Cite as 2021 Ark. 136 Digitally signed by Susan Williams SUPREME COURT OF ARKANSAS Reason: I attest to the accuracy No. CV-20-536 and integrity of this document Date: 2023.06.20 15:05:22 -05'00'
Opinion Delivered: June 17, 2021 ARKANSAS DEPARTMENT OF EDUCATION; JOHNNY KEY, IN APPEAL FROM THE PULASKI HIS OFFICIAL CAPACITY AS COUNTY CIRCUIT COURT ARKANSAS COMMISSIONER OF [NO. 60CV-20-2439] EDUCATION; AND DIANE ZOOK, SUSAN CHAMBERS, CHARISSE HONORABLE MARY SPENCER DEAN, R. BRETT WILLIAMSON, MCGOWAN, JUDGE O. FITZGERALD HILL, OUIDA NEWTON, SARAH MOORE, AND KATHY MCFETRIDGE, IN THEIR OFFICIAL CAPACITIES AS AFFIRMED IN PART; REVERSED MEMBERS OF THE ARKANSAS AND DISMISSED IN PART; AND STATE BOARD OF EDUCATION REMANDED. APPELLANTS
V.
AMBER BOOTH MCCOY; DON BOOTH; KATHERINE LU; EUGENE LU; AND SKYE ADAMS APPELLEES
RHONDA K. WOOD, Associate Justice
This is a dispute about the State of Arkansas’s continued supervision and control over
the Little Rock School District (“LRSD”). The present appeal involves whether sovereign
immunity precludes this lawsuit by appellees1 against the Arkansas Department of Education,
1 The appellees are parents and grandparents who filed the original complaint: Amber McCoy, Don Booth, Katherine Lu, Eugene Lu, and Skye Adams (collectively, the “parents”). members of the Arkansas State Board of Education, and the Commissioner of Education
(collectively, the “State Board”). The State Board appeals the circuit court’s denial of its
motion to dismiss.
The State Board presents three issues, and we resolve them as follows. First, we
conclude the circuit court lacked subject-matter jurisdiction over the parents’
Administrative Procedure Act (“APA”) claim and reverse and dismiss as to that claim.
Second, we reverse the circuit court’s finding that the appellees sufficiently pled an illegal-
acts or ultra vires exception to sovereign immunity under Arkansas Code Annotated section
6-15-2917(c) and dismiss those claims. Third, we hold the circuit court correctly denied
sovereign immunity on the constitutional-delegation-of-authority claim because the
sufficiently pled challenge to the constitutionality of a statute overcame sovereign immunity.
Thus, we affirm on this claim and remand for further proceedings.
I. Procedural Background and Relevant Facts
In 2017, the General Assembly passed the Arkansas Educational Support and
Accountability Act (AESAA), 2017 Ark. Acts 930, codified at Ark. Code Ann. §§ 6-15-
2901 et seq. (Repl. 2018 & Supp. 2019). The AESAA instituted a comprehensive
accountability system to assess a public-school district’s student achievement and quality,
including the establishment of differentiated levels of support. The support levels ranged
from Level 1 (General Support) to Level 5 (Intensive Support). Ark. Code Ann. § 6-15-
2913. The AESAA required the State Board to promulgate rules governing the classification
of Level 5 districts. Ark. Code Ann. § 6-15-2915(a).
2 In July 2014, the State Board classified six LRSD schools as academically distressed.
Ultimately, the State Board dissolved the LRSD’s school board and assumed authority of
the district. See Key v. Curry, 2015 Ark. 392, 473 S.W.3d 1. In February 2019, the
Commissioner of Education adopted exit criteria for the academically distressed LRSD
schools.2 In December 2019, the State Board reconstituted the LRSD Board because the
district remained at a Level 5 classification five years after the State Board had assumed
authority. The State Board voted that, as long as the LRSD remained under Level 5 support,
the reconstituted and newly elected LRSD Board would exercise day-to-day authority of
the LRSD, subject to three limitations3:
1. The LRSD Board may not make any change in the superintendent without the approval of the State Board;
2. The LRSD Board may not make any manner of selection of the Personnel Policy Committee or affect its status, or recognize any employee bargaining agent without the approval of the State Board; and
3. The LRSD Board may not institute any litigation (other than routine contract litigation against vendors or contractors of the LRSD).
