Does Arkansas Act 137 of 2015 invalidate the SOGI nondiscrimination ordinances passed by Little Rock, Fayetteville, Hot Springs, Eureka Springs, and Pulaski County?

Plain-English summary

State Representative Bob Ballinger asked whether Act 137 of 2015 would prevent enforcement of the SOGI nondiscrimination ordinances passed by Little Rock, Fayetteville, Hot Springs, Eureka Springs, and Pulaski County. The common feature of the five ordinances was that they updated local nondiscrimination rules to require businesses contracting with the locality to agree not to discriminate on the basis of sexual orientation or gender identity, among other things.

The AG concluded that Act 137 rendered the five ordinances unenforceable.

The reasoning had three steps:

1. Act 137 (codified at Ark. Code Ann. § 14-1-403(a)) bars counties, municipalities, and political subdivisions from adopting or enforcing any ordinance, resolution, rule, or policy that "creates a protected classification or prohibits discrimination on a basis not contained in state law."

2. In federal preemption terms, this is "express preemption." The General Assembly intended to hold the entire field of antidiscrimination law and leave no room for local variation.

3. Two of the five cities tried to argue that Arkansas's anti-bullying statute, Ark. Code Ann. § 6-18-514, was a state-law nondiscrimination provision because it references sexual orientation and gender identity in its list of "attributes" that can be the focus of bullying. The AG rejected the argument on four grounds: the bullying statute deals with intentional harassment, not classification-based decisions; it applies only to students bullying other students or school employees, not to the employment context generally; the statute says bullying "may" address one of the attributes (it does not have to); and bullying and discrimination are conceptually distinct (you can equally bully one person, but you cannot equally discriminate against all persons).

The AG noted that the office is not authorized to construe local ordinances, but can discuss them when their meaning is clear on the face and state law requires reading them.

Act 137 does not apply to a political subdivision's policies for its own employees (Ark. Code Ann. § 14-1-403(b)).

Currency note

This opinion was issued in 2015. 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.

Background and statutory framework

Act 137 of 2015 ("Intrastate Commerce Improvement Act") was enacted during the 2015 regular session over the governor's allowed-to-become-law-without-signature. Section 1 added Ark. Code Ann. § 14-1-403(a) and (b). It does two things:

• Subsection (a) bars cities, counties, and political subdivisions from creating protected classifications or prohibiting discrimination "on a basis not contained in state law."
• Subsection (b) carves out a political subdivision's own employees: a city or county can still set its own internal employment policies.

Arkansas's anti-bullying statute, § 6-18-514, sits in the public-school code, not the labor or civil-rights code. It defines "bullying" to mean intentional harassment, intimidation, humiliation, ridicule, defamation, or incitement of violence by a student against another student or school employee. The statute lists "attributes" the bullying may address, including race, color, religion, ancestry, national origin, socioeconomic status, academic status, disability, gender, gender identity, physical appearance, health condition, or sexual orientation. The five cities argued this list amounted to a state-law nondiscrimination provision that included SOGI, so local SOGI nondiscrimination ordinances were not "on a basis not contained in state law."

The AG's preemption framework drew on Arkansas precedent treating local ordinances as preempted when they vary from state laws holding the same field. Emerald Development Co. v. McNeill (Ark. App. 2003) and Kollmeyer v. Greer (1980) are cited as the state-law analogues of federal express-preemption analysis. Once Act 137 was read as holding the field, the AG concluded that any local ordinance varying from state nondiscrimination law was preempted.

The AG was careful to note four limits on her conclusion. She did not address (a) whether Act 137 itself is constitutional; (b) whether some narrower interpretation might save parts of the ordinances; (c) whether the ordinances might be enforceable as to ground other than SOGI; or (d) how Act 137's internal-employees carve-out applies to specific local hiring policies.

Common questions

What were the five cities and counties trying to do?

They were requiring businesses that contract with the local government to sign agreements pledging not to discriminate on the basis of sexual orientation or gender identity, among other characteristics already protected under federal or state law. Several of the ordinances also reached beyond contracting (Fayetteville's, for instance) to general nondiscrimination obligations.

Why did the AG think Act 137 preempted them?

Because Act 137 (codified at § 14-1-403(a)) explicitly bars local prohibitions on discrimination on bases not already in state law. The AG read that as a "hold the field" preemption clause, leaving no room for local variation.

The anti-bullying statute lists "sexual orientation" and "gender identity." Why didn't that save the ordinances?

