Why did the Arkansas AG reject the proposed 2024 Educational Rights Amendment?

Plain-English summary

Barry Jefferson, on behalf of For AR Kids, submitted a proposed constitutional amendment that would rewrite Article 14 of the Arkansas Constitution (the education article) along several lines:

• Require "identical State academic standards" and "identical State standards of accreditation" for all schools receiving local or State funds
• Deny non-public schools that fail to comply with those standards the benefit of local or State funds
• Expand the State's "general, suitable, and efficient" education obligation to include universal voluntary early-childhood education for ages 3+, universal voluntary afterschool and summer programs, assistance for children within 200% of the federal poverty line, and supports for students with disabilities
• Define "adequate education" as a list of eight outcomes (literacy, math, government knowledge, self-knowledge, vocational training, recreation, creativity, social ethics)

The AG rejected the proposal because Sections 1 and 2 would unconstitutionally exclude parochial schools from receiving public funds.

The constitutional defect. Many parochial schools provide religious instruction as part of their academic curriculum. The "identical State academic standards" requirement would prevent parochial schools from offering religious instruction (because public schools cannot offer religious instruction), thereby disqualifying parochial schools from any local or state funding. Under Trinity Lutheran (2017) and Espinoza (2020), the U.S. Supreme Court has held that "expressly denying a qualified religious entity a public benefit solely because of its religious character" violates the First Amendment's Free Exercise Clause. The proposal, by tying funding eligibility to identical-standard compliance that parochial schools cannot meet without abandoning religious instruction, would do exactly what those decisions forbid.

Kurrus v. Priest. When a proposal is "clearly contrary to law," it cannot invoke the legislative process at all. The Arkansas Supreme Court applies this rule narrowly, but a clear First Amendment violation qualifies. The AG cited Kurrus for the proposition that he could not certify a ballot title for a proposal that is clearly unconstitutional.

Lack of clarity in key terms. Even apart from the constitutional defect, the AG identified ambiguities that prevented certification or substitution:

• "Identical State academic standards" / "identical State standards for accreditation" undefined.
• "Receiving the benefit of local or state funds" had a four-subpart definition without a conjunction, making it unclear whether all or some subparts had to apply. The "appropriations" subpart was confusing about whether legislative set-aside or actual receipt counted.
• "Student and school assessments of those standards" was syntactically ambiguous about who was assessing what.
• "Adequate education" was defined in self-contradictory terms: "every child educated in the school should develop to full capacity a minimum of [eight outcomes]." Education cannot be "adequate," "full capacity," and "minimum" simultaneously.

The AG instructed the sponsor to redesign the amendment, popular name, and ballot title.

What this means for you

Education advocates

The proposal's substantive policy goals (universal early-childhood education, after-school programs, anti-poverty supports for students, special-education guarantees) were not the basis for rejection. The defect was in how the proposal connected funding to standards in a way that would exclude religious schools.

If For AR Kids wants to pursue these policy goals, a redrafted proposal would need to either (a) drop the public-fund denial provision against parochial schools, (b) expressly carve out religious instruction from the "identical standards" requirement, or (c) restrict the proposal to public schools only. Each path has different policy implications for school choice and funding.

Parochial school administrators

The proposal as drafted would have ended any local or state funding (whether direct subsidies, voucher participation, or transportation/food/textbook supports) for any parochial school that maintains religious instruction. The AG's rejection preserved the status quo on parochial school funding eligibility, which under Trinity Lutheran and Espinoza generally treats religious schools the same as secular private schools when public benefits are made available.

Public school officials

The expansion of state obligations (universal pre-K, after-school, anti-poverty supports) would have substantial fiscal and operational implications if enacted. Watch for redrafted versions that drop the parochial-school exclusion. If a clean version reaches the ballot, plan for an expansion of mandated services.

Constitutional law attorneys

Trinity Lutheran (2017) and Espinoza (2020) are now established Free Exercise authority barring religious-status discrimination in public benefits. Carson v. Makin (2022) extended this to "religious use" discrimination. Cite all three when a proposal explicitly or implicitly conditions public funding on a school adopting non-religious standards.

Ballot initiative sponsors

The Kurrus v. Priest "clearly unconstitutional" doctrine is one of the few substantive AG-screening grounds. Most rejections turn on drafting (text-summary disconnect, undefined terms, full-text issues). Constitutional-defect rejections like this one require a redraft to remove the defect, not just clarification.

The "adequate education" definition in this proposal is also worth studying as a drafting cautionary tale. A definition that simultaneously says "adequate," "full capacity," and "minimum" is internally inconsistent. Definitions should pick one anchor and stick with it.

Parents with school-age children

For families with children in public schools, this proposal would have expanded available services (early-childhood education, after-school programs, anti-poverty supports, disability supports). For families with children in parochial schools, the proposal would likely have ended any state-funded benefits including transportation, food, or textbook supports. If a redrafted version reaches the ballot, the policy stakes for parochial school families are substantial.

Common questions

What is the Educational Rights Amendment?
A proposed amendment to Article 14 of the Arkansas Constitution. The version in this opinion was rejected. Whether the sponsors revised and resubmitted is not addressed in this opinion.

What is Trinity Lutheran v. Comer?
A 2017 U.S. Supreme Court decision holding that excluding a church from a generally available public-benefit program (here, a state grant for playground resurfacing) solely because of the church's religious status violates the Free Exercise Clause.

