*1 LAKE NO. of VIEW SCHOOL DISTRICT 25 County, Phillips
Arkansas, al., HUCKABEE; et v. Governor Mike Appellants Beebe, Senate; Senator Mike President Pro Tempore House; Shane Representative Broadway, Speaker Fisher; State Auditor Gus Treasurer Lou Wingfield; State Jimmie Director of the Arkansas of Education Department Simon; Arkansas State Board Education Members Raymond Fisher, Caldwell, Yates, Luke William Anita Gordy, Jonell Smith, Lewis Claiborne Richard Thompson, Deming, Pickett, Hackler, Hillman; Robert Betty Shelby and Director of the Arkansas of Finance Department
and Administration Richard Barclay, Appellees; School District No. and Bentonville Rogers School District No. 6 Benton and Little Rock District County, School
Pulaski County,
Intervenors/Appellees
01-836
Supreme delivered November Opinion denied December rehearing [Petition 2002.] *9 and Lewellen & for Wilson; Trimble; E. Dion Associates, Don class; and appellant P.A., by: Eugene & Jack, Lyon Jones, G. Sayre, for class. special attorney appellant Gen., Att’y by: Hansen, Deputy Att’y Mark Dennis Pryor, R. Gen.; Gen.; Sr. Ass’t and Brooks, Att’y Brian G. G. Timothy Gen., Ass’t for State Att’y appellees. Gauger, Matthews, Rhoads, McClure, Campbell, & Thompson Fryauf, by: P.A., Matthews, intervenors-appellees Rogers David R. Bentonville Public School Districts. Heller by: Clark, & Friday, Eldredge C. Christopher John Little Rock School intervenor-appellee District.
Fendley, Jr., Mitchell, Blackstock, Barnes, by: Sneddon, Ivers & Wagoner, and Mark for amicus curiae Arkansas Burnette, R. Blackstock Clayton Education Association. by: Regina Brewer, P.A., Haralson, Haralson, & Kaplan, Maxey
for amicus curiae Arkansas Public Panel and Rural Policy School Trust. Community for amicus Compton, by: & Dudley Cathleen V. curiae Compton, Arkansas Foundation. Policy for amicus by: curiae Arkansas Burnett, Burnett, & L. Lavey John Advocates for Children and Families. by: Deacon, Association, Barrett & A D.P. Marshall Professional for amicus curiae Arkan- Chiles, Vandiver, M. Jr., Brian A. Leigh Commerce, Inc., sas State Chamber of and Associated Industries Arkansas, Inc. L. This is an from the Brown, appeal Justice. Robert final order of the Pulaski Court County Chancery *10 25, 2001, entered which concluded that the May current school- under the Education Article is unconstitutional funding system 2, 2, 3, 14, (Article and the 1) (Article Equality provisions §§ § Arkansas Constitution.1 The trial court also of the 18) Lake District No. 25 and the awarded counsel for View School $9,338,035. fees in the amount of class total attorneys’ resulting affirm the trial court’s order unconstitutionality We regarding but reverse its relative school-funding system finding uni- excess debt service as a credit each school district’s against mills. affirm the fees but form rate of 25 We attorneys’ grant $3,088,050, costs in the the amount to an' award of modify plus $309,000. amount of ten
This case has been in for more than On litigation years. 19, 1992, Lake View School District No. school dis- August officials, trict and certain individuals residing Phillips County State, Lake sued the Governor of the the State (hereinafter View) Treasurer, the of the House of the Presi- Speaker Representatives, Senate, Education, dent of the Officers of the State Department Education referred to collec- (hereinafter State Board of a declaration (1) as State).2 tively complaint prayed that the was unconstitutional under both school-funding system Constitution, the United States and the Arkansas Constitution an the unconstitutional (2) injunction against implementing sys- tem. 9, 1994,
On November Annabelle then-chancery judge Imber found that the did not vio- Clinton school-funding Constitution, late the United States but that it did violate the Edu- cation Article and the (Article 1) (Article Equality provisions 2, 3, In December Arkansas Constitution. 18) §§ Imber modified her November order with Judge slightly two additional orders. For of this the three purposes opinion, orders will be referred to as the 1994 order. The chancery judge the effect of her order for two to enable the Arkansas stayed years General to enact a constitutional school-funding system 1 Amendment the Arkansas which became effective 1, 2001, 80 to Constitution July designated all courts as “circuit courts.” 2 The case identified in the of this reflects State’s notice of style appellees appeal. *11 1995, in accordance with her In the opinion. chancery judge 11, 1996, denied Lake View counsel fees. On March attorneys’ court dismissed an the the State 1994 appeal by contesting final, order based the on fact that the order was the not since two- was still effect. See Tuckerv. View year stay Lake SchoolDist. No. 693, 25, 323 Ark. (Lake 917 S.W.2d (1996) 530 View Lake L). I, we View referred to the fact that Lake View’s expressly rights the matter not had been concluded and that further hearings before the trial court were before the trial necessary court’s order could into execution. At of placed expiration two-year 1996, near the end of calendar neither Lake stay View nor the year State from trial court’s 1994 appealed order. 1995, its General Session in
During Arkansas General enacted acts several for the of Assembly a new purpose establishing Acts 916 and 917 system. were school-funding Specifically, enacted, as well as Act which $1.3 over billion appropriated in school for the first of the next funding biennium more year $1.4 than billion for the second of the biennium.3 year 22, 1996,
On Lake View’s third and August following fourth class, amended the trial court certified Lake View complaints, View, as Lake which included all requested school districts in state, districts, students and in all students school parents districts, school board members of all school school district 5, 1996, who On November system. taxpayers support of Arkansas vote Amendment 74 to people by majority approved the Arkansas Constitution which fixed a uniform rate 25of mills for each school district as the ad valorem tax rate for the property maintenance and of the schools and operation public permitted increases in the uniform as rate “variances” to enhance millage education. public Session,
At its next General the General enacted new school legislation providing financing, including Act 1307 of codified in at Ark. Code Ann. 6-20- part §§ 302 et Act 1307 917 1999). Act seq. repealed (Repl. portions 3 This court held that Act 916 1995 was subsequently unconstitutionally adopted an original due to alteration which ran counter to its stated in the bill, purpose (1999). tide. See Ark. S.W.3d Melton, bill’s 5 457 Barclay addition, to educa- but, findings relating made legislative under Amend- “uniform rate of tax” defined a
tional adequacy, formula, and in the defined terms used school-funding ment assess- millage incentives for school districts encourage provided *12 General also education. The to enhance ments public 1997, at Ark. Ann. 6- now codified Code Act 1108 of enacted §§ which set educational 1999), 1011 goals, 15-1001 (Repl. through 1997, funds over totaling and Act 1361 of which appropriated and aid each the next biennium for grants $1.5 billion for year to school districts. the state’s 1998, and the to was an effort Lake View State
In there court, however, to The declined settle the lawsuit. trial approve 17, 1998, the trial court dismissed the On settlement.4 August with on Lake View’s fourth amended complaint grounds acts, a and new stan- Amendment 74 and 1995 1996 legislative had been dard for school funding implemented. Legislative public observed, constitutional, the to be trial court acts are presumed thus, and, and the fourth amended show-cause complaint petition not be of the 1994 should held State why contempt to Lake View No fees were order were moot. attorneys’ granted counsel. court, was to we
The
Dismissal
and
1998
Order
appealed
Huckabee,
v.
Dist.
25
340 Ark.
reversed. See Lake ViewSch.
No.
II,
481,
we
View
In Lake View
(Lake
II).
Prior to the trial in a total 144 school compliance districts intervene sought themselves with the align State’s that the had position cured the post-1994 legislation constitutional deficiencies. trial court denied the motions. September and October of the trial court conducted the compliance trial testified, over nineteen witnesses days. Thirty-six including some for second time. One hundred and exhibits eighty-seven were introduced and considered. The record resulting appellate 20,878 was ninety-nine volumes and totaled On pages. Septem- 19, 2000, ber Lake View filed revised for an award of petition *13 fees in the of $32.5 amount million for attorneys and litigation $200,000. 2000, at 22, costs of least On the September Rogers and Bentonville School Districts filed a the against cross-complaint State in which contended that the they was school-funding system constitutionally inadequate. 25, 2001, entered his final
Judge Kilgore order on as May referenced, in which he declared the already current school-fund- to be ing unconstitutional on the twin of inade- grounds under, the quacy Education Article and under the inequality Const, of the Arkansas Equality provisions Constitution. Ark. See 2, 3, art. art. He 18. further awarded Lake View’s §§ $9,338,035 counsel fees of but denied their attorneys’ request costs.
I. Posture the Parties of Lake View on the core of Though issue the uncon- prevailed acts, stitutionality it filed the first post-1994 legislative 22, 2001, notice of on and raised appeal issues including June failure to deem Imber’s order of Judge Kilgore’s law Judge case, aid, the the failure as state classify desegregation money the fees, failure of the court award trial the adequate attorneys’ failure the trial court to hold the of State court for contempt order, trial the failure of the the 1994 and with
failure comply remedies. to order court specific 22, 2001, the later State than one hour on Little more June 2001 order on both constitutionality points
appealed the ensuing fees. Over year, parties the award of attorneys’ as the true various issues such who was on jockeyed position who would and who was the prepare cross-appellant, appellant brief on attorneys’ whether testimony, abstract separate that Lake View was This court concluded fees was warranted. could that the State and the State was cross-appellant, appellant record, and enti- that Lake View was reabstract the testimony as attor- the merits of the case as well a brief on tled to brief on and Bentonville school districts were fees. The neys’ Rogers Little Rock as was the designated Intervenors/Appellees, three school districts intervened School District. The support that the was of the trial court’s conclusion school-funding system on No other unconstitutional inequality grounds. adequacy on and orders school districts intervened appeal. rulings an court were memorialized in made over year past Huckabee, Lake 25 v. of this court. ViewSch. Dist. No. See opinion View (2002) curiam) III). 349 Ark. 76 S.W.3d (per {Lake included reference to the of amicuscuriaebriefs. This filing opinion court, the ami- With the of this filed following permission groups matter: Association cus curiaebriefs in this the Arkansas Education order); of the trial court’s the Arkansas State Chamber (in support Commerce, Arkansas, Inc. Inc. and the Associated Industries of Advocates for (in order); trial court’s Arkansas support *14 of the trial court’s the (in order); Children and Families support Arkansas Panel and the Rural School and Commu- Public Policy the order); Trust of the trial court’s Arkansas nity (in support the (in Foundation of State’s Policy support position). II. School-FundingSystem order, At the time of the 2001 final there were 310 school II, Lake the districts Arkansas. In View this court described as it existed in as follows: school-funding system school districtsreceived percent of approximatelythirty funds, aid, their revenue from local sixty percent from state ten from percent federalfunds. II,
Lake View
The 2001 formula is school-funding essentially same as what was in which place Imber described in her Judge order. The differences are that in 1994 the principal Department of Education used a of 26.7 mills uni- rather than the “charge” form rate of 25 mills to Amendment which was pursuant later, two and the years approved was daily average membership for fictional students to “weighted” school districts provide with funds for students with needs. The 1994 special “weighted” sys- 6 State statutes refer to “base local revenue student” rather than “base level per revenue” and “local revenue student” rather than “local Ark. Code resource rate.” See per 6-20-303(5) (15) 1999). Ann. & (Repl. *15 the General in which with Act in 1995
tem changed needs through and aid for grants special began Assembly providing the two based 1994 and in upon In categories. specific for orders, to achieve opportunity the State equal court sought statewide revenues students by equalizing Arkansas per-student level rate. to the base according could school districts pass as in individual enhance district to property
additional assessed against millages education, or for mainte- for building local whether programs Indeed, con- Amendment specifically nance and operation. school districts in millages among variations templates maintenance operation: for the shall
(a) provide The General support to provide law. In order quality common schools general education, a fair system it is of this state to goal provide that, in such It recognized providing the distribution funds. is be necessary. pri- variations may some system, funding dis- variations is to allow school reason for such mary allowing tricts, to raise additional funds the extent to permissible, to within the district. It the educational school enhance restrictions thereon that variations or recognized funding further to, with, due other pro- in order or necessary comply may Constitution, Constitution, United States state of this visions laws, or federal or court orders. other school The State funding guarantees provides the trial court For it what districts as well. example, provides all which that as “additional base funding,” guarantees described revenue will a minimum state and local per school districts have is at least of the state eighty average daily membership percent for a school district at ninety-fifth and local revenue available school districts The State also has assist percentile.7 programs to Ark. is determined The school district at ninety-fifth percentile pursuant 6-20-303(17) 1999), (Repl. which Code Ann. provides: § ranking school means, when school district at “Local ninety-fifth percentile” average descending the total state and local revenue daily districts order by per total number which at the a district falls ninety-fifth membership, percentile described 34 C.F.R. state, in the schools of attendance pupils (1994) 222.63 [.] *16 with the Growth Facilities Fund- capital improvements, although for new was out in ing program buildings equipment phased 2001. What remains is Facilities General for Funding purchases buses, maintenance, and Debt computers, facility Ser- repairs, vice to assist school in districts their debt service Funding paying incurred for The trial court concluded that capital improvements. these were programs capital improvements inadequate:
Even with these three some programs, districts cannot afford to build new or buildings, complete necessary buy buses. repairs Either is not money available General or through Facilities Growth Facilities or the district is too incur Funding to suf- poor ficient debt to finance new construction and take advantage the Debt Service Funding Supplement.
