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

Plain-English summary

Barry Jefferson, on behalf of For AR Kids, asked the AG to certify the popular name and ballot title for the proposed Educational Rights Amendment of 2024. The AG rejected them for three sets of problems in the proposed text.

First, Sections 1 and 2 would require “identical State academic standards” and accreditation standards for all schools receiving local or state funds. The AG said this would prevent parochial schools from providing religious instruction and would violate the First Amendment. He cited 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), and Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000).

Second, several central terms were unclear. The proposal did not define its “identical” standards. Its definition of receiving public funds had a missing conjunction and an unclear reference to appropriations. The phrase about “student and school assessments” did not say who would assess whom or what compliance required. The definition of “adequate education” combined “adequate,” “full capacity,” and “minimum” and used other terms the AG found too vague to summarize accurately.

Third, Section 5 called the measure self-executing, while Section 1 appeared to require the legislature to enact laws to put parts of it into effect. The AG said this internal inconsistency could not be adequately summarized in the ballot title.

The AG instructed the sponsor to redesign the amendment, popular name, and ballot title under A.C.A. § 7-9-107(e). He separately identified typographical errors and the absence of a clear statement in the measure that it would amend the constitution, and asked the sponsor to identify affected statutes in a future submission. He labeled those additional issues as grounds to address later, rather than grounds for this rejection.

What this means for you

Ballot initiative sponsors

The AG identified constitutional, definitional, and internal-consistency problems in the text. His instruction was to redesign the proposed amendment, popular name, and ballot title. The opinion does not prescribe a particular replacement funding rule or exemption.

Education advocates and school administrators

The decision evaluates this proposal's text and ballot materials. The AG said identical standards would bar parochial schools from religious instruction if they receive local or state funds. He did not decide how a different standards or funding provision should be written.

Constitutional law attorneys

The opinion cites Trinity Lutheran and Espinoza for limits on excluding religious schools from public benefits and Kurrus for review of a proposal that is clearly contrary to law. It also identifies vagueness and a conflict between the self-executing clause and language calling for state action.

Common questions

Did the AG suggest three ways to fix the funding provision?
No. He instructed the sponsor to redesign the measure and ballot materials, without offering a replacement. His other vagueness and internal-consistency findings would also need attention.

What other issues did he identify for a future submission?
Typographical errors, failure to say clearly in the measure itself that it amends the constitution, and failure to identify affected state statutes. He said these were not grounds for this rejection.

Citations

• A.C.A. § 7-9-107(e)
• 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)

Source

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

Original opinion text

Opinion No. 2023-131

January 9, 2023
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. Under A.C.A. § 7-9-107, you have asked me to certify the following popular name
   and ballot title for a proposed initiated amendment to the Arkansas Constitution:

                                     Popular Name
   
                       Educational Rights Amendment of 2024
   
                                       Ballot Title
   

   An amendment to Article 14 (Education) of the Arkansas Constitution of 1874, to be
   known as the “Educational Rights Amendment of 2024,” to require identical State
   academic standards and identical State standards of accreditation, including student and
   school assessment of those standards, for all schools that receive the benefit of local or
   State funds; to deny any non-public school that fails to comply with identical State
   academic standards and identical State standards of accreditation, including student and
   school assessments of those standards, the benefit of local or State funds; to expand the
   State’s obligation to ever maintain a general, suitable, and efficient system of free
   public schools to include: (1) universal access to voluntary, early childhood education
   for students three (3) years old until they qualify for Kindergarten; (2) universal access
   to voluntary afterschool and summer programs necessary for the achievement of an
   adequate education; (3) assistance to children who are within 200% of the federal
   poverty line so that the qualifying children can achieve an adequate education and
   overcome the negative impact of poverty on education; and (4) supports and services
   Mr. Barry Jefferson
   Opinion No. 2023-131
   Page 2

         that fully meet the individualized needs of students with disabilities to allow them
         meaningful access to integrated education; and to ensure that an adequate education
         means, without limitation, that every child education in the school should develop to
         full capacity a minimum of: (1) literacy; (2) mathematical ability; (3) knowledge of
         government sufficient to equip the individual to make informed choices as a citizen;
         (4) self-knowledge sufficient to intelligently choose life work; (5) vocational or
         advanced academic training; (6) recreational pursuits; (7) creative interests; and
         (8) social ethics.
   

