Editor’s note: Scott Richardson is the former Senior Assistant Attorney General for education. He is currently in private practice at the law firm McDaniel, Richardson & Calhoun.
Students in six schools in the Little Rock School District have had scandalously low academic performance for years. Since 2013 these schools have qualified as in academic distress. The State Board of Education is considering what to do about them. One of the options is for the State Board to take control of the entire LRSD, dismiss the superintendent, and dismiss the school board (a process called reconstitution). LRSD’s lawyers have argued to the State Board that the law does not allow this option. Let’s take a look.
Under State Board rules, an academically distressed school or school district is one “[i]n which 49.5% or less of its students achieve proficient or advanced in math and literacy” on the state Benchmark Exam “for the most recent three (3) year period.” In other words, if more than half of the students in a school or district score basic or below basic on the Benchmark Exam, the school or district is in academic distress.
What authority has the Legislature given the State Board to deal with schools and districts in academic distress? The statutes are pretty clear. “The State Board of Education may at any time take enforcement action on any school district in academic distress status, including . . . annexation, consolidation, or reconstitution.”  Reconstitution means that “at any time” the State Board can dismiss the superintendent, the local school board, or both in an academically distressed school district.  The statutes also provide the State Board authority to “[t]ake any other appropriate action allowed by law that the State Board determines is needed to assist and address a public school classified as being in academic distress.”  Remember this last bit.
In papers filed with the State Board last week, LRSD’s lawyers argued that the statutes don’t say what they say. Essentially, they argued that the statutes require the State Board and the Arkansas Department of Education to take a sort of progressive discipline approach, meaning a number of other steps must be taken before the State Board reconstitutes a district. They also make a distinction between actions the State Board can take when a few schools in a school district are in academic distress as opposed to the entire district falling into academic distress. In short, they argue that reconstitution is only allowed when the entire district is in academic distress, not when only a few schools are academically distressed. LRSD’s lawyers say also that the “rules of statutory construction dictate” that theirs is the only way to read the statutes. The language I said to remember in that last paragraph, LRSD’s lawyers quote it and argue that it limits the State Board’s authority.
Unfortunately for these lawyers and their argument, the Arkansas Supreme Court has already rejected similar arguments in Fitzgiven v. Dorey.
When the Pulaski County Special School District (PCSSD) was in fiscal distress and in state takeover, it was decided that repair of its finances required the employee contracts to be changed. PCSSD tried to negotiate with the teachers’ and support staffs’ unions to no avail. So, the ADE issued a binding directive that PCSSD stop recognizing the unions and rewrite the teacher and staff contracts in order to repair the district’s finances. The unions sued. They raised similar arguments – essentially, that the statutes could be read to restrict the ADE’s authority. The Arkansas Supreme Court said: “[I]t is clear to this court that the Appellants would have us read limiting language into the statute that is simply not there. This we will not do.” Fitzgiven v. Dorey, 2013 Ark. 346, 14.
Now, remember that language I said to remember, the part of the statute that LRSD’s lawyers quoted as a limit on the State Board’s authority? That same language is in the fiscal distress statutes. Here’s how the Supreme Court interpreted it:
Moreover, Ark.Code Ann. § 6–20–1909(a)(6) (Repl.2007) demonstrates just how broad ADE’s authority is when dealing with fiscally distressed districts, wherein the General Assembly saw fit to allow ADE to “[t]ake any other action allowed by law that is deemed necessary to assist a school district in removing criteria of fiscal distress.” 
In other words, the Supreme Court took the exact opposite position from LRSD’s lawyers. So, does the State Board have the authority to take over the entire LRSD because of six academically distressed schools? Yes. Whether it should take them over is another question entirely.
The lesson here for other districts is twofold. First, there is little that can be done in court about the State Board’s actions over a distressed district. However, the process by which the ADE and State Board identify schools as in fiscal or academic distress allow some avenues for legal challenge. The statutes allow appeals under the Administrative Procedures Act of the classification of a school district as in fiscal or academic distress. Districts at risk of being so identified should explore their options for contesting the designation. Second, a good working relationship with the ADE and State Board is essential to avoid more serious sanctions.
It’s not clear what action the State Board will take this week. Many are calling for it to take over the LRSD. But, there appears to be a healthy discussion among board members about the best course. One thing is clear: Whatever they decide, they will have the full authority of the law behind them.
1 Ark. Code Ann 6-15-429 (b)(1)
2 Ark. Code Ann. 6-15-430(b)(11)
3 LRSD Submission to ASBE Concerning Schools in Academic Distress, Jan. 21, 2015, p. 4
4 Fitzgiven, 2013 Ark. 346, 15.