Did Act 633 of 2023 apply to the Pine Bluff School District's 2023 return to local control, and what authority does the State Board have over the schedule for replacing appointed school board members with elected ones?

Plain-English summary

The State Board of Education assumed authority over Pine Bluff School District in 2018 and later approved a schedule for moving from appointed to elected local school-board members. Two legislators asked whether Act 633 of 2023 applied to that return to local control, who had authority to arrange the staggered terms, and whether the State Board could later resume authority.

The Attorney General said Act 633 did not apply to the earlier takeover. Its timing provisions were prospective and tied to the State Board's assumption of authority, which had occurred before the Act took effect. On the election schedule, he declined to decide whether State Board approval was authorized. He found the relevant statute unclear about who sets term expirations, and the request did not supply enough facts about how the schedule was approved or which powers the State Board had left with the local board. He called for legislative clarification.

The opinion also says that a return to local control does not forever prevent the State Board from exercising its statutory authority again if the district is classified for intensive support. This is separate from the unresolved question about the particular election schedule.

What this means for you

Pine Bluff school-board members and residents

This opinion does not validate or invalidate the schedule for replacing appointed members with elected ones. It explains why the Attorney General could not decide that question from the law and facts supplied. The conclusion that Act 633 does not apply to the earlier takeover does not answer every question about the schedule.

State education officials and district counsel

For a schedule under the older statute, identify who made the decision, when it occurred, and what powers the State Board retained or delegated. The Attorney General said the answer may depend on those facts as well as an unclear allocation of authority in A.C.A. § 6-13-608(a).

Common questions

Did Act 633 govern Pine Bluff's earlier takeover?

No. The Attorney General applied the presumption against retroactive statutes and found no reason to treat the Act's timing provisions as applying to the State Board's earlier assumption of authority.

Did the Attorney General approve the board election schedule?

No. He said the law was unclear and the facts were insufficient for him to opine on whether State Board approval of the schedule was authorized.

Can the State Board ever resume authority after local control returns?

The opinion says a prior return does not bar later action under the statute if the district again meets the classification that triggers State Board authority. It does not decide whether that later event occurred in Pine Bluff.

Currency note

This May 14, 2024 opinion concerns Pine Bluff's reported sequence and the law then in effect. Check subsequent statutory changes and district records before applying it to a current board term.

Source

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

Original opinion text

Opinion No. 2024-035

May 14, 2024

The Honorable Clarke Tucker
State Senator
Post Office Box 7268
Little Rock, Arkansas 72217

The Honorable Vivian Flowers
State Representative
Post Office Box 3156
Pine Bluff, Arkansas 71611

Dear Senator Tucker and Representative Flowers:

I am writing in response to your request for my opinion about the applicability of Act 633 of 2023 to the Pine Bluff School District (PBSD).

You report that, in September 2018, the State Board of Education, acting under A.C.A.
§ 6-15-2916, “assumed authority of the [PBSD]” and “dissolved the [PBSD] School Board.” Five years later, in September 2023, the State Board returned PBSD to local control through the appointment of school-board members. The State Board then “approved an election cycle” that would replace the appointed members with elected ones on a rolling basis, with the first seat coming up for election in 2024 and the last seats in 2028.

You ask the following five questions:

1. Does Act 633 of 2023 apply to the return of the Pine Bluff School District to local
   control?

   Brief Response: No. Laws are presumed to apply prospectively, not retroactively,
   unless the text requires otherwise. The relevant actions that Act
   633 requires of the State Board would have had to have happened
   almost three years before Act 633’s effective date. Thus, Act 633
   does not apply because it is not retroactive.

2. If your answer to the first question is no, under the law as it existed before the
   enactment of Act 633 of 2023, did the State Board of Education have the authority

The Honorable Clarke Tucker, State Senator
The Honorable Vivian Flowers, State Representative
Opinion No. 2024-035
Page 2

to reinstate control of a school district to a school board consisting of some members who are popularly elected and some members who are appointed by the Education Commissioner?

Brief Response: As fully explained below, I am unable to opine on this question because the relevant law is unclear and insufficient facts have been presented.

3. If your answer to the first question is no, under the law as it existed before the enactment of Act 633 of 2023, did the State Board of Education have the authority to dictate the schedule by which elections would be held for the seats on a school board of a school district being returned to local control, or would that authority rest solely with the newly reinstated school board, regardless whether the school board members were appointed or elected?