2. Rules governing my review. Arkansas law requires sponsors of statewide initiated measures to
   “submit the original draft” of the measure to the Attorney General. 1 An “original draft” includes the full text of the proposed measure along with its ballot title and popular name. 2 Within ten business days of receiving the sponsor’s original draft, the Attorney General must respond in one of three ways:

     •   First, the Attorney General may approve and certify the ballot title and popular name in the
         form they were submitted. 3
     •   Second, the Attorney General may “substitute and certify a more suitable and correct ballot
         title and popular name.” 4
     •   Third, the Attorney General may reject both the popular name and ballot title “and state his
         or her reasons therefor and instruct” the sponsors to “redesign the proposed measure and
         the ballot title and popular name.” 5 This response is permitted when, after reviewing the
         proposed measure, the Attorney General determines that “the ballot title or the nature of
         the issue” is (1) “presented in such manner” that the ballot title would be misleading or (2)
         “designed in such manner” that a vote for or against the issue would actually be a vote for
         the outcome opposite of what the voter intends. 6
   

   3. Rules governing the popular name. The popular name is primarily a useful legislative
      device. 7 While it need not contain detailed information or include exceptions that might be

1
A.C.A. § 7-9-107(a).
2
A.C.A. § 7-9-107(b).
3
A.C.A. § 7-9-107(d)(1).
4
Id.
5
A.C.A. § 7-9-107(e).
6
Id.
7
Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
Mr. Barry Jefferson
Opinion No. 2023-131
Page 3

required of a ballot title, the popular name must not be misleading or partisan. 8 And it must be considered together with the ballot title in determining the ballot title’s sufficiency. 9

4. Rules governing the ballot title. The ballot title must summarize the proposed amendment.
   The Court has developed general rules for what must be included in the summary and how that information must be presented. Sponsors must ensure their ballot titles impartially summarize the amendment’s text and give voters a fair understanding of the issues presented. 10 The Court has also disapproved the use of terms that are “technical and not readily understood by voters.” 11 Ballot titles that do not define such terms may be deemed insufficient. 12

Additionally, sponsors cannot omit material from the ballot title that qualifies as an “essential fact which would give the voter serious ground for reflection.” 13 Yet the ballot title must also be brief and concise lest voters exceed the statutory time allowed to mark a ballot. 14 The ballot title is not required to be perfect, nor is it reasonable to expect the title to address every possible legal argument the proposed measure might evoke. 15 The title, however, must be free from any misleading tendency—whether by amplification, omission, or fallacy—and it must not be tinged with partisan coloring. 16 The ballot title must be honest and impartial, 17 and it must convey an intelligible idea of the scope and significance of a proposed change in the law. 18 Finally, the Court has held that a ballot title cannot be approved if the text of the proposed amendment itself contributes to confusion and disconnect between the language in the popular

8
E.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 414–15, 316 S.W.2d 207, 208–09 (1958). 9 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
10
Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
11
Wilson v. Martin, 2016 Ark. 334, *9, 500 S.W.3d 160, 167 (citing Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008)). 12 Id.
13
Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
14
A.C.A. §§ 7-9-107(d)(2) (requiring the ballot title “submitted” to the Attorney General or “supplied by the Attorney General” to “briefly and concisely state the purpose the proposed measure”); 7-5-309(b)(1)(B) (allowing no more than ten minutes); see Bailey, 318 Ark. at 288, 884 S.W.2d at 944 (noting the connection between the measure’s length and the time limit in the voting booth). 15 Plugge v. McCuen, 310 Ark. 654, 658, 841 S.W.2d 139, 141 (1992).
16
Bailey, 318 Ark. at 284, 884 S.W.2d at 942 (internal citations omitted); see also Shepard v. McDonald, 189 Ark. 29, 70 S.W.2d 566 (1934) 17 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
18
Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 250, 884 S.W.2d 605, 610 (1994).
Mr. Barry Jefferson
Opinion No. 2023-131
Page 4

name and the ballot title and the language in the proposed amendment. 19 Where the effects of a proposed amendment on current law are unclear or ambiguous, I am unable to ensure the popular name and ballot title accurately reflect the proposal’s contents until the sponsor clarifies or removes the ambiguities in the proposal itself.

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 in the text of your proposed measure, nearly all of which are imported into your ballot title:

   • Unconstitutional provision. The first section of your proposed measure is misnumbered
   as Section 5. For clarity, I will 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. 20 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. 21 It is misleading to present a proposed measure to voters
   when some or all of that measure is clearly unconstitutional and therefore could not become
   effective.

   • 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 (1) from ensuring that your
   ballot title does not mislead by amplification or omission and (2) from substituting and
   certifying a more appropriate ballot title. The following are some of the more problematic
   instances of this:
   o 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 be simply repeated
   verbatim in the ballot title, leaving the voter uninformed about what the provisions
   mean.

