Does Arkansas State University at Newport count as a 'public school' under Amendment 98's medical marijuana siting rules?

Plain-English summary

Senator Bill Sample asked the Attorney General whether Arkansas State University at Newport (ASUN) counted as a "public school" under Amendment 98, the 2016 Arkansas Medical Marijuana Amendment. The question mattered because Amendment 98 prohibits siting a medical marijuana dispensary within 1,500 feet of "a public or private school, church or daycare center," and a cultivation facility within 3,000 feet of the same. ASUN had more than 800 high school students enrolled in concurrent college classes, so the question was whether that volume of secondary-school-age students made the campus a "public school" for siting purposes.

Attorney General Leslie Rutledge concluded that a reviewing court would likely defer to the Arkansas Medical Marijuana Commission's interpretation, which limits "school" to preschools, elementary, and secondary schools, expressly excluding postsecondary institutions and community colleges. Amendment 98 itself does not define "school" or "public school," and the AG walked through the term's various ordinary meanings (some of which include colleges, others of which do not) before concluding that the AMMC's choice to exclude higher education was a "clearly permissible" interpretation that courts would likely uphold. The opinion also distinguished concurrent-enrollment programs from juvenile detention facilities (which the AMMC had treated as schools): the difference was the kind of education delivered, not the age of students.

Currency note

This opinion was issued in 2018. 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

Amendment 98 prohibits dispensary siting within 1,500 feet (and cultivation siting within 3,000 feet) of "a public or private school, church or daycare center." The amendment contains an extensive definitional section but does not define "school" or "public school."

The Arkansas Medical Marijuana Commission, which the amendment vests with rulemaking authority, defined "school" by rule as a facility "operated by a public school district; open-enrollment public charter school, as defined in Ark. Code Ann. § 6-23-103; or a private entity including parochial schools providing preschool, elementary, or secondary education but does not include postsecondary institutions of higher education, community colleges, or the residences of students being home schooled under Ark. Code Ann. § 6-15-501 et seq."

ASUN's setup was unusual. In fall 2016, the institution enrolled 2,718 students, of which 831 were under 18. The AG noted that of Arkansas's 1,052 public schools in 2017-2018, all but 67 had student populations smaller than ASUN's under-18 enrollment. So in raw numbers, ASUN had more secondary-school-age students than most actual high schools.

Why the AG read "public school" narrowly

The opinion is one of the most analytically careful in the Rutledge era. The AG worked through every interpretive tool a court would use:

• Ordinary meaning. Many dictionaries (American Heritage, Random House, Black's) define "public school" as elementary or secondary school only. Some others (New Oxford American) define it more broadly to include public colleges. The phrase has multiple ordinary meanings.
• Noscitur a sociis. The siting list also includes "private school, church, or daycare center." Churches and daycare centers are attended by people of all ages, and "private school" is itself ambiguous, so the surrounding terms do not resolve which reading of "public school" is correct.
• Internal consistency in Amendment 98. Amendment 98 separately prohibits possession on the grounds of "a daycare center, preschool, primary or secondary school, college, or university," distinguishing schools from colleges. But it elsewhere uses "school" in a way that arguably includes higher education (the anti-discrimination provision protecting designated caregivers, who are by definition 21 or older). The internal evidence cuts both ways.
• Pre-existing AMMC interpretation. Amendment 98 vests rulemaking authority in the AMMC. The AMMC has interpreted "school" to exclude colleges. Under Brookshire v. Adcock, courts give "great deference to an agency interpretation of a statute" and will not overturn the agency's reading "unless it is clearly wrong." The AG cited Magruder v. Ark. Game & Fish Comm'n as a parallel: under the analogous rulemaking grant in Amendment 35, the Court had deferred to the agency's interpretation of "zone."

The opinion concluded that because both readings were reasonable, the AMMC's interpretation was not clearly wrong and a court would likely uphold it.

Why concurrent enrollment did not change the answer

Senator Sample's question rested on the high volume of secondary-school students at ASUN. The opinion treated that fact as not controlling. The AMMC's interpretation distinguishes schools by the kind of education provided, not the age of the students. ASUN provides college instruction to high-school students; that is structurally different from the juvenile detention facility analogy the AMMC had previously addressed in an advisory memorandum. At a juvenile detention facility, secondary-school instruction is delivered (often by local school district staff) to incarcerated minors. At ASUN, college instruction is delivered to all enrollees. "[A] college does not transform into a high school because secondary school students take college classes there."

