Robert L. Brown, Jufiled their report in this
On April 2, 2004, the Masters filed their report in this matter as directed by this court’s per curiam order of February 3, 2004. See Lake View Sch. Dist. No. 25 v. Huckabee, 356 Ark. 1, 144 S.W.3d 741 (2004). On that same date, this court asked that any objection to the report by the parties be filed within twenty days. See Lake View Sch. Dist. No. 25 v. Huckabee, 356 Ark. 587, 157 S.W.3d 192 (2004) (per curiam). Several objections and comments were filed, and this court issued a per curiam directing an expedited briefing schedule and oral arguments set for May 20, 2004. See Lake View Sch. Dist. No. 25 v. Huckabee, 357 Ark. 274, 161 S.W.3d 787 (2004). Briefs were submitted, and oral arguments have been made. We now issue a supplemental opinion in this matter.
Our charge to the Masters in our February 3, 2004per curiam was to examine and evaluate action by the General Assembly to aid this court in detérmining whether there has been compliance with our opinion in Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002) (Lake View III).1 We asked that this be done both with respect to legislative action taken by the General Assembly before January 1, 2004, and action taken after that date. We listed ten items for review. Those ten items represented a synopsis of our holdings in the Lake View III opinion. The Masters conducted hearings and received testimony from expert and lay witnesses. They also asked for legal briefs from the parties before issuing their report.
We first express our sincere appreciation to the Masters, Bradley D. Jesson and David Newbern, as well as to their staff, for the yeoman service they performed for this court. The Masters’ Report totals 128 pages and is comprehensive and thorough. It has made the task of this court vastly easier. We accept the factual findings of the Masters pertaining to what legislative action has been taken by the General Assembly and pertaining to what administrative action has been taken by the Department of Education to comply with Lake View III.
I. Adequacy
What comprises an adequate education is apparently subject to considerable debate. The Arkansas Constitution requires the State to “ever maintain a general, suitable, and efficient system of free public schools[.]” Ark. Const, art 14, § 1. In Lake View III, we referenced the Rose factors for educational goals set out by the Kentucky Supreme Court in Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989). The Masters opt more for a dictionary definition of “efficiency,” which is the “capacity to produce desired results with a minimum expenditure of energy, time, money or materials [.]” Webster’s Third New International Dictionary, Unabridged 725 (1993). The Masters also deem Dr. James Guthrie’s definition of adequacy as coming “as close to being useful as any[.]” That definition is: “an amount of revenue per pupil enabling a student to acquire knowledge and skills specified by public officials as necessary to participate productively in society and to have an opportunity to lead a fulfilling life.”
All of these assessments are helpful. We offer no conclusion on the precise definition of an adequate education as we deem that to be a matter better left to the General Assembly and to the State Department of Education.
II. Adequacy Study
We begin our analysis of the Masters’ Report with the Adequacy Study that was the centerpiece of the report filed by the Joint Committee on Educational Adequacy with the General Assembly on September 1, 2003.2 We do so because it is this study that has formed the benchmark for legislative action and is the model against which the Masters gauged legislative and executive performance since our Lake View III decision. We quote the Masters’ executive summary of recommendations made in the Adequacy Study:
a. “The Evidence-Based Matrix” ($224.6 million). The matrix is described as “the resources needed to provide an adequate education.” Among the most important changes recommended to school organization are:
Pupil-teacher ratio of 1 to 15 for grades K-3; 1 to 25 for all other grades;
Additional teachers equal to 20 per cent of the number generated above to provide for enrichment programs for students and planning time for teachers;
Instructional facilitators at each school to help teachers improve instruction;
Additional staff members for schools with high concentrations of poverty, to include tutors and “pupil support personnel” added to school faculty for each 100 students qualifying for federal free and reduced-price lunches, with a minimum of one at each school; in addition, each 100 children identified as “English Language Learners” (ELL) generate an additional 0.40 full-time equivalent (FTE) tutor/teacher;
Adequate staff to meet the needs of children with mild and moderate disabilities;
Catastrophic funding program to provide special education to children with severe disabilities;
Elimination of instructional aide and assistant principal positions; and
Additional funding for professional development, technology, instructional materials, and supervisory aides.
