Why did the Arkansas Attorney General reject the proposed 'Arkansas Educational Rights Amendment of 2024' ballot title that would have required identical academic standards for voucher-receiving schools?
Plain-English summary
For AR Kids submitted a proposed constitutional amendment that would have:
- Required all schools that receive state or local funds (including, the measure suggested, schools where students or parents receive state or local "tax benefits") to meet identical academic standards and accreditation requirements as public schools.
- Denied state funds to non-public schools that fail to meet those standards.
- Expanded the state's obligation to maintain public schools to include early childhood education for 3-year-olds, voluntary afterschool/summer programs, assistance to children near the poverty line, and individualized services for students with disabilities.
- Required a long list of "adequate education" outcomes (oral/written communication, knowledge of governmental processes, etc.).
The AG rejected the popular name and ballot title because two terms in the measure's text are ambiguous, preventing certification:
First, "provision." Section 3 would have required the State to provide "efficient human, facility, material, and financial resources" to public schools. The AG identified two competing readings: (a) the State directly supplies these (hires teachers, builds buildings) or (b) the State provides funding so schools obtain these themselves. The list including "financial resources" complicates reading (b). The ambiguity prevents the AG from ensuring the ballot title accurately summarizes the measure.
Second, "tax benefit." The measure's definition of "receives State or local funds" included "tax benefits" received by a school, student, or parent. The AG flagged unanswered questions: Is a school's nonprofit status a "State or local tax benefit"? Are parents' withdrawals from a 529 plan (the Arkansas Brighter Future Fund Plan, A.C.A. §§ 6-84-101 et seq.) a "tax benefit"? The breadth of "tax benefit" was undefined, and the ballot title's reference to "schools that receive State or local funds" did not signal that the measure's definition reached families' tax treatment.
Because the ambiguities in the measure's text propagate into any ballot title summary, the AG's only authority under A.C.A. § 7-9-107(e) was to reject and instruct redesign. (For AR Kids did revise and resubmit; the AG certified the revised version in Opinion 2024-033.)
What this means for you
Public education advocates and voucher policy stakeholders
The proposed amendment was an effort to create constitutional-level accountability for non-public schools that receive state funding (directly or through programs that benefit students/parents). The breadth of "tax benefit" was the part that drew AG attention. If the term reached 529 plan distributions, scholarship tax credits, or even the property-tax exemption schools receive as nonprofits, then virtually every Arkansas private school would be a "school that receives State or local funds" under the amendment. The sponsor needed to either narrow the definition or summarize the breadth in the ballot title so voters could see the full reach.
Private school administrators
If a future amendment along these lines passes with similar language, the consequences for private schools could be significant: identical academic standards (state-prescribed curricula, accreditation processes, assessment regimes) imposed on schools whose value proposition is often distinct from public schools. The legal hook is that even indirect state benefits (through a tax credit a parent gets, or the 529 plan tax treatment) could trigger the requirement.
Ballot initiative sponsors
The Roberts v. Priest, 341 Ark. 813 (2000), rule is real and consequential: ambiguities in the measure's text doom the ballot title. The AG cannot edit the measure (only the popular name and ballot title), so any ambiguity in the text becomes a structural barrier to certification. Define key operative terms in the text itself, and define them tightly. "Tax benefit" is a particularly broad term; if you mean something specific, narrow it.
State legislators and education policy staff
Note that this proposed amendment was sponsored by For AR Kids, a coalition responding to Arkansas's 2023 LEARNS Act and the expansion of state-funded education vouchers. The amendment's accountability framework was specifically aimed at the voucher mechanism. Watch for revised versions of this proposal in future cycles.
Common questions
Why does the AG focus on text ambiguity rather than just fixing the ballot title?
Because A.C.A. § 7-9-107 doesn't authorize the AG to modify the text of the proposed measure. Roberts v. Priest holds that ambiguities in the underlying text propagate to any ballot title and cannot be cured by ballot title revision alone. Once the AG identifies textual ambiguity, the only available action under § 7-9-107(e) is rejection.
What's a "529 plan" and why does it matter here?
A 529 plan is a federally tax-advantaged college savings account (26 U.S.C. § 529). Arkansas's version is the Brighter Future Fund Plan, A.C.A. §§ 6-84-101 et seq. Distributions are tax-favored when used for qualified education expenses. Under one reading of the proposed amendment, parents using 529 plan distributions to pay private K-12 tuition would have transferred a "tax benefit" to the receiving school, making the school subject to the amendment's accreditation/standards requirements.
Did For AR Kids resubmit?
Yes. Opinion 2024-033 certified a revised version with tighter definitions. The redesigned amendment kept the core accountability framework but added explicit definitions to address the ambiguities the AG flagged here.
What's the difference between this rejection and the "ambiguity" rejection in similar opinions?