Brief Response: As fully explained below, I am unable to opine on this question because the relevant law is unclear and insufficient facts have been presented.

4. If your answers to either the second or third questions are yes, will those answers change once Act 633 of 2023 has been in effect for a long enough period of time such that the timing requirements of that Act apply?

Brief Response: My analysis will not change because Act 633’s trigger is the State Board’s assumption of authority over a public-school district and is not connected to Act 633’s effective date.

5. Finally, once the State Board of Education has returned a school district to local control, when is the soonest that the State Board of Education would then be able to assume authority over that same district again under Arkansas Code Annotated § 6-15-2916? If some or all members of a school board were put in place by appointment of the Education Commissioner rather than by popular election, would the starting point for the timeline for the State Board of Education to again assume authority over that school district be tolled until after all members of the school board were popularly elected by the local community?

Brief Response: If a public-school district is classified as in need of Level 5 – Intensive support, there is no time restriction on the State Board’s ability to assume authority of the district.

DISCUSSION

In 2023, the General Assembly passed Act 633 of 2023, amending A.C.A. § 6-15-2917 and making changes to how the State Board, after assuming authority over a public-school

The Honorable Clarke Tucker, State Senator
The Honorable Vivian Flowers, State Representative
Opinion No. 2024-035
Page 3

district classified as in need of “Level 5 – Intensive support,”1 returns the district to local control. An overview of the relevant law before and after Act 633 is necessary to address your questions.

1. Relevant law unchanged by Act 633. When a public-school district is in Level 5 –
   Intensive support, the State Board may, among other options, assume authority of the district and “[r]emove permanently” or “suspend…temporar[ily]…some or all of the” school-board members.2

Under A.C.A. § 6-15-2917(b), “[a]t any time during the second full school year following the assumption of authority or any time thereafter,” the State Board “may direct the Commissioner of Elementary and Secondary Education” to analyze whether the “district has demonstrated substantial improvement.”3 After that analysis, the Commissioner may, among other options, recommend that the State Board “[r]eturn the public school district to local control through the appointment or election of a board of directors.”4

If the State Board returns the district to local control, it has broad authority to define the scope of the school board’s “powers and duties.”5 For example, it may require the school board to “operate under the direction and approval of the commissioner” and “limit the powers and duties” granted by “any…law” to school boards.6 And, related to some powers and duties, the school board may hold only an “advisory capacity to the commissioner.”7

Act 633 left this intact; it changed what happens next.

2. Before Act 633. The State Board was required to establish generalized criteria for how
   a public-school district could exit Level 5 – Intensive support.8 Then, if within five years of the State Board assuming authority, the “district ha[d] not demonstrated…that [it] [met]

1
A.C.A. § 6-15-2913 (providing the various levels of school-district support).
2
Id. § 6-15-2916(2)(B).
3
Id. § 6-15-2917(b)(1).
4
Id. § 6-15-2917(b)(2)(B).
5
Id. § 6-15-2917(b)(3)(B)–(E).
6
Id. § 6-15-2917(b)(3)(B).
7
Id. § 6-15-2917(b)(3)(D).
8
Id. § 6-15-2917(c)(2) (repealed 2023) (requiring the State Board to “promulgate rules to establish the criteria by which a public school district may exit Level 5 – Intensive support”); Ark. Dep’t of Educ. v. McCoy, 2021 Ark. 136, at 6, 624 S.W.3d 687, 691 (explaining that the State Board has promulgated “general rules for exit criteria”).

The Honorable Clarke Tucker, State Senator
The Honorable Vivian Flowers, State Representative
Opinion No. 2024-035
Page 4

the criteria to exit Level 5 – Intensive support,” the State Board was required to take one of three routes: annex, consolidate, or reconstitute the district.9

This was the law until August 1, 2023, when Act 633 became effective and repealed it.10

3. After Act 633. Under Act 633, the State Board is no longer required to establish
   generalized exit criteria.11 Instead, the State Board is only required to establish exit criteria if it “has not returned a public school district…to local control as authorized under [§ 6- 15-2917(b)]” within two years of assuming authority.12 These criteria must be established “publicly and in writing.”13

Act 633 does not establish any procedure for the State Board if it was not required to establish exit criteria for a district.14

But for public-school districts that do have exit criteria, Act 633 creates two paths forward, based on the district meeting—or failing to meet—the established exit criteria. On the one hand, if within five years of the State Board assuming authority, the district meets the established exit criteria, the district “shall be returned to full local control as soon as” two prerequisites are met: (1) the State Board determines that the district has, in fact, met the criteria for exiting Level 5 – Intensive support and (2) “[a] democratically elected public school district board of directors has been elected during a school election.”15 On the other hand, if within five years the district has not met the established exit criteria,” the State Board must make one of four choices: “[r]eturn the public school district to full local control” or “[a]nnex, consolidate, or reconstitute” the district.16

                                *                *                *

With this background, I turn to the questions raised in your request.