The recommended resource figures contained in the Adequacy Study, unless otherwise specified, are for a prototypic school unit of 500 students at the elementary (K-5), middle (6-8) and high school (9-12) levels. Adequacy Study at 19.
b. Teacher Compensation ($356 million), the components of which are:
Ten per cent (10%) salary increases ($183 million) to “bring teacher salary levels up to market levels for teacher pay in the surrounding southern states. In exchange for this dramatic increase, a performance based system that rewards teachers for what they know and can do will be put in play. Once implemented, future large increases in salary will only be available to teachers who demonstrate growth in knowledge and skills [which] research shows leads to improved student performance.” Adequacy Study at v.
Salary formula “adders” ($94 million) used to provide additional salary funds: to attract teachers to less desirable geographic areas of the state; to provide additional salary for teachers in subject areas where there are currendy shortages; and to provide additional salary for teachers with advanced graduate degrees.
Extending teacher contracts for five (5) days ($45 million) to provide additional time for professional development;
Performance bonus system ($30 million) to enable all teachers in a school to earn annual bonuses as a faculty in the event that student achievement is “boosted” from the previous year; and
Establishment of an appraisal system ($4 million) to implement these recommendations.
c. Early Childhood Education ($100 million).
Total Cost. Thus, the total cost of the “matrix” or “adequacy model,” as itemized in “a,” “b,” and “c,” above, increases the state’s total spending for pre-kindergarten through 12 education by $680.6 million over “current” (2001-2002) expenditures from state and local sources for operation and maintenance. Adequacy Study at 65. •
d. Funding Formula ($166.7 million property tax transfer).
[Footnotes omitted.]
The Masters concluded that the Adequacy Study was “thorough in its approach.”
III. Legislation
We turn then to the legislation enacted to implement and fund the recommendations made in the Adequacy Study. According to the Masters, the funding reforms enacted by the General Assembly were “laudable.” What follows is a summary of the Masters’ findings relating to the ten issues listed in our February 3, 2004 per curiam. Not all of the legislation passed by the General Assembly in response to Lake View III and discussed in the Masters’ Report is referenced in this opinion. We discuss only the significant legislation that appears integral to the Masters’ findings and conclusions.
1. The Adequacy Study prepared for the General Assembly and the steps taken by that body to implement the study.
In the Masters’ general observations, they noted first the herculean task of defining what is an “adequate” education. The Masters then went on to make the following findings and conclusions regarding legislative steps to implement the Adequacy Study.
The Masters noted that the General Assembly had created the Joint Committee on Educational Adequacy to oversee compliance with the Lake View III decision in the Regular Session in 2003 by Act 94 and that on September 1, 2003, the Joint Committee filed its report with the General Assembly.3 Also during the Regular Session, the General Assembly passed Act 603, which requires school districts to establish plans for more parental involvement in the public schools
In the Second Extraordinary Session, multiple legislation was passed, including a masters program for school principals (Act 44), goals for family resource centers to improve performance of economically-disadvantaged students (Act 68), special-education catastrophic funding (Act 77), and mandatory professional-development planning for teachers, administrators, and staff (Act 83). In addition, Act 59, the Public School Funding Act, provides per-pupil funding of $5,400 as the base-level foundation amount.
Masters’ Conclusions
The Adequacy Study recommended student-teacher ratios of 15 to 1 for kindergarten through third grade and 25 to 1 for other grades. The General Assembly assumed ratios of 20 to 1 for kindergarten, 23 to 1 for grades 1 through 3, and 25 to 1 for grades 4 through 12. The ten percent across-the-board general salary increase for teachers recommended by the Adequacy Study and a knowledge-and-skills-based pay were not enacted. Only $40 million of the $100 million recommended in Adequacy Study for-early-childhood education was appropriated.
2. The steps taken by the State to put in place a system to assess, evaluate, and monitor public school curricula offered in all primary and secondary schools in the state.
In the Regular Session the General Assembly passed nine acts that related to this subject, including Act 1467, the Omnibus Quality Education Act, which requires all schools and school districts to meet Standards of Accreditation and creates a procedure to enforce those standards for probationary schools including, but not limited to, closure, annexation, and consolidation. The Act further mandates academic-content standards and increased testing of students and requires review and revision of the content standards. Act 1761 requires the State Board of Education to develop a plan for reviewing and revising the curriculum framework in core-academic areas, including reading, writing, mathematics, science, history, geography, and civics. Act 1116 requires the elimination of low-level, general-education tracks.
The Department of Education adopted rules to implement the Act 1467 standards, including a core curriculum for graduation, testing of students at each grade level, gifted-and-talented programs, and the ability for students to transfer from an academically-distressed school.