2 The criteria included: (1) collaborative teams to regularly interact to address common issues on curriculum, assessment, instruction, and the achievement of all students; (2) awareness and monitoring of predominant instructional practices; (3) the use of clear, ongoing evaluations of teachers’ pedagogical strengths and weaknesses based on multiple sources of data consistent with student achievement data; (4) curriculum and assessments that adhere to state and district standards; (5) appropriate management of fiscal, operational, and technological resources; (6) qualitative growth goals for Schools with an “F” rating; (7) qualitative ELA and math goals for schools with an “F” rating; and (8) demonstration of fiscal, operational, and human capital to support teaching and learning in an efficient and effective manner. 3 Although the parties refer to these as “guardrails” in their pleadings, that term is absent from the State Board’s official language.
3 Several LRSD parents and grandparents sued the Arkansas Department of Education;
the Commissioner of Education, Johnny Key; and individual State Board members over the
Level 5 exit criteria and the limitations. The parents challenged the State Board’s continued
control of the LRSD through the limitations placed on the new school board. Their
complaint alleged (1) that the State Board failed to promulgate exit criteria in violation of
the APA; (2) that no statute authorized restrictions on the LRSD Board after five years; and
(3) that two Arkansas statutes, Ark. Code Ann. § 6-15-2916 and 6-15-2917, unlawfully
delegated legislative power to the State Board without reasonable guidelines. The parents
sought relief through declaratory judgment, a writ of mandamus, and an injunction. They
specifically pled that the State Board’s continued control of the LRSD Board through the
limitations was ultra vires, arbitrary, capricious, in bad faith, and wantonly injurious.
The State Board moved to dismiss based on sovereign immunity and lack of subject-
matter jurisdiction. The circuit court denied the motion to dismiss. The State Board
appealed.
II. Standard of Review
In reviewing a circuit court’s decision on a motion to dismiss, we treat the facts
alleged in the complaint as true and view them in the light most favorable to the plaintiff.
Ark. Dep’t of Fin. & Admin. v. Carpenter Farms Med. Grp., 2020 Ark. 213, at 6, 601 S.W.3d
111, 117. We focus only on the allegations in the complaint and not matters outside the
complaint. Id. We will resolve all reasonable inferences in the complaint’s favor and construe
the pleadings liberally. Id. On appeal, we review de novo the State Board’s claim that
sovereign immunity bars the parents’ complaint. Id. at 7, 601 S.W.3d at 117.
4 III. Law and Analysis A. Administrative Procedure Act - Section 25-15-214
We first address the circuit court’s lack of subject-matter jurisdiction under the APA.
The parents’ complaint alleged that under section 25-15-214 of the APA, the State Board
failed to properly promulgate specific exit criteria related to the LRSD as required by Ark.
Code Ann. § 6-15-2917(c)(2).4 See Ark. Code Ann. § 25-15-214 (Repl. 2014). Because the
circuit court lacked subject-matter jurisdiction under section 25-15-214, we reverse and
dismiss their APA claim.
Subject-matter jurisdiction is a court’s authority to hear and decide a particular type
of case. Ark. Dep’t of Fin. & Admin. v. Naturalis Health, LLC, 2018 Ark. 224, at 6, 549
S.W.3d 901, 906. Whether a circuit court has subject-matter jurisdiction rests on the
pleadings, not the proof. Id. Generally, courts lack “jurisdiction to examine administrative
decisions of state agencies.” Id. That said, circuit courts do have limited review as specifically
granted by certain APA provisions. Id.
Section 25-15-214 of the APA provides for judicial review of “rule making or
adjudication if any agency shall unlawfully, unreasonably, or capriciously fail, refuse, or delay
to act.” The parties agree that this is a “rule making” challenge, but the State Board disputes
that the parents’ claim falls under section 25-15-214 because district-specific exit criteria are
not APA “rules” that require promulgation. Ark. Code Ann. § 25-15-202(10). We agree.
