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 took over the Pine Bluff School District (PBSD) in September 2018 because the district was classified as in need of "Level 5 - Intensive support." Five years later, in September 2023, the State Board returned PBSD to local control by appointing school board members and approving a rolling election cycle that replaces appointees with elected members from 2024 through 2028.
Senator Tucker and Representative Flowers asked whether the new Act 633 of 2023, effective August 1, 2023, applies to the return of PBSD to local control. They also asked who has authority under prior law to set election schedules for school board members and whether the State Board can resume authority over a district once it has been returned.
The AG's answers:
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Act 633 does not apply to PBSD. Statutes in Arkansas are presumed to apply only prospectively. Act 633 requires the State Board to establish exit criteria within two years of assuming authority over a district. For PBSD, that two-year window closed in September 2020, almost three years before Act 633 took effect. There is no language in Act 633 making it retroactive.
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Under pre-Act 633 law, the AG cannot definitively say whether the State Board could approve the rolling-election schedule. A.C.A. § 6-13-608(a) sets the term lengths but is silent on who arranges the expiration schedule. Earlier law (before 1999) clearly authorized school boards. Act 1078 of 1999 stripped out that approval mechanism without naming a replacement. The AG's best read is that school boards likely retain that authority, but said the text is unclear and legislative clarification is warranted. For a district under State Board authority, the State Board can also limit or remove the school board's powers, so the State Board may have the authority depending on facts the request did not include.
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The State Board can reassume authority at any time if the district is again classified Level 5 - Intensive support. The Arkansas Supreme Court confirmed broad State Board authority in McCoy v. Arkansas Department of Education.
What this means for you
School board members in takeover districts
If your district has been or could be taken over by the State Board, this opinion is the clearest available read on the timing rules. Act 633 will not apply if the State Board's takeover predates its effective date. Going forward, however, Act 633 changes the rules: the State Board has to set exit criteria publicly within two years of assuming authority, and there are different paths for districts that meet or fail to meet the criteria within five years.
For the rolling-election schedule that puts elected members back in seats over a multi-year period, the AG's read is that the school board likely (but not certainly) holds the authority to arrange term expirations under § 6-13-608(a) once the district is back under local control. If you are stepping into an appointed seat with a fixed end date, get the legal analysis in writing from your school district counsel. The statutory ambiguity creates litigation risk for whoever sets the schedule.
State Board officials and Department of Education staff
For takeovers that happened before August 1, 2023, you do not need to retrofit Act 633's exit-criteria timing. Going forward, you do. Set written exit criteria within two years of any new takeover unless you have already returned the district to local control under § 6-15-2917(b).
The AG also confirmed there is no time limit on reassuming authority over a district that has been returned to local control. If the district falls back into Level 5 - Intensive support, you can act, regardless of how recent the return was.
Parents and community members in PBSD or similar districts
Your district was returned to local control through an appointed-then-elected hybrid governance arrangement. The State Board approved the schedule. Per the AG, that arrangement does not violate Act 633 (which does not apply) and probably does not violate § 6-13-608(a), though that statute is unclear on who sets the schedule. Your school board members are now a mix of appointed and elected, transitioning to fully elected as the rolling cycle plays out.
If a future Level 5 - Intensive support classification triggers another takeover, the State Board has broad authority and no waiting period. Local control is durable when the district is academically meeting standards, not when it is not.
Public education attorneys
Note the unsettled statutory question. Section 6-13-608(a) sets term lengths and requires "as nearly as possible, an equal number of positions are filled each year," but it does not say who arranges the schedule. Pre-1999 law (Act 50 of 1981) clearly authorized the school board with county-board approval. Act 1078 of 1999 amended the statute to its current form, removing the approval mechanism. The AG infers school-board authority from a comparison with A.C.A. § 6-13-1417 (newly formed boards after annexation/consolidation) and from the silence as a probable indicator of preserving prior practice. But the statute is ambiguous, and the AG calls for legislative clarification. Litigation in this space is plausible.
Common questions
What was Act 633 of 2023 trying to fix?
The previous statute (the version of A.C.A. § 6-15-2917 in effect before August 1, 2023) required the State Board to develop generalized exit criteria from Level 5 - Intensive support, and if a district had not met the criteria within five years, the State Board had to annex, consolidate, or reconstitute the district. Act 633 changes that. The State Board now sets exit criteria district-by-district within two years of takeover, and within five years it must either return the district to local control or annex/consolidate/reconstitute.
Why did the State Board approve a rolling-election cycle for PBSD?
The opinion does not directly say why, but the practical answer is staggered terms ensure continuity. State law requires that "as nearly as possible, an equal number of positions are filled each year." A rolling cycle from 2024 through 2028 creates the staggered structure as appointees age out and elected members come in.
Why couldn't the AG opine on whether the State Board had authority to set the schedule?
The opinion lists two reasons. First, A.C.A. § 6-13-608(a) is genuinely silent on who arranges term expirations. Second, the request did not say whether the State Board acted on its own motion, with a vote of the appointed board, or in some other configuration. The AG flagged that for a district still under State Board authority, the State Board's broad takeover powers under § 6-15-2916 could include arranging term expirations, but the question of whether PBSD was still under that authority at the time of the schedule decision was not in the request.
Once the district is fully returned to local control, can the State Board take it over again immediately?