The opinion noted that the AMMC retained discretion to interpret "public school" more broadly to cover colleges. But the AG considered it doubtful that the AMMC could carve out a specific exception that included colleges only when concurrent-enrolled high schoolers were on campus, since that hybrid reading is "not a meaning of 'public school' in ordinary use."

Common questions

Did the AG say ASUN is definitely not a "public school" under Amendment 98?

Not exactly. The AG concluded that a court would likely defer to the AMMC's interpretation, which excluded colleges and universities. That is a deference-based prediction, not a direct interpretation of Amendment 98 by the AG.

Could the General Assembly change the answer?

Yes. Section 23 of Amendment 98 lets the General Assembly amend the amendment so long as the amendments are germane and consistent with its purposes. The General Assembly could enact a definition of "public school" that resolves the ambiguity.

What about a juvenile detention facility?

The AMMC had separately recognized juvenile detention facilities as "schools" because secondary-school instruction is delivered there. The opinion treated that as a coherent distinction: the kind of education delivered (secondary-school) is what matters, not the institutional label.

Why didn't the AG just interpret Amendment 98 directly?

Because Amendment 98 vests rulemaking authority in the AMMC, courts review the AMMC's choices under a deferential standard. The AG's role here was to predict how a reviewing court would treat the AMMC's interpretation, not to override it.

Does this opinion control where dispensaries can locate near other Arkansas universities?

The opinion's logic generalizes: if a college or university does not deliver secondary-school instruction (as opposed to college instruction to high-school-age students), the AMMC's "school" definition does not apply.

Citations

Ark. Const. amend. 98 (medical marijuana); Ark. Const. amend. 35 (Game and Fish Commission rulemaking); Ark. Code Ann. §§ 6-23-103, 6-15-501 et seq., 4-75-808(a), 6-18-603, 6-64-1101, 6-80-107(a)(1), 22-1-203, 6-51-902(a)(1); City of Fayetteville v. Washington Cnty., 369 Ark. 455 (2007); Harris v. City of Little Rock, 344 Ark. 95 (2001); Allred v. McLoud, 343 Ark. 35 (2000); Edwards v. Campbell, 2010 Ark. 398; Hanley v. Arkansas State Claims Comm'n, 333 Ark. 159 (1998); Sesley v. State, 2011 Ark. 104; Brookshire v. Adcock, 2009 Ark. 207; Ford v. Keith, 338 Ark. 487 (1999); Magruder v. Ark. Game & Fish Comm'n, 293 Ark. 39 (1987); Martin v. Haas, 2018 Ark. 283.

Source

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

Original opinion text

Opinion No. 2018-027
December 20, 2018
The Honorable Bill Sample
State Senator
2340 North Highway 7
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Hot Springs Village, AR 71909
Dear Senator Sample:

This is in response to your request for an opinion on whether Arkansas State University at Newport ("ASUN") qualifies as a public school under Amendment 98 to the Arkansas Constitution, the "Arkansas Medical Marijuana Amendment of 2016." You have provided the following background information:

It is my understanding ASUN services area high schools by providing the opportunity for high school students to earn college credits while still attending their high school. Students complete coursework and show acquisition of the same skills learned by students on campus in order to earn these college credits. This opportunity is provided for students in both the areas of General Education and Applied Science…. In the fall of 2016, ASUN enrolled 2,718 students of which 831 were under the age of 18. Of the 1,052 public schools in 2017-2018, all but 67 had student populations of less than 831.

In addition, pursuant to Amendment No. 98 of the Constitution of the State of Arkansas of 1874 the Arkansas Medical Marijuana Commission (AMMC) adopted and promulgated rules and regulations governing the application for, issuance, and renewal of licenses for medical marijuana cultivation facilities and dispensaries in Arkansas. AMMC rules define school as:

(10) "School" means a facility or building operated by a public school district; open-enrollment public charter school, as defined in Ark. Code Ann. § 6-23-103; or a private entity including parochial schools providing preschool, elementary, or secondary education but does not include postsecondary institutions of higher education, community colleges, or the residences of students being home schooled under Ark. Code Ann. § 6-15-501 et seq.

