The four plaintiffs — Gwen Faulkenberry, Special Renee Sanders, Anika Whitfield and Kimberly Crutchfield, who are represented by Richard H. Mays — filed suit late Friday against Gov. Sarah Huckabee Sanders, the Arkansas Department of Education, the Arkansas Department of Finance and Administration, Education Secretary Jacob Oliva, secretary of the Department of Finance and Administration Jim Hudson and eight of the nine-member state Board of Education. One board position is vacant.

The plaintiffs argued to Pulaski County Circuit Court Judge Morgan Welch that the voucher program is unconstitutional and void. The plaintiffs seek an injunction from the court to prohibit state defendants from further implementing the voucher program and a declaration from the court that state officials have acted beyond their constitutional authority.

If the court finds that the funding and payment provisions of the LEARNS Act relative to the voucher program are unconstitutional, the plaintiffs in the 37-page lawsuit ask to “be allowed to add all recipients of the Voucher Program funds as Defendants for purposes of recovery all such funds illegally expended.”

The lawsuit notes that the Arkansas Revenue Stabilization Act allocates $97,487,318 for the voucher program for the coming 2024-25 school year, a 300% increase of the allocation for the past year.

State education leaders anticipate that more than 14,000 students will participate in the Educational Freedom Account program this coming year.

An effort to reach Kimberly Mundell, spokesperson for the Division of Elementary and Secondary Education, by text message about the lawsuit late Monday afternoon was not successful.

The plaintiffs in the case are three educators/parents of school-age children and a guardian of a school-age child.

Faulkenberry, who lives in the Ozark School District, is a university teacher and has been a Sunday columnist for the Arkansas Democrat-Gazette. Sanders, who resides in Drew County, is a public school teacher. Crutchfield is a Little Rock School District teacher. Whitfield, of Pulaski County, is a legal guardian and longtime community activist.

The lawsuit over the vouchers is the latest in a series of lawsuits challenging different aspects of the LEARNS Act. The most recent case is pending in federal court and centers on prohibitions in the law against indoctrination of students. An earlier case challenged the validity of the emergency clause that was attached last year to the LEARNS Act.

The Educational Freedom Account program was enacted last year by lawmakers as one component of the 145-page Arkansas LEARNS Act, or Act 237, that was initiated and championed by the governor to overhaul education in the state. The Educational Freedom Account program greatly expanded a smaller Succeed Scholarship voucher program that had been for students with special education needs.

The taxpayer-funded Educational Freedom Account program that started this just-ended school year based on emergency rules provided at least $6,672 for about 5,000 students who met eligibility requirements to use the taxpayer-funded accounts at some 94 private schools.

The accounts will provide at least $6,856 per student for this coming school year. The dollar amount is 90% of the minimum state and local funding per public school student. As of last month, 106 private schools had been approved for receiving the state funding with 13 more awaiting approval.

To qualify for the taxpayer-funded accounts in the first year, students had to be kindergartners, recipients of the previous Succeed Scholarships, attend an F-graded public school, be the child of an active military service member or experience foster care or homelessness.

In this coming school year, the eligibility requirements have expanded to include students who attended a D- or F-graded public school or be the child of military veterans or emergency responders.

While there are student eligibility requirements in place for the first two years of the vouchers, all Arkansas students will be eligible to access Educational Freedom Accounts for tuition and other private and home school costs beginning with the 2025-26 school year, according to the LEARNS Act.

Mays, the plaintiffs’ attorney, argued in the lawsuit that Article 14 of the Arkansas Constitution directs that no money or property belonging to the public school fund or to the state for the benefit of schools and universities “shall ever be used for any other respective purpose to which it belongs.”

Article 14 further reserves certain property taxes to local school districts and Article 16 states that no money arising from a tax levied for any purpose shall be used for any other purpose.

“The LEARNS Act violates these constitutional principles,” Mays wrote. “The LEARNS Act transfers from taxes belonging to the state for the use and benefit of public schools the amount of money calculated by the State as the cost of that student’s education to the private school, home school or other private provider.”

The lawsuit also states that the Arkansas Supreme Court “has consistently upheld the constitutional requirement that public school funds may not be used for non-public school purposes.”

The LEARNS Act is not the state’s first attempt at funding of private schools, according to the lawsuit. Mays cites unsuccessful efforts by the state to provide public money to private schools in response to the court-ordered racial desegregation of Little Rock schools in 1958.

“The LEARNS Act represents a radical and unconstitutional departure from a public school system that endured since the establishment of the state of Arkansas,” the suit also states.

“If implemented, the LEARNS Act will drain valuable and necessary resources from the public school system and create a separate and unequal dual school system that discriminates between children based on economic, racial and physical characteristics and capabilities,” the suit continues.

Mays, the attorney, noted that no tax or other revenue source was created by lawmakers to support the Educational Freedom Accounts.

He called the voucher program “a shell game.”

“The funding mechanisms and incentives for vouchers reduce the number of students in traditional public schools, and effectively fund the state vouchers in part with funds which formerly were distributed to traditional public schools,” he wrote in the lawsuit.

“This scheme results in the local school tax funds generated by the 25-mill uniform rate of taxation being shuffled to the state, and then used to fund school vouchers,” he said.