# Lake View School District No. 25 v. Huckabee/Concurrence Hannah

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Corbin
* Hannah
* Concurrence/Dissent Glaze
​JIM HANNAH, Justice, concurring. I concur with the that the current public school system fails to meet the standards for the public schools required under our constitution. I write separately to set out why I reach the same conclusion and to clarify that the role of this court is to determine whether our public school system meets our constitutional standards. The role of this court is not to direct the General Assembly in what must be done to provide the required public school system. Under our constitution, the General Assembly bears the duty to provide a public school system that complies with our constitution.
The issues presented in this case include whether the current funding system is adequate and whether it is equitable. These two issues may be considered simply as a question of whether the current school system provided by the General Assembly meets the constitutional requirements of a "general, suitable, and efficient system of free public schools. . . ." Ark. Const. art. 14, § 1. It does not.
The Constitution of the State of Arkansas provides that the State must maintain a general, suitable, and efficient system of free public schools. Ark. Const. art. 14, § 1. The obligation to provide the required system of public schools belongs to the General Assembly. The Arkansas Constitution vests in the General Assembly the duty and authority to establish, maintain, and support a public school system. Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997); E. Poinsett County Sch. Dist. No. 14 v. Massey, 315 Ark. 163, 866 S.W.2d 369 (1993); Saline County Educ. Bd. v. Hot Springs Educ. Bd., 270 Ark. 136, 603 S.W.2d 413 (1980). See also, Lemaire v. Henderson, 174 Ark. 936, 298 S.W. 327 (1927). In Wheelis v. Franks, 189 Ark. 373, 72 S.W.2d 231 (1934), this court stated:
   It has been too often held, as now to be a matter of debate, that the Legislature is clothed by the Constitution with plenary power over the management and operation of the public schools. It is for the Legislature to declare policy with reference to the schools, ​and however much this court might doubt the wisdom of the policy declared, it has no power to alter it.
Wheelis, 189 Ark. at 376. That the General Assembly has plenary power over the public schools means that it has full power. Beard v. Albritton, 182 Ark. 538, 31 S.W.2d 959 (1930). The responsibility for the creation, organization, and regulation of that system of public schools thus is within the exclusive province of the General Assembly. Wallace Sch. Dist. v. County Bd. of Educ., 214 Ark. 436, 439, 216 S.W.2d 790 (1949). Supervision of the public schools is vested in such officers as the General Assembly may provide. Ark. Const. art. 14, § 4.
The role of this court is not to dictate policy; rather, it is to interpret the constitution. As this court stated in City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986):
   Ever since Marbury v. Madison, 1 Cranch 137, was decided in 1803, the Supreme Court has had the responsibility of interpreting the United States Constitution and the state courts that of interpreting the state constitutions. But the judicial authority does not extend beyond interpretation. The courts do not have the power to hold a constitutional mandate in abeyance; they should not have that power. The constitutional way of doing things may be slow at times, but it is the right way.
Creviston, 288 Ark. at 293. Thus, there is no question that this court has the obligation and authority to interpret the constitutional provisions regarding schools and determine whether the General Assembly is fulfilling its constitutional duty to provide a general, suitable, and efficient system of free public schools.
Previous case law confirms this conclusion regarding our duty to interpret the constitution. In the years since the present constitution was adopted, this court has had occasion to interpret provisions of Article 14 of our constitution on many occasions. As already noted, this court has declared that the General Assembly is obligated under the constitution to establish and maintain the public schools. Wallace, supra. This court has also declared that the General Assembly has the obligation to create schools and set the boundaries of districts. Beard, supra. The authority to decide how ​the state is to be divided up in public schools lies with the General Assembly and is "supreme." Massey, 315 Ark. at 169. See also, Krause v. Thompson, 138 Ark. 571, 211 S.W.2d 925 (1919). The issue of funding of school districts has also been before this court on a number of occasions as it relates to the General Assembly's duty to provide a general, suitable, and efficient school system under the constitution. Dupree v. Alma Sch. Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983); see also, Krause, supra.
This court has not specifically defined the terms "general, suitable, and efficient." The word "general" in Article 14, Section 1, means that the public schools required under the constitution must be of common benefit to those who are to be served by the schools, i.e., those who are between six and twenty-one years of age. The public schools must offer "gratuitous instruction of all persons between the ages of six and twenty-one. . . ." Special Sch. Dist. No. 65 v. Bangs, 144 Ark. 34, 36, 221 S.W. 1060 (1920). In 1885, this court stated: "It is the clear intention of the constitution and the statutes alike, to place the means of education within the reach of every youth." Maddox v. Neal, 45 Ark. 121, 124 (1885). "Education at the public expense has thus become a legal right." Id. Under our constitution, educational opportunity may not be "controlled by the fortuitous circumstances of residence." Dupree, 279 Ark. at 345. Thus, "general" means a "suitable" education must be afforded to all between the ages of six and twenty-one.