In the Second Extraordinary Session, the Masters identified sixteen acts of the General Assembly that touch and concern this subject. These enactments included programs to assist with the academic performance of the students in the Arkansas Delta region. Act 35 requires assessments in compliance with the requirements of the No Child Left Behind Act of 2001 (a federal act), additional testing programs, remediation programs for reading, writing, and mathematics, and reports to high schools of the academic readiness of college freshman. Act 52 requires accounting for the expenditure of state funds on athletic programs, and Act 60 provides for administrative consolidation of districts with fewer than 350 students.
The Masters fault the Department of Education for not adopting rules and guidelines to implement procedures for review and revision of the standards of accreditation. They note, however, the provisions for early remediation in elementary grades for students who do not demonstrate proficiency in reading, writing, and mathematics. They conclude that the General Assembly and Board of Education have made “a good beginning” toward monitoring, assessing, and evaluating school curricula, with dramatic improvement to be evident in five to ten years.
3. The steps implemented by the State to assure that a substantially equal curriculum is made available to all school children in this state.
The Masters identify nine Regular Session acts and fifteen acts from the Second Extraordinary Session that relate to this item, many of which have already been discussed. In addition, Act 1192 of the Regular Session establishes the Arkansas Distance Learning Development Project, which affords students a more enriched curriculum when qualified teachers and courses are not available in the particular school district, and Act 35 of the Second Extraordinary Session allows student transfers from failing schools. The Masters placed the steps taken by the legislative and executive branches to achieve a substantially equal curriculum into four categories: early-childhood education, technology, school choice, and administrative consolidation.
In their introductory comments, the Masters endorsed early-childhood education as essential for an adequate education and as a means of providing substantial equality in the curricula offered. They note that the Adequacy Study recommended $100 million be spent to provide preschool education for every three- and four-year old from a family with income at or below 200 percent of the poverty level. The General Assembly only appropriated an additional $40 million, but it created a five-year plan for implementation.
The Masters further endorse the principle of economies of scale and suggest that savings could be realized from additional consolidation of schools as well as movement toward substantially equal curricula by means of larger school districts.
4 & 5. The steps taken by the State to assess and evaluate public school buildings and educational equipment across the state. The steps taken by the State to implement measures to assure that substantially equal school buildings and schdol equipment are available to all school children in the state.
In the Regular Session, the General Assembly created the Joint Committee on Educational Facilities by Act 1181 to recommend what constitutes an adequate school facility and to establish a method for providing substantially equal facilities and equipment for all schools. The Joint Committee in turn appointed a Task Force consisting of experts in the fields of construction and engineering to assist in the project. The General Assembly also appropriated $10 million for the facilities assessment (Act 84 of Second Extraordinary Session) and prohibited the closing of any school facility until the assessment was completed (Act 60 of Second Extraordinary Session). The report on the assessment of school facilities is due December 1, 2004, and will be presented to the General Assembly for action in 2005.
The Masters concluded that the $10 million assessment “should prevent redundancy of effort, duplication of facilities, and waste of financial resources in the future.” The Masters also referred to one State expert, Dr. James Smith, who concluded it would take at least five years to achieve adequacy for the state’s school facilities.
The Masters questioned, however, the State’s delay in addressing this need for substantially equal facilities until 2005 and called it “shortsighted,” since inferior existing facilities will continue to deteriorate, and it is unclear whether current appropriations are available to meet “critical needs” in school facilities.
The Masters specifically took the General Assembly to task for not including “unattached equipment,” such as media, laboratory, fine arts, and computer equipment in the facilities assessment. It is also unclear, the Masters say, whether current appropriations cover the purchase of capital equipment. Apparently some funding for “technology” and “instructional materials” was included in the $5,400 extrapolated for per-pupil funding.
The Masters conclude that the schools’ need for unattached equipment must be addressed in the assessment of the State’s school facilities and by future appropriations.
6. The measures in place to assure that teacher salaries are sufficient to prevent the migration of teachers from poorer school districts to wealthier school districts or to neighboring states.
By Act 1745 of the Regular Session, the General Assembly established the Office of Teacher Recruitment within the Department of Education. Act 1746 of the Regular Session also established a program to recruit minority teachers to the Delta region and other areas where teacher shortages exist. Other legislation provided incentives for teachers in the form of scholarships, loans, and bonuses to locate in priority districts, as well as the establishment of a masters degree program. Under Act 1803 of the Regular Session, teachers who receive national board certification will receive increased incentive bonuses from $3,000 to $4,000 in 2004 and from $4,000 to $5,000 in 2005.