4 The parents’ complaint also pleaded that the circuit court had jurisdiction under Ark. Code Ann. § 25-19-107(a), which is the Freedom of Information Act. We assume this is a typographical error as none of the factual allegations involve a violation under that Act.
5 The APA defines “rule” as one that applies generally rather than specifically: “[A]n
agency statement of general applicability and future effect that implements, interprets, or
prescribes law or policy, or describes the organization, procedure, or practice of an agency
and includes, but is not limited to, the amendment or repeal of a prior rule.” Ark. Code
Ann. § 25-15-202(9)(A) (emphasis added). Thus, a rule-making challenge under section 25-
15-214 must challenge a rule, or the failure to act as to a rule, of general applicability.
The State Board has already promulgated rules of general applicability for exit criteria.
Arkansas Code Annotated § 6-15-2917(c)(2) requires the State Board to “promulgate rules
to establish the criteria by which a public school district may exit Level 5 — Intensive
support.” The State formally adopted the AESAA rules in 2018 and revised them in 2019.
Both versions include general rules for exit criteria. The parents do not contest the existence
of these exit rules, passed under section 6-15-2917(c)(2), or their validity. Rather, they
argue the State Board failed to promulgate additional criteria specific to the LRSD. But this
is not a proper claim under section 25-15-214.
The parents’ APA claim could survive under section 25-15-214 only if they were to
plead that the State Board failed to act as to a rule of general applicability. But here, they
pled that the State Board failed to enact individualized, LRSD-specific criteria. As a result,
this claim falls outside the limited parameters where a circuit court has subject-matter
jurisdiction over an agency’s rule-making authority. Thus, the parents’ APA claim fails for
lack of subject-matter jurisdiction. We reverse the circuit court’s contrary ruling and dismiss
this claim.
6 B. Sovereign Immunity
The parents’ complaint also sought relief from the State’s decision to place three
limitations on the reconstituted LRSD Board. They asked the circuit court to declare their
right to elect a local board free of any limitations and to enjoin the State Board from
imposing restrictions. Do the parents’ allegations state sufficient facts to surmount sovereign
immunity? We hold that they do not.
Our sovereign-immunity doctrine bars suit if a judgment for the plaintiff will operate
to control the action of the State or subject it to liability. Bd. of Trs. of Univ. of Ark. v.
Andrews, 2018 Ark. 12, at 5, 535 S.W.3d 616, 619. Yet we allow declaratory-judgment
actions against the State if the complaint alleged illegal and unconstitutional acts in
compliance with our fact-pleading rules. See Monsanto Co. v. Ark. State Plant Bd., 2019 Ark.
194, at 9, 576 S.W.3d 8, 13; Ark. Game & Fish Comm’n v. Heslep, 2019 Ark. 226, at 6, 577
S.W.3d 1, 5. In other words, the complaint must specify facts to support the parents’
allegation that the State or a State agency acted illegally or beyond its authority. Id.
The parents alleged that the State Board exceeded its statutory powers because Ark.
Code Ann. § 6-15-2917(c)(1) required the State Board to annex, consolidate, or reconstitute
the LRSD within five years and prohibited the State Board from maintaining further control
beyond those three options. Yet their complaint identified no language in the AESAA that
restricts the State Board from imposing such limitations.
Our constitution charges the State with the responsibility of educating its youth: “the
State shall ever maintain a general, suitable and efficient system of free public schools and
shall adopt all suitable means to secure to the people the advantages and opportunities of
7 education.” Ark. Const. art. 14, § 1. “[A]ll departments of state government [are] responsible
for providing a general, suitable, and efficient system of public education.” Lake View Sch.
Dist. No. 25 v. Huckabee, 351 Ark. 31, 53, 91 S.W.3d 472, 484 (2002), supplemented, 358
Ark. 137, 189 S.W.3d 1 (2004). As a means for managing this duty, the AESAA, particularly
Ark. Code Ann. § 6-15-2916 and § 6-15-2917(c)(1), gives the State Board broad authority
to control districts in need of Level 5 support.
