Why did Arkansas reject the ballot title for the proposed 2024 Educational Rights Amendment?

Plain-English summary

For AR Kids asked the Attorney General to certify the popular name and ballot title for a proposed constitutional amendment. The ballot title described requirements for schools receiving state or local funds to meet identical academic and accreditation standards, as well as proposed additions to the state's public education obligations. The Attorney General rejected the submission because two ambiguities in the measure's text made the ballot title misleading by omission.

First, the measure called for the “provision of efficient human, facility, material, and financial resources.” The opinion says this could mean that the state would supply teachers and facilities itself, or that it would give schools money to obtain those resources. The Attorney General could not tell which the sponsor intended.

Second, the measure's definition of receiving state or local funds included a school, student, or parent receiving a state or local “tax benefit.” The opinion asks whether a school's nonprofit status or parents' use of money with Arkansas 529 plan tax benefits would count. It does not answer either question. The proposed ballot title referred only to “schools that receive State or local funds,” which the Attorney General said was unlikely to alert voters to the measure's possible reach to students and parents.

The Attorney General said he could neither certify the submitted title nor substitute one while the sponsor's intent remained unclear. He instructed the sponsor to redesign the measure and title so they would not mislead voters.

What this means for you

Ballot measure sponsors

If a proposed measure covers tax benefits received by parents or students, say clearly in the measure which benefits count. The opinion's two examples, nonprofit status and tax-favored 529 plan money, are questions about the proposal's reach, not rulings that either example is covered. A ballot title also needs to tell voters when the measure reaches beyond funds paid directly to a school.

School administrators and families

This opinion did not impose academic standards on any school. It reviewed a proposed ballot title and rejected that submission. It leaves open whether the proposed wording would have reached a particular school or family's tax treatment.

Common questions

Did the Attorney General decide that all schools with nonprofit status would be covered?

No. He asked whether nonprofit status was a “State or local tax benefit” under the proposal and said the sponsor needed to resolve that ambiguity.

Would a parent's 529 plan money bring a school under the proposal?

The opinion does not decide. It asks whether money that received Arkansas Brighter Future Fund Plan tax benefits would count as a benefit to the parent “for the benefit of the student attending” the school.

Why couldn't the Attorney General write a corrected ballot title?

He said the sponsor's intent was not clear enough to let him substitute and certify a title. Under the cited review statute, he rejected the proposed title and instructed the sponsor to redesign the measure and title.

Did the opinion decide whether the amendment was good education policy?

No. The Attorney General expressly said his decision to certify or reject was unrelated to his view of the proposal's merits.

Currency note

This is a February 8, 2024 review of the submitted proposal. The opinion does not establish the status of any later submission or current education law. Check the current official source before relying on a ballot measure's status.

Source

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

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.

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 amendment to the Arkansas Constitution:

                                       Popular Name
   
                    Arkansas Educational Rights Amendment of 2024
   
                                        Ballot Title
   

   An amendment to Article 14 (Education) of the Arkansas Constitution of 1874, to be
   known as the “Arkansas Educational Rights Amendment of 2024,” to require identical
   academic standards and identical standards for accreditation, including assessments of
   students and schools based on such standards, for all schools that receive State or local
   funds; to deny State or local funds to any non-public school that fails to meet the same
   academic standards and standards for accreditation, or to meet the same assessment
   requirements based on such standards as public schools; 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) services that fully meet

Mr. Barry Jefferson
Opinion No. 2024-019
Page 2

the individualized needs of students with disabilities to allow them meaningful access to integrated education; to ensure that an adequate education means, without limitation, that every child educated in the school should develop sufficient: (1) oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (2) knowledge of economic, social, and political systems to students to make informed choices; (3) understanding of governmental processes to students to understand the issues that affect their community, state, and nation; (4) self-knowledge and knowledge of their mental and physical wellness; (5) grounding in the arts to enable students to appreciate their cultural and historical heritage; (6) training or preparation for advanced training in either academic or vocational fields so as to enable children to choose and pursue life work intelligently; and (7) academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market; and to require the General Assembly to enact legislation to implement this amendment, including allocating funding necessary to fully implement this amendment.

2. Rules governing my review. In Opinion No. 2023-131, I explained the rules governing popular
   names and ballot titles, and I also explained the rules governing my review of proposed measures. Rather than repeat those explanations, I incorporate them here by reference.

3. 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.

Mr. Barry Jefferson
Opinion No. 2024-019
Page 3

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.

4. 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