9
A.C.A. § 6-15-2917(c)(1) (repealed 2023).

See Ark. Att’y Gen. Op. 2023-031 (calculating the effective date for acts without an emergency clause that 10

were passed during the 94th Regular Session of the Arkansas General Assembly). 11 See A.C.A. § 6-15-2917.
12
Id. § 6-15-2917(c).
13
Id.
14
See id. § 6-15-2917.
15
Id. § 6-15-2917(d).
16
Id. § 6-15-2917(e)(1).

The Honorable Clarke Tucker, State Senator
The Honorable Vivian Flowers, State Representative
Opinion No. 2024-035
Page 5

Question 1: Does Act 633 of 2023 apply to the return of the Pine Bluff School District to local control?

Based on the facts presented, Act 633 does not apply to the return of the PBSD to local control because, unless the text of an act requires it to apply retroactively,17 courts will “presume the legislature intend[ed] for its laws to apply only prospectively.”18 The text of Act 633 does not indicate that it applies retroactively.

You state that the State Board assumed authority over the PBSD in September 2018. Act 633 became effective August 1, 2023.19 It requires the State Board to establish criteria to exit Level 5 – Intensive support for a district not returned to local control “no later than two (2) years after the assumption of authority.”20 But two years after the State Board assumed authority of the PBSD was September 2020, almost three years before Act 633 was effective. Therefore, Act 633 does not retroactively apply to the State Board’s assumption of authority over the PBSD.

Question 2: If your answer to the first question is no, under the law as it existed before the enactment of Act 633 of 2023, did the State Board of Education have the authority to reinstate control of a school district to a school board consisting of some members who are popularly elected and some members who are appointed by the Education Commissioner?

In your request, you indicate that “the State Board approved an election cycle” in which the appointed school-board members would be replaced by elected members on a rolling basis. From your request, I am unable to determine if the State Board approved its own motion to set the election cycle or if a different entity—such as the PBSD school board— sought the State Board’s approval of their own proposal.

I am unable to opine on whether the State Board had authority for two reasons: the relevant law is unclear and the request does not present sufficient facts.

1. Setting the expiration of school-board members’ terms generally. A.C.A.
   § 6-13-608(a) sets the terms of office for school-board members and requires “the expiration of such terms [to be] so arranged that, as nearly as possible, an equal number of

17
Bean v. Off. of Child Support Enf’t, 340 Ark. 286, 296, 9 S.W.3d 520, 526 (2000).
18
Alpe v. Fed. Nat’l Mortg. Ass’n, 2023 Ark. 58, at 3, 662 S.W.3d 650, 653.
19
Ark. Att’y Gen. Op. 2023-031.
20
A.C.A. § 6-15-2917(c).

The Honorable Clarke Tucker, State Senator
The Honorable Vivian Flowers, State Representative
Opinion No. 2024-035
Page 6

positions are filled each year.” But the statute does not identify who sets the expiration schedule.21

This office has previously opined that, though § 6-13-608(a) is silent, school boards probably “ha[ve] the authority to determine the mechanism for arranging the expiration of terms.”22 For the reasons below, I agree with my predecessor that a court would probably hold that the school board—in the first instance—has authority to set the expiration of terms, but the plain text of the law is unclear. Legislative clarification is thus warranted.

In 1981, the General Assembly enacted the first version of what is now codified at
§ 6-13-608.23 Then, the language clearly empowered the school board: “Any school district…may establish terms of the same length for all of its [school-board] members provided that…the expiration of such terms are so arranged that, as nearly as possible, an equal number of positions are filled each year.”24 To make the school board’s decision effective, “[t]he Board…may file a petition describing [the terms’ expirations] with the County Board of Education,” who was required to “authorize the Board to establish [the] terms” if the change “benefit[ted] the district.”25

In 1999, the General Assembly passed Act 1078, amending § 6-13-608(a) to what exists today:26 “All members of a school district board of directors shall be elected to a term of office…with the expiration of such terms so arranged that, as nearly as possible, an equal number of positions are filled each year.”27 This amendment also removed the approval process for setting the term-expiration schedule.