The word "suitable" may also be understood by reference to earlier decisions of this court. In Fort Smith School District v. Maury, 53 Ark. 471, 14 S.W. 669 (1890), this court stated:
   The duty to establish and keep in operation schools is not met by the employment of teachers and keeping them at the school house; but it demands that suitable persons shall be kept as teachers, and a school maintained adapted to the intellectual and moral advancement of pupils.
​Maury, 53 Ark. at 473. See also, Berry v. Arnold Sch. Dist., 199 Ark. 1118, 1124, 137 S.W.2d 256 (1940). This court has also stated that there should be a constant effort to raise the standards of the public schools and the General Assembly has the power to adapt our schools to the most advanced standards in order to give our youth the best education obtainable on all subjects. Dickinson, 120 Ark. at 88. In Maury, supra, this court went on to note that the duty to establish and keep schools in operation necessarily included the duty of agencies set up by the General Assembly to visit the schools, noting, and then correcting poor instruction and lack of progress. Maury, 53 Ark. at 473-74.
The discussion in Maury, supra, Berry, supra, and Dickinson, supra, also casts light on the meaning of "efficient." A system must be provided by the General Assembly that is capable of effectively fulfilling the constitutional mandate for a general and suitable system of public schools. The word "efficient" is defined as "Making, causing . . . Effective in producing the desired result with minimum wasted effort." The New Shorter Oxford English Dictionary 787 (Edition 1993). It appears doubtful to me that the framers of our constitution had a definition of "efficient" in mind similar to that set out in Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989). As noted in the majority opinion, the definition in Rose was relied upon by both Judge Kilgore and Judge Imber. In Rose, the Kentucky Supreme Court defined an efficient education in terms of educational subject matter and level of proficiency to be obtained. As the majority goes on to note, the General Assembly may have been influenced by the definition in Rose when Acts 1108 and 1307 of 1997 were adopted. However, whatever the definition of efficient might be, the adoption of such specific methods and goals in public education as discussed in Rose, supra, is a matter of policy left by our constitution to the General Assembly. See Wheelis, supra. Our duty is to determine whether the public schools as presently functioning meet the constitutional requirements of a "general, suitable, and efficient system of free public schools." Ark. Const. art. 14, § 1.
Although the terms "General, suitable, and efficient" might be more finitely defined, under the facts of this case, further definition is not necessary. The meaning of the words general, ​suitable and efficient that may be derived from our case law is more than sufficient to use in determining whether the constitutional mandate has been met by the General Assembly.
I also note that under the facts of this case, we need not determine whether judicial review is under strict scrutiny or whether there is a fundamental right to the constitutionally mandated general, suitable, and efficient education. In 1885, this court held plainly that every child entitled to a public education has a right to a general, suitable, and efficient education in the public schools. Maddox, supra. Under any conceivable standard of review, the current system is woefully inadequate and does not begin to fulfill the constitutional mandate.
The majority opinion sets out the facts, and I will not repeat them here. The examples provided hardly scratch the surface of the inadequacies of the current public school system. Large numbers of our students test below the national average. A majority of Arkansas students require remediation in math or English when they start college. Our classroom teachers are substantially underpaid. Compensation of teachers is not even consistent between districts.
To see the gravity of the problem, we need look no further than to a district where the entire math program in one school is offered by a grossly underpaid substitute teacher who is neither provided with sufficient supplies, materials, or computers, nor adequate physical facilities. We also need look no further than to a district where students are not afforded reasonable toilet facilities, where roofs leak, where buses do not meet minimum state standards, and where there are buildings without heat. It is the obligation of the General Assembly to provide the constitutionally required facilities, materials, equipment and competent teachers. Maury, supra; Berry, supra.
The constitution places the responsibility squarely upon the General Assembly to establish, maintain, and support a . public school system which provides a general, suitable, and efficient educational opportunity to all students between the ages of six and twenty-one. See footnote 1. Since the adoption of the present constitution in 1874, school districts have been created, and ​responsibility for taxation for schools has in part been transferred to the local level. Local districts have run their schools, and the public is accustomed to local control. However, none of this alters the General Assembly's responsibility under our constitution.
The General Assembly has been well within its constitutional authority in the creation of the districts and in allowing local control. This court has long recognized that the General Assembly must employ agencies to accomplish the obligation of establishing and maintaining a system of free public schools. Lemaire, 174 Ark. at 939. See also, Allen v. Harmony Grove Consol. Sch. Dist. No. 19, 175 Ark. 212, 298 S.W.2d 997 (1927). The State may establish boards and appoint directors, but such boards and directors are only agents of the General Assembly. Maddox, supra. Boards and directors are but trustees appointed to run the system the constitution requires. Id., see also, Allen, supra. If the system does not function properly, the General Assembly bears responsibility whatever the cause. See Dupree, supra.