The AG concluded the anti-bullying statute is not a nondiscrimination statute. It targets bullying behavior, applies only in schools, and merely lists attributes that may be the focus of bullying without prohibiting classification-based decisions in employment, housing, or public accommodations.

Is this opinion legally binding?

No. AG opinions in Arkansas are persuasive but not binding. A court could disagree. Subsequent litigation (notably challenges to Act 137 itself) has tested the preemption argument.

Did the AG say anything about whether Act 137 itself was constitutional?

No. The opinion was limited to the preemption question. It did not address whether Act 137 ran afoul of the federal Constitution or Arkansas constitutional provisions.

Does Act 137 prevent a city from setting its own internal SOGI nondiscrimination policy for its own employees?

No. Subsection 14-1-403(b) explicitly carves out a political subdivision's policies for its own employees. The bar applies to ordinances regulating private parties.

Citations

• Act 137 of 2015 (Intrastate Commerce Improvement Act)
• Ark. Code Ann. § 14-1-403(a) (express preemption of local nondiscrimination ordinances)
• Ark. Code Ann. § 14-1-403(b) (carve-out for political subdivision's own employees)
• Ark. Code Ann. § 6-18-514 (Repl. 2013) (anti-bullying statute, school context)
• Ark. Code Ann. § 6-18-514(b)(1) (list of attributes including sexual orientation, gender identity)
• Ark. Code Ann. § 6-18-514(b)(2) (definition of "bullying")
• Ark. Code Ann. § 5-71-209 (Repl. 2013) (harassing communications)
• Ark. Code Ann. § 5-13-301 (Repl. 2013) (terroristic threatening)
• Emerald Development Co. v. McNeill, 120 S.W.3d 605 (Ark. App. 2003) (state preemption framework)
• Kollmeyer v. Greer, 267 Ark. 632, 593 S.W.2d 29 (1980) (state preemption framework)
• Black's Law Dictionary 236 (Bryan A. Garner, ed., 10th ed. West 2014) (definitions of bully and discrimination)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-088

September 1, 2015

The Honorable Bob Ballinger
State Representative
1757 Madison 7150
Hindsville, Arkansas 72738-9558

Dear Representative Ballinger:

You have asked for my opinion regarding the meaning and application of Act 137 of 2015. This Act prohibits "[a] county, municipality, or other political subdivision of the state" from "adopt[ing] or enforc[ing] an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law." You ask whether Act 137 "would prevent the adoption or enforcement, in whole or in part" of ordinances similar to those passed in Little Rock, Fayetteville, Hot Springs, Eureka Springs, and Pulaski County.

RESPONSE

The common thread among the five ordinances you cite is that they all amended their local laws to prohibit certain employers (and others) from discriminating on the basis of sexual orientation or gender identity. I take your questions as asking, in light of Act 137 of 2015, whether such ordinances are enforceable.

Act 137 renders unenforceable any ordinance that prohibits discrimination on a basis not already contained in state law. Because current state law does not prohibit discrimination on the basis of sexual orientation or gender identity, it is my opinion that Act 137 renders the five ordinances unenforceable in this respect.

DISCUSSION

The Attorney General is not authorized to construe local ordinances. But this Office can discuss a local ordinance when its meaning is clear on its face and when state law necessarily requires a reading of the local ordinance in question. The local ordinances you ask about are, for purposes of this opinion, sufficiently clear that I can discuss how Act 137 would apply.

The common feature of the five recently-enacted ordinances you ask about is that they all updated their local nondiscrimination laws to prohibit businesses from contracting with the locality unless the business signs an agreement that it will not discriminate on the basis of (among other things) sexual orientation or gender identity. Given this common thread, I take your question to be asking whether this specific action by the localities conflicts with Act 137.

Before directly addressing your questions, I will (a) explain how I believe a court would interpret Act 137; (b) provide a few representative examples of nondiscrimination laws in Arkansas; and (c) explain why, notwithstanding the claims of some cities, Arkansas's anti-bullying statute is not a nondiscrimination statute.

I. The Meaning of Act 137

Act 137's critical provision states that "[a] county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law." Act 137's interpretation turns primarily on the meaning of the emphasized clause. Because the ordinances you reference all prohibit "discrimination" on certain bases, I will focus on that part of the emphasized clause.

The primary question regarding Act 137 is what the General Assembly intended by the phrase "prohibits discrimination on a basis not already contained in state law." (Emphasis added.) Act 137 states that a "political subdivision of the state shall not adopt or enforce an ordinance...[that] prohibits discrimination on a basis not contained in state law."