In light of the above background information, you have asked the following question:

Does Arkansas State University at Newport, which notes more than 800 high school students currently taking concurrent classes in partnership between the public university and area public schools, qualify as a public school as defined by Amendment No. 98 of the Constitution of the State of Arkansas of 1874?

RESPONSE

In my opinion, the answer to your question is that a court would likely defer to the AMMC's interpretation of "school" in Amendment 98 to exclude colleges and universities, including Arkansas State University at Newport.

DISCUSSION

Amendment 98 prohibits locating medical marijuana dispensaries "within one thousand five hundred feet (1500') of a public or private school, church or daycare center," and prohibits locating medical marijuana cultivation facilities within 3000 feet of the same list of institutions. Although Amendment 98 contains an extensive definitional section, that section does not define "school" or "public school." The AMMC has defined "school" to only include preschools, elementary schools, and secondary schools, excluding institutions of higher education.

Amendment 98's use of "school" and "public school" is ambiguous

Amendment 98 was enacted by initiative petition in 2016; it has since been amended by the General Assembly in dozens of bills pursuant to the General Assembly's amendment power under section 23 of that amendment, but the provision your question regards was contained in the original ballot initiative.

"When interpreting the language of a provision of the Arkansas Constitution [enacted by the voters], th[e] [Arkansas Supreme Court] endeavors to effectuate the intent of the people passing the measure," i.e., "the intent of the voters." Thus, in "interpreting provisions of our State Constitution" enacted by the people, the Arkansas Supreme Court "give[s] language [therein] its plain and ordinary meaning." For the people would understand a proposed amendment's language to bear its ordinary meaning; thus, the people should be understood to have intended an amendment's ordinary meaning in voting for it.

It is undeniable that "public school" is frequently used in ordinary writing and speech to exclusively refer to elementary and secondary education. Indeed, many dictionaries only define "public school" in these terms. See, e.g., The American Heritage Dictionary of the English Language 1424 (5th ed. 2011) (exclusively defining "public school" as "[a]n elementary or secondary school in the United States supported by public funds"); Random House Webster's Unabridged Dictionary 1563 (2d ed. 1998) (exclusively defining public school as "a school that is maintained at public expense for the education of the children of a community or district"); Black's Law Dictionary 1546 (10th ed. 2014) (exclusively defining public school as "[a]n elementary, middle or high school … open and free to all children of the particular district where the school is located").

Likewise, many Arkansas statutes use "public school," without any specialized legal definition, in ways that plainly exclude institutions of higher education. However, "public school" is also used in ordinary writing and speech to refer to public educational institutions generally, inclusive of colleges and universities. Some dictionaries define "public school" to include colleges and universities. See, e.g., New Oxford American Dictionary 1411 (3d ed. 2010) (defining "public school" as "a school supported by public funds"). "Public school" is sometimes used in popular writing to specifically refer to public universities. And some state statutes use "public school" to include public colleges and universities.

The phrase "public school," then, has multiple ordinary meanings. Under "the doctrine of noscitur a sociis, which allows for a word to be defined by the words … accompanying it" "where those words list items of a similar nature," this ambiguity could potentially be resolved by the other terms on the list of institutions that a dispensary or cultivation facility cannot be located near. But ultimately noscitur provides little help in resolving this ambiguity.

The other institutions on the list are "private school, church, or daycare center." It is true that churches and daycare centers are attended by children, among others. As for "private school," it, like "public school," is ambiguous between a meaning that only includes private educational institutions attended by children and one that includes private colleges and universities. Even bracketing the ambiguity of "private school," the fact that the remaining institutions on the list are attended by children does not strongly militate in favor of one or the other reading of "public school." Whichever reading is adopted, public schools attended by children would be covered; the only question is whether institutions of higher education largely attended by persons in their late teens and early twenties are also covered. Nothing about the inclusion of daycare centers and churches, the latter of which are attended by persons of all ages, including ones in college, sheds dispositive light on whether "public schools" includes colleges and universities.