In short, Act 1078 made what was once clear unclear. Comparing Act 1078’s changes to
§ 6-13-608(a) with Act 1078’s changes to other parts of the Code and with other Arkansas law is instructive in teasing out who a court would most likely hold has authority to set the expiration of the school-board members’ terms of office and whether that entity needs outside approval.

First, someone must set the expiration of the members’ terms, and before Act 1078, school boards made the initial determinations. Act 1078 did not give that power to anyone else.

21
Ark. Att’y Gen. Op. 2000-112 (stating that the law “is silent as to the procedure or mechanism for ensuring that an equal number of positions are filled each year”). 22 Id.
23
Act 50 of 1981, § 1.
24
Id.
25
Id.
26
Act 1078 of 1999, § 35.
27
A.C.A. § 6-13-608(a).

The Honorable Clarke Tucker, State Senator
The Honorable Vivian Flowers, State Representative
Opinion No. 2024-035
Page 7

And while Act 1078 didn’t expressly give school boards that authority either, it was not drawing on a blank slate. This failure to authorize any entity to arrange the expiration schedule potentially indicates that the General Assembly intended to leave that power where it was.28

Second, other laws expressly authorize the school board to arrange the expiration of the members’ terms. After a school district is annexed or school districts consolidate, the newly formed school board has authority under A.C.A. § 6-13-1417 to establish “[t]he length of the terms” and must, “[a]t the first meeting of the permanent board of directors,…determine the…expir[ation]” of the members’ terms of office.29 Because “laws dealing with the same subject…should if possible be interpreted harmoniously,” this indicates that § 6-13-608(a) may operate similarly, allowing the school board to set the expiration of terms.30

Third, Act 1078 was careful to change almost all relevant references to the “county board of education” to the “State Board of Education.”31 It did not, however, change § 6-13-608’s original language to give the State Board authority to set or approve the expiration of school-board members’ terms. Instead, it removed the approval language altogether.32 This departure from prior practice confirms what is clear from the text: Whatever entity has authority to make decisions about terms’ expiration is not required under § 6-13-608 to obtain approval.

Therefore, I believe that a court interpreting § 6-13-608(a) would probably hold that school boards have authority to set the members’ expiration of terms and that the decision is not subject to approval under § 6-13-608. But I reiterate that I am unable to definitively opine who has authority to set terms’ expirations under § 6-13-608(a) because the text is silent.

2. Setting school-board members’ terms in a district under Level 5 – Intensive support
   while under State Board authority. Even if school boards have the authority under
   § 6-13-608(a), that is not the end of the matter for districts in Level 5 – Intensive support.

28
Cf. BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (Gorsuch, J., dissenting) (explaining that “the record of enacted changes Congress made to the relevant statutory text over time”—that is, “the statutory history,” as opposed to “legislative history”—is “the sort of textual evidence everyone agrees can sometimes shed light on meaning”). 29 A.C.A. § 6-13-1417(a)(2)–(3).
30
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 252 (2012). It does not matter that § 6-13-1417 was enacted after § 6-13-608: “the meaning of an ambiguous provision may change in light of a subsequent enactment,” unless “the ambiguous provision has already been given an authoritative judicial interpretation.” Id. at 254–55. 31 See, e.g., Act 1078 of 1999, § 25 (related to authority to name school districts); id. §§ 30–33 (related to increasing and decreasing the number of members on school boards); id. §§ 42–46 (related to annexation and consolidation of school districts). 32 Id. § 35.

The Honorable Clarke Tucker, State Senator
The Honorable Vivian Flowers, State Representative
Opinion No. 2024-035
Page 8

Below, I set out the relevant law, but I reiterate that I lack sufficient information to opine if the State Board, in fact, had authority here.

For districts in Level 5 – Intensive support and under State Board authority, the State Board can “[r]emove”33 or “limit”34 a school board’s powers and duties granted under “any… law.”35 You did not indicate if the PBSD was removed from Level 5 – Intensive support or if the State Board had limited or removed the appointed board’s power, so I cannot definitely opine whether the State Board could “approve” the expiration of terms.