Act 74 of the Second Extraordinary Session sets out minimum teacher salaries for the 2004-05 school year:
- Starting salary for a bachelor’s degree and no experience is $27,500 (up from $21,860);
- For a Master’s degree and zero years experience, $31,625 (up from $25,139); and
- Annual increments of $450 for a bachelor’s degree and $500 for a master’s degree.
Act 39 of the Second Extraordinary Session provides additional incentives to teachers teaching in high-priority areas such as low-interest loans and second mortgages and rental-housing programs. There was also legislation passed to monitor teacher salaries and compare those salaries in-state and out-of-state (Act 57 of the Second Extraordinary Session) and legislation requiring each district to prepare a professional development plan (Act 83 of the Second Extraordinary Session).
Under Act 101 of the Second Extraordinary Session, teachers who teach in high-priority districts will receive a one-time signing bonus of $4,000 and $3,000 for each of the next two years. There will be a $2,000 retention bonus for those already teaching in these districts.
The General Assembly addressed this issue of migrating teachers with salary increases and incentives. As already related, it did not enact a general pay increase for teachers of ten percent. The State Defendants could never provide an “average” teacher salary figure for the 2002-03 or 2003-04 school year, and the Masters described this failure as “disconcerting.”
The Masters questioned whether the measures in place assure poorer school districts that they can be more competitive with neighboring states with respect to their teachers. State Senator David Bisbee testified that the $5,400 per-pupil expenditure contemplated projected average teacher pay of $39,000 for the school year 2004-05, which is less than what three contiguous states were paying in 2002-03.
The Masters said they “cannot ignore” the many laws passed by the General Assembly in addition to salary measures to influence teachers to remain in or migrate to poorer districts as well as administrative consolidation. Because of these measures, more money may go toward increasing teacher salaries. This “will not be known for at least another year[,]” they concluded.
7. The accountability and accounting measures in place for the State to determine per-pupil expenditures and how money is actually being spent in local school districts.
The Masters were very positive about the numerous steps the General Assembly took regarding information provided to the public about school expenditures. They describe these accountability and accounting steps as “laudable” in determining per-pupil expenditures and where the money is going.
Among those measures receiving special comment by the Masters are the following:
- Act 1467 of the Regular Session to identify, assess, and address the fiscal-distress status of school districts which may lead to closure, annexation, or consolidation.
- Act 35 of the Second Extraordinary Session to develop a system for determining if districts meet “best financial management code” practices. School districts must be reviewed on site, graded, and be publicly reported.
- Act 52 of the Second Extraordinary Session requiring districts to account for state funds used in athletic programs.
- Act 61 of the Second Extraordinary Session requiring annual budget and expenditure reports from the districts, a uniform budget and accounting system, and accounting training. Reports will go to the Governor, Education Board, and General Assembly.
- Act 90 of the Second Extraordinary Session creating the Division of Public School Accountability to report public-school compliance with fiscal accountability to the General Assembly.
8. The accountability and testing measures in place to evaluate the performance and rankings of Arkansas students by grade, including rankings in-state, regionally, and nationally.
The Omnibus Quality Education Act of 2003 (Act 1467 of the Regular Session) provides for the standards of accreditation for all public schools to meet, as this opinion has already discussed. Failure to meet the standards results in probationary status for a school, or district, or even academic-distress status, and the potential for annexation, closure, or consolidation. The State Board of Education is ordered to develop a single testing, assessment, and accountability program and to classify school services, including the use of technology. Academic-content standards shall be set by the Board for all school districts with schedules for periodic review and revision, trend data for each school shall be maintained, and school-improvement plans shall be developed when necessary.
Regulations were adopted by the Board of Education in 2003 to develop a single, comprehensive testing, assessment, and accountability program for all public schools to ensure that all students have an equal opportunity to demonstrate proficiency in core subjects.
During the Second Extraordinary Session, the General Assembly enacted Act 35, the Arkansas Student Assessment and Educational Accountability Act of 2004, which established, in part, a testing program. Expected levels of achievement shall be set by the Board of Education and failure of a student or school to achieve those levels shall result in participation in an improvement plan. Longitudinal tracking of a student’s progress shall be measured against a national norm. Intense remediation programs will be required for students in kindergarten through twelfth grade who do not demonstrate proficiency in subjects such as reading, writing, and mathematics. Annual reports shall be provided to parents, and school-performance reports shall be published in local newspapers. Schools are to be classified from Level 1 (schools in need of immediate improvement) to level 5 (schools of excellence for improvement). Students in schools at the two lowest levels will be offered a public-school choice option with transportation provided. Schools at the highest levels are eligible for performance-based funding. The high schools of students in college who require remediation shall be reported to the Board of Education and to the General Assembly.
