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 Department of Education Commissioner Tom Kimbrell asked AG Dustin McDaniel for guidance on the Public School Choice Act of 2013 (Acts 2013, No. 1227, § 6, codified at A.C.A. §§ 6-18-1901 to -1908). The Act requires every district to participate in a public school-choice program. Districts subject to federal desegregation orders or mandates may declare exemption under A.C.A. § 6-18-1906.

Kimbrell's practical problem: 23 districts had declared exemptions for the 2013-14 school year. Only 21 had timely declared an exemption for 2014-15. Some of those 21 had not been exempt the prior year. So various districts that had been exempt for 2013-14 failed to give timely notice either renewing the exemption or resuming participation. What were they?

The AG's answer was unsatisfying but candid: the statute is silent. A.C.A. § 6-18-1906(b)(3) requires the district to notify the ADE by April 1 either of intent to declare an exemption or of intent to resume participation. The Act says nothing about what happens if a district does neither. The AG could only offer one piece of certainty: a district subject to a federal desegregation order is precluded by federal preemption from participating in school choice to the extent participation would contravene the order, regardless of any notice the district did or did not give. That much is dispositive.

Beyond the desegregation-order floor, the AG declined to resolve the question. He noted competing readings: the statute could be read as requiring annual renewal (so failure to renew defaults the district into participation), or as creating an indefinite exemption (so failure to renew defaults the district into continued exemption). Neither reading is clearly supported by the text. Legislative clarification was warranted.

In the meantime, the AG invoked administrative deference. The ADE has rulemaking authority through the State Board of Education under A.C.A. § 6-18-1907(a). The ADE could promulgate a rule resolving the question, and the rule would receive substantial deference under Pledger v. C.B. Form Co. and Allen v. Ingalls as long as the rule is not arbitrary or contrary to the statute. Morris v. Torch Club underscores that long-standing administrative interpretations are followed unless clearly wrong.

The AG was careful to note that this is the kind of statutory silence that ought to be cured by the legislature, not papered over by the AG. The opinion served notice that the legislature had left an open question and that the ADE should consider rulemaking.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the Public School Choice Act of 2013 at the time of this opinion?
A.C.A. §§ 6-18-1901 to -1908, requiring every Arkansas school district to participate in a public school-choice program allowing students to transfer to nonresident districts, subject to the limitation that the transfer cannot conflict with a desegregation order.

Who can declare an exemption?
A.C.A. § 6-18-1906(b)(1) allows a district subject to "the desegregation order or mandate of a federal court or agency remedying the effects of past racial segregation" to "annually" declare exemption.

What's the annual notice requirement?
A.C.A. § 6-18-1906(b)(3) requires the district to notify the ADE by April 1 if in the next school year it intends to declare an exemption, or resume participation after a period of exemption.

What happens if a district doesn't give either notice?
The statute doesn't say. The AG could not answer beyond noting that a desegregation order itself can preclude participation regardless of notice.

Could the ADE pass a rule resolving this?
Yes. A.C.A. § 6-18-1907(a) gives the State Board of Education rulemaking authority over the Act. A rule clarifying what happens after silent failure to renew would be entitled to substantial deference.

Why is the federal desegregation order point separate?
Because federal court orders preempt state statutes. Even if Arkansas law tried to force a district to participate in school choice, a federal order limiting student transfers in that district would control. The AG's caveat preserves the federal-law floor regardless of state-law mechanics.

What practical step did this opinion prompt?
The opinion invited legislative clarification and signaled that the ADE could promulgate a rule. The status quo was unstable: 23 districts in 2013-14, 21 timely renewals for 2014-15, others in limbo. The ADE had a window to act before the next school year required clarity.

Background and statutory framework

The Public School Choice Act of 2013 (Acts 2013, No. 1227, § 6), codified at A.C.A. §§ 6-18-1901 to -1908, established mandatory school-choice participation with an exemption for districts under desegregation orders. § 6-18-1903(b) states "[e]ach school district shall participate in a public school choice program consistent with this chapter." § 6-18-1901 conditions transfers on the absence of "an enforceable judicial decree or court order remedying the effects of past racial segregation in the school district."

A.C.A. § 6-18-1906 carries the exemption mechanism: (a) desegregation-order provisions govern over conflicting Act provisions; (b)(1) districts may "annually" declare exemption; (b)(2)(A) makes a declared exemption irrevocable for one year from the date of notification; (b)(2)(B) addresses post-exemption participation election; (b)(3) requires April 1 annual notice of intent to either declare exemption or resume participation.

The Arkansas Opportunity Public School Choice Act of 2004 (A.C.A. § 6-18-227(e)(2)) contains a parallel federal-desegregation supremacy clause that the AG referenced for comparison.

A.C.A. § 6-18-1907(a) authorizes the State Board of Education to make rules implementing the Act.

Administrative interpretive deference is governed by Pledger v. C.B. Form Co., Allen v. Ingalls, Morris v. Torch Club, and ACW Inc. v. Weiss.

Citations

• A.C.A. § 6-18-1901 (Public School Choice Act stated purpose)
• A.C.A. § 6-18-1903(b) (mandatory district participation)
• A.C.A. § 6-18-1906 (exemption and notice mechanism)
• A.C.A. § 6-18-1907(a) (State Board rulemaking authority)
• A.C.A. § 6-18-1908 (Act provisions)
• A.C.A. § 6-18-227(e)(2) (Repl. 2013) (Opportunity Public School Choice Act desegregation clause)
• ACW Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997) (administrative deference)
• Pledger v. C.B. Form Co., 316 Ark. 22, 871 S.W.2d 333 (1994)
• Allen v. Ingalls, 182 Ark. 991, 33 S.W.2d 1099 (1930)
• Morris v. Torch Club, 278 Ark. 285, 287, 645 S.W.2d 938 (1983)
• Op. Att'y Gen. 99-151, 97-259, 89-097 (cited within the opinion)

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