Taking the facts in the light most favorable to the parents, the parties agree that the
LRSD remained at Level 5 for more than five years, and that consistent with its authority
under section 6-15-2917(c)(1), the State Board reconstituted the district. The statutory
scheme neither expressly prohibits the State Board from placing limitations nor requires the
State Board to relinquish complete control to a Level 5 district. Rather, section 6-15-
2917(c)(1) provides that, if a public school district has not shown that it meets the Level 5
exit criteria within five years, the State Board “shall . . . reconstitute” the district. Black’s
Law Dictionary defines “reconstitute” as “to form (an organization, group, etc.) again in a
different way.” Black’s Law Dictionary (11th ed. 2019). Thus, reconstitution of the LRSD
simply means a reorganization of the district’s administration. The definition implies that
the reconstituted district could be formed differently––that is, with restrictions absent from
the dissolved board. If the General Assembly had intended to restrict the State Board’s
powers, it could have so stated. We will not read limiting language into a statute when none
exists. Fitzgiven v. Dorey, 2013 Ark. 346, at 14, 429 S.W.3d 234, 242. Thus, we do not
interpret “reconstitute” as requiring the State Board to return control to the local board
without oversight.
8 Additionally, section 6-15-2916 describes the authority the State Board may exercise
over Level 5 districts. It provides that if a district is classified as Level 5, the State Board may
“remove on a temporary basis some or all of the powers and duties granted to the current
public school district board of directors.” Ark. Code Ann. § 6-15-2916(2)(C). The
reconstituted LRSD remains in need of Level 5 support, and the parents do not plead any
facts or cite any statute in the AESAA that limits the State Board’s power over Level 5
districts. See Ark. Code Ann. § 6-15-2916(2)(C); see also Ark. Code Ann. § 6-15-2916(2)(K)
(The State Board may “limit the powers and duties of the public school district board of
directors under Arkansas Code Annotated § 6-13-620 or any other law.”). This aligns with
our precedent, which recognized the State Board’s broad authority to deal with distressed
school districts. See Fitzgiven, 2013 Ark. 346, at 14, 429 S.W.3d at 242.
Thus, even taking the parents’ allegations as true, as we are required to do in a motion
to dismiss, the parents identify no fact or statute that suggests the State Board acted illegally
or ultra vires by imposing limitations on the reconstituted LRSD Board. Sovereign
immunity consequently bars these claims, and we reverse and dismiss as to these claims.
C. Unconstitutional Delegation of Legislative Authority
Our inquiry does not end with our holding that the State Board did not act illegally.
The parents argue alternatively that sections 6-15-2916 and -2917 are an unconstitutional
delegation of legislative authority. The complaint states, “[Ark. Code Ann. §§ 6-15-2916
and -2917] are written in such a broad and vague manner, without constraints or necessary
guiding language, that any actions taken beyond specifically enumerated powers are the
exercise of unlawfully delegated power.” The parents request relief in an order declaring
9 the statutes unconstitutional and barring the State Board from exercising an unlawfully
delegated legislative power. The circuit court found that the parents’ allegation that the
AESAA is an unconstitutional delegation of legislative power states a claim upon which
relief can be granted.
Because this claim involves a direct challenge to the constitutionality of these statutes,
and because the parents seek only declaratory and injunctive relief under it, this claim
surmounts a sovereign-immunity defense at the motion-to-dismiss stage. See Ark. State Plant
Bd. v. McCarty, 2019 Ark. 214, 576 S.W.3d 473. And we decline to decide the merits of
this constitutional challenge at this interlocutory stage. We therefore affirm the circuit
court’s denial of the motion to dismiss based on sovereign immunity as to this claim and
remand.
Affirmed in part; reversed and dismissed in part; and remanded.
BAKER, WOMACK, and WEBB, JJ., concur in part and dissent in part.
KAREN R. BAKER, Justice, concurring in part and dissenting in part. While
I concur in the result reached by the majority in Parts A and B, I dissent from the remainder
of the opinion. Because of the precedent established in Board of Trustees of the University of
Arkansas v. Andrews, 2018 Ark. 12, 535 S.W.3d 616, I would also reverse and dismiss as to
Part C for the reasons explained below.
Andrews does not provide for exceptions to its broad language barring suit against the
State. In Andrews, the court held that “never means never” and did not identify exceptions.