I can, however, say that (1) if a school district is in Level 5 – Intensive support and under the State Board’s authority and (2) if the State Board has properly limited or removed the school board’s powers, then (3) the State Board could have authority to set or “approve” the arrangement of the expiration of the school-board members’ terms of office, again assuming that the school board has that authority in the first place.

3. For the reason above, I am unable to definitely opine whether the State Board had
   authority to “approve” the expiration of the PBSD’s appointed school-board members’ terms of office. The law is silent about who arranges the terms’ expiration in the first instance. And because of that lack of clarity and insufficient facts, I cannot opine whether State Board had authority to “approve” of the expiration in this instance.

Question 3: If your answer to the first question is no, under the law as it existed before the enactment of Act 633 of 2023, did the State Board of Education have the authority to dictate the schedule by which elections would be held for the seats on a school board of a school district being returned to local control, or would that authority rest solely with the newly reinstated school board, regardless whether the school board members were appointed or elected?

For the reasons stated in response to Question 2, I am unable to opine on this question.

Question 4: If your answers to either the second or third questions are yes, will those answers change once Act 633 of 2023 has been in effect for a long enough period of time such that the timing requirements of that Act apply?

My analysis will not change because the trigger for Act 633 is the State Board’s assumption of authority over a public-school district.36 As explained above, Act 633 does not apply

33
A.C.A. § 6-15-2916(2)(C)(i).
34
Id. § 6-15-2917(b)(3)(B)–(C).
35
Id. §§ 6-15-2916(2)(C)(i), -2917(b)(3)(B).
36
See id. § 6-15-2917(c), (d)(1), (e)(1), (e)(2).

The Honorable Clarke Tucker, State Senator
The Honorable Vivian Flowers, State Representative
Opinion No. 2024-035
Page 9

because courts will presume that Act 633 was intended to apply only prospectively, unless the text requires otherwise.

Even if Act 633’s timing requirements somehow started on the effective date, it would not apply. As explained above, Act 633 does not require the State Board to establish exit criteria if the district has been returned “to local control as authorized under
[§ 6-15-2917(b)]” within two years.37 The PBSD was returned to local control. Therefore, the State Board was not required to establish exit criteria. Act 633 provides no procedure for how to handle a district without exit criteria.

Question 5: Finally, once the State Board of Education has returned a school district to local control, when is the soonest that the State Board of Education would then be able to assume authority over that same district again under Arkansas Code Annotated § 6- 15-2916? If some or all members of a school board were put in place by appointment of the Education Commissioner rather than by popular election, would the starting point for the timeline for the State Board of Education to again assume authority over that school district be tolled until after all members of the school board were popularly elected by the local community?

Because the State Board can only assume authority over a public-school district classified as in need of Level 5 – Intensive support, I understand your question to be about the State Board’s authority after the State Board has voted to return a district to local control and to remove the district from Level 5 – Intensive support (presumably reclassifying the district as in need of Level 4 – Directed support).

Assuming the district is reclassified as in need of Level 5 – Intensive support, the State Board is not limited on when it can reassume authority over the district. A.C.A.
§ 6-15-2916 gives the State Board power to assume authority over any “public school district [that] is classified as in need of Level 5 – Intensive support.”38

Arkansas Department of Education v. McCoy39 is instructive. There, the State Board reconstituted a public-school district that failed to meet the criteria to exit Level 5 – Intensive support within five years of the State Board assuming authority, but it did not “relinquish complete control” to the reconstituted school board.40 The plaintiffs challenged the State Board’s continued authority over the reconstituted board.41 The Arkansas Supreme Court held that, once a district is in need of Level 5 – Intensive support,

37
Id. § 6-15-2917(c).
38
Id. § 6-15-2916.
39
2021 Ark. 136, 624 S.W.3d 687.
40
Id. at 8, 624 S.W.3d at 692.
41
Id. at 8, 624 S.W.3d at 693.

The Honorable Clarke Tucker, State Senator
The Honorable Vivian Flowers, State Representative
Opinion No. 2024-035
Page 10

§ 6-15-2916 “gives the State Board broad authority to control [the] district[].”42 Neither the parties nor the court identified “any statute…that limits the State Board’s power” to continue oversight of a district in Level 5 – Intensive support.43

The same is true here: I have found no law that limits the State Board’s powers under
§ 6-15-2916, no matter how recently the district had been returned to local control.

Deputy Attorney General Noah P. Watson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

42
Id. at 8–9, 624 S.W.3d at 692–93.
43
Id. at 9, 624 S.W.3d at 693.