Another traditional tool of interpretation that could potentially resolve the ambiguity is consideration of other uses of "public school" or "school" in Amendment 98, both given the presumption that Amendment 98 uses those terms consistently, and because voters attempting to discern what Amendment 98's reference to public schools meant might have drawn upon the amendment's other uses of the same or similar terms. As originally enacted, Amendment 98 contained only three other references to schools. The first and potentially most helpful is its provision clarifying that the amendment does not permit persons to possess or use medical marijuana "[o]n the grounds of a daycare center, preschool, primary or secondary school, college, or university."

Differing inferences about the meaning of "school" in Amendment 98 could be drawn from this provision. On the one hand, the provision distinguishes "schools" from colleges and universities, and tends to suggest that when Amendment 98's drafters intended to refer to institutions of higher education, they used terms other than "school" to do so. On the other hand, it could be argued equally tenably that had the drafters of this language intended to use "school" throughout the Amendment to only refer to preschools, primary and secondary schools, or thought "school" only covered such schools, the words "preschool," "primary," and "secondary" would have been unnecessary; only "school" would have been used. If anything, these cross-cutting inferences only deepen the ambiguity of "public school" in the dispensary/cultivation facility siting section.

Next, Amendment 98 provides that "[a] school or landlord shall not refuse to enroll, refuse to lease to, or otherwise penalize an individual solely for his or her status as a qualifying patient or designated caregiver unless doing so would put the school or landlord in violation of federal law or regulations." For a number of reasons, the term "school" in this provision initially appears to include institutions of higher education. First and most powerfully, a "designated caregiver" must be, by definition, 21 years of age or older; elementary or secondary schools would not be in a position to deny them enrollment. Second, it is at least somewhat doubtful that Amendment 98 would have forbade elementary and secondary schools from refusing to enroll medical marijuana patients, but would not have imposed the same stricture on colleges and universities. Third, the prohibition's application to landlords suggests that the patients it protects include adults.

However, none of these arguments is unanswerable. It is possible that the provision's protection of designated caregivers simply has no practical application to schools, as opposed to landlords; this would not make schools' inclusion in the provision meaningless, as they would still be prohibited from refusing to enroll qualifying patients. It is also possible that the drafters of Amendment 98 intended to give colleges and universities, which have more latitude than elementary and secondary schools in admissions decisions generally, greater latitude than elementary and secondary schools in admitting medical marijuana users, a distinction arguably suggested by the use of the word "enroll," rather than "admit," the word generally associated with colleges and universities' admission choices. As to landlords, while the "qualifying patients" that landlords are prohibited from discriminating against undeniably include adults as a factual matter, that does not preclude, grammatically or otherwise, the "qualifying patients" that schools cannot refuse to enroll from exclusively being minors as a factual matter.

Lastly, and most importantly, even if the word "school" includes institutions of higher education in Amendment 98 when that word is unmodified, it does not follow that the terms "public school" and "private school" include institutions of higher education. While dictionaries generally define "school," standing alone, to include such institutions, the phrases "public school" and "private school" are often exclusively defined by the same dictionaries to exclude those institutions.

For similar reasons, the original amendment's allotment of medical marijuana tax revenues to the Vocational and Technical Training Special Revenue Fund "for grants to … vocational-technical schools," since repealed, does not control the meaning of "public school." Some vocational-technical schools in Arkansas are postsecondary; thus, as used in this since repealed section, the word "schools" included post-secondary schools. That, however, does not mandate a like interpretation of "public or private schools" in the dispensary/cultivation facility siting provision. Just as the phrase "vocational schools" has a specific meaning that includes post-secondary schools, the phrases "public schools" and "private schools" may exclude post-secondary schools, independently of whatever "school" means sans modifying adjectives. Moreover, the provision's repeal weakens whatever bearing it might have had on the interpretation of "public school."

Finally, after Amendment 98 was enacted, the General Assembly added a provision that specifically refers to "public schools." This provision clarifies that Amendment 98 does not require "[a] public school to permit a qualifying patient who is a student to be present on school grounds, to attend a school event, or to participate in extracurricular activities in violation of the public school's student discipline policies when a school office has a good faith belief that the behavior of the qualifying patient is impaired." It is by no means clear whether the phrase "public school" as used in this provision includes colleges and universities. While the provision's terms may, on first blush, appear to particularly sound in elementary and secondary education, colleges and universities also have "grounds," "school events," "extracurricular activities," and "student discipline policies."