Accordingly, despite the majority’s attempt to narrow Andrews, the broad language of
Andrews does not permit such suit. Pursuant to Andrews, McCoy’s pleadings are
10 inconsequential because the State cannot be sued under any circumstances—never means
never. Until Andrews is overruled, suit against the State is barred; therefore, I would reverse
and dismiss with regard to Part C. See Monsanto Co. v. Ark. State Plant Bd., 2019 Ark. 194,
at 12, 576 S.W.3d 8, 15 (Baker, J., dissenting).
Accordingly, I concur in part and dissent in part.
SHAWN A. WOMACK, Justice, concurring in part and dissenting in part. I
join the Court’s decision today with one exception. The majority erroneously affirms the
denial of the State Board’s motion to dismiss Appellees’ constitutional challenge to sections
6-15-2916 and -2917. This point on appeal should be dismissed for lack of appellate
jurisdiction. Setting aside the jurisdictional bar, the complaint fails to sufficiently allege an
unconstitutional delegation of legislative power. The circuit court’s denial of the motion to
dismiss should be reversed on this point and the entire complaint dismissed.
I.
As an initial matter, the circuit court did not rule that sovereign immunity barred the
constitutional challenge to the AESAA. Instead, the circuit court’s order on this point was
premised on its view that the complaint stated a claim upon which relief could be granted.
Absent a ruling on sovereign immunity, we do not have jurisdiction to entertain this point
on appeal under Arkansas Rule of Appellate Procedure–Civil 2(a)(10). See Ark. Lottery
Comm’n v. Alpha Mktg., 2012 Ark. 23, at 5–6, 386 S.W.3d 400, 403–04. This is not a case
where the sole issue in the motion to dismiss was sovereign immunity. See, e.g., Johnson v.
Butler, 2016 Ark. 253, at 5, 494 S.W.3d 412, 416. The State Board moved to dismiss the
constitutional challenge on the basis that the AESAA “does not constitute an improper
11 delegation of legislative authority, where the Board’s discretion is not unfettered and is
properly guided.” The circuit court’s ruling, therefore, cannot be broadly read as a denial
of sovereign immunity on this issue. Id. The proper course is to dismiss the State Board’s
appeal of this issue for lack of appellate jurisdiction. See Alpha Mktg., 2012 Ark. 23, at 8–9,
286 S.W.3d at 405.
II.
If we had jurisdiction over this issue, the circuit court should be reversed and the
constitutional challenge dismissed. The majority’s decision otherwise misapprehends our
sovereign immunity caselaw. We have previously held that “the defense of sovereign
immunity [is] inapplicable in a lawsuit seeking only declaratory and injunctive relief and
alleging an illegal, unconstitutional, or ultra vires act.” Ark. State Plant Bd. v. McCarty, 2019
Ark. 214, at 7–8, 576 S.W.3d 473, 477 (citing Martin v. Haas, 2018 Ark. 283, at 7–8, 556
S.W.3d 509, 514–15). The first requirement is undoubtedly satisfied: Appellees seek
declaratory and injunctive relief. Under the second requirement, the complaint must allege
“an illegal, unconstitutional, or ultra vires act.” Id. These allegations must still comply with
our fact-pleading rules. See Monsanto Co. v. Ark. State Plant Bd., 2019 Ark. 194, at 9–10,
576 S.W.3d 8, 12. The complaint falls far short of meeting our fact-pleading requirement
and thus failed to adequately allege an illegal, unconstitutional, or ultra vires act.
The majority’s contrary conclusion is based on its view that the claim is sufficient
because it “involves a direct challenge to the constitutionality of” the statutes. This may be
true in “notice pleading” jurisdictions, which simply require that a complaint provide fair
notice of “what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
12 Twombly, 550 U.S. 544, 555 (2007). But as this Court has reiterated numerous times,
Arkansas is not a “notice pleading” jurisdiction. See McKinney v. City of El Dorado, 308 Ark.
284, 287, 824 S.W.2d 826, 828 (1992). Instead, our rules impose a more stringent “fact
pleading” requirement, which demands a statement of facts showing that the pleader is
entitled to relief. Id.