Act 90 of the Second Extraordinary Session enacted the division of Public School Accountability to be placed under the Board of Education to administer all monitoring and compliance activities.
Masters’ Discussion and Conclusions
According to State expert Dr. James Guthrie, Arkansas now has a state-of-the-art accountability system. As a result of Act 1467, the Masters conclude that “our state now has better tools to correct deficient school and school district performance.” Act 35 “mandates a number of new tests” for students kindergarten through twelfth grade, with testing for grades three through eight, linked to a national norm. According also to Dr. Guthrie, Act 35 links performance to funding with gains or losses in performance-based funding depending on how well a school is doing. And Act 57 of the Regular Session requires periodic review of academic standards and student and school performance.
The Masters conclude that the General Assembly undertook an “ambitious slate” of bills and enacted an “impressive number of them.” They conclude further that much needs to be done to fully implement the system, such as the adoption of rules, commission appointments, training, and development of assessment instruments. To say that measures are in place for accountability and testing, they believe, is “premature.”
9. The measures taken by the General Assembly to enact a school funding formula and to fund it so that the school children of this state are afforded (a) an adequate education, and (b) a substantially equal educational opportunity so as to close the gap between wealthy school districts and poor school districts.
We have already alluded to school-choice programs, minority-teacher scholarship programs, teacher bonuses to teach in priority areas, and distance-learning programs passed in the Regular Session of the General Assembly.
In the Second Extraordinary Session, enhanced programs in those same categories were enacted, as well as Act 49, which specified guidelines in early-childhood education to be phased in over five years, Act 99 providing an additional $40 million for that program for a total of $53 million, and Act 52 to track funds spent on interschool athletic programs.
Act 59 of the Second Extraordinary Session is the Public School Funding Act for the 2004-05 school year which set forth a foundation figure of $5,400 times the average daily membership in the district’s schools for the previous year, with additional funds to be made available for students in the national school lunch program, for English as a second language, and for alternative learning environments, as well as teacher base salaries. Acts 60 and 80 provided for administrative consolidation of districts with less than 350 students, effective July 1, 2004.
Act 77 of the Second Extraordinary Session appropriates $2.1 billion for foundation aid for the 2004-05 school year:
ITEM FISCAL YEARS 2004-2005
(01) STATE FOUNDATION FUNDING AID $1,760,751,092
(02) NATIONAL SCHOOL LUNCH STUDENT FUNDING 132,146,400
(03) ALTERNATIVE LEARNING ENVIRONMENT STUDENT FUNDING 15,914,438
(04) ENGLISH LANGUAGE LEARNER STUDENT FUNDING 3,128,210
(05) PROFESSIONAL DEVELOPMENT FUNDING 22,251,515
(06) GENERAL FACILITIES FUNDING 8,115,181
(07) DEBT SERVICE FUNDING SUPPLEMENT 27,535,288
(08) STUDENT GROWTH FUNDING 41,291,748
(09) ISOLATED FUNDING 9,076,387
(10) SPECIAL EDUCATION CATASTROPHIC OCCURRENCES 8,800,000
(11) COURT ORDERED DESEGREGATION 56,800,000
TOTAL AMOUNT APPROPRIATED $2,085,810,259
Act 89 of the Second Extraordinary Session presents a constitutional amendment to Arkansas voters, to be voted on in November 2004 which would raise ad valorem taxes per school district for maintenance and operation from 25 mills to 28 mills. Act 69 of the same session provides incentive money for those districts raising their millages above the 25-mills level.
Act 107 of the Second Extraordinary Session increases the sales tax by 0.875% beginning March 1, 2004, to fund education, and Act 94 of the Second Extraordinary Session increases the corporate franchise tax for the same purpose. One State expert, Dr. James Guthrie, praised the General Assembly for increasing funding for education by almost eighteen percent.
Act 57 of the Second Extraordinary Session proposes to revisit the funding formula each biennium and provide a continuing evaluation of adequacy.
a. Adequacy
The Adequacy Study recommended a total state commitment of $2,435 billion with an increase of $680.6 million. Under Act 59 of the Second Extraordinary Session, the increase in spending for the 2004-05 school year is $394,479,900.
The Adequacy Study proposed an average cost per pupil of $6,230. The Department of Education projects an average of $6,000 per student from Act 59, which includes base-level, per-pupil funding ($5,400) with additional funding for special programs.
