The Three R’s: Rule-Making, Reconstitution, and Release

What Are the Laws?

The “Quality Education Act of 2003” says “The State Board of Education shall promulgate rules and regulations as necessary to set forth the . . . . Process and measures to be applied to require a school or school district to comply with the standards, including, but not limited to, possible annexation, consolidation or reconstitution of a school district under § 6-13-1401 et seq. and this subchapter. . .”

That same vocabulary — “promulgate,” “rules,” and “regulations” — appears in another Arkansas law called the “Administrative Procedures Act (APA.)”

In the APA section called “Rules — Procedure for adoption,” Arkansas law explains, in great detail, the process that state agencies must use to “promulgate rules.” There is a waiting period, a financial impact statement, and a mandate that the agency must consider “reasonable alternatives to the proposed rule.” Citizens have the right to request oral hearings, to ask for explanations and receive them, to request that a new rule be amended or repealed, and to receive written responses to their requests — plus lots more.

To summarize: State law requires the State Board of Education (SBoE) to “promulgate rules and regulations” regarding ACA § 6-13-1401 et seq — “School Districts: Consolidation, Annexation, and Formation.” The SBoE leads the Department of Elementary and Secondary Education (DESE) which is a state agency. Therefore, the SBoE should be following APA rule-making laws whenever they make decisions regarding the process for returning state-controlled school districts to local control.

The Arkansas DESE, however, insists that APA rule-making laws do not apply to SBoE actions in state-controlled districts.

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Reconstitution in LRSD

The Little Rock School District (LRSD) is the largest district currently under state control. It has been under state control for four years and eleven months, and must be released from state control at the end of January 2020. However, since LRSD did not meet the requirements of the “exit criteria” established by the DESE (in a rush, without public input, because they probably thought — wrongly — that Senator Kim Hammer’s doomed legislative effort to extend state control was going to work) last February, the DESE insists LRSD cannot be returned to immediate local control without being either annexed, consolidated, or reconstituted first.

LRSD cannot be annexed by or consolidated with its neighbor, the Pulaski County Special School District (PCSSD,) because PCSSD is still in federal court trying to meet its racial desegregation requirements. Therefore, the SBoE is working to reconstitute LRSD. First, the SBoE proposed “reconstituting” LRSD by dividing the district into good v. bad schools, and returning only the “good” schools to local control. This division would have split the district along racial lines, so mass protests erupted in Little Rock. The SBoE backed off.

Now, the SBoE is taking a scattershot approach to the “reconstitution” of LRSD. Instead of adopting and promulgating statewide rules for reconstituting state-controlled districts, as required by Arkansas law, the SBoE is making a bunch of hasty decisions. The SBoE is not providing:

• Evidence that those decisions will help LRSD students;
• A 30-day waiting period;
• Financial impact statements;
• Opportunities for public comment prior to voting;
• A “Concise statement of the principal reasons for and against [each rule’s] adoption, incorporating [the SBoE’s] reasons for overruling the considerations urged against its adoption,” as required by the APA; or
• Anything else required by the APA.

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The State’s Position

Here is how I learned that the Arkansas SBoE and DESE consider themselves to be exempt from following the APA law with regard to LRSD:

On December 3, I filed a Freedom of Information Act (FOIA) request with the DESE, asking for “copies of all administrative records (including those in the control of State Board of Education members) dated 2015-present related to rule making pursuant to the Arkansas Administrative Procedure Act, 25-15-2 et seq. regarding the following:

1. Little Rock School District exit criteria,
2. The Memorandum of Understanding (MOU) for return of local control to LRSD,
3. Reconstitution of LRSD,
4. Expanding the LRSD Personnel Policies Committee (PPC) to include one member from each school,
5. Expanding the LRSD Community Advisory Board (soon to become the LRSD school board) to include nine seats instead of seven, and
6. Redrawing school attendance zones in LRSD.”

On December 9, the DESE asked me to clarify my request. I responded by combing through the APA for specific requirements that seem like they should have documents associated with them, and listing those documents in another email.

At that point, the DESE’s FOIA officer and I had a phone call in which she explained that most of these documents do not exist. She told me, broadly, that DESE adoption and promulgation of “Rules” only happens after each legislative session, in order to implement whatever changes were made to the Arkansas Code while the legislature was in session. “Rules” like these, adopted and promulgated by the DESE after each legislative session, apply to all school districts in Arkansas.

Since the LRSD exit criteria, MOU for return of local control, proposals for LRSD reconstitution, and other SBoE actions within LRSD do not apply to other districts in Arkansas, the DESE has not considered itself required to follow the APA rule-making process.

I was surprised to hear this, so I asked the DESE’s FOIA officer just to do the best she could and send whatever responsive documents did exist — or put the DESE’s response (that APA laws don’t apply) in writing. Soon, she sent me an email, with an extra copy to Johnny Key’s Chief of Staff, Gina Windle.

“Please note that nothing the SBE has done about the Little Rock School District specifically requires the APA rulemaking process.”

Huh? That’s not how it looked to me. So I wrote back, asking the DESE to “point me to the legal opinion that supports the DESE’s opinion, or to the proper term that describes the six items in my original FOIA request if ‘rules’ is not correct.”

Of course, the DESE is under no obligation to explain their position, no matter how politely I ask. Honestly, I don’t really expect an answer.

They will have to respond to my two follow-up FOIA requests, though! I asked for:

• “Copies of all administrative rule-making with regard to exit criteria for school districts under state control, dated 2015-present,” and
• And “copies of all documents dated 2015-present related to the administrative rule-making process on the subject of “reconstitution” of school districts in Arkansas.”

I’m trying to figure out exactly what APA-compliant rule-making the DESE has actually done on these subjects. The DESE has a mandate to adopt and promulgate rules on school district reconstitution, so if they haven’t done anything of the sort, it looks like an arbitrary, capricious, and harmful failure to act.

There’s a law about that, too:

“In any case of rule making or adjudication, if an agency shall unlawfully, unreasonably, or capriciously fail, refuse, or delay to act, any person who considers himself or herself injured in his or her person, business, or property by the failure, refusal, or delay may bring suit in the circuit court of any county in which he or she resides or does business, or in Pulaski County Circuit Court, for an order commanding the agency to act.”

Does any person (besides my moral conscience) consider themselves injured in their “person, business, or property” by this whole perversion of democracy?