The trial court further alluded to three formulas commonly used to determine whether in disparities funding among so, school districts exist. In the court drew a distinction doing between revenues to the school districts means of local provided and state made the school funding districts for expenditures the benefit of their students: 20. The of the (Federal three formulas purpose Range
Ratio, Coefficient of Variation and GINI Index of is Inequality) schools, in aid analyzing disparities school dis- funding tricts and students. But the as framed question, by the Supreme Court, is do unconstitutional exist? Does the state disparities ful- fill its constitutional duty to each of provide its children an educa- tion the child adequate give to realize his opportunity potential, enrich life his an asset to his community? formulas do not an exclusive provide way to answer the ques- (Greene, tions. Def. Ex. fh 1) 21. Using in the expenditures calculation of the Federal Ratio, this Range court finds that there is more than a 25% dif ference between 5th and the 95th in amount percentile spent per which is not in pupil with the compliance 1994 Order. However, revenues, using the State is within the 25% dif range Variation, ferential. Using the Coefficient of expenditures State not in the calculation compliance. Using expenditures of the GINI Index of the State is in Inequality, compliance. federal are funds distributed to the school Finally, districts for students. These funds are special-need outside of the dispersed the discretion and are not formula school-funding subject school districts. Review
III. Standard *17 has been often of review in cases chancery Our standard stated: record, we not the but do cases de novo on chancery
We review
it
clearly
court unless
is
chancery
of fact
the
finding
reverse
636,
Ark.
With this in we turn the merits of this appeal. matter, Because State’s on heart of the go points appeal we will consider them first.
IV. Justiciability
The State devotes a
substantial
its
brief to
portion
opening
its
that the
argument
constitutionality
school-funding sys
view,
tem is a
issue for the
nonjusticiable
courts.
the State’s
courts
interfere and even
unduly
and executive
usurp legislative
branch functions when
declare
they
systems
school-funding
This,
maintains,
unconstitutional.
the State
to a mandate
equates
*18
the
to
General
to
funds
Assembly
more
for the
appropriate
public
schools which violates the
clauses in the
separation-of-powers
Const,
4,
1, Moreover,
Arkansas Constitution. SeeArk.
art.
2.
§§
contends,
Carr,
the State
v.
Baker
The State’s to have nonjusticiability point appears been raised for first time in this The State appeal. implicitly claims that a violation of is a of sub separation powers question which, course, can be raised at ject-matter jurisdiction, any 52 v. its motion. See court on own Vanderpool or even this
time by Co., (1997). S.W.2d 280 Ark. 939 Cas. Ins. 327 & Fidelity that the issue of nonjusti- this we believe argument, Regardless in which in case school-funding laid to rest was previous ciability and judicial the distinctive roles of legislative we discussed No. v. Sch. Dist. 279 Ark. branches. See DuPree Alma. DuPree con- The State never discusses S.W.2d 90 (1983). 651 case, from in that we favorably but nection with quoted point, the California Supreme a seminal school-funding opinion Court: is that this arguments answer to above simply
The dispositive
it
is
in —nor is
about
undertake —the
court
not now engaged
As
which defendants
defend-
prefigure.
“search
tax equity”
it is the
which
virtue of
recognize,
Legislature
ants themselves
as well as constitutional function
competency
institutional
much
difficult and
Our task is
more
perilous quest.
assigned
it
determine whether the trial court com-
defined:
is to
narrowly
error
whether the state
mitted
prejudicial legal
determining
at issue
it was violative of our state
system
school
before
financing
guaranteeing equal protection
constitutional provisions
it
to the
opportunity
laws insofar as
denies
educational
equal
If
no
of this state. we determine that
such
school students
occurred, we
affirm the trial court’s
leaving
error
must
judgment,
to the
body
the matter of
constitutional
achieving
that function.
equipped
designed
perform
DuPree,
349-50,
at
We that the Education Article further observe to maintain Arkansas the State as the Constitution designates entity suitable, of free schools: a and efficient system general, public and of and safeguards virtue
Intelligence being liberty a free and State shall ever good the bulwark of government,
53 a maintain suitable and efficient general, of free system public schools shall all suitablemeans to adopt secureto the people advantages of education. opportunities Const., 14, Ark. art. 1 That is added). not the case in (emphasis § the state in constitutions four of the five cases cited the State as by rather, for its in authority those state nonjusticiability position; it is constitutions incumbent the General upon Assembly pro- vide, maintain, or schools. See v. Ala- promote public James Inc., bama Coalition (“The law Equity, supra legislature may by for for or authorize the provide establishment and of operation schools. . . .”); Marrero v. Commonwealth Pennsylvania, supra of General (“The shall for Assembly the maintenance provide of a and efficient of educa- support thorough system public . . tion. .”); Coalition & in Fairness School Inc. Adequacy Funding, for Chiles, shall made law for supra (“Adequate provision uniform of free . . system schools. public .”); Pawtucketv. City of Sundlun, shall be the (“[I]t supra duty general assembly . schools. . promote public .”). footnote,
As a historical our own Education Article our current state constitution was in 1874 and amended adopted Amendment in 1968. The four constitutions in preceding Arkansas all stated that the General would provide 1836, VII; education. See Ark. Const. of art. public Ark. Const. VII, 1; VIII; of art. Ark. of Const. art. Ark. Const. § IX, 1874, however, art. 1. In was duty expressly State, shifted to the which in our a deliberate signaled, judgment, change. this state wanted all people unquestionably of state to be departments government responsible providing suitable, and general, efficient education to the children of this state.
The State’s to be that not are argument appears only legisla- constitutional, see, Keith, tive acts to be Ford v. presumed e.g., Ark. 996 S.W.2d but that (1999), are se constitu- they per Thus, tional and not review. subject judicial State’s posi- tion is that has no role in judiciary school examining funding Constitution, of the Arkansas the annual light though appropri- ation constitutes almost one half of the total State’s budget affects the vast majority children school-aged State. *20 to court’s refusal review This the State’s
We reject argument. would be our state constitution complete school under funding and would work a severe of our judicial responsibility abrogation refuse to close our eyes to of this state. We disservice the people of of in field of a dereliction duty or turn a deaf ear to claims advised: As Black once sagely education. Hugo “[T]he Justice . . the because it has . was primary made independent judiciary constitutional of force and effect to and duty giving responsibility and the executive and limitations legislative liberties upon Black, Rev. Bill 35 N.Y.U. L. L. The branches.” Rights, Hugo of 865, 870 (1960). on, this court announced: Early State, exercise of their sovereign of the in rightful The people constitution; only and the established the ordained and powers, it. court this is duty upon expound interpret devolved said: And then we (1849). State v. Ark. Floyd, own it to and a our right duty interpret claim be a [W]e concerns, laws; do so long they Constitution and local States, laws the United with the Constitution and of not conflict are .... they supreme Parham, 32 Ark. 684 (1878).
Graham The has Kentucky Court emphasized Supreme The review in matters. language need for judicial school-funding matter, both elo court summarizes our on position and, we it: forcefully, quently adopt must to a definition of “efficient” we Before ... proceeding to our address made with respect a point appellants our into judicial to enter this to “stick noses” authority fray what is to be General business. strictly Assembly’s argued are on the evi- solely ... we asked —based [In case] dence in the record before us —if the common present system It is “efficient” in the constitutional sense. Kentucky schools in when are before us they our sworn decide such duty, questions Ken- duty judiciary constitution. by applying citizens enacted Kentucky so determined when the tucky was *21 the social called the it compact Constitution and in for provided the existence of a third branch of equal government, judi- the ciary. ... To avoid the because deciding case of discre- “legislative
tion,” function,” etc., be “legislative would a our denigration of own constitutional To the duty. allow General (or, fact, of the point Executive) to decide whether its are actions constitutional is unthinkable. literally The has the judiciary ultimate and the power, duty, define, words, apply, and construe all interpret, sentences phrases, and sections of the Constitution Kentucky as necessitated controversies before it. It is solely function of judiciary to so do. This must duty be exercised even such when ser- action vices as a check on the activities of another branch of govern- ment or when the court’s view of the constitution is contrary branches, that of other or even of that the public. Rose Inc., v. Council Education, Better 790 S.W.2d 208-10 reasons, (Ky. 1989) For these we (emphasis original). conclude the matter us before is justiciable.
V. Adequacy We turn to a then review of the trial court’s declaration that State’s violates Article school-funding 1. reit- To § erate, 1 of the Education Article reads: and virtue Intelligence of being safeguards liberty of a bulwark free and good the State government, shall ever
maintain a suitable general, and efficient of system free public schools and shall all suitable means to secure to adopt the people of advantages opportunities education. The specific intention of this amendment is to authorize addition existing constitutional or the General statutory provisions Assem- bly and/or may school districts public spend funds for the education persons (21) over twenty-one years and under age law, (6) six years age, may and no provided other interpretation given shall be to it. amended by Const. [As Amend. 53.] remand this case in that this court did not The first contends State Article on under II trial Lake View for adequacy compliance 2, 3, and 18. under trial Article but on only equality §§ II, remanded the In Lake View this court is incorrect. State a determination whether post- case to the trial court for deficiencies had satisfied the two constitutional 1994 legislation *22 had her order. Imber Imber in Judge underscored by Judge as the failed system concluded that school-funding inadequate 2 of the Arkansas and under Article under Article 14 inequitable Indeed, had filed a lawsuit con- Lake View separate Constitution. the and trial school funding constitutionally inadequate, testing of Lake View a nonsuit that action by court properly approved the court the com- issueswere before already because adequacy is trial. The State’s meritless. argument pliance a. Study. Adequacy that of the State’s is an
The keystone argument adequacy is to define. We education in Arkansas adequate impossible and the that this the of Education observe on Department point, order, at be odds. In her 1994 Judge General Assembly may no the that there had been studies on per-student Imber stated suitable educational cost “a and efficient” general, to provide to Arkansas schoolchildren. Arkansas opportunity ade- that and called for an seized theme General Assembly upon study: quacy shall (c) The State Board of Education devise process administrators, boards, teachers, and par- school school
involving ents in the definition of an education for Arkansas “adequate” students.
(d) defining Board shall seek an public guidance State submit legislation defining education shall adequate proposed to Interim Committee on Education adequacy prior Joint December 1996. Act 917 of 6(c-d). this directive from General Assembly, nothing
Despite Education, of and seven has been done year-s Department echoed in his 2001 order: have passed. Judge Kilgore Pursuant Act 917 of and in order that an amount funding for an education based on need not on amount available but on the amount ade- an necessary provide an quate system, educational court concludes adequacy study is and must be necessary conducted forthwith.
Stated fact has simply, Education Department refused to an troublesome prepare adequacy study extremely court, to this as it must to the General frustrating Assembly. Indeed, the General in two 1997 Acts addressed Assembly partially what an education in Arkansas would entail: adequate
(c) The General finds that a suitable efficient education system public should: (4) Assure that:
(A) All students from graduating school are able to high demonstrate defined minimum level competence in: *23 communications, oral,
(i) English and reading, writing; skills;
(ii) Mathematical and (iii) Science and social studies disciplines!.] Act codified at Ark. Ann. Code 6-20- § § 302(c)(4)(A) 1999). (Repl.
(a) Arkansas school students public will achieve competency in the basic core of and skills. knowledge
(1) Students will meet required standards in academic areas of the curriculum that will serve as a basis students to immediate and pursue lifelong educational and employment opportunities.
(2) Students will achieve in arts competency language (writing, and spelling, speaking, listening, reading), (com- math measurement, statistics, putation, and solv- probability problem basic data and ing, algebra, analysis, science geometry concepts), and life science knowledge, scientific solv- (physical problem economics, and civic (history, studies geography, and social ing), education). practical school students will apply Arkansas
(b) public and skills. knowledge in academic standards Students will meet
(1) required them career lifelong better those areas that will prepare opportunities. the local level at
(2) competency Students will achieve other economic technologies, in science and practical computer skills, be offered courses in vocational-prepa- and consumer ration skills. demonstrate Arkansas school students will
(c) achievement. in in state assessments
(1) Students will participate core of and skills defined the State knowledge basic Arkansas Test- Comprehensive of Education Department Assessment ing Program. scores on
(2) percentage The students’ numerical will be recorded on Proficiency School Examination High will of the local their and the examination be a part transcripts, be determined the local way school grading school district. to the
(3) Each local school district shall State report how incorporate of Education it will assessment Department this subsection into the district’s grading system required by system. at different Act 1108 of codified slightly language § short, 6-15-1003(a), (c) 1999).