Funds were raised by increases in the sales tax, corporate franchise tax, and, potentially, the base millage to 28 mills, if the constitutional amendment passes.
b. Equalization of Educational Opportunities
Equalization is realized by State supplements to the uniform millage rate of 25 mills. Closing the gap between poor and wealthy school districts is addressed with programs like distance learning, public school choice, pre-kindergarten programs, and programs to recruit and retain teachers in high-priority districts.
Local school districts still have discretion in how school funds are spent. The Masters conclude that the Department of Education’s ability to monitor and assess district practices and to take remedial action “will be critical in determining the equality of educational opportunity throughout the State.”
10. The measures taken by the General Assembly to assure that funding education is the priority matter in the budgetary process.
Act 108 of the Second Extraordinary Session creates the Educational Adequacy Fund and requires that the State’s Chief Fiscal Officer make transfers from other funds and accounts to maintain sufficient funding to meet the State’s obligation to provide an adequate education.
Act 57 of the Second Extraordinary Session recognizes a continuing duty to assess what is an adequate education in Arkansas. Act 59 of that session recognizes the absolute duty to provide all public-school children with an adequate education and bases school funding on per-pupil expenditures. Funding education must now take place, even if that requires taking money from other state fund accounts on a pro rata basis.
These reforms are “laudable,” the Masters conclude. These Acts now “establish the State’s intent to assure that funding education is the priority in funding for the school year of 2004-2005.”
IV Issues
a. Adequacy and Equity
One issue raised in the Masters’ Report is whether this court’s term “substantial equality” in Lake View III means a basic level of adequate education for all or whether it means identical education assets for all.
We said in Lake View III that “[i]t is the State’s responsibility, first and foremost, to develop forthwith what constitutes an adequate education[.]” Lake View III, 351 Ark at 79, 91 S.W.3d at 500. We went on to say that it is the State’s responsibility to afford a substantially equal educational opportunity to all school children, based on what comprises an adequate education. See id.
An adequate educational opportunity must be afforded on a substantially equal basis to all the school children of this state. This does not mean that if certain school districts provide more than an adequate education, all school districts must provide more than an adequate education with identical curricula, facilities, and equipment. Amendment 74 to the Arkansas Constitution allows for variances in school district revenues above the base millage rate of 25 mills, which may lead to enhanced curricula, facilities, and equipment which are superior to what is deemed to be adequate by the State. Nevertheless, the overarching constitutional principle is that an adequate education must be provided to all school children on a substantially equal basis with regard to curricula, facilities, and equipment. Identical curricula, facilities, and equipment in all school districts across the state is not what is required.
b. Early-Childhood Education
In their introductory comments, the Masters refer to the deposition testimony of Janie Huddleston, Director of the Child Care and Early Childhood Education Division of the Department of Human Services, to the effect that research shows if a child is not proficient by the fourth grade, money spent on remediation which was not spent on early-childhood education “would have a much lower chance of bringing the child to a proficiency level.” The Masters note that the Adequacy Study showed a need of $100 million for early-childhood education, while the General Assembly appropriated only $40 million for the first year. The Masters conclude with this statement:
That evidence means to us that the need to provide substantial equality as a goal for all children, including those at high risk of lacking proficiency in early childhood, is one with which the court should be concerned in assessing the progress toward constitutionality of Arkansas’s school system.
In addition, the Little Rock and Pulaski County Special School Districts argued in their response and brief and at oral argument as well that $40 million was not enough and that this court should mandate more in the way of funding, since the General Assembly has now recognized early-childhood education as integral to achieving adequacy.
We disagree that early-childhood education is a program that this court can now mandate to be funded at a certain level. In Lake View III, we made it clear that the Arkansas Constitution specifically endows the General Assembly with the authority to authorize and fund early-childhood education. Article 14, § 1, states in pertinent part that the General Assembly and public school districts “may spend public funds for the education of persons over twenty-one (21) years of age and under six (6) years of age, as may be provided by law, and no other interpretation shall be given to it.” This language could not be clearer. The General Assembly, and it alone, provides what early-childhood-education programs shall be implemented. The people have spoken on this issue, and this court will not second-guess the people. We conclude, as we did in Lake View III, that early-childhood education, apart from legislative enactment, is not mandated by the Arkansas Constitution.
c. Consolidation
Consolidation of school districts was not expressly referenced in our Lake View III opinion. Nevertheless, an efficient education is what Article 14, § 1, of the Arkansas Constitution requires, which begs the question of whether this State can ever offer an adequate and substantially equal education to all its children without effective consolidation. This appears to be the question posed by the Masters, both in connection with better teacher pay and equality of curricula, facilities, and equipment. Governor Mike Huckabee seizes on this same theme and contends that more consolidation is essential in order for an adequate and equal education to be made available, and his counsel at oral argument argued that diseconomies of scale impede the possibility of obtaining a substantially equal educational opportunity.