This language indicates that the General Assembly intended Act 137 to "hold the field" with respect to antidiscrimination law. The Act expressly prohibits localities from regulating in that field. More specifically, the Act effectively prohibits cities and counties from prohibiting discrimination in a way that varies from state law. In federal jurisprudence, this kind of preemption is known as "express preemption." The Arkansas Supreme Court has employed this framework when assessing whether local laws are preempted by state law. By removing the cities' and counties' ability to enact antidiscrimination laws at variance with state laws, Act 137 clearly holds the field and leaves no room for political subdivisions to act.

II. The Anti-Bullying Statute—Ark. Code Ann. § 6-18-514

One might accept the foregoing and still argue that the five ordinances you reference are not preempted by Act 137. Indeed, I note that two of the five ordinances you ask about appear to rely on Arkansas's anti-bullying statute—Ark. Code Ann. § 6-18-514—as the basis for including sexual orientation and gender identity in their nondiscrimination ordinances. But such an argument is mistaken for two reasons.

First, the anti-bullying statute is not a nondiscrimination law as contemplated by Act 137. The state's anti-bullying statute states that "every public school student in this state has the right to receive his or her public education in a public school educational environment that is reasonably free from substantial intimidation, harassment, or harm or threat of harm by another student." To further that right, the General Assembly specifically defined what is meant by "bullying":

"Bullying" means the intentional harassment, intimidation, humiliation, ridicule, defamation, or threat or incitement of violence by a student against another student or public school employee by a written, verbal, electronic, or physical act that may address an attribute of the other student, public school employee, or person with whom the other student or public school employee is associated....

The statute defines an "attribute" as an "actual or perceived personal characteristic including without limitation race, color, religion, ancestry, national origin, socioeconomic status, academic status, disability, gender, gender identity, physical appearance, health condition, or sexual orientation."

Several observations, from both the text of the anti-bullying statute and an analysis of the concepts of bullying and discrimination, show that the anti-bullying statute is not a nondiscrimination law within the meaning of Act 137:

1. The statute's text deals entirely with intentional harassment, intimidation, ridicule, and threats of violence. Unlike the foregoing nondiscrimination statutes, the anti-bullying statute is not addressing distinctions made between or among various persons or groups of persons. This is critical because it shows that one can be equally culpable for bullying one person as for bullying all persons. But it is logically impossible for one to equally discriminate against all persons. For if one had a policy that applied equally to all persons (both expressly and in terms of its impact), then, far from being discriminatory, such a policy would be neutral.

2. The anti-bullying statute deals with students who bully other students or public-school employees. The anti-bullying statute is not addressing the employment context. Far from being a nondiscrimination law, such a statute is essentially a civil analogue for such crimes as harassing communications and terroristic threatening.

3. The statute says that the bullying "may address" one of the listed attributes. Under the statute, one can bully another entirely without reference to the person's attributes. In contrast, the only way for a person to violate one of the nondiscrimination statutes noted above is for the person to discriminate on one of the listed bases.

4. Quite apart from the text of the anti-bullying statute, the definitions of bullying and discrimination are entirely separate. When "bully" is used as a verb, it means "1. To threaten, intimidate, embarrass, or pressure (a person) by force, taunt, or derision. 2. To use abusive language or behavior against." Neither of these concepts is present in the definition of discrimination: "1. The intellectual faculty of noting differences and similarities. 2. The effect of law or established practice that confers privileges to a certain class because of race, age, sex, nationality, religion, or disability.... 3. Differential treatment; esp. a failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored." These definitions show that bullying is not a subset of discrimination and that discrimination is not a subset of bullying. The two concepts are distinct.

But even if one assumed, for purposes of argument, that the anti-bullying statute is a nondiscrimination law, the law would still not authorize the five ordinances. This is because, as noted above, Act 137 holds the field with respect to nondiscrimination laws. Thus, if the local ordinances vary at all from state laws that prohibit nondiscrimination, then the local ordinances are preempted by Act 137, which states that the local ordinances cannot be enforced. Local ordinances that are ostensibly based on the anti-bullying statute cannot vary from it. But, as noted above, the anti-bullying statute only applies to a public-school student and only in the public-school context. Therefore, when the local ordinances take the words "sexual orientation" and "gender identity" entirely out of section 6-18-514's context, and try to apply them to an area the General Assembly has not, the ordinances are varying from state law and, thus, unenforceable to that extent.

Therefore, because no state law currently prohibits discrimination based upon someone's sexual orientation or gender identity, I can say that Act 137 renders the local ordinances you ask about unenforceable in this respect.

Sincerely,
Leslie Rutledge
Attorney General

LR:cyh