Ark. Code Ann. (b), (Repl. on the the General is weh way defining adequacy Education, indications, all been from has while Department recalcitrant. *24 the of an standard
Without benefit adequacy developed Education, and the of both Imber Judge Judge Department Education, the Rose Better looked to case of v. Council Kilgore for Inc., of “efficient” education: for a definition supra, court an efficient of educa- We concur with the trial that child at tion have as each and with provide every must its goal oral and (i) least the seven sufficient written following capacities: enable to function in a complex communication skills to students civilization; (ii) and sufficient changing knowledge rapidly economic, social, and enable political systems to the student to choices; (iii) make informed sufficient govern- understanding mental enable the student to understand issues processes state, nation; that affect his or her community, (iv) and sufficient and of his or mental self-knowledge her and knowledge physical wellness; (v) sufficient in the arts to enable each grounding stu- dent to his or her cultural and historical appreciate heritage; (vi) sufficient or for advanced training preparation either training academic or as vocational fields so to enable each child to choose and life work pursue intelligently; (vii) sufficient levels of academic or vocational skills to enable school students to states, with their favorably compete counterparts surrounding in academics or in the market. job Rose, standards,” at 790 S.W.2d 212. “Rose as we Many them, will call were our General with Act adopted by 1108 and Act 1307 in as has been set forth in this already opinion.
In addition to the State’s an that educa- argument adequate definition, tion it further contends that there is no incapable correlation between enhanced school and better student funding For it that more has been performance. example, argues money on education since DuPree decision in and student spent has not performance The State improved. appreciably points the ACTAPP program student assessing evaluating per- formance in and mathematical skills as a English positive step State has taken. The State also recently contends fiercely Arkansas Constitution not does such require pre-school programs those, contends, it were mandated by Judge Kilgore. b. EducationalDeficiencies.
What State not does address are Arkansas’ rank- abysmal in certain areas education. What ings key follows is a respecting of the trial court’s compendium which State does not findings, contest:
Arkansas ranks fiftieth among states state per capita local government sec- expenditures elementary ondary education. *25 tenths the national several below students scored
Arkansas 1990 and (ACT) test between in a standardized average 1999. national for the per- than the average
Arkansas ranks lower who have adults and older twenty-five years of centage high from school. graduated the percent- ranks in for forty-ninth country Arkansas with a Bach- or older twenty-five age population age higher. elors or degree in is tied for fiftieth in country percentage
Arkansas adults with graduate degrees. fourth- students are below the
Arkansas’ and eighth-grade math, in science reading, national average proficiency and writing. test, forty-four the first only
On ACTAPP percent were in reading students tested fourth-grade proficient those tested were in only thirty-four percent proficient math. under
Arkansas’ revenue per pupil school-funding $4,535, in 1996-97 was while the formula school year $5,923. was average national among Arkansas ranks between and fiftieth forty-eighth states in teacher pay. Benchmark
Results of State’s own testing eighth- students in 2000 showed sixteen only percent grade April statewide, were or above math in the Little Rock proficient nine were or School District above. percent only proficient Arkansas has for the remediation of individual no students funding and no to train teachers for remediation after ACTAPP funding evaluations.
With to Arkansas school students state high entering respect universities, needed remediation either fifty-eight percent or math. For the School entering students English Rogers High some students with 3.0 university (including grade averages), or needed remediation either math. forty-four percent English *26 order concluded his 2001 that the “State has Kilgore Judge serious with student We remarkably problem performance.” agree.
Arkansas’ level teacher is last com- salaries when entry states, to our and Arkansas eight pared bordering spends twenty than the less national teachers across the board. percent average level for Arkansas school districts entry salary bordering Tennessee, $5,695 was about than less that offered in Memphis, districts, school and for more teachers the Memphis experienced $6,000. was differential almost A similar exists for disparity begin- Texarkana, Arkansas, salaries between school districts in ning and Texarkana, $4,000 Texas. Arkansas school districts about less pay than those in Texas.
Serious also exist in teacher disparities salaries school among districts within the State of Arkansas. One example given trial was court the science teacher with two masters and degrees $31,500 forty-one years’ teaching experience receiving salary District, in the View Lake School while a teacher with compara- $43,524 ble and received in the Smith degrees experience Fort School District.
Poor school districts with the most students are ill-prepared their teachers due lowto Both recruitment reten- losing pay. tion of teachers are difficult in those districts. The Bentonville District, School which is not will lose fifteen impoverished, per- cent of its teachers in the next three due to retirement. Low years from the sector pay competition real obstacles private present to teacher recruitment in that district. Simon,
Dr. Director of the Educa- Raymond Department tion, had this to about crisis: say salary —
Mr. Heller: And I wanted to what you ask else you you we think should be above doing Arkansas address students’ ACTAPP? beyond —(cid:127) I we’re I think think the critical most facing Dr. Simon: we need to now address is the issue of teacher’s salaries. thing ACTAAP, Start, Smart Smart of that all Step, depends primarily on the classroom teacher to we function. And are beginning teachers, crisis see a now in our State of some quality retiring. cases, they many had all of want has My generation — they’re retiring. they’re there. We’re right. getting That’s Okay. Mr. Matthews: ACTAPP, got me. to implement you’ve Track with In order have teachers? good
Dr. Simon: Yes. *27 teachers, got to have we’ve good In order
Mr. Matthews: — have more Dr. Simon: Money.
Mr. Matthews: Money.
Dr. Simon: For teachers’ salaries. have money And until we more teachers’
Mr. Matthews: salaries, we efficiency, suitability, qual- jeopardize which have you imple- of the ACTAPP and others ity program, mented. Isn’t that true? correct, sir.
Dr. Simon: That’s yes, short, the Benchmark ACTAAP which testing program to correct initiatives State represent paramount deficiencies in Arkansas are on course of educational dependent And, to the teachers. Director of Depart- according quality ment, area where we have a crisis. teachers is an quality teacher not tell the salaries do whole
Testing, rankings, court, trial the uncontested of the story. According findings District, the Lake which is a school View School undeniably poor district, are on free or reduced students ninety-four percent school lunches. That district has one uncertified mathe- school matics teacher who teaches all school mathematics courses. high $10,000 a He is a as a substitute teacher and works sec- paid year $5,000 a where he a He ond school bus driver earns year. job class, an insufficient number of calculators for his has trigonometry chalkboard, outlets, too few electrical no and one a compasses work, a not an software and that does lacking computer printer and a machine duplicating inadequate supply paper, have a overworked. Lake View’s basketball team does not com- uniforms, The no uniforms at all. set of while its band has píete students is 100 remediation rate for Lake View college percent. curriculum The District has basic Grove School Holly only for its courses or The and no advanced starting salary programs. $21,000. lab the bus teachers is Science equipment, computers, fleet, need and the and air heating conditioning systems replacing. in heed of have roofs and restrooms buildings leaking repair. district, increases are difficult to win in the school Because millage must borrow next revenues to Grove Holly against year’s repair roof and line. falling library leaking gas The Barton School in has two Elementary Phillips County bathrooms with four stalls for over one hundred students.
Lee schools do not have advanced courses County placement lab and suffer also from little or no science school equipment, that fail meet state in need of school buses buildings repair, standards, and for six hundred students. only thirty computers have asbestos and little or no or Some buildings heating problems air conditioning.
These are a few of deficiencies in just buildings, examples and the State’s school districts. equipment, supplies plague districts student School fast-growing experiencing populations need addi- such as and Bentonvifle in Northwest Arkansas Rogers are in Eastern tional buildings. rampant Buildings disrepair Arkansas. And for debt-service-funding qualification supplements can incurred from the on how much debt by State depends school districts. Poorer districts with deteriorating plants physical unable to incur much debt. are 4,300 has mushroomed stu- School District Rogers 1987, the enrollment in the Ben-
dents in the last decade. Since $432 83.57 About tonville School District has increased percent. to debt. With of the revenue available student Rogers goes per an the influx of the Latino English-as-a-second-lan- population, students is a critical need. In eighty-four guage program 2,615 there were students were enrolled in the program. $743,000 from the for the enrolled. received program Rogers $1,013,000. and State spent the State instituted student
In response poor performance, in 1995 for school districts not meeting academic distressprograms Ark. Code Ann. 6-20- Standards of Accreditation. See State §§ Deficient test scores 1999). 6-20-1610 trig- 1601 through (Repl. I, to submit an which the school district Phase ger requires Education; II, then Phase to the plan Department improvement and finally where improvement plan; Department prepares III, mandate consolidation or a Phase where the Department may the twelve school districts on the take-over of the district. Of order, all were classi- academic distress list at the time of the 2001 fied as poor.
c. ConstitutionalHistory. and that is what Article
We return then to our starting point of the Arkansas Constitution State requires education: and liberty and virtue
Intelligence being safeguards the bulwark of a free and the State shall ever good government, and efficient of free maintain suitable general, schools and shall all suitable means to secure to the people adopt of education. opportunities advantages and mandate since the Education has been a constitutional focus of our state. The framers of the first Arkansas constitu- founding tion Education Clause in 1836: following adopted diffused a com- learning through
Knowledge generally essential to the of a free munity being government, preservation of education diffusing opportunities advantages the various of the State conducive to through parts being highly end, it shall be the of the General duty provide are, law for the of such lands as or hereafter may improvement *29 be, the United States to this State for the use of granted by schools, be such any and to funds which raised from apply may lands, source, or from other to the of the any accomplishment are, be, intended. The General for which or object they may shall from time to time such laws as shall be calcu- Assembly pass intellectual, scientific and agricultural lated to encourage rewards and immunities for the by allowing promo- improvement arts, science, commerce, of manufactures tion and improvement and natural and countenance and history, encourage princi- of ples humanity, industry morality. Const, 1836, VIL,
Ark. art. of in Ark. Code Ann. Consti- reprinted tutions 497 1836 Education Article embodied two (1987). fundamental ideas: inherent value of education in creating citizen virtuous and the crucial role of an educated in a citizenry functioning democracy.
The Secessionist Constitution of truncated 1861 contained a Education Article: The General shall and all funds which Assembly any apply education, be raised for the
may of to the purpose accomplish- raised; ment of the for which object and from time they may time, such laws as shall be calculated pass intel- encourage lectual, scientific and agricultural improvement, by allowing rewards and immunities for of promotion improvement art, science, commerce, manufactures, and natural history; countenance and encourage principles humanity, industry and morality. Const, VII,
Ark. art. Ann. in Ark. Code reprinted § Constitutions 520 (1987). The 1864 Constitution reverted to the used in the language Const, VIII,
1836 Constitution. See Ark. art. Constitutions, in Ark. Code Ann. at 543. The Recon- reprinted struction Constitution 1868 contained an Education Article that mandated a common school for the distribu- system, provided funds, tion of school created a officer for the responsible school and detailed how a common fund for the school system, should be created and financed. The relevant system language read:
A diffusion of all general knowledge intelligence among classes essential to the and liber- being preservation rights ties of the the General and main- shall establish people, schools, tain a of free for the instruction of all gratuitous in this State between the of five and persons ages twenty-one and the funds for the years, common appropriated support be distributed to the schools shall several counties proportion to the number of children and therein .... youths *30 66 Const, IX, 1, 1868, Ann. art. in Ark. Code
Ark. of reprinted § Constitutions, at 567. reconstruction, Constitution contained the 1874
Following clause: the following liberty and virtue being safeguards
Intelligence ever free and the State shall the bulwark of a good government, suitable, efficient of free schools system maintain a general, of six and ages all in the State between whereby persons receive instruction. may gratuitous twenty-one years Const, 1874, 14, 53 was art. 1. After Amendment Ark. § 1968, Article know it have the Education as we we adopted today. concern to the
That education has been of paramount the state’s It citizens of this state since inception beyond dispute. that of state takes is safe to no government precedence say program 1983, that over it. this court “[ejducation emphasized that allows citizens to be becomes the essential our prerequisite realize to claim and their established able effectively appreciate, Dist. No. 219 Ark. at DuPree Alma Sch. rights.” further said in DuPree that “we believe the S.W.2d at 93. We educational is basic to our Id. right opportunity society.” equal However, in DuPree from education to we shied away proclaiming child be a fundamental of each school under Education right Indeed, the DuPree decision Article of our constitution. primarily educational caused dealt with disparity equal opportunity and not with whether school-funding system system under the Education Article. was inadequate d. Constitutional Duty
Our constitutional underscores the history point education has been of always supreme importance people this in when it this state. The General Assembly recognized that the state is constitutionally provide acknowledged required schools, suitable, free and efficient general, have held that to be a that the Arkansas courts obligation “para Act 1307 of codified at Ark. (d)(l-2), mount See duty.” § Ann. There is no 6-20-302(d)(l-2) 1999). Code (Repl. ques- *31 tion in this court’s mind that the of a suita- requirement general, ble, and efficient of free schools on the State system places an absolute to the school children of Arkansas with duty provide however, an education. The next is whether adequate question, this also a fundamental in the language vested implies right people of this state so as to strict of all actions require scrutiny legislative it. regarding we look first to the resolving Arkansas question, Constitution,
Constitution. Article 2 of the
entided Declarationof
deals with the
vested in the
Rights,
of this
personal rights
people
state,
free
and free
the
to
including equality,
speech
press,
right
bail,
trial
the
to due
by jury,
the
right
to be
process
right
self-incrimination and
protected against
double
the
jeopardy,
right
to be
seizures,
unreasonable searches and
protected against
and the
to
freedom. The
right
Education Article is found in
religious
article,
14,
Article
and it
separate
is couched in terms of the state’s
and not in terms of a
duty
vested in the
personal right
people.