The Masters appear to obliquely consider consolidation as part and parcel of an efficient education. They allude to Act 60 of the Second Extraordinary Session of 2003, which provides for administrative consolidation of school districts with less than 350 students, with no school to be closed until July 1, 2005. They refer to the variety of course offerings and suggest that a greater variety of curricular offerings to high-school students across the state cannot be accomplished without consolidation, as it will not be economically feasible to do so in small school districts.
We will not venture into this debate and mandate a specific consolidation program, as we are firmly convinced that an efficient public education as well as a general and suitable public education must be ordained by the executive and legislative branches of this State. What is radiantly clear, however, is that if an adequate curriculum, adequate facilities, and adequate equipment cannot be afforded to the school children in the smaller school districts of this state due to a lack of sufficient economic resources, more efficient measures to afford that adequacy will be inevitable.
d. Facilities and Equipment
The statewide facilities and equipment, funded by a $10 million appropriation study, will be completed by December 1, 2004, in order to permit the General Assembly to begin implementing it during the 2005 General Session. No one disputes the fact that this court’s mandate for adequate and substantially equal facilities and equipment is only at square one. While, like the Masters, we believe a Facilities Study is necessary to define what needs to be done, the scope of renovation, new construction, and replacement is an unknown at this time, as is the time frame for the ultimate construction and the funding and debt service. Considerable legislation needs to be passed in this area, and that will not begin until 2005. Neither the Masters nor this court can gauge and assess in any respect the significant steps to be undertaken in the future to meet this constitutional challenge.
e. Teacher Pay
The Masters observed that the ten percent across-the-board teacher pay increase recommended by the Adequacy Study had not been enacted. Rather, the General Assembly has raised beginning salaries dramatically and provided substantial bonuses and other incentives for performance and work in high-priority areas like the Delta.
The Masters voiced reservations as to whether the gap in teacher pay between poorer and wealthier school districts will ever be completely closed due to Amendment 74.
The General Assembly has addressed this issue in a meaningful way. Though counsel for Lake View advocated a uniform salary scale for teachers, while the Adequacy Study advocated an increase, we cannot say that the General Assembly has failed to address this issue.
f Other Deficiencies
Four other deficiencies found by the Masters bear mentioning. Standards of Accreditation, as contemplated by Act 1467, had not been adopted by the Department of Education, at least by the time the Masters’ Report was issued. Unattached equipment was not included in the Facilities Study. The Department of Education could not identify Arkansas’ average teacher salary. To implement accountability measures fully, rules need to be adopted, commissioners appointed, and training of personnel needs to occur. This has yet to be done.
There were also questions posed to the Senior Assistant Attorney General, Tim Gauger, at oral argument on May 20, 2004, about whether the Department of Education had followed through with directives from the General Assembly regarding the establishment of an Office of Teacher Recruitment and the identification of teacher-shortage issues. He could not answer these questions, which amplify our concern over the additional work that remains to be done.
V. Conclusion
We join the Masters and the State’s experts in their praise for the work done by the General Assembly in the field of education, particularly during the Second Extraordinary Session after January 1, 2004. The Masters use the term “laudable” in connection with much of the legislation passed. The accounting and accountability measures set in place appear to be state-of-the-art. And Act 108, which requires that education be fully funded and directs the chief fiscal officer to tap into other funds on a pro-rata basis to pay for the educational programs appears to be unprecedented in any other state in this nation. The legislative accomplishments have been truly impressive.
What follows are samples of the praise from the State’s experts drawn from the Masters’ Report:
- Dr. James Smith testified that the General Assembly’s move to consolidate some 19% of our 308 school districts was “dramatic.”
- Dr. James Guthrie said: “I believe that in my 40 years of professional experience in this kind of endeavor, I have never before seen a state which leapfrogged an entire century and went from the 19th century into the 21st century. The enactments are dramatic, comprehensive, and the amount of money that will be distributed as a consequence of them is about the largest I’ve ever seen proportionally.”
