A federal judge on Friday postponed a final decision on most of Arkansas’ motion to dismiss a lawsuit over the “indoctrination” portion of the governor’s education overhaul law.

In a 60-page order issued shortly before 5 p.m., Judge Lee Rudofsky of the U.S. District Court for the Eastern District of Arkansas in Little Rock said he was holding most of the state’s dismissal motion “in abeyance.” 

But he granted the part of the motion involving the plaintiffs’ claims that Section 16 of the LEARNS Act on its face violates the equal protection clause of the 14th Amendment. He directed the plaintiffs and defendants to submit additional briefs on whether Section 16 as it is applied is discriminatory.

Little Rock Central High School parents, students and teachers filed the lawsuit in March against Gov. Sarah Huckabee Sanders and Education Secretary Jacob Oliva. 

One of the plaintiffs, Ruthie Walls, teaches AP African American Studies, a course that received scrutiny after Sanders signed an executive order banning “indoctrination” on her first day in office. 

Similar language was later incorporated into the LEARNS Act. The state education department abruptly removed a pilot version of the AP course from its list of approved courses days before the start of the 2023-2024 school year last August.

Attorneys for the state and plaintiffs argued their case regarding the motion to dismiss in an October hearing that ended without a ruling from the judge.

Walls said after October’s hearing that, while the course is now fully accredited and students are earning AP credit for completion, she struggles to provide students with detailed explanations of the “fast and rich” curriculum because she isn’t sure what falls under the state’s definition of Critical Race Theory, one of the subjects included in the anti-indoctrination provision.

Rudofsky issued a narrowly tailored preliminary injunction in May preventing the state from enforcing the provision of the LEARNS Act that proscribes what can be taught in certain courses regarding race, gender and sexuality. The state appealed that injunction to the 8th U.S. Circuit Court of Appeals, which has decided it wants to hear oral arguments. A hearing date has not been set.

Under the preliminary injunction Rudofsky granted in May, Arkansas teachers can discuss Critical Race Theory, but they may be disciplined for “[compelling a] student to adopt, affirm, or profess a belief in a theory, ideology or idea (including Critical Race Theory) that conflicts with the principle of equal protection under the law.”

Reasons for delaying 

Rudofsky’s rationale in holding off on ruling on most of the state’s motion to dismiss involves waiting for the appeals court to resolve what he describes as unsettled legal questions regarding the free speech rights of teachers and students in a classroom setting.

Much of his Friday order deals with whether the plaintiffs made compelling arguments for their claims that the LEARNS Act’s anti-indoctrination provision on its face violates the equal protection clause and affects African Americans disproportionately.

“If discussing the idea and history of Critical Race Theory is allowed — and only compelling a student to believe in Critical Race Theory is prohibited — the Court struggles to understand how anyone is adversely impacted,” Rudofsky wrote in one part of his analysis.

The judge cites differing interpretations of the 14th Amendment’s anti-discrimination provisions in his reasoning on granting that part of the state’s motion to dismiss.

“Many Americans of good faith strongly believe that the answers to the racial problems we face as a country lie in governmental and societal color-blindness,” he wrote. 

Treating people differently based on race is morally and often constitutionally abhorrent to such Americans, he says, and they believe suggesting that racism affects every part of society “makes racial problems worse, not better.”

Other Americans of good faith, however, “strongly believe otherwise,” he wrote.

“To these Americans,” he says, “the answers to our racial problems lie, at least partially, in recognizing that race often matters, that certain groups (including African Americans) have long been discriminated against by both government and private society, and that active measures are necessary to rectify past injustices and present inequality.”

These citizens see treating people differently based on race as “often morally and constitutionally acceptable or even obligatory,” Rudofsky wrote. And they see an emphasis “on racial identity, systemic racism and unconscious bias” as necessary to dealing with the historic effects of racism, he added.

“These Americans see color-blindness as a pretense that reinforces racial inequality by refusing to confront systemic racism and unconscious bias. They believe there is a ‘legal and practical difference between the use of race-conscious’ measures to harm (or exclude) disfavored groups and the use of such measures to help (or include) them,” the judge wrote.

In adopting the LEARNS Act, “a majority of elected lawmakers seem to hold the colorblind view,” he wrote. The plaintiffs seem to contend that applying the colorblind view to legislation “is tantamount to discriminatory intent or purpose.”

“It is not,” Rudofsky wrote. “Plaintiffs may not like the colorblind view. Plaintiffs may think that those who hold this view are wrong or ignorant or even naïve. But that’s a world away from intentional discrimination.”

The facts presented by the plaintiffs don’t allow him to reasonably infer that “discriminatory intent or purpose was a motivating factor in the enactment of the LEARNS Act’s anti-indoctrination provision,” he wrote in dismissing the plaintiffs’ facial equal protection claims.

Friday’s order gives defendants until Jan. 31 to file additional briefs on their motion to dismiss limited to the plaintiffs’ Equal Protection claims regarding the anti-indoctrination provision as it has been applied. Plaintiffs’ briefs on the issue are due Feb. 28, and the defendants’ reply brief on March 14.