According to the complaint, sections 6-15-2916 and -2917 “fail to provide the
necessary guidelines and elements for [the State Board] to create exit criteria for the [Little
Rock School] District.” The complaint further alleges that to the extent the statutes “would,
as written, give [the State Board] the power to impose the ‘guardrails’ on the [Little Rock
School] District, those provisions are written in such a broad and vague manner, without
constraints or necessary guiding language, that any actions taken beyond specifically
enumerated powers are the exercise of unlawfully delegated power.” Such sweeping
conclusions of law, without more, do not meet our fact-pleading requirement.
There are no factual allegations within the complaint identifying how the challenged
statutes fail to provide guidelines and elements for the creation of exit criteria for the Little
Rock School District. Indeed, the only factual allegations regarding exit criteria involve
Appellees’ erroneous assertion that district-specific criteria are subject to the rulemaking
procedure within the Administrative Procedure Act. Similarly, the complaint fails to identify
any facts showing that the “guardrails” exceed the “specifically enumerated powers” within
sections 6-15-2916 and -2917. It further fails to explain how the statutes fail to provide
“constraints or necessary guiding language” that would render the provisions
unconstitutional. As a result, the constitutional challenge was not adequately pled under our
13 fact-pleading standard. For that reason, we should reverse the circuit court on this point and
dismiss the complaint in its entirety.
BARBARA W. WEBB, Justice, concurring in part and dissenting in part. The
majority misapplies our standard in reviewing the granting of a Rule 12(b)(6) motion by
delving into an exercise in semantics to defeat the ultimate issue brought by the parents’
lawsuit. The majority fixes its gaze upon whether the parents are challenging general or
specific rules of an agency and then brush aside their lawsuit because it concludes they are
challenging a specific rule and not a general one. A closer inspection of the case before us
shows that the parents pled in their complaint that there are no exit-criteria rules for a district
placed in Level 5-Intensive support and that such rules are required by the statute. The
parents also pled that the state board cannot statutorily keep the LRSD in Level 5 for more
than five years.
We are to construe pleadings liberally so as to do substantial justice. Ark. R. Civ. P.
8(f). In a Rule 12(b)(6) challenge, we assume the allegations in the complaint are true and
treat them in the light most favorable to the party who filed the pleading. Perrodin v. Rooker,
322 Ark. 117, 120, 908 S.W.2d 85, 87 (1995) (citing Neal v. Wilson, 316 Ark. 588, 873
S.W.2d 552 (1994)). In their complaint, the parents pled the following facts: there are no
Administrative Procedure Act (APA) rules related to exit criteria for a Level 5 school; no
APA rules for exit criteria for the LRSD; Ark. Code Ann. § 6-15-2917(c)(2) requires that
the state board promulgate exit-criteria rules pursuant to the APA; the state board refuses to
promulgate APA rules; the state board made exit rules unilaterally in violation of the APA;
and the state board failed to comply with the Arkansas Educational Support and
14 Accountability Act (AESAA) and Arkansas law by leaving the LRSD at Level 5—Intensive
Support for more than five years. We must apply these facts as true to the cause of action,
or the relief sought, by the parents.
For the violations of the APA and the offenses on the educational liberties to them
and their children, the parents sought the following relief in their complaint:
¶ 73. A court order requiring the State to immediately comply with the APA and Ark. Code Ann. § 6-15-2917(c);
¶ 78. A declaratory judgment that declared the parents the right to an elected District School Board free of “guardrails” and a District not subject to improperly promulgated “exit criteria”;
¶ 82. A writ of mandamus to compel the State to comply with the five-year deadline in Ark. Code Ann. § 6-15-2917(c);
¶ 95. A finding that the actions of the State Board in imposing “guardrails” that went beyond the five-year period is “unlawfully delegated power”; and, finally,
¶ 96. The parents requested an injunction against future State Board action.