The majority notes the frustration that the Arkansas Department of Education has failed to complete an adequacy study requested by the General Assembly. The trial court stated that to determine the amount of funding "for an education system based on need and not on the amount available but on the amount necessary to provide an adequate educational system, the court concludes an adequacy study is necessary and must be conducted forthwith." This is a failure of the General Assembly. The Department of Education, in this context, is acting as an agent of the General Assembly. The Department's inaction is a matter for the General Assembly to resolve. Wheelis, supra. It is the General Assembly's duty under the constitution to provide the required ​public school system. It is up to the General Assembly to do whatever it must do with respect to boards, districts, or bureaucracies to make the system meet the constitutional requirements.
The General Assembly is free to decide how to establish and maintain a system of public schools that meet the constitutional mandate. Barker, supra. The current public school system does not meet constitutional requirements. The General Assembly must now act. We do not have the power to hold a constitutional mandate in abeyance. Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989); Creviston, supra.
I also note that, as the majority discusses, the issues raised in this case include whether the current funding system is adequate and whether it is equitable. These two issues are inexorably connected and what is actually at issue before this court is simply whether the current school system provided by the General Assembly meets the constitutional requirements of a "general, suitable, and efficient system of free public schools. . . ." Ark. Const. art. 14, § 1. Funding plays a role, in determining whether a general, suitable, and efficient system of public schools is being provided. In Dickinson v. Edmondson, 120 Ark. 80, 178 S.W. 390 (1915), this court stated: "The Legislature has no authority to select an arbitrary basis for the disbursement of funds. . . ." Dickinson, 120 Ark. at 90.
The issue in this case is more complex than a mere funding issue. The majority cites Dupree, in its discussion of funding quotes the Dupree opinion where this court stated that, "[f]or some districts to supply the barest necessities and others to have programs generously endowed does not meet the requirements of the constitution. Bare and minimal sufficiency does not translate into equal educational opportunity." Dupree, 279 Ark. at 93. This statement by the court in Dupree in 1983 may also be interpreted as stating simply that bare and minimal sufficiency does not satisfy the requirements of a suitable public school system.
I agree that in practical terms it is highly doubtful that meaningful reform will ever be achieved by the General Assembly ​unless it determines actual expenditures per pupil and makes necessary decisions on funding. That is something the General Assembly must deal with. The funding required does relate to the constitutional requirement for education, and the General Assembly must address it. The issue of wealth of districts is less helpful. Whether there is classification based on wealth exists begs the real issue. The wealth of a district with respect to a general, suitable, and efficient public school is not relevant because the state must assure the required educational opportunities are provided regardless of wealth.
Looking for inadequacy and inequality in funding does not necessarily answer the real issue. The real issue is whether each child is provided the constitutionally required educational opportunities. Maddox, supra. The real issue is whether all students are afforded the constitutionally required education.
Amendment 74 must also be noted in this discussion, because it specifically provides that school districts may "to the extent permissible" raise additional funds to "enhance the educational system in the school district." Ark. Const. amend. 74. "Enhance" means the educational opportunities that are being provided by the additional funding are above and beyond the general, suitable, and efficient education required under the constitution. Therefore, inequality between districts may well constitutionally exist. It may not, however, exist as to provision of the constitutionally required "general, suitable, and efficient" public schools. In short, while I agree that the present system is unconstitutional, I cannot agree that the General Assembly is bound to assure that each student must receive precisely the same educational opportunities, facilities, curricula, or equipment. Amendment 74 will not allow this conclusion. Perhaps that is why the majority opinion speaks in terms of substantially equal educational opportunity, rather than precisely the same.
I also write to state that while I agree that under Lake View II, attorneys' fees will be awarded in this case, I do not agree that fees should be granted based upon acquiescence by the State regarding work done by the attorneys. Documentation of work ​done by the attorneys and costs incurred is woefully inadequate. There is a lack of records of attorney activity until 1998. For the existing billings between 1998 and 2000 there are days when the billings are quite unclear. The records also imply that, for at least three years, there was little, if any, activity at all. That would mean that over the years there was activity the attorneys were billing in excess of two thousand hours per year.
The use of school funds for other than their intended purpose is specifically limited by the Arkansas Constitution. Ark. Const. art. 14. See also, Special Sch. Dist. of Ft. Smith v. Sebastian County, 277 Ark. 326, 641 S.W.2d 702 (1982). If fees and costs are to be awarded in a case involving constitutionally protected funds, then, at the very least, supporting documentation should be required.
* ↑ As the majority notes, whether early childhood education is to be provided is a public policy issue for the General Assembly to resolve. It is not required under the constitution.
* ↑ The Department of Education is not created or established by the constitution. It was created by the General Assembly. See Act 169 of 1931. Supervision of the public schools is vested ultimately in the General Assembly. Barker, supra; Ark. Const. art. 14, § 4. A State Board of Education constituting the State Department of Education was created by the General Assembly in Act 169 of 1931. In 1931, under Act 169, members of the Board were elected. In Act 244 of 1937, the General Assembly directed that the board members be appointed by the Governor. While the General Assembly has allowed the Executive Department to appoint members of the State School Board, the duty to supervise the public school system remains with the General Assembly.