The pattern is the same. Roberts v. Priest creates a structural barrier when the measure's text is unclear. The AG cannot fix it, the sponsor must.
Background and statutory framework
Statutory authority for AG review. A.C.A. § 7-9-107 governs sponsor submission and AG response. Three options: certify, substitute and certify, or reject and direct redesign.
Rejection procedure. A.C.A. § 7-9-107(e) requires the AG to "state his or her reasons therefor and instruct" the sponsor to redesign when the ballot title or measure is misleading or designed in a manner that would produce a vote opposite the voter's intent.
Roberts v. Priest doctrine. Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000), holds that a ballot title cannot be approved if the text of the proposed measure itself contributes to confusion. Ambiguities in the measure's text doom any ballot title.
Bailey "essential facts" rule. Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994), requires ballot titles to include all "essential facts which would give the voter serious ground for reflection." Failure to summarize material provisions makes the title misleading by omission.
529 plan reference. Arkansas Brighter Future Fund Plan, A.C.A. §§ 6-84-101 et seq.; 26 U.S.C. § 529 (federal authorization).
Citations
- A.C.A. § 7-9-107 (AG ballot-title review process)
- A.C.A. § 7-9-107(e) (rejection and redesign instruction)
- A.C.A. §§ 6-84-101 et seq. (Arkansas Brighter Future Fund Plan / 529 plan)
- 26 U.S.C. § 529 (federal 529 plan authorization)
- Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
- Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
Source
Original opinion text
Opinion No. 2024-019
February 8, 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.
[The AG sets out the requested popular name "Arkansas Educational Rights Amendment of 2024" and the proposed ballot title, then incorporates by reference the rules from Opinion No. 2023-131.]
- 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 two issues.
First, Section 3 of your proposed text would, among other things, add a section 7(a) to article 14 of the state constitution. That new subsection would expand the State's obligation for public school education:
The State's obligation to ever maintain a general, suitable, and efficient system of free public schools and to adopt all suitable means to secure to the people the advantages and opportunities of education includes, without limitation, the provision of efficient human, facility, material, and financial resources, and the means to achieve such objectives.
As used here, the term "provision" is ambiguous. This ambiguity prevents me from ensuring your ballot title is not misleading. You could be using the term to mean that the State is required to supply these resources for schools. Under that reading, the State would hire and pay teachers, the State would design and build school buildings, etc. Or you could be using the term to mean that the State would provide funding to the schools to obtain these resources for themselves. While this seems to be the more logical reading of your text, it seems inconsistent with the remainder of the clause, which requires "the provision of efficient human, facility, material, and financial resources." Since "financial resources" is included in the list, it seems possible that you intend "provision" to have the former meaning. Ultimately, your use of this term in this context is ambiguous. The ambiguity must be resolved before I can ensure your ballot title is not misleading.
Second, Section 1 of your proposed text would add a section 5 to article 14 to the state constitution. This new provision would state that, "The State must require every elementary or secondary school that receives any State or local funds to meet the identical Academic Standards and the identical Standards for Accreditation set forth by the General Assembly…." (Emphasis added.) The provision also requires that "[a]ll students attending any elementary or secondary schools that receive, or are in receipt of, any State or local funds" be "assessed based on such standards." (Emphasis added.) The emphasized phrases are critical to the meaning of these two sets of requirements. Your text defines that phrase to mean, among other things, the "receipt by the school" or "receipt by the student attending the school or the student's parents or guardians" of "any State or local tax benefits or tax credits." In this context, the use of the term "tax benefits" is too ambiguous to enable me to ensure that the ballot-title summary is not misleading. For example, is a school's non-profit status considered a "State or local tax benefit"? If so, then the ballot title would need to note this fact lest the ballot title mislead by omission. Likewise, some parents pay K-12 tuition from moneys that received the tax benefits arising under the Arkansas Brighter Future Fund Plan, A.C.A. §§ 6-84-101 et seq., (Arkansas's implementation of what is commonly called a "529 Plan" under 26 U.S.C. § 529). Does the use of those funds mean that the parent has been given a "tax benefit…for the benefit of the student attending" the school?
The ballot title you have provided summarizes the foregoing with the phrase "for all schools that receive State or local funds." But the text of your measure defines the receipt of such funds as including receipt by a student or by a parent. It is highly unlikely that someone reading your proposed ballot title's reference to "schools that receive State or local funds" would understand that the phrase also includes students and parents who receive some form of a "tax benefit," however broad or narrow you intend "tax benefit" to be.
- Conclusion. Since your ballot title, as currently worded, misleads by omission, I am unable to certify it as submitted. And since, for the reasons noted above, your intent is not yet clear enough to enable me to substitute and certify a ballot title, my statutory duty under A.C.A. § 7-9-107(e) is to reject your proposed popular name and ballot title, stating my "reasons therefor," and to "instruct…[you] to redesign your proposed measure and the ballot title…in a manner that would not be misleading."
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General