Further, even if this provision were best read to use "public school" to exclude colleges and universities, it is questionable that that would have any bearing on the interpretation of the term in the dispensary/cultivation facility siting section. Voters never saw this provision, so it does not help resolve what they intended in voting for another provision that used the phrase. To the extent the General Assembly may have been implicitly interpreting "public school" to exclude colleges and universities, "legislative interpretation of constitutional provisions is never binding on the courts, and … only entitled to some consideration." And were it the case that Amendment 98's reference to "public schools" originally included colleges and universities and therefore prohibited dispensary/cultivation facility siting near those institutions, reading the General Assembly's enactment of this provision to implicitly exclude those institutions from the meaning of "public school" in Amendment 98 would amount to an implied repeal of that prohibition. Implied repeals are only recognized in cases of irreconcilable conflict or a wholesale revision of a statute, which the General Assembly has not undertaken in its amendments to Amendment 98. As it is possible to read "public school" either way in the provision the General Assembly enacted, there can be no irreconcilable conflict between its meaning in that provision and its meaning in the parts of Amendment 98 enacted by the voters, and it therefore must be assumed that the General Assembly's amendment did not impliedly narrow the term's meaning.

In sum, then, both a reading of "public school" in the dispensary/cultivation facility siting provision that excludes colleges and universities, and a reading of "public school" that includes them, are reasonable readings of Amendment 98. Given that this is so, a court would likely defer to the AMMC's interpretation.

A court would likely defer to the AMMC's interpretation

The AMMC has been constitutionally charged with the responsibility to "adopt rules necessary to … [p]erform its duties under th[e] amendment," including rules governing "the manner in which it considers applications for … licenses of dispensaries and cultivation facilities." Such rules are deemed rules as defined in the Arkansas Administrative Procedure Act. The AMMC has adopted such rules, and in them, has defined "school" for purposes of dispensary and cultivation facility siting to "not include postsecondary institutions of higher education [and] community colleges" and applied that definition to dispensary and cultivation facility licensing applications. The Arkansas Supreme Court gives "great deference to an agency interpretation of a statute" rendered by the agency charged with administering it, as the AMMC is charged with administering the relevant provisions of Amendment 98, "and will not overturn the construction of a state statute by an administrative agency unless it is clearly wrong." The AMMC's interpretation of "school" in Amendment 98, far from being clearly wrong, is clearly permissible. A reviewing court, therefore, would likely defer to it.

Finally, your question points out that hundreds of high-school students take classes at Arkansas State University at Newport. This fact does not render the AMMC's interpretation of "school" to exclude institutions of higher education clearly wrong as applied to Arkansas State University's Newport campus. As your question notes, the high-school students taking classes at the Newport campus are enrolled in college classes; Arkansas State University does not provide secondary education. The AMMC has reasonably interpreted "public school," consistently with its most common ordinary meaning, to include high schools and exclude colleges. Under that interpretation, Arkansas State University at Newport is not a "public school"; a college does not transform into a high school because secondary school students take college classes there.

In this regard, your question also notes that the AMMC has issued an advisory memorandum clarifying that under its rules, a juvenile detention facility is a school because local school districts provide secondary school instruction at such facilities. It does not follow that Arkansas State University at Newport is a "school" under the AMMC's interpretation of Amendment 98. The critical distinction between juvenile detention facilities and the Arkansas State University at Newport is that secondary school instruction identical to the instruction students would receive at a high school if not incarcerated is provided at the former, while at the latter, college instruction identical to that provided to the University's college-age students is provided to secondary school students. The kind of education offered at juvenile detention facilities, not the age of the persons detained there, is the driver of the AMMC's interpretation. While the AMMC is free to interpret "public school" more broadly to include colleges and universities, it is doubtful at best that it could interpret "public school" to generally exclude colleges and universities, but include them whenever secondary school students receive college credits on their campuses. That hybrid interpretation of "public school" is not a meaning of "public school" in ordinary use.

In conclusion, it is my opinion that a reviewing court would uphold the AMMC's interpretation of "public school" to exclude colleges and universities, and apply that interpretation to exclude Arkansas State University at Newport.

Sincerely,
LESLIE RUTLEDGE
Attorney General