This court has said
that in
repeatedly
construing
language
constitution,
obvious,
our
we must
its
give
language
plain,
See,
Smith,
common
Maddox v.
meaning.
Fort
346
e.g.,
City of
209,
Ark.
489,
Other states in the last decade have wrestled with the issue of
whether education is a fundamental
under the Education
right
constitutions,
Article of their state
thus
strict
necessitating
scrutiny
of all
course,
actions
education. Of
the educa
legislative
affecting
tion
in each state constitution
language
varies. Some states that
have found their
to be
under
school-funding systems
inadequate
their
education articles
have not
respective
addressed
simply
issue of whether an
education
a is
fundamental
adequate
right.
See,
State,
v.
78 Ohio
3d
e.g.,
St.
On the other Hampshire Supreme in that is a fundamental held that an education right adequate state:
69
We
State a
hold that in this
edu-
constitutionally adequate public
we
cation is a fundamental
In so
note that
right.
doing
“[t]he
to an
education
right
by
mandated
constitution is
adequate
individual,
not based
on
exclusive needs of a
but
particular
rather
is
held
to enforce
State’s
right
duty.”
I,
Claremont
N.H. at
138
We
that the
at
fundamental
issue is the
emphasize
right
right
to a State funded constitutionally
education. It
adequate public
not the
resource
from
right to horizontal
school to
replication
school and district to district. The
of the
substance
be
right may
achieved in different schools
possessing,
example, differing
resources,
ratios,
software,
library
teacher-student
computer
well as the
tools
myriad
techniques
may
employed by
those in on-site
control
State’s
public elementary
sec-
But
ondary school
when an
school
systems.
individual
or school
district offers
than
something less
educational
adequacy,
gov-
ernmental action or lack of action
the root
that is
cause of the
will
disparity
be examined
a standard
strict
judicial
scrutiny.
Dist.,
473-74,
Claremont Sch.
N.H. at
A.2d at 1359.
New
then
court
viewed the Rose
Hampshire
standards
“as
benchmarks of a
education.”
Id.
constitutionally
adequate public
at
With the exceptions Hampshire, Governor, seeRose v. Council Better Dist. v. Kentucky, supra, in recent have avoided Educ., Inc., most states pro- years supra, because that an education is a fundamental right claiming adequate the courts to examine and that carries with it the obligation education We must all strictly. scrutinize legislation respecting standard, to some about using strict-scrutiny admit apprehension *34 to this court’s constitutional function because it has never been or even to retain schools of this state micromanage public until, in our over the school system judgment, jurisdiction been achieved. an standard has adequacy time, At the same court is troubled four (1) things: Education has not conducted an of study; Department adequacy this court’s in DuPree v. Alma Dist. No. (2) Sch. holding despite that is the touchstone for a constitu- supra, equal opportunity revenues, tional and not the State has merely equalized to make revenues Imber’s only sought (3) equal; despite Judge effect, 1994 order to the same neither the branch nor Executive the General have taken the imbalance action to correct State, in ultimate in the (4) expenditures; budgeting pro- cess, continues to treat education without and the priority Rather, that the constitution demands. has State preference manner, continued to fund the schools in the same although more revenues. This admittedly taking steps equalize being said, the recalcitrance of State to reform the school- perhaps is reason standard funding system enough adopt heightened of strict scrutiny.
Nevertheless, because we conclude that the clear lan of Article 14 the State an absolute constitu guage imposes upon children, tional to educate our we conclude that it is duty to reach the issue of whether a fundamental is unnecessary right states, discussed, also we have Many implied. already appear lost in a morass when the issue of get legal analysis discussing fundamental and the level of This court is right judicial scrutiny. convinced that much of the debate over whether education is fundamental The critical is that the right unnecessary. point State has an absolute under our an constitution to duty provide education to each school child. Like the Vermont and adequate Courts, Arizona we are that that on the duty Supreme persuaded of the State is the essential focal our Education Arti part point cle and that is an absolute constitutional performance duty State, See Roosevelt Sch. requirement. Elementary Brigham supra; Dist. No. 66 v. When the State fails that duty, Bishop, supra. case, edu which we hold is the our entire today system public to fail cation is Should the State continue placed legaljeopardy. liti in the of its performance duty, judicial scrutiny subsequent will, doubt, exact it in the case before no be as as has been gation us.
72 reasons, we conclude that State
For foregoing the children of fulfilled constitutional has not its duty provide suitable, and efficient this state with a school-funding sys general, hold that the current tem. we school-funding sys Accordingly, Constitution, the Education Article of the Arkansas tem violates and we affirm the trial court on this point.
VI. Equality next that the trial court erred in that The State argues finding was On this school-funding system inequitable. point, horizontal, contends that there are two or (1) State equity: types dollar, where the State revenues avail- equity equalizes per-student state; where are made able across the and vertical efforts (2) equity to meet the of certain students the State needs through by special such as the categorical funding, English-as-a-second language pro- education, and voca- gram, special gifted-and-talented programs, State, tional-technical to the it is training. According virtually all revenues when needs come into impossible equalize special when certain must be made. value play judgments further maintains that it has met the Federal State Range Ratio test the GINI Index of revenues Inequality equal available student. revenues student is the correct test per Equal per State, and, thus, to the the trial court erred equality, according that the test for is the actual concluding equality moneyspentper student rather than state made available to school dis- money tricts. the State that wealth of Finally, argues any disparity the school districts is offset two legitimate governmental pur- the schools the it does: (1) funding way necessity poses fund other state local control of schools (2) programs, public the school districts.8
There is no doubt in our minds there is consider able between issue of whether school-funding system overlap and whether it is Deficiencies in certain inadequate inequitable. legislative At least two Acts refer to the of local desirability post-1994 specifically 6-20-302(b) (Repl. 1999) control. Act codified at Ark. Code Ann. See Act 917 of 1995. schools in certain school can districts sustain a finding *36 also, but when to other schools other inadequacy compared districts, mind, of that in we first finding inequality. Bearing address whether state revenues to the school districts under the paid formula is the test for dr school-funding deciding equality whether the test is actual on the students. We expendituresspent conclude it is the latter and that the trial court was correct in so The Arkansas Constitution has the determining. following provi- sions treatment to its under the guaranteeing law: equal citizenry 2. Freedom and independence.
§
All men are created free and equally and have independent, certain inherent and inalienable which are rights, amongst those of and enjoying life and defending liberty; possess- acquiring, and ing protecting property their reputation, pursuing own To secure happiness. these are rights governments instituted men, their among deriving just from the consent of the powers governed. 3. before the law. Equality
§ of all before the equality persons law is recognized, inviolate; shall ever remain nor shall citizen ever any be deprived of any right, or nor from privilege immunity, bur- exempted any race, den or on account of duty, color or condition. previous — 18. Privileges immunities Equality.
The General shall not to citizen or grant any class of citizens or immunities which privileges the same terms upon shall not to all equally belong citizens. Const, 2, 2, 3,
Ark. art. 18. §§
The answers to
State’s
can be
many
arguments
found in our decision of DuPree v. Alma Sch. Dist. No.
supra,
which,
handed
was
down almost
again,
twenty years ago.
DuPree, we found that the
then in exis
school-funding system
tence violated the three
set out above. We first
equality provisions
referred to “the
evidence that there are
undisputed
sharp dispari
ties
school
in the
districts
and the
among
expenditures per pupil
staff,
size,
education
available as reflected
class
opportunities
curriculum,
services, facilities,
remedial
materials and equip
DuPree,
ment.”
279 Ark. at
at
S.W.2d
92 (emphasis
whether local control
the school dis-
With
to
added).
respect
interest or rational basis for dis-
tricts was a legitimate government
districts,
we
educational
school
among
parities
opportunity
find no constitutional basis for
sys-
said:
can
present
“[W]e
tem,
on the educational needs of
as it has no rational bearing
at
at 93. In
district.” Id.
651 S.W.2d
holding
unconstitutional,
come
this conclusion in
was
we said: “We
part
educational
because we believe the
right
equal
opportunity
Id.,
at 93. We added: “For
basic to our
651 S.W.2d
society.”
the barest necessities and others to have
some districts
supply
meet the
endowed does not
generously
requirements
programs
and minimal
does not translate
the constitution. Bare
sufficiency
Id. at
at
into
educational
S.W.2d
equal
opportunity.”
*37
fails,
“If
the state
93. We concluded:
local government
govern-
act, and if
ment must
it to
the local
cannot
compel
government
burden, the
must itself meet its
state
continuing obliga-
carry
Cahill,
Robinson v.
tion.” Id. at
It is clear to this court that in we concentrated and that resulted in on made whether expenditures per pupil equal educational as the touchstone for constitutionality, opportunity not on whether the revenues doled out State to the school DuPree, were in we districts were We interested clearly equal. are here on what on the stu today, money actually being spent That rod for Both Imber dents. is measuring equality. Judge in in concluded that that 1994 and was Judge Kilgore case. revenues does not resolve simply problem Equalizing the school dis gross spending among disparities per-student made tricts. It an educational floor of available provides money the school districts but in no corrects the inherent way disparity between school district can raise additional easily wealthy school funds for educational enhancement by passing millage increases far in excess of the 25 mill uniform rate and poorer DuPree, school districts that are as we said in only offering, 279 Ark. at at 93. We “barest necessities.” S.W.2d agree that the focus for must be on the actual deciding equality expendi- tures.9 We affirm on this Judge Kilgore point. then to the end result of
Looking expenditures actually spent districts, on school children in different school we discern quickly in educational inequality deficiencies in Lake opportunities. View and Grove have been noted. In both Holly those already districts, the curriculum offered is barebones. Contrast the curric- ulum in those school districts with the rich curriculum offered in District, the Fort Smith School where advanced courses are offered and German, where courses such as specialty fashion mer- are chandising, available. The marketing educa- inequality tional is self-evident. opportunity
The same holds true for Whether buildings equipment. a school district bathrooms, has sufficient rainproof buildings, students, for its computers that func- laboratory equipment tions is all a matter Smith, Certain schools in Fort money. do not suffer from such example, deficiencies. Other schools in the Delta and in Northwest Arkansas where the student popula- tion is are exploding dire experiencing facility equipment needs. we turn to Dr. Simon’s
Again, assessment of the situation: — Mr. Lewellen: Is it is it your that a child your who opinion lives district poor because of the wealth values are property *38 low should be in a which is facility sub-standard to the facilities that are located in property wealthy districts?
Dr. Simon: I don’t think that’s fair.
Mr. Lewellen: Do with me that that you agree situation existed in 1994 in the State of Arkansas?
Dr. Simon: Yes.
Mr. Lewellen: And do you with me that that agree situation exists in 2000 in the today State of Arkansas? 9 We further regulations pertaining note that federal to the calculation of the Range limitation under tire Federal Ratio of Education to
disparity permit Secretary percentage using calculate the either revenues or See 34 C.F.R. disparity expenditures. 222.63(a) (1994). Yes.
Dr. Simon: fairness that based on that And do you agree Mr. Lewellen: it is not a formula where of Arkansas still has passed that the State situations in the poor a cure for those constructing responsible districts? have been set. that
Dr. Simon: Outside parameters me, have not estab- they Do with you agree Mr. Lewellen: to correct the problem? lished a system — not the extent you’re talking Not to the Dr. Simon: about, correct. that’s Now, that all children is it Okay. your opinion Mr. Lewellen: — well, that believe facilities has something have said you’ve you child, with the education of a right? to do Yes. Dr. Simon: think you agree you Mr. And I think would Lewellen: to do with the ability and other resources has something
materials of a child to learn. Yes.
Dr. Simon: case, do think you Then that Okay. being Mr. Lewellen: have facilities? that all children in this State equal physical Dr. Simon: No. in this have Do think all children State you
Mr. Lewellen: materials and resources district? every equal Dr. Simon: No. Arkansas school in teacher salaries among discrepancies been noted in this
districts have already Well-paid opinion. the education run. well-motivated teachers are what make engine admitted this in his also testimony Dr. Simon candidly testified: But not teachers you’re your equally
Mr. Lewellen: paying the State? across
Dr. Simon: No.