19
Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
20
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); see also 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.”). 21 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000) (“Our court has held that it would review a proposal’s validity if the measure is clearly contrary to law….[If the measure is clearly contrary to law,] it should not be submitted to the electorate because” the sponsors would not be “entitled to invoke the direct legislation process at all.”) (internal quotations omitted); Ark. Att’y Gen. Ops. 2013-113, 2011-163. Mr. Barry Jefferson Opinion No. 2023-131 Page 5

o Receiving the benefit of local or state funds. Section 1 of your proposed measure attempts to define the phrase “[r]eceiving the benefit of local or state funds,” but this definition is far from clear. First, 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. This deficiency prevents me from ensuring your proposal is adequately summarized in the ballot title.
Second, one of the subparts states that “[r]eceving the benefit of local or state funds includes…appropriations….” The term “appropriations” is used in a confusing manner. It is unclear if “[r]eceiving the benefit of local or state funds” occurs when a legislative body sets aside money for the school or student 22 or if the school or student has to actually receive the funds for the definition to apply.
o Student and school assessments. Sections 1 and 2 of your proposal reference compliance with identical standards “including student and school assessments of those standards.” The phrasing of these sections is unclear, and I cannot determine if the students and schools are assessing the standards or if the students and schools are being assessed based on the standards. In addition to a lack of clarity on who is being assessed, it is also unclear how the phrase is being used. For example, under Section 1, “the State shall require every such school to comply with identical State academic standards and identical State standards or accreditation, including student and school assessments of those standards.” As the phrase “student and school assessments of those standards” is used here, it is unclear whether schools would need to comply with the outcome of the assessments or if they must simply perform the assessments. These ambiguities prevent me from ensuring your proposal is adequately summarized in the ballot title. o Adequate education. Section 4 of your proposed text provides a definition of “adequate education” that is exceedingly vague: “An adequate education means, without limitation, that every child educated in the school should develop to full capacity a minimum of: (1) literacy; (2) mathematical ability; (3) knowledge of government sufficient to equip the individual to make informed choices as a citizen;
(4) self-knowledge sufficient to intelligently choose life work; (5) vocational or advanced academic training; (6) recreational pursuits; (7) creative interests; and (8) social ethics.” The definition is replete with inconsistencies and vagueness.
Education cannot be “adequate,” “full capacity,” and “minimum” at the same time.
The terms “advanced academic training,” “recreational pursuits” “creative interests” and “social ethics” are so vague that they cannot be adequately summarized in the ballot title.

22
See Ark. Att’y Gen. Op. 2018-089 (defining “appropriation” as “a setting apart from the public revenues of a certain sum of money for a specified object [so] that the executive officers of the government are authorized to use that money….”). Mr. Barry Jefferson Opinion No. 2023-131 Page 6

• Internal inconsistency. Section 5 of your proposed text states that the amendment’s provisions “are self-executing.” A measure is self-executing if it does not require anything else to make it binding. 23 Yet Section 1 of your proposed text seems to require the legislature to enact laws to carry certain provisions into effect: “For any primary or secondary school that receives the benefit of local or State funds, the State shall require.…” (Emphasis added.) This incompatibility creates a “disconnect” within the text of the proposal that cannot be adequately summarized in the ballot title.

6. Conclusion. Because of the issues identified above, my statutory duty is to reject your proposed
   popular name and ballot title, stating my reasons therefor, and to instruct you to “redesign” your proposed constitutional amendment, popular name, and ballot title. 24

7. Additional issues. If you choose to revise and resubmit your proposed measure, please be aware
   of the following additional issues that, while not grounds for this rejection, would need to be addressed in any future submission:

   • Typographical errors. The sections are misnumbered, and words are missing in some
   areas. Other sections seem to have extra words. These errors create confusion in the
   document. Any future proposal should be carefully edited prior to submission.

   • Impact on existing law. Your proposed ballot title indicates that the measure is intended
   to be a constitutional amendment, but the measure itself does not state that clearly. Any
   measure intended to amend the Arkansas Constitution must clearly declare as much in the
   text of the measure itself. Further, because the proposal does not reference any state statutes
   it will impact, the proposal cannot give votes an intelligible idea of the scope and
   significance of the proposed changes in the law. This information should be added to any
   future submission.
   This is not an exhaustive list. Additional deficiencies may be discovered upon review of subsequent proposals.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve. Sincerely,

TIM GRIFFIN
Attorney General

24
Self-executing, Black’s Law Dictionary (11th ed. 2019) (“effective immediately without the need of any type of implementing action”). 24 A.C.A. § 7-9-107(e).