- Dr. James Guthrie also said: “So in their [economists Evans, Murry, and Schwab, who study states under court order to achieve adequacy and equity] analysis no state at that time had achieved an 18 percent increase. I have never seen a state commit to fund education ahead of all other government functions as is found in Act 108.”
At oral argument, this court was urged by counsel for Lake View, counsel for Governor Mike Huckabee, counsel for the Little Rock and Pulaski County Special School Districts, and counsel for the Bentonville and Rogers School Districts to retain jurisdiction. Each party had a separate reason: Lake View wanted this court to declare Act 60, the consolidation act, unconstitutional; Governor Mike Huckabee wanted more consolidation; the Little Rock and Pulaski County Special School Districts wanted more early-childhood education funding; and the Bentonville and Rogers School Districts wanted this court to “stay the course” and assure that facilities and equipment were equalized. A common theme throughout much of the oral arguments was that if this court does not serve as a “watchdog” agency to assure full compliance with Lake View III, the General Assembly will not complete or fully implement what it has already begun. Indeed, the unspoken threat is that the General Assembly might renege or backtrack on school measures already passed.
There are two things that bother us about these arguments. First, it is not this court’s role under our system of government, as created by the Arkansas Constitution, and under the fundamental principle of separation of powers, as set out in Article 4, § 2, of that document, to legislate, to implement legislation, or to serve as a watchdog agency, when there is no matter to be presently decided. This court made it perfectly clear in Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979), that the judicial branch cannot arrogate to itself control of the legislative branch. Our role is to hear appeals and decide.cases where we have original jurisdiction.
We know of no other case in Arkansas, or any other jurisdiction for that matter, where an appellate court has recalled its mandate and appointed masters to assure that its decision is carried out, other than what this court has already done to assure compliance with Lake View III. Indeed, this court’s actions in recalling the mandate and appointing masters to assure compliance were “extraordinary” to use the words of counsel for Governor Huckabee. Yet, we deemed those actions to be necessary because of the circumstances that existed in January of this year when we recalled our mandate. At that time, the General Assembly had not enacted the Public School Funding Act (Act 59) to implement the Adequacy Study, the $2.1 billion appropriation to fund education (Act 77), and the sales tax measure to fund new and existing programs (Act 107). Moreover, major legislative programs to equalize educational opportunity, to improve teacher pay, to assess facilities and equipment, to require uniform budgets and accounting, to test and track student progress, and to make education the number one priority had not been passed, as has already been thoroughly detailed in this opinion.
Our second point is aligned with the first. While the General Assembly began slowly in enacting compliance legislation, after this court recalled its mandate and appointed masters, a barrage of legislation was passed. Each of the ten points in Lake View III was addressed. We cannot say that we would have recalled our mandate had the legislation described in this opinion been passed prior to January 1, 2004. Admittedly, some measures, and specifically funding measures and those relating to facilities and equipment, have not been brought to fruition. But we presume they will be, as we presume government officials will do what they say they will do. See Dilday v. State, 300 Ark. 249, 778 S.W.2d 618 (1989); Arkansas Pollution Control Comm’n v. Coyne, 252 Ark. 792, 481 S.W.2d 322 (1972). To assume otherwise runs counter to our case law. Furthermore, to retain jurisdiction under these circumstances will disparage the work of the General Assembly and cast the role of this court into that of a brooding superlegislature, when compliance with Lake View III is already well underway on all fronts.
Various parties and the dissent call upon this court to continue to monitor the General Assembly. But for how long? Until the adjournment sine die of the 2005 General Session? Until all legislative programs discussed in this opinion have been fully funded? Until all facilities and equipment and curricula deemed essential for an adequate education have been made substantially equal? What has been set in motion by the General Assembly and Executive Department will take years and perhaps even a decade to implement fully. Again, it is not this court’s constitutional role to monitor the General Assembly on an ongoing basis over an extended period of time until the educational programs have all been completely implemented or until the dictates of Lake View III have been totally realized.
Accordingly, we release jurisdiction of this case and the mandate will issue. The resolve of this court is clear. We will not waver in our commitment to the goal of an adequate and substantially equal education for all Arkansas students; nor will we waver from the constitutional requirement that our State is to “ever maintain a general, suitable, and efficient system of free public schools [.]” Make no mistake, this court will exercise the power and authority of the judiciary at any time to assure that the students of our State will not fall short of the goal set forth by this court. We will assure its attainment.
Hannah, J., concurs. Dickey, C.J., Glaze and Corbin, JJ., dissent. Imber, J., not participating. Special Justice Carol Dalby joins.