77 In the face of this the State makes testimony, implausible that more argument on education money does not correlate spent to better student This performance. is position contrary Judge Imber’s in her 1994 order and to the finding Tennessee Supreme Court: is a ‘direct correlation between dollars expended “[T]here and the McWherter, of education a student quality receives.”’ S.W.2d at 141. The State’s is farfetched in argument this court’s We teachers, are convinced that opinion. motivated sufficient instruction, equipment supplement facilities learning overcrowded, are not or all crumbling combine to enhance educational Dr. performance. Simon’s Certainly, con- testimony firms that. All of that takes money.
The State’s retort on the variations in revenue school among districts is that Amendment 74 specifically variations contemplates and authorizes them. It is true that Amendment 74 states: “The reason for primary such variations is to allow allowing school dis- tricts, to the extent to raise additional permissible, funds to enhance the educational within the system school district.” How- ever, Amendment 74 does not authorize a of school fund- that fails to close the ing between school districts with gap wealthy educational premier school programs districts on the poor lower end of the economic which are mired spectrum, in poverty and unable to provide system education much above the most kind. elementary
The initial
in our
is whether
inquiry
equality analysis
school districts are
classified on the
impermissibly
basis of wealth
so that discrimination exists. We hold that a classificationbetween
and rich
State,
school districts
poor
does exist and that the
with its
formula, has fostered this
school-funding
discrimination based on
wealth.
identified the classification created
Having
the school-
formula, the next
funding
issue is what level of judicial scrutiny
will be
in this case. Two
are
employed
levels
offered
par
ties. The
level is strict
under which
heightened
the State
scrutiny
show, first,
would have to
that it
ahas
interest to
compelling
sup
treatment in
and,
between
port disparate
school districts
funding
that the
secondly,
tailored
school-funding system
narrowly
See,
Hunt,
serve that interest.
v.
Shaw
e.g.,
U.S.
(1996);
State,
266 Ark.
Pridgeon
We exist due to in educational may opportunities though disparities districts, are the individual there wealth of legitimate property bases for this. Those or rational purposes, government purposes State, to the are local control and other state programs. according uncer of local control in DuPree no We argument rejected that such was because tain terms stated reasoning illusory to do with .whether educa deference to local control has nothing It is the General tional are across state. equal opportunities districts, to constitutional not that of the school Assembly’s duty, child in this state. educational every opportunity provide equal Furthermore, claim that the General must State’s that state in addition to education and fund a variety programs an inferior education this is reason system hardly enough quali fies as a reason. legitimate fulfilled
It
been the State’s
that its
is
duty
has long
position
if it
school districts an
under the state constitution
equal
pays
basis and then defers to local
amount in revenues on a per-student
could
farther
control as to how
money
Nothing
spent.
an
from the truth. It is the States’s
equal
responsibility
provide
and,
DuPree,
education to its school children
as we said in
“[i]f
fails,
local
the state
must
it
government
government
compel
act.”
It is the State’s first and responsibility, to forthwith what constitutes an education develop adequate is, next, assess, evaluate, Arkansas. It the State’s to responsibility monitor, not lower for only elementary grades English and math but the entire education proficiency, spectrum public across the state to determine whether educational equal opportu for an education is nity afforded adequate to being substantially is, Arkansas’ school children. It the State’s finally, responsibility know how state revenues are and whether true spent being equal is achieved. ity of educational opportunity being Equality must include as basic opportunity components substantially equal curricula, facilities, and substantially equal substantially equal an The equipment obtaining education. to all adequate key this, to is to determine what an repeat, educa comprises adequate tion in Arkansas. The State has failed in each of these responsibilities.
We hold that the trial court did not err in concluding that the current violates school-funding system equal-protec tion sections of the Arkansas that Constitution in educa equal tional is not afforded to the school children opportunity being this state and that there is no war legitimate government purpose curriculum, facilities, ranting discrepancies equipment, teacher It school districts. is clear to court pay among this that, DuPree, as we indicated in whether a school child has equal educational is an accident of residence. We opportunities largely affirm the trial court on this point.
VII. ChildhoodEducation Early that State while it that as matter of argues may agree be one public policy pre-kindergarten programs may way achievement, increase student it does not that such agree programs contends The State Arkansas Constitution. mandated are 14, 1, funds may that public that Article contemplates twelve, but it one education grades through beyond expended maintains, Rather, the constitu- mandate it. State does not not to the only gives authority tion’s language permissive to local school districts implement but also General Assembly that fit. The State asserts see they programs pre-kindergarten are best to what promote determinations as to types programs the entities entrusted to should be made by student achievement constitution, and those entities are make them the state districts, not the courts. and the school General constitu- View court should apply Lake responds that the trial the case at hand. It further asserts tional remedies to that under the of Arkansas court’s states provisions ruling simply *42 and the State must Constitution Article provide §§ education, the is either to if already access State equal pre-school are some school districts that pro- or directly indirectly financing childhood education. viding early Rock, Bentonville Intervenors also The Little and Rogers, merit but for that the have some State’s arguments might respond a con- the that the cannot uncontroverted State testimony provide six and older education for students age stitutionally adequate a of education. The unless it establishes pre-kindergarten program nutshell, that a child starts out Intervenors’ a is if position, education, that child never makes behind due to no up pre-school Intervenors concede that Article 14 on its the lost The ground. che education for students under face does not mandate public age however, that six. the State is The Intervenors urge, required the the all suitable means to secure to advantages to people “adopt under Article and and of educationf,]” early- opportunities a education is suitable means. As final point, childhood clearly that there was no evidence at Intervenors presented emphasize that trial to of educators and early- rebut testimony experts of an education childhood education is necessary component to enable numbers of which reasonably expects significant also at level. It is the most efficient students to grade way perform that the Inter- State fulfill according expectation, venors. essence,
The State’s boiled down to its is argument, that the of Article not mandate the language does plain court’s order of educa chancery State-provided, early-childhood tion. We Section reads in that the General agree. pertinent part school districts funds for “may spend public the education of over persons (21) twenty-one years age law, under six as (6) and no years other age, may provided by shall be to it.” interpretation given order,
In its trial court found: til^e
7. Three facts were uncontroverted at 1) trial: A substantial number of our children are and first entering kindergarten grade their 2) behind Those children enter significantly peers; that first grades remediation will have needing a difficult time per- at level forming grade grade; 3) third If a student level, cannot at perform grade the third especially reading, he then is ever so. grade, unlikely to do The only con- possible clusion that in order to our provide children with an adequate ACTAPP, education required by Constitution State must forthwith provide those children of programs pre- school that will allow age them to compete academically with their of this need peers. urgency the defi- equals in teacher ciency salaries.
Later in its the trial court wrote that opinion, remedies forming courts, was not the role of the and courts should not proclaim remedies unless all else fails. The trial court concluded that “for now” these matters are “left legislature.”
But aside from the fact that Article 14 does not childhood education and leaves that require early matter to the General the trial court could not order the Assembly, implemen tation of event. pre-school That is a programs any public-pol issue for the General icy resolve. It is Assembly explore that the of our state elementary are divided powers government Const, into three branches of See Ark. art. separate government. 4, 1. The state constitution further that one branch provides § not shall exercise the of another. See Ark. government power Const, 4, 2. art. 82 can neither that the legislature
This court has said
Purcell,
v.
See Wells
nor
power.
coerced
controlled by judicial
Wells,
commented on
we
100 (1979).
Ark.
S.W.2d
the
courts:
left
the
not
the remedies
legislature
being
alone,
not to
is
to the people
responsible
legislature
of,
courts,
clearly
or
to perform, duty
its
failure
disregard
constitution,
with the
remedy
it
and the
is
enjoined
by
upon
servants,and not
the courts.
other
by electing
through
people,
Purcell,
at 104
It must always
act nor a
of enumerated
enabling
powers,
neither an
grant
exercise the
may
people,
the legislature
rightfully
power
the constitu-
to restrictions and limitations fixed
subject only
and this state. Under our system
tions of the United States
reser-
and the
legislature represents
government
people
or
to the federal government
voir of all
not relinquished
power
the state constitution.
prohibited
Wells,
at 105
citations
(internal
While order, need education or was underscoring pre-school no its we that the trial court had hold ordering implementation, we that to do the latter. Nor do with the Intervenors agree power an mandate education as the courts of this state can pre-school That, is for of an education. again, essential adequate component to decide. Article school districts General when it refers to thing funding contemplates very pre-six law.” “by year-old programs, provided View’s VIII. Lake Arguments Lake View We next to the various raised by turn arguments in its appeal.
83 a. As Law Case 1994 Order case,
Lake
first
View
claims that law of the
resjudicata,
laches,
and Ark.
P.
R. Civ.
60 should have been
estoppel,
applied
View, however,
the trial court at the
trial. Lake
compliance
fails
discuss or
the latter four doctrines in its brief on
develop
It is incumbent on an
issues for
appeal.10
appellant
develop
pur
as we will not consider
of error that
poses
appeal,
assignments
are
or
See
unsupported
convincing legal authority
argument.
130,
Porterv.
329 Ark.
Last this court discussed the doctrine of law of the case:
The venerable doctrine of law of the case court prohibits from law reconsidering issues of and fact that have already been decided on The doctrine appeal. serves to effectuate efficiency finality judicial Frazier process. v. 5 Ark. Fortenberry, also, 200 see 5 (1843); Am. 2d Review 605 Appellate (1995). Jur. We said have with following regard to the law-of-the-case doctrine:
The doctrine that a an provides decision of appellate court establishes the law of the case for trial remand and upon court itself appellate upon review. subsequent Kemp State, 139, v. Ark. 335 983 S.W.2d (1998). 383 On the second the decision of the first appeal, becomes the appeal case, law of the and is conclusive of of law or every question fact decided in the former and also of those which appeal, been, not, might have but were v. presented. First Griffin Bank, Nat’l 318 Ark. S.W.2d (1994). 888 306 Clemmons Child Support Enforcement,345 Ark. Office 47 S.W. 3D (2001). 963, 970, Cadillac Inc. v. 347 Ark. Cowboy, Jackson, 69 S.W.3d 383, 388 made it (2002). we clear that the doctrine Jackson, allegation regarding Lake View does one make Rule 60: “Rule 60 conclusory seeking . . . from or modification, amendment, nullification of prevented [SJtate any part [OJrders[.]”
84 We fact in the first concluded issues law appeal.
governs the the is “conclusive where only have held that doctrine further the same those the are substantially facts on second appeal 80, 82, Wilson, 301 Ark. v. in the Wilson involved prior appeal.” Thus, a it if there is does not 781 488 (1989). apply S.W.2d facts. id. in the See material change trial that the Lake to contending View appears order as law of the case. We court in 2001 bound the 1994 by was but, more even The 1994 order was not disagree. appealed, in the school-fund there has been material change importantly, trial the the 1994 order and the between time of ing landscape have the 1995 and 1997 order. We discussed court’s 2001 already was vote of acts as well as Amendment which adopted this at trial before in 1996. The issue the compliance people with court whether the State is now compliance on appeal virtue what it has done since 1994. state constitution order, The while instructive on certain was 1994 points, simply We affirm the trial court not on the trial court in 2001. binding on this point.
b. Funds Desegregation View next the failure of trial court
Lake contests the Pulaski include the County desegregation money provided Districts for of the Federal Ratio School Range purposes decide school districts. On funding disparities among Imber in her 1994 order included Judge desegregation point, formula, them in funds under while excluded Judge Kilgore that the his order. We with money 2001 agree Judge Kilgore should not be included. decision, cited Sch. his making Kilgore Judge Magnolia Educ.,
Dist. 14 v. State Bd. 303 Ark. No. Arkansas State, addition, cites this court to S.W.2d 791 (1990). later Little Rock Sch. Circuit Court opinion, Eighth Appeals Dist., Dist. Pulaski F.3d 1013 Cir. (8th School County Special trial that the Circuit case We believe 1996). supports Eighth court’s decision. case,
In the Little Rock Sch. Dist. Circuit discussed Eighth the fact that the state funds were “in to” addition desegregation state aid: existing
The theme of the
Rock Schools Desegregation] Settle-
[Little
*46
ment
was that the Pulaski
Agreement
County districts would
receive the
included in the
desegregation payments
in
agreement
addition to
state
other
aid that
would have received. The
they
theme,
we
cited
that
language
previously
as does the
expresses
statement that
funds
the State under this
paid by
agree-
“[t]he
ment are
intended
not
to
any
or future
supplant
existing
funding
which is
of the
ordinarily
State of
responsibility
Arkansas.”
II,
Agreement]
E.
paragraph
[Settlement
§
We that the funds do agree not consti desegregation tute “state aid.” Under federal “state aid” is defined as regulations, contribution, no “any for which is repayment which is expected, made a State to or on behalf of local educational agencies within the State for current in the of free expenditures provision 34 C.F.R. 222.61(d)(1) (1994). education[.]”