In a Rule 12(b)(6) setting, we should be combining and comparing these two
premises of legal reasoning—facts to the causes of action—to determine whether the factual
allegations, if true, would entitle the pleader to relief. Perrodin, 322 Ark. at 120, 908 S.W.2d
at 87 (citing Ark. R. Civ. P. 8, 12(b)(6); Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248
(1993)). We are not supposed to delve into any matter external to the complaint, such as
whether the pleader can prove these facts or whether the defendant has a meritorious defense
that will trounce the complaint at trial. Guthrie v. Tyson Foods, Inc., 285 Ark. 95, 96, 685
S.W.2d 164, 165 (1985).
15 A complaint is not subject to dismissal for failure to state facts upon which relief
could be granted if any one of the allegations would support a theory in the court where
the action was commenced. Stobaugh v. Twin City Bank, 299 Ark. 117, 121, 771 S.W.2d
282, 284 (1989) (citing Williams v. J.W. Black Lumber Co., 275 Ark. 144, 628 S.W.2d 13
(1982)). When I test the facts to the relief sought, the parents allege that the state board (a
division of the executive branch) is not following statutory mandates from the legislature,
has failed to make proper rules, is acting ultra vires and unilaterally, and the judiciary should
make the state board comply through mandamus, a declaratory judgment, and an injunction.
These facts and causes of action are properly pled factual claims for relief.
Whether the rules governing the AESAA have the exit-criteria rules should not be a
factor because it does not test the pleading sufficiency of the parents’ complaint. To the
extent further inspection of the AESAA Rules would be necessary, the parents would still
state a claim. The parents acknowledge the AESAA Rules in their briefs and count them as
of no moment. They are right to do so because there are no rules for exit criteria—none
whatsoever—in the AESAA Rules.
Instead, the AESAA Rules state that the education department shall develop a
“district improvement/exit plan for each district classified as in need of level 5-intensive
support.” AESAA R. 005-19-348 § 8.01. Nowhere in the AESAA Rules, or anywhere else
that any party has cited, are there rules, be them general or specific, “to establish the criteria
by which a public school district may exit Level 5—Intensive support.” Ark. Code Ann.
§ 6-15-2917(c)(2). Also, nowhere in the statute or the AESAA Rules is the state board
permitted to put “guardrails” on a school district or maintain Level 5 control over the district
16 for more than five years. Instead, it can only reduce the Level 5 school district to Level 4
management. AESAA R. § 8.10.4.
The absence of the APA-promulgated exit-criteria rules and the factual allegation
that the commissioner is simply making up the exit-criteria rules for the termination of Level
5—Intensive Support directly offends, and is contrary to, the plain mandate of Ark. Code
Ann. § 6-15-2917(c)(2). This is the heart of the parents’ lawsuit, and it does not hinge on
whether the parents are challenging general or specific APA-approved rules because the
parents are challenging the absence of any APA rules, the refusal of the board to promulgate
them as required by Ark. Code Ann. § 6-15-2917(c), and the continued Level 5 designation
for more than five years. This court need not delve into the merits of semantics about
whether the challenged rules are general or specific because there are no valid rules. This is
plainly and factually pled, and simple relief is sought in the parents’ complaint.
We should next see that declaratory judgments are permitted in this kind of case and
that sovereign immunity does not apply. Monsanto Co. v. Ark. State Plant Bd., 2019 Ark.
194, at 9, 576 S.W.3d 8, 13; Ark. Game & Fish Comm’n v. Heslep, 2019 Ark. 226, at 6, 577
S.W.3d 1, 5. The parents alleged facts that the state board is acting illegally and
unconstitutionally by failing to make APA rules, making rules outside the APA, continuing
Level 5—Intensive Support for more than five years, and whether the state board is
exercising an unlawful delegation of power from the legislature. These facts are present and
pled and preclude sovereign immunity because they allege that the State is acting illegally
and beyond its authority.
17 I concur with the majority’s opinion that the unconstitutional delegation of
legislative authority claim survives a sovereign immunity defense at this state of the litigation.
However, I would affirm on all points on appeal, and because the majority holds otherwise
by making an unnecessary distinction related to the parents’ ability to challenge general and
specific rules that do not even exist, I respectfully dissent.
Leslie Rutledge, Att’y Gen., by: Kat Guest, Ass’t Att’y Gen., for appellants.
Noland Law Firm, P.A., by: Ross Noland, for appellees.