Under Arkansas's Public School Choice Act of 2013, does a district that previously declared exemption automatically remain exempt if it fails to give annual notice?

Plain-English summary

Arkansas education commissioner Tom Kimbrell asked what happens if a school district that claimed an exemption from the Public School Choice Act in one year fails to give timely notice in the next year. The opinion says 23 districts had claimed exemptions for the 2013–14 school year, while 21 timely claimed them for 2014–15; some previously exempt districts gave notice of neither renewed exemption nor resumed participation.

The AG said the statute required notice of an intent to remain exempt and also notice of an intent to rejoin school choice. It did not state the consequence when a district gave neither notice. He could not resolve whether the exemption continued in those circumstances and recommended legislative clarification.

He identified one firm limit: participation would be barred to the extent it contravened a judicial decree or court order designed to remedy past racial segregation, regardless of what notice the district gave. The existence of an order alone was not treated as a blanket bar to every form of school-choice participation. The stored opinion also notes that the education department had rulemaking discretion while awaiting clarification.

Currency note

This opinion was issued in 2014. Check current school-choice law, agency rules, and any applicable desegregation order before applying it.

Common questions

Does a prior exemption automatically continue if the district misses notice?
The AG could not say. The statute required declarations but was silent on the effect of making neither one on time.

Does missing notice automatically make the district participate?
The opinion did not reach that conclusion either. It called for legislative clarification.

What if a desegregation order applies?
The AG said school-choice participation is barred to the extent it would contravene a decree or court order remedying past racial segregation, regardless of notice.

What should administrators check?
The opinion points to the district's notices and any decree or order that limits transfers. Its central unanswered issue was the consequence of failing to give the required declaration.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2014-041
June 27, 2014

Dr. Tom W. Kimbrell, Commissioner
Arkansas Department of Education
Four Capitol Mall
Little Rock, Arkansas 72201-1019

Dear Commissioner Kimbrell:

I am writing in response to your request for my opinion on various issues relating to public-school transfers under the Public School Choice Act of 2013 (the "Act"). You have posed the following questions:

1. Once a school district notifies the Arkansas Department of Education (the "ADE") of its intent to declare an exemption from participation in [the Act], pursuant to A.C.A. § 6-18-1906, must that school district annually notify the ADE of its intent to declare the exemption in order for the exemption to continue during subsequent school years?

2. Once declared by the school district, does the exemption automatically continue until such time that the school district notifies the ADE of its intent to resume participation in the Act?

3. If a school district notifies the ADE of its intent to declare an exemption but, in a subsequent year, does not affirmatively notify the ADE of its intent to resume participation in the Act, does the school district remain exempt from participation in the Act?

My inquiries reveal that 23 districts declared exemptions for the 2013-14 school year, but only 21 have timely declared an intent to claim an exemption for the 2014-15 school year. Some but not all of the districts declaring an exemption for the upcoming year had also declared an exemption for the 2013-14 school year. Various districts, then, that declared an exemption for the 2013-14 school year have failed to declare, in accordance with the statute, an intention either to renew the exemption or to participate in the school choice program.

RESPONSE

With respect to all three of your questions, A.C.A. § 6-18-1906 expressly provides that an exempt school district must provide notice of its intent to exempt itself from participation in a school choice program for the subsequent year. The statute likewise provides, however, that an exempt school district must declare its intent to reenter the school choice program for the subsequent year. The statute is silent regarding the effect if an exempt school district makes neither declaration in timely fashion. I can only opine that, to the extent participation in a school choice program would contravene a judicial decree or court order designed to remedy the effects of past racial segregation, such participation would be barred regardless of whether the district gave notice of either intent referenced above. Legislative clarification is warranted regarding the effect of a failure to give timely notice if the contingency just described does not apply.

(The opinion then summarizes the Act, including subsection (a)'s federal-desegregation supremacy, subsection (b)(1)'s annual-exemption provision, subsection (b)(2)'s one-year irrevocability, subsection (b)(2)(B)'s post-exemption participation election, and subsection (b)(3)'s annual notice requirement. The AG works through each of Kimbrell's three questions, concluding in each case that the statute is silent on what happens without notice and that the only firm rule is the desegregation-order preclusion. The AG flags legislative clarification as warranted and notes the ADE's rulemaking discretion in the meantime.)

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,
DUSTIN McDANIEL
Attorney General
DM/JHD:cyh