We with the trial court that the agree desegregation money was not “state aid” current and should not form expenditures of state funds for part of the Federal Ratio test. purposes .Range Imber’s conclusion to the in her Judge contrary order was case, not law of as decided in this already Lake View opinion. has failed convince to this court that simply erred in Judge Kilgore result, his As a conclusion. legal we affirm trial court on point.
c. Weighted Daily Average Membership
Lake View also advances the claim that erred Judge Kilgore formula, not which used reverting school-funding weighted daily average membership opposed categorical and aid. Lake grants View that Imber’s 1994 Again, posits Judge case, order is law and her use of weighted daily average in the formula must be followed. membership funding is still daily membership that average We disagree weighting 1995, the General formula. of school-funding viable part the formula and substituted categorical grants changed were where fictitious students for the aid previous as a means school membership paying added to average daily See Act 1194 1995. needs that school district. special formula is what Kil Judge new school-funding no It would make constitutional mandates. measured gore against the consti by examining sense for him determine compliance of a that had been General formula repealed tutionality in this the 1994 We have held Assembly. previously opinion has merit. not law the case. Lake View’s no order is argument Debt d. Excess Millages Act that the trial court erred
Lake View upholding urges *47 1997, at Ark. Ann. 26-80-204(18) of codified Code (Supp. § to debt school districts subtract excess which authorized 2001), uniform tax of 25 mills owed the State the millages against under Amendment 74. to have merit. Amendment
Lake View’s point appears in pertinent provides part: of ad is established a uniform rate valorem
(b)(1) There mills to be levied on the assessed twenty-five (25) tax of property real, all and the state utility value of taxable personal, property and of the be used for maintenance schools. solely operation the uniform rate of (2) as in this subsection Except provided and an for maintenance levy tax shall not be additional operation a of the rate of tax replace existing schools but shall portion for levied each school district available maintenance and by oper- tax in the district. The rate of available ation schools school on by and levied each school district operation for maintenance this shall be reduced to reflect the effective date of amendment If the tax of the uniform rate of tax. rate of available levy by maintenance and levied school district on operation tax, exceeds the uniform rate of effective date of amendment the school by the excess rate of tax shall continue be levied (c)(1). in subsection If the rate provided district until changed levied a school operation by of tax available for maintenance on district the effective date of this amendment is less than the tax, uniform rate of the uniform rate of tax shall nevertheless be levied the district. Const,
Ark. amend. 74 (b)(l-2) (emphasis added). § What the General did was 26-80-204(18) by § what change Under Amend- comprises millage requirement.. 74, ment the uniform rate for the millage generates money solely maintenance and of the schools. Section 26-80- operation however, adds a 204(18), new excess debt service mil- category, to meet each school district’s lage, Subsection obligation. (18) reads:
(18) “Uniform rate tax” means rate of uniform ad valorem tax of twenty-five (25) mills to be levied on property real, assessedvalue all taxable personal, utility property the state to be used solely maintenance and operation schools. rate of calculating uniform tax imposed by Constitution, 3, Arkansas Article as amended Arkansas § Constitution, Amendments the following catego- millage ries of be utilized may to meet minimum millage requirement:
(A) The local school district’s maintenance and operation millage;
(B) The dedicated maintenance and operation millage; (C) Excess debt service millage; (D) The derived from ratio of the service millage debt divided funding the total assessment. supplements Ark. Code Ann. 26-80-204(18) 2001) added). (Supp. (emphasis excess debt service the 25
Crediting mill obli- millage against *48 is not gation Amendment 74. Nor can we contemplated by the trial court’s for accept explanation finding 26-80-204(18)(C) § & to be (D) constitutional. The trial court said: 5. The raised the plaintiffs have issue that Amendment 74 3,2, and Article and 18 have been violated by allowing §§
under A.C.A. et 26-80-201 school districts to use the seq. excess debt to the tax millages satisfy uniform rate of mills. However, the court finds Plaintiffs’ is argument otherwise. that Amendment school districts to requires levy twenty-five mills to be dedicated to maintenance and and that by fail- operations, that of would money the loses substantial sums to do so State
ing for schools. Some school Arkansas public otherwise available secure debt in order to millages have levied various districts that issues. Because of requirement incurred bond through debt be to of retirement of 150% equal dedicated millages debt millages. are excess virtually always the indebtedness there indenture, and, therefore, fact, in the bond it is represented know the excess are millages must be that voters presumed and operations. be available for maintenance service mills that this use of excess debt Plaintiffs complain 74 and that the amendment satisfy requires does not Amendment mills, any of levy twenty-five independent each district to school mills, How- other for maintenance exclusively operations. ever, in (b)(2) provided states “Except Amendment part, not be an additional the uniform rate of tax shall subsection the schools but shall maintenance and levy operation rate levied each by of the of tax school existing replace portion .” maintenance and of schools . . district available for operation a result could have been easily The Plaintiffs that argue in the amendment. How- by language obtained more specific ever, therefore, is the method of no such language present, mills uniform of tax used the State to meet the rate counting language with the Constitution. complies assumes, view, It In our the trial court assumes too much. and, first, that an debt sec- there is excess service millage always have, effect, that authorized their votes ondly, taxpayers the excess be to maintenance schools. applied operation that the excess would “authorize” by Why taxpayers implication and not for some other be used for maintenance operation such as another is not capital expense explained by expense court. reflect how school districts credit
The record does not many debt 25 mills owed or even excess service millages against This, course, across of the credits taken the state. value perti- liked to have at nent information that this court would have had State, Lake View’s does its but position, disposal, opposing the excess-debt-ser- not the financial argue impact eliminating credit. vice-millage
89
constitution,
In
our
we
state
words
construing
give
Barker,
their
and common
Frank v.
See
plain, ordinary,
meaning.
Faucher,
341 Ark.
We hold that Ark. Code Ann. 26-80-204(18)(C) violates Amendment the Arkansas Constitution and is void and of effect. no
e. IncentiveAward
Lake View next contends the trial court erred in denying its an incentive award of posttrial $10 million. Lake request View’s is that assertion it has driven since its primary litigation State has made strides inception in educa- great tion due to its It efforts. cites two cases to its support argument.
90 566 Cir. (7th 962 F.2d Illinois Sec.
See In Re: Continental Litig., Co., 926 596 Cir. (7th 1991). Monsanto F.2d Rand v. 1992); First, a case is school- neither Neither case is persuasive. a state claim against govern- matter a involving monetary funding cases, dis- Court of the Seventh Circuit Appeals ment. both In Re: of a class only the duties representative, cussed the fact that did court address' Continental Illinois Sec. Litig. instances, incentive fee. be entitled to an a may some plaintiff Flowever, that the in neither case concluded plaintiff the court brief, to award. In its Lake was entitled an incentive involved is a an incentive award faded cite to rule for when appro- View to an on that rule. We have said or to based priate develop argument this will not research an argu- time and that court again appellant’s See, 43 it. 344 Ark. S.W.3d ment for Holt Wagner, e.g., (2001). 128 that the trial court did not
We note finally specifically but a blanket address Lake incentive-award claim issued View’s Lake View’s failure denial of all not addressed. claims Regardless, to or is reason affirm enough to this legally factually develop point trial court on issue. and RetroactiveFunding Contempt f. that submits that the record establishes
Lake View clearly an Imber’s 1994 order there was intentional violation Judge with the 1995 and 1997 acts. legislative State passage View, Thus, to Lake sanction is warranted. contempt according that Lake View maintains retroactive State funding by further back to under the school districts school-funding However, it is Lake View leaves this formula espouses, required. should court in dark as to what retroactive funding receive it. which school districts should our to embrace Lake View’s law-of- failure Again, vis-a-vis Imber’s 1994 order the-case argument Judge largely Moreover, we hard decides the are issue contempt. pressed order, the 1994 when we conclude that the State contempt that the issue in this is whether have concluded already appeal as well as Amendment 74 have legislation brought the state into constitutional compliance.
With to retroactive Lake View’s regard funding, argu We, ment suffers from lack of citation specificity authority. observe that we will not again, an develop appellant’s argument for it do an or on research raised. Holt appellant’s legal See point *51 v. Wagner,supra. merit,
This has no and we trial affirm the court. point Remedies g.
'
Lake View
that the trial
argues
court should
generally
have ordered
remedies
the State. What
specific
Lake
against
View
be
is that the trial court
have
appears
should
directed
arguing
the
to take
State
to render school
specific steps
constitu
funding
We, however,
tional.
do not see that as the trial court’s
or
court’s function.
of
educational
Development
necessary
pro
and the
of the same
more
grams
falls
within the
implementation
bailiwick
General
and the
of Educa
Department
tion. The Ohio
Court
the different func
Supreme
acknowledged
tions in the
branches
remedies when it
government regarding
said:
that the
our
review is lim
recognize
proper scope
“[W]e
ited to
whether the current
determining
meets constitu
tional muster
refuse to encroach
upon
clearly
we]
[and
function of
legislative
what
new
will be.”
deciding
legislation
State,
213, n.9,
v.
VIII. Attorneys’ brief, that the contends a Lake View vigorously separate of calcu- method court in error when it used “hybrid” trial was $9,338,035 a fee award of fees which resulted in lating attorneys’ done, trial have according and no costs. court should What View, on a fund of fee' based common Lake is award percentage million, which, submits, efforts. Con- it was created its $130 to forty fees from range twenty-five tingent ordinarily percent fund, Thus, its fee award should of the common it claims. percent Moreover, $32,500,000 $52,000,000. Lake View or have been now the benefit to the school districts contends that because fees million), $130 $311 exceeds million (almost attorneys’ fact that even Lake View bemoans the awarded should be higher. to about six-and-a-half the trial court’s fee award works out per- cent of the fund. Lake View also asksfor reimbursement common of its costs.
The the but contends that it was State also fee award appeals State, to the the trial should have too court high. According method, a awarded fees based on “lodestar” which basically only case, the a with tied to number of hours have worked on attorneys the a for and novel for contingent litigation. potential “multiplier” an The a fee based the total worked at State advocates on hours rate of an hour with no $150 hourly multiplier. II, did
In Lake this court held that “an benefit View economic and accrue to the of Arkansas due to Lake View’s efforts State Ark. at at fees should be awarded.” 340 10 S.W.3d attorneys’ However, we did not that benefit was. 902. hold what economic noted a a circum- We that “this is case with set of unique unique stances,” facts, and we held that under these the State exceptional had waived Id. that we its We stated sovereign immunity. right were “not fees in all sanctioning attorneys’ public-interest litiga- tion or a new to the American Rule.” Id. endorsing exception court, we a this issue to trial refused to make remanding pro- nouncement how the fees that this was a on should paid, stating task for the trial court to id. We both a undertake. See mentioned fee based on economic benefit or lodestar percentage approach based on hours worked as methods for attor- possible awarding fees. See id. neys’ remand, trial
On court awarded fees ultimately attorneys’ $9,338,035.00. Lake View counsel the amount of In making benefit, its award trial court used a $130 million economic to, which it stated the had as the parties agreed starting point fees. The court next examined whether a calculating percentage of that economic benefit or “some other was approach” appropri- ate in this case. The court noted: “One of the purpose percentage is to method settlement not encourage early efficient penalizing that counsel counsel ensuring continue be will- competent to undertake and novel ing The court risky, complex, litigation.” observed that this had been and arduous” and that litigation “long the issues involved were novel and difficult. The court further observed the Lake View counsel were “at a placed very high risk because of the time and effort involved uncertainty . . .” success. The court to the pointed 1995 and 1997 legislation as well as Amendment 74 and $130,000,000” “a common fund as the results of the efforts. attorneys’
The trial court then cited other common-fund cases a where had fund been awarded percentage fees. attorneys’ cases cited were all class-action cases either business or involving or an issue. municipal corporation, illegal-exaction The trial court stated that Lake View counsel fee of requested twenty-five of the “common fund” and that witnesses tes- percent had expert tified that fees “are contingent even normally 1/3% 40% difficult cases.” extremely witnesses, affidavits, on the
Based
expert
contingent
case,
nature
factors
fees set
*53
awarding attorneys’
Inc.,
Indus.,
out in Chriscov. Sun
Ark.