Yes, if the State Board reclassifies it as Level 5 - Intensive support. The AG cited Arkansas Department of Education v. McCoy, 2021 Ark. 136, 624 S.W.3d 687, where the Arkansas Supreme Court held that § 6-15-2916 gives the State Board "broad authority" with no statutory limit on continuing or reassuming oversight as long as the district is in Level 5.
What about districts in Level 4 (Directed support)?
The State Board's takeover authority under § 6-15-2916 is keyed to Level 5 - Intensive support classification. Level 4 - Directed support is a different intervention level. The State Board cannot assume authority based on Level 4 classification alone; the district must be reclassified into Level 5 first.
Background and statutory framework
Levels of state intervention. A.C.A. § 6-15-2913 sets the levels of state support and intervention, with Level 5 - Intensive support being the most severe.
State Board takeover authority. A.C.A. § 6-15-2916 lets the State Board, when a district is in Level 5 - Intensive support, assume authority and remove or temporarily suspend school-board members. The Arkansas Supreme Court confirmed this is "broad authority" in McCoy.
Return to local control. A.C.A. § 6-15-2917(b) lets the State Board return a district to local control through appointment or election of board members "[a]t any time during the second full school year following the assumption of authority or any time thereafter." The State Board can broadly define the powers of the returned school board, including limiting them or making them advisory only.
Pre-Act 633 framework. A.C.A. § 6-15-2917(c) (repealed 2023) required the State Board to develop generalized exit criteria. If, within five years, the district had not met them, the State Board had to annex, consolidate, or reconstitute.
Post-Act 633 framework. Section 6-15-2917(c) now requires the State Board to set exit criteria publicly and in writing only if it has not already returned the district to local control within two years of assuming authority. Subsection (d) provides for districts that meet exit criteria. Subsection (e) handles districts that do not. The Act became effective August 1, 2023.
Term length and arrangement. A.C.A. § 6-13-608(a) sets the term lengths for school-board members and requires staggered terms but is silent on who arranges them. The original 1981 enactment (Act 50) gave that authority to school boards, with county-board approval. Act 1078 of 1999, § 35, removed the approval mechanism without expressly designating a new authority. A.C.A. § 6-13-1417 expressly authorizes newly formed boards after annexation or consolidation to set term expirations.
Retroactivity. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000) (Arkansas Supreme Court), and Alpe v. Federal National Mortgage Association, 2023 Ark. 58, 662 S.W.3d 650 (Arkansas Supreme Court), establish that statutes are presumed to apply only prospectively unless the text requires otherwise.
Citations
- A.C.A. § 6-13-608(a) (term lengths and staggered terms)
- A.C.A. § 6-13-1417(a)(2)–(3) (newly formed boards' authority over term expirations)
- A.C.A. § 6-15-2913 (levels of state support)
- A.C.A. § 6-15-2916 (State Board takeover authority)
- A.C.A. § 6-15-2917 (return to local control framework, before and after Act 633)
- Act 633 of 2023 (rewriting § 6-15-2917)
- Act 1078 of 1999, § 35 (1999 amendment to § 6-13-608)
- Act 50 of 1981, § 1 (original term-arrangement authority for school boards)
- Bean v. Off. of Child Support Enf't, 340 Ark. 286, 9 S.W.3d 520 (2000)
- Alpe v. Fed. Nat'l Mortg. Ass'n, 2023 Ark. 58, 662 S.W.3d 650
- Ark. Dep't of Educ. v. McCoy, 2021 Ark. 136, 624 S.W.3d 687
Source
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.
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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?
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. -
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. -
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. -
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 district classified as in need of "Level 5 – Intensive support," returns the district to local control. An overview of the relevant law before and after Act 633 is necessary to address your questions.
- 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.
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." 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."
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." 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. And, related to some powers and duties, the school board may hold only an "advisory capacity to the commissioner." Act 633 left this intact; it changed what happens next.
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Before Act 633. The State Board was required to establish generalized criteria for how a public-school district could exit Level 5 – Intensive support. Then, if within five years of the State Board assuming authority, the "district ha[d] not demonstrated… that [it] [met] 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. This was the law until August 1, 2023, when Act 633 became effective and repealed it.
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After Act 633. Under Act 633, the State Board is no longer required to establish generalized exit criteria. 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. These criteria must be established "publicly and in writing." Act 633 does not establish any procedure for the State Board if it was not required to establish exit criteria for a district.
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." 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.
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, courts will "presume the legislature intend[ed] for its laws to apply only prospectively." 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. 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." 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.
- 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 positions are filled each year." But the statute does not identify who sets the expiration schedule.
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." 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. 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." 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."
In 1999, the General Assembly passed Act 1078, amending § 6-13-608(a) to what exists today: "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." 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. 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.
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. 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.
Third, Act 1078 was careful to change almost all relevant references to the "county board of education" to the "State Board of Education." 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. 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.
- 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. 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" or "limit" a school board's powers and duties granted under "any… law." 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.
- 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. As explained above, Act 633 does not apply 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. 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."
Arkansas Department of Education v. McCoy 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. The plaintiffs challenged the State Board's continued authority over the reconstituted board. The Arkansas Supreme Court held that, once a district is in need of Level 5 – Intensive support, § 6-15-2916 "gives the State Board broad authority to control [the] district[]." 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.
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