What is Espinoza v. Montana Department of Revenue?
A 2020 decision extending Trinity Lutheran. Montana had created a tax-credit-funded scholarship program for private schools but excluded religious schools. The Supreme Court held the exclusion violated the Free Exercise Clause.

Could the sponsors fix this defect?
Yes. Three paths: (a) restrict the standards requirement to public schools only, (b) carve out religious instruction from the "identical standards" definition, or (c) drop the public-fund denial provision. Each represents a substantive policy change.

Why is "identical academic standards" different from "minimum academic standards"?
The use of "identical" forecloses any departure for religious instruction. Many state private-school regulatory schemes use "substantially equivalent" or "minimum" standards that allow for religious instruction alongside core secular subjects. The AG's view is that the "identical" formulation is what creates the First Amendment problem.

Background and statutory framework

A.C.A. § 7-9-107(e). Mandates rejection when a measure is clearly unconstitutional or its title misleading.

Ark. Const. art. 14. Education article; subject of the proposed amendment.

Trinity Lutheran Church v. Comer, 582 U.S. 449 (2017). Free Exercise prohibition on religious-status discrimination in public benefits.

Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020). Extends Trinity Lutheran to scholarship programs that exclude religious schools.

Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000). Clearly unconstitutional measures cannot invoke the legislative process.

Citations

• A.C.A. § 7-9-107(e)
• Ark. Const. art. 14 (education)
• U.S. Const. amend. I (Free Exercise)
• Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017)
• Espinoza v. Montana Dep't of Revenue, 140 S. Ct. 2246 (2020)
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Ark. Att'y Gen. Ops. 2013-113, 2011-163 (clearly unconstitutional measures)

Source

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

Original opinion text

Opinion No. 2023-131
January 9, 2024
Mr. Barry Jefferson, President
For AR Kids
1308 West Second Street
Little Rock, Arkansas 72201
Dear Mr. Jefferson:

I am writing in response to your request, made under A.C.A. § 7-9-107, that I certify the popular name and ballot title for a proposed constitutional amendment.

My decision to certify or reject a popular name and ballot title is unrelated to my view of the proposed measure's merits. I am not authorized to consider the measure's merits when considering certification.

1. Request. The popular name was "Educational Rights Amendment of 2024." The ballot title described an amendment to Article 14 (Education) of the Arkansas Constitution to require identical State academic standards and accreditation for all schools receiving the benefit of local or State funds; to deny non-public schools that fail to comply the benefit of local or State funds; to expand State obligations to include universal voluntary early-childhood education for ages 3+, universal voluntary after-school and summer programs, anti-poverty supports for children within 200% of the federal poverty line, and supports for students with disabilities; and to define "adequate education" through a list of eight outcomes (literacy, math, government knowledge, self-knowledge, vocational training, recreation, creativity, social ethics).

2-4. Rules governing review. The standard framework under § 7-9-107.

5. Application. Having reviewed the text of your proposed constitutional amendment, as well as your proposed popular name and ballot title, I must reject your popular name and ballot title due to the following problems:

• Unconstitutional provision. The first section of your proposed measure is misnumbered as Section 5. For clarity, I refer to the first Section 5 as Section 1. Sections 1 and 2 of your proposal apply "identical State academic standards" and "identical State standards for accreditation" to all schools receiving local or state funds. Many parochial schools provide religious instruction as part of their academic curriculum. If enacted, your proposal would prevent parochial schools from offering that instruction. This limitation would violate the First Amendment. See Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 466 (2017) (holding that "expressly denying a qualified religious entity a public benefit solely because of its religious character" violates the First Amendment); Espinoza v. Montana Dep't of Revenue, 140 S. Ct. 2246, 2261 (2020) ("A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious."). As the Arkansas Supreme Court and several of my predecessors have noted, when a proposal is clearly unconstitutional, its sponsors are not entitled to invoke the legislative process at all. Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000).

• Lack of clarity on key terms. Your proposed text includes key terms that are vague or ambiguous. The lack of clarity on these key terms prevents me from ensuring that your ballot title does not mislead by amplification or omission and from substituting and certifying a more appropriate ballot title.

• Identical standards. Sections 1 and 2 of your proposal include the terms "identical State academic standards" and "identical State standards for accreditation," but the phrases are not defined. Without definitions, these terms would simply be repeated verbatim in the ballot title, leaving the voter uninformed about what the provisions mean.

• Receiving the benefit of local or state funds. Section 1 attempts to define this phrase, but the definition has four subparts without a conjunction between the third and fourth subparts. Because of this missing word, I am unsure whether all or only some of the subparts have to occur for the definition to apply. Additionally, the "appropriations" subpart is confusing about whether the school or student must actually receive the funds for the definition to apply.

• Student and school assessments. Sections 1 and 2 reference compliance with identical standards "including student and school assessments of those standards." It is unclear whether students and schools are assessing the standards or whether students and schools are being assessed based on the standards.

• Adequate education. Section 4 defines "adequate education" in self-contradictory terms: "every child educated in the school should develop to full capacity a minimum of [eight outcomes]." Education cannot be "adequate," "full capacity," and "minimum" at the same time.

Because of the issues identified above, my statutory duty under A.C.A. § 7-9-107(e) is to reject your proposed popular name and ballot title and to instruct you to redesign your proposed amendment, popular name, and ballot title.

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General