304
calculation: 6.5% alternatively, 15,000 affidavit) hours LakeView (supportedby $150.00 x per by hour testi- (supported expert 94 x two attorneys)
mony was reasonable court stated (multiplier 3.877 difficulty, of litigation, length based upon success). nature of contingent February, 18. 1998-—Tune $525,000.
award: hours of work 4500-5500 estimated attorneys calculation: the hours to reduced rate. The court no particular requested rate. hour $150 and used the per 2000—November Tune work records for period,
Attorneys kept contemporaneous the trial court’s order. per $313,035.
award: 2,086.90 $150 hours x hour. per calculation: $9,338,035 Total Award: the lack outset, concern about admit to some we must
At the have been hours claimed to the number of time records for found, The trial court in this case for liability phase. worked claimed, 15,000 however, hours no one disputed State, in its affidavit. The the total hours attested to Lake View in a foot- the total hours worked brief on merely questions appeal, 15,000 hours worked as the we will note. Accordingly, accept the trial court. found as liability phase, View, however, It is in two Lake respects. with We disagree the economic benefit to fix what virtually impossible precisely sure, there counsels’ efforts. To be been as a result of the state has State, court acknowl- to the as this an economic benefit has been that exact benefit II. But what might in Lake View just edged the amount million was $130 simply fodder for speculation. the case and to in an effort to setde counsel agreed by opposing Lake View counsel. fees for attorneys’ decide upon appropriate of arguing concerns propriety Our second disagreement in class-action lawsuits involving fees awarded caselaw involving a fee issue or an illegal-exaction precedent corporation case, will be where money in a taxpayer award school-funding *54 used to those fees. two situations do not to be pay appear Indeed, counsel for Lake View at oral remotely comparable. argu- ment was unable to cite this court to a case school-funding single where a fee based on an economic-benefit had percentage theory been In the awarded. one case in recent school-funding years where a state court affirmed an fee to success- supreme attorneys’ counsel, ful the lodestar method was and not a employed percent- Governor, fee. See ClaremontSch. Dist. v. 144 N.H. age A.2d 389 (1999).
The trial court used the Chriscofactors guidance Inc., Indus., fees. See Chrisco v. Sun assessing attorneys’ supra. counsel; Those factors are the the (1) (2) experience ability time and labor the service required (3) perform legal properly; obtained; the amount involved in the case and the results (4) involved; of the issues the fee novelty difficulty (5) customarily services; in the for similar whether the fee charged locality (6) fixed or the time (7) limitations contingent; imposed upon circumstances; likelihood, client or if (8) apparent client, to the that the of the acceptance particular employment will other id. See This court preclude employment by lawyer. Chrisco, of the trial recognized, superior perspective judge factors, and we concluded that we weighing applicable would not set aside a trial court’s fee award absent an abuse of discretion.
It is obvious to this court in the case at hand that the trial court used most of the Chriscofactors in his award. But in making his he looked to both a fee based on six-and- analysis, percentage $130 one-half million and hours worked at a rate of percent hour, Thus, an $150 the initial award of plus multiplier. $8,500,000 based, for the was alter- liability litigation phase worked, aon calculation and also on hours natively, percentage risk, with a 3.778 based on the multiplier length, difficulty, of the case. importance
Because the economic benefit in this case does not lend itself to a firm and because the fee award must figure paid local, revenues, either state or from tax we government, Furthermore, fee in this court has this case. reject percentage *55 never a hours worked as a expressly adopted multiplier against means for at fees. We will not do so in this arriving appropriate case. II,
To reiterate what we said in Lake View this is case unique circumstances, with a set of where there is no but unique question that the state and local school districts derived an economic bene- fit. there could be no fee award assessed Ordinarily, against State due to the doctrine of under our state sovereign immunity It constitution. is because the State waived immu- only sovereign in this case that the issue of an award became nity attorneys’ viable.
We conclude fees based on hours attorney’s worked at an rate of $150 is in this case. The hourly appropriate case, obtained, results novelty difficulty hours worked, counsel, and the effect on other expertise legal counsel, fee, work of all militate in favor anof as we attorney’s Nevertheless, held in Lake ViewII. previously reasons already stated, we cannot an award based on a justify percentage applied $130 million or the use of to enhance the fee. against multiplier that, We hold in so the trial court abused its discretion. doing,
We the trial court’s fee award to a total fee of modify $3,088,035, worked, 20,587 hours, which is based on total hours rate of $150 hour. We further mod multiplied by hourly per the trial order and ify court’s award costs in the amount of $309,000, which amount was a Lake View affidavit. supported costs, modified, total award of fees and attorneys’ is $3,397,035.
IX. Stay
Because we hold that
current
school-funding system
unconstitutional, our schools are now
under a constitu-
operating
tional
Other
courts
this dilemma have
infirmity.
supreme
facing
either remanded the matter to the trial courts or
the court’s
stayed
mandate in order to
the General
give
Executive
Branch an
to cure the
See,
deficiencies.
Clare-
opportunity
e.g.,
Governor,
mont Sch. Dist. v.
142 N.H.
Clearly, operate public under this constitutional cloud. Were we not to our mandate stay case, dollar on education in Arkansas this every spent public untenable would be That would be an constitutionally suspect. situation and would have the the entire throwing potential are of the of our schools into chaos. We strongly operation public of Education belief that General Assembly Department should have time to correct constitutional disability public this educa school and time to chart a new course for funding public the issuance of our man tion in this state. we Accordingly, stay date in this case until 2004. This will General January give meet in Session and the an General opportunity of Education time to changes. implement appropriate Department 1, 2004, terminate, be will and this case will On January stay will constitute litigation. over. Any subsequent challenge separate
X. Conclusion more, the dire need for We once changing emphasize, it into constitutional forthwith to bring school-funding No can the on a “hands off” State compliance. longer operate how state in local school districts basis money spent regarding Nor can the State con- and what the effect of is. spending tinue to leave considerations equality regarding adequacy court school to local This decision-making. expenditures solely score, on this since we had made admits to considerable frustration about the role in education clear in our State’s position perfectly the DuPree It is not this court’s intention to monitor or case. Nevertheless, schools of this state. should superintend followed, constitutional dictates not interpreted court, have we will no hesitancy reviewing constitutionality once in an state’s school-funding system again appropriate case. concur. JJ., Hannah,
Corbin J., Glaze, concurs in and dissents in part part.
Imber, J., not participating. Dalby
Special joins. Carol Justice *57 L. I concur in Justice, concurring. Corbin, Donald the resolution of this case as reflected in the majority’s however, I write to voice concern over opinion. separately, my tenor of this lawsuit as reflected in the briefs personal motions filed for Lake View. course attorneys During motions, of this most of which were many appeal, purely procedu- ral, were filed both the State and Lake View. In at least two of their Lake View’s raised the of racism. pleadings, attorneys specter short, In asserted that were treated they they being unfairly by State and this court on the of the color their basis of skin.
In one of those
Lake View’s
pleadings,
attorneys compared
their
to that
of African-Americans in the landmark cases
plight
of Dred
v.
Scott
If this were not bad Lake View’s contin- enough, attorneys ued this theme of racial discrimination in their brief on the issue There, fees. stated in no uncertain attorney’s terms that they fees, million, had been such a small $9 over they given attorney’s that, because were African-American. further stated they They Caucasian, had been would have received they a much they bigger sum. wrote: They
The vast differentiation in the fees that has been allowed in this cause is in that glaring appellant’s are the Afri attorneys only can-American team of who have attorneys before this appeared court in a interest case and are now receiving disparaging fee. The members of the court must take care to recognize implications 14thAmendment of the United States Consti tution and Article Sections 3 and 18 of the ArkansasConsti tution that require appellant’s the same attorneys enjoy consti tutional as do rights Caucasian attorneys similar situation. motions, As with the Lake View’s offered in the attorneys nothing their claim way that were proof support discriminated they $9,338,035.00. Indeed, awarded a against being it is dif- paltry exists, ficult to such as the imagine any chancellor’s proof order demonstrates that he held these esteem. attorneys high Furthermore, the cases on which Lake View’s attorneys rely, where Caucasian received attorneys sums of allegedly large are not cases. money, Counsel for Lake school-funding View’s admitted in oral attorneys that he had not found argument any case where a fee school-funding was awarded. percentage sum, these unfounded of racism are allegations reckless both to this court and to the lower court. disrespectful, They are an unwanted distraction from the real issues in this case. The issue of race did not enter into this simply court’s decision. *58 Indeed, I am confident in that the skin completely color of saying Lake View’s no whatsoever attorneys in this court’s played part decision. I am confident that it no equally played part any the lower court proceedings.
I understand that there was a certain amount of posturing case, on in this both the State’s and Lake going View’s attor- by and that this case was a neys, media event. Be that as high-profile 100
it of racism have no unfounded may, unsupported allegations nature. business in a lawsuit of this the I concur with Hannah, Justice, concurring. that the current school fails to meet system majority public Jim the under our constitu- the standards for schools public required to set out I reach the same conclusion tion. I write why separately and to that the role of this court is to determine whether clarify our school meets our constitutional standards. system public role of court is to direct the in what not General Assembly must be done to school provide required public system. constitution, our Under General bears Assembly duty school that with our consti- provide public system complies tution.
The issues in this include whether the current case presented it and whether is These two funding system adequate equitable. issues be considered as a of whether the cur- may simply question rent school the General meets the system provided suitable, constitutional of a and efficient requirements “general, Const, 14, of free schools. . . .” Ark. art. It 1. system public § does not.
The Constitution
of Arkansas
that
State
provides
suitable,
State must maintain a
and efficient
of free
general,
system
Const,
14,
schools. Ark.
art.
1. The
public
obligation
pro-
vide the
schools
to the General
required
public
belongs
The Arkansas
vests in the
Constitution
General Assem-
Assembly.
establish, maintain,
bly
duty
authority
support
Frank,
589,
Barker
school
327 Ark.
939 S.W.2d
system.
public
E. Poinsett
Sch. Dist. No. 14 v.
315
(1997);
County
Massey,
Ark.
It
is clothed
the Constitution with
Legislature
plenary power
over the
schools. It is
management
operation
schools,
to declare
with reference to the
Legislature
policy
*59
and however much this court
doubt the wisdom of the
might
declared, it has no
to alter it.
pohcy
power
Wheelis,
at
189 Ark.
376. That the General
has
Assembly
plenary
over the
that
full
schools means
it has
Beard
power
public
power.
Albritton,
538,
v.
182 Ark.
The role of this
is
court
not to dictate
it is to
policy;
the constitution. As this court stated in
Hot
interpret
City of
Creviston,
v.
288 Ark.
Thus,
there is no
that this court has the
question
obligation
to
the constitutional
authority
interpret
provisions regarding
schools and determine whether the General
is
Assembly
fulfilling
suitable,
its constitutional
duty
efficient
provide
general,
of free
schools.
public
Previous case law confirms this conclusion
our
regarding
the constitution.
In the
since the
duty
interpret
years
present
was
constitution
has had
court
occasion to
adopted,
interpret
of Article 14 of our constitution on
As
provisions
occasions.
many
noted, this court has declared
General
already
Assembly
under
the constitution to establish and
obligated
maintain
Wallace,
schools.
This
has
court
also declared that the
supra.
General
has the
to create
schools
set the
obligation
Beard,
boundaries of districts.
decide
how
supra.
authority
*60
the state is to be divided
schools lies with
General
up
public
also,
Ark. at
and is
315
169. See
Assembly
“supreme.” Massey,
571,
Ark.
211
925
The
(1919).
Krause
138
S.W.2d
Thompson,
of school
has also been before this court
issue
districts
funding
on a number of occasions as it relates to the General Assembly’s
suitable,
to
and efficient school
duty
provide
general,
30,
under the constitution.
v. Alma
Dist. No.
Sch.
219
Dupree
also, Krause,
Ark.
This court has not
defined the terms
specifically
“general,
suitable,
and efficient.” The word
in Article
Section
“general”
1, means that the
schools
under the constitution
public
required
must be of common benefit to those who are to be served
by
schools, i.e., those who are
between six
twenty-one years
The
schools must offer
instruction of all
age.1
public
“gratuitous
between the
of six and
. . .”
Sch.
persons
ages
twenty-one.
Special
34, 36,
Dist. No. 65 v.
144 Ark.
The word “suitable”
also be understood
reference to
may
by
earlier decisions of this court.
In Fort Smith School District v.
53 Ark.
public policy
Assembly
required
constitution.
also,
Dist.,
The discussion in Dickinson, Maury, supra, Berry, supra, also casts on of “efficient.” A must supra, light meaning the General that is by of provided capable effectively the constitutional mandate and suitable fulfilling general sys- tem of schools. The word “efficient” is defined as “Mak- public .. . Effective in the desired result with ing, causing producing minimum wasted effort.” New The Shorter Diction- English Oxford It (Edition 1993). doubtful to me that the framers ary appears of our mind constitution had a definition of “efficient” in similar Inc., to that Education, set out Rose v. Better Council S.W.2d 186 As noted in the 1989). (Ky. majority opinion, definition in Rose was relied both by upon Judge Kilgore Rose, Imber. In Court defined an Judge Kentucky Supreme efficient education in terms of educational matter and level subject note, to be obtained. As the on to proficiency majority goes the General have been influenced the definition Assembly may by in Rose when Acts 1108 and 1307 of 1997 were How- adopted. ever, be, whatever the definition of efficient might adoption such methods and education as discussed in specific goals public Rose, is a matter of left our to the constitution supra, policy Wheelis, General See Our is to determine Assembly. supra. duty whether the schools as meet the con- public presently functioning suitable, stitutional of a and efficient system requirements “general, Const, of free schools.” Ark. art. 1. public “General, suitable, the terms and efficient” Although might defined, case, be more under the facts of this further defi- finitely suita- nition is not The words necessary. general, meaning ble and efficient that be derived from our case law is more may than to use in whether the constitutional sufficient determining mandate has been met the General Assembly. case, need
I also note that under the facts of this we not determine whether review is under strict or judicial scrutiny whether there is a to the man- fundamental right constitutionally suitable, efficient dated education. general, child entitled court held to a education every plainly public suitable, has a to a and efficient education in the right general, Maddox, schools. Under conceivable standard of public supra. any review, the current and does not system woefully inadequate to fulfill the constitutional mandate. begin facts, sets out and I will not majority opinion repeat them here. The scratch the surface of examples provided hardly of the current school num- inadequacies system. Large bers of our test below the national A students average. majority Arkansas students remediation in math or when require English start Our classroom teachers are they college. substantially of teachers is not even consistent underpaid. Compensation between districts.
To the see of the we need look no further gravity problem, than to a district where the entire math in one school is program offered a substitute teacher who is neither by grossly underpaid materials, with sufficient or nor provided supplies, computers, facilities. We also need look no further than ato adequate physical facilities, district where students are not afforded reasonable toilet leak, where roofs where buses do not meet minimum state stan- dards, and where there are without It heat. is the buildings obliga- tion of the General to the Assembly provide constitutionally facilities, materials, and teachers. required equipment competent Maury, supra; Berry, supra.
The constitution
the
places
responsibility squarely upon
establish, maintain,
General
to
a
Assembly
support
public
suitable,
school
which
and efficient
system
provides
general,
educational
all
to
students between the
of six and
opportunity
ages
See footnote 1.
of the
Since
twenty-one.
adoption
present
created,
constitution in
school districts have been
been
for taxation for schools has
transferred
part
responsibility
schools,
run their
and the
to the local level. Local districts have
However, none of this alters
is accustomed to local control.
public
under our constitution.
the General Assembly’s responsibility
within
The General
has been well
its constitutional
Assembly
in the creation of the districts and in
local con-
authority
allowing
trol.
court has
that the
This
General Assembly
long recognized
must
employ agencies
accomplish
obligation
establishing
Lemaire,
of free
schools.
174 Ark.
maintaining system
public
also,
at 939. See
Allen v.
GroveConsol. Sch. Dist. No.
Harmony
175 Ark.
The that the notes the frustration Arkansas majority Depart- ment of Education failed to an has complete adequacy study trial General The court stated that to requested by Assembly. determine the amount of “for an education based funding on need and not on amount availablebut on the amount nec- an educational the court con- essary system, provide adequate cludes an is be conducted must study necessary adequacy forthwith.” This is a failure of the General The Assembly. Education, context, as an Department acting agent the General The inaction is a matter for Assembly.2 Department’s Wheelis, It is the General resolve. General supra. under the constitution to duty Assembly’s provide required established It of Education is not created or constitution. Department was created the General See Act 169 of 1931. Assembly. Supervision Const, vested in the General Ark. art. 4. Barker, schools is ultimately Assembly. supra; *63 constituting of Education was created A State Board of Education the State by Department the Board 1931, 169, the General in Act 169 of 1931. In under Act members of Assembly In Act the directed that the board members were elected. 244 of General Assembly the Governor. While the General has allowed the Executive by Assembly appointed to Board, to members of the State School duty supervise Department appoint school remains with the General system Assembly. public
106 to do It is to General Assembly school system. up public boards, districts, or bureaucra- whatever it must do with respect meet the constitutional cies to make the requirements. system free to decide how to establish The General is Assembly that meet the constitutional maintain a schools system public Barker, The current school does mandate. public system supra. The meet constitutional General Assembly not requirements. act. do not have the to hold a constitutional must now We power 298 Ark. 769 mandate in Hutton v. S.W.2d abeyance. Savage, Creviston, 394 (1989); supra. that, discusses, the raised in
I note as the issues also majority the current this case include whether system funding adequate two issues are con and whether it is These inexorably equitable. at before court is nected and what is issue actually simply whether the current school General by system provided the constitutional of a meets “general, Assembly requirements suitable, efficient free schools. ...” Ark. public role, in whether art. 1. Const. Funding plays determining suitable, and efficient schools is system public being general, Edmondson, 120 Ark. 178 390 In Dickinson S.W. provided. this court stated: “The has no (1915), Legislature authority for the of funds. . . .” select an basis disbursement Dick arbitrary inson, Ark. at 90.
The issue in this case is more than a mere complex funding cites in its discussion of issue. majority funding Dupree, that, court where this stated Dupree opinion quotes “[f]or the barest necessities and others to have some districts supply not meet the endowed does programs generously requirements Bare and minimal does not translate constitution. sufficiency Ark. at into educational 93. Dupree, equal opportunity.” be inter- This statement the court in also Dupree may that bare and minimal does not sufficiency preted stating simply of a suitable school satisfy system. requirements I that in terms it is doubtful that mean- agree highly practical reform will ever be achieved ingful General *64 unless it determines actual and makes nec- expenditures per pupil decisions on That is essary the General funding. something must deal with. The Assembly does relate to the funding required education, constitutional and the General Assem- requirement must address it. The issue of bly wealth of districts is less helpful. Whether there is classification based on wealth exists the real begs issue. The suitable, wealth of a district with ato respect general, and efficient school is not relevant public because state must assure the educational are required opportunities provided regard- less of wealth.
Looking does not inadequacy inequality funding answer the real issue. necessarily The real issue is whether each child is provided educational constitutionally required oppor- Maddox, tunities. The real issue is whether supra. all students are afforded the constitutionally education. required
Amendment discussion, 74 must also be noted in this because it that school specifically districts provides “to extent may per- missible” raise additional funds to “enhance the educational sys- Const, tem in the school district.” Ark. amend. 74. “Enhance” means the educational that are opportunities being provided by the additional suitable, are above and funding beyond general, and efficient education under the constitution. There- required fore, between districts well inequality may exist. constitutionally not, however, It exist as to may provision constitutionally suitable, short, and efficient” required “general, schools. In unconstitutional, while I that the agree is I present system cannot that the General agree bound to assure that each stu- dent must receive the same educational precisely opportunities, facilities, curricula, or Amendment 74 will not equipment. allow this conclusion. that is Perhaps why majority opinion speaks in terms of educational substantially rather than equal opportunity, the same. precisely
I also write to state that while I that under Lake View agree II, case, fees will be awarded in attorneys’ I do not agree fees should be based granted the State upon acquiescence by work done regarding Documentation of work attorneys. and costs incurred is woefully inadequate. done *65 attorneys until 1998. For activity is a lack of records attorney There are when the and 2000 there days between 1998 existing billings that, at least also unclear. The records imply are billings quite little, That would if at all. there was activity three any, years, bill- were there was attorneys mean that over activity years two thousand hours in excess of per year. ing intended than their of school funds for other pur The use Ark. the Arkansas Constitution. limited by pose specifically Const, also, Dist. Ft. Smith v. Sebastian art. 14. See Sch. Special If and costs 702 fees (1982). 777 Ark. 641 S.W.2d County, in a case constitutionally are to be awarded involving protected least, funds, then, should be at the documentation very supporting required. in in Justice, concurring part dissenting
Glaze, earlier dissent that this I write first to repeat my part. Tom then Imber entered case should have ended when Chancellor (1) from those this court dismissed the her orders (2) appeal orders, District failed to cross- the Lake View School (3) District the chancellor’s orders. See Lake ViewSchool from appeal Huckabee, Ark. 10 892 (2000) (Glaze, No. v. S.W.3d refers to as Lake View II). now dissenting) (majority opinion J. II, that the chancellor erred View was still (and is) Lake my opinion and, if Lake View when her 1994 orders for two she stayed years, orders, entitled to the those it would have been had appealed relief it As far as the acts the General Assembly sought. injunctive the chancellor’s 1994 in its effort to with enacted after comply decisions, school district had the Lake View and other oppor- any in another suit. of those acts tunity challenge validity new and different issues to be those acts involved argued Clearly, and decided.
Instead,
and has
our court
a new'review procedure
adopted
the constitu-
trials” in order to consider
provided
“compliance
Imber’s 1994
laws enacted since Chancellor
tionality
any
was well intentioned to
This court’s action in this
orders.
respect
serious issues sur-
hand
its
rectify
attempt
provide helpful
our state’s schools. These
rounding
funding problems facing
issues, however,
have
with
could
been
dealt
if this
appropriately
had
court
to follow this court’s
rules
required
parties
existing
rules,
and its case law
those
procedure, appellate
interpreting
dissent,
rules. I
éarlier
discussed this
and there is no
subject my
here,
need to rehash that
dissenting
say
opinion
except
when this court
from its established rules and laws to create
strays
issues,
new remedies to resolve hard and
it
controversial
invariably
See,
makes matters
worse.
Arkansas Kil-
e.g., RepublicanParty of
Corbin,
Imber,
350 Ark.
Because of this court’s unusual decision *66 to allow chancel- lor’s 1994 order to held in for two matters abeyance years, — afterwards Arkansas voters changed Amendment approved and the General enacted acts the on state’s bearing school new issues. Because this funding problems raising did court not conclude the over correctly which Chan- litigation cellor Imber our court is now confronted with the presided, ques- review, of which tion and decision it is to findings since new laws orders, surfaced the have after a and new Collins Kil- judge, has been to decide the Lake View gore, case. This issue assigned and, to what as this court should review is most once perplexing, would not have existed if our court had ended its review of again, orders, Imber’s 1994 those final and Judge orders by denoting Alas, the that issues in the deciding court’s failure to do so appeal. now forces this court choose whether it should review Judge or Imber’s orders. Kilgore’s The court has decided Judge majority and order now are the ones before this Judge Kilgore’s findings court. court that submits Imber’s case has majority Judge ended, and order forth officially Judge Kilgore’s springs review, even order final on ordinarily though any brought appeal for review intermediate order the brings merits. up any involving Ark. R. See P.—Civ. 2(b). App.
While I
the
with
new and unusual man-
thoroughly disagree
in which
court
ner
has taken
of this case on
jurisdiction
However,
I
I am
am
outnumbered.
I
appeal,
recognize
hopeful
to its rules
this court will revert
in the near future
that sometime
and not
to decide constitutional
trial courts
questions
and require
thus
decisions in
requir-
courts to hold their
abeyance,
allow those
remedies, have rules and
We
later
hearings.”
“compliance
ing
mandates,
such constitutional
to enforce
well as legislative options,
need not create new ones.
and our court
case,
I
with
the merits of this
agree
largely
Regarding
believe,
I
correctly
court. For
majority,
majority
example,
to decide the constitutionality
have the
holds that courts
authority
court
Our
essentially
the State’s school funding system.
Dist.
of DuPree v. Alma School
in the case
decided
question
I also am of
(1983).
Finally, agree majority fees, waived award because State sovereign of attorneys’ only *67 Otherwise, be enti Lake View would not in this case. immunity fees are authorized in tled to fees since attorneys’ any attorneys’ (com when fees are statute (1) two situations: provided by only in Rule”), labeled the “American (2) illegal-exaction monly fund is estab where a class action is and common cases sought Fooks, 130, 290 (2001) 346 Ark. 55 S.W.3d lished. See Cotten Hannah, court refused to (where (Glaze JJ., concurring) fund from which such award because there was no common fees 25 v. Hucka seeLake SchoolDist. No. fees could be but View paid); bee, 481, 10 892 (2000) (Glaze, 340 Ark. S.W.3d J., dissenting). exists,
Here, no refund but the State affirmatively recognized fees, even counsel were entitled attorneys’ Lake View’s circum- them. In these limited no statute though provides where the State waived its court stances immunity, majority fees, and, so, in was correct in the estab- awarding doing utilizing Inc., Indus., in lished factors set out Chriscov. Sun 304 Ark. S.W.2d 717 (1990). conclusion, I In must with the disagree majority opinion where it the issuance of the court’s mandate until stays January 2004, so as to General give Assembly Department Education time to The implement appropriate changes. opinion further reads that we in not to our mandate stay “[W]ere case, dollar on education in Arkansas would be every spent constitutionally court tends raise alarm suspect.” majority exists, where none nor is argued. cases,
Our established rules all that in civil appellate provide criminal, the clerk will issue a mandate when the court’s deci- sion becomes final. SeeArk. R. 5-3(a). Ct. Rule 5-3(c) Sup. pro- vides for a where seek to stay only parties prosecute proceedings Court of the United States. Supreme short, this court should follow its own rules. The General meets in and I have beginning January every confidence that and the execu- governmental body, governor, tive branch will work towards the citizens a school assuring that will meet constitutional muster. Part delay obtaining a decision in this case has been due to this court its orders. staying This court should let and executive legislative, judicial, systems matters, move ahead as it does in these and Arkansas can usually this constitutional issue behind it. I put join Accordingly, decision to affirm in and reverse in but do not majority part part, this court’s decision until join 2004. staying January