After the LEARNS Act repealed the Teacher Fair Dismissal Act, can Little Rock teachers still get a hearing when their contracts are not renewed?

Plain-English summary

The Little Rock School District (LRSD) was about to send nonrenewal notices to a number of employees for the 2024-25 school year because of budget constraints. Senator Tucker asked whether LRSD's existing grievance policy, which provides hearings for "grievances" defined broadly enough to cover nonrenewals, gives those employees more rights than state law allows. The LEARNS Act of 2023 specifically prohibits school districts from adopting personnel policies that provide more rights than state law.

The AG's analysis:

1. Before LEARNS, two statutes (the Teacher Fair Dismissal Act and the Public School Employee Fair Hearing Act) gave teachers a right to notice and hearing on nonrenewals. LEARNS repealed both. So those statutory hearing rights for nonrenewals are gone.

2. LEARNS does not require notice or hearing for nonrenewals. The Act requires hearings only for terminations, plus written notice to teachers placed on "intensive support status" under § 6-17-2807. A district can let a teacher's contract simply expire without notice.

3. A.C.A. § 6-17-208 (the grievance statute) is still in force. It requires every district to have a written grievance procedure and lets all employees file grievances. The statute defines "grievance" broadly to include any concern related to "personnel policy," and "personnel policy" expressly includes nonrenewal. So a contract nonrenewal is a "grievance" subject to the standard grievance process.

4. A district can hear a nonrenewal grievance without violating LEARNS. The grievance must start at the lowest administrative level (immediate supervisor), then escalate to superintendent, then board. A policy that gives an employee a right going beyond what § 6-17-208 provides (for example, a notice provision or a board hearing right not in the statute) would violate LEARNS by creating "more rights than those provided under state law."

5. LRSD's grievance policy (Section 3.23) is partly invalid. The policy still references the repealed Teacher Fair Dismissal Act and Public School Employee Fair Hearing Act and skips nonrenewal grievances directly to the school board (Level Three). That violates § 6-17-208's required progression and likely violates LEARNS. LRSD should treat nonrenewal grievances like any other grievance, starting at the lowest administrative level.

What this means for you

Teachers and certified school employees

Your old statutory hearing right for nonrenewals is gone. Your new path runs through the district grievance procedure under A.C.A. § 6-17-208. File the grievance with your immediate supervisor first, then escalate to the superintendent, then to the school board. The grievance must address the nonrenewal. The board cannot reverse the nonrenewal unless the decision was arbitrary, capricious, or contrary to law (or under the Caldwell case, contrary to reasonable rules and regulations).

If your good name, reputation, honor, or integrity is at stake (per Roth v. Board of Regents), federal due process gives you notice and an opportunity to be heard. That is a higher bar than ordinary nonrenewal and applies to misconduct findings or stigmatizing reasons for nonrenewal.

If your district's grievance policy still references the repealed Teacher Fair Dismissal Act, the policy is out of date. The statute and current law control, not the obsolete policy text.

School district administrators and HR

Update your grievance policy. Strip out references to the repealed Teacher Fair Dismissal Act and Public School Employee Fair Hearing Act. Make sure your nonrenewal handling tracks A.C.A. § 6-17-208's required progression starting at the lowest administrative level. A policy that skips levels or adds notice rights beyond the statute is potentially invalid under LEARNS.

Practical note: nonrenewal does not require notice under current state law, but if you want to give employees an early heads-up as a matter of good practice, you can. Just do not write that into a personnel policy or contract; that would be giving them a right beyond state law.

School board members

When a nonrenewal grievance reaches the board, remember the Releford framework: the grievance procedure exists to allow employees to challenge employment actions through the administration up to the board. The board's review under Caldwell is whether the action was arbitrary, capricious, discriminatory, or violated reasonable rules. The board does not retry the underlying employment decision de novo.

Public education attorneys

The LRSD grievance policy is a useful template for what districts now need to fix. Districts statewide likely have similar gaps where their grievance policies pre-date LEARNS and reference repealed statutes. A district that has not updated its policy is exposed both to an employee challenge (under § 6-17-208 for skipping the lowest administrative level) and to a LEARNS challenge (for providing rights beyond state law if the policy still grants notice or other procedural protections beyond the statute).

The federal due process overlay from Roth v. Board of Regents applies if reputation, honor, or integrity is implicated. Keep watch for misconduct-related nonrenewals or terminations because they carry stigma and trigger Roth.

Citizens and journalists covering education

Nonrenewal is now a quieter event than it used to be. Districts no longer have to give notice or a hearing under state statute (only for terminations or intensive-support placements). The grievance process is available, but it is initiated by the employee, not automatic. If you are tracking a wave of nonrenewals at a district, ask whether each affected employee filed a grievance and how it was resolved.

Common questions

What is the difference between "termination" and "nonrenewal"?
Termination is firing during a contract term. Nonrenewal is letting the contract expire without offering a new one. Black's Law Dictionary defines nonrenewal as "a failure to renew something" and termination as "the act of ending something." Different concepts, different procedures under current law: termination requires notice and hearing under A.C.A. § 6-13-636(d)(1)(E); nonrenewal does not.

What is "intensive support status"?
A.C.A. § 6-17-2807 lets a district place a teacher in intensive support status based on low performance ratings. The statute requires notice and a development plan. Teachers in intensive support whose contracts are not renewed are entitled to notice; other teachers are not.

What is a "grievance" under A.C.A. § 6-17-208?
"Any concern related to personnel policy, salary, federal laws and regulations, state laws and rules, or terms or conditions of employment raised by an employee." The definition of "personnel policy" in A.C.A. § 6-17-201(b)–(c) explicitly includes nonrenewal. So a nonrenewal is squarely within the grievance definition.

Why does the LEARNS Act prevent a district from giving more procedural rights?
The legislature wanted uniform statewide treatment of school personnel and a removal of patchwork local protections that had grown up under the prior laws. A.C.A. § 6-17-2403(b)(2)(B)(i) explicitly bars personnel policies that provide more rights than state law. But LEARNS does not allow districts to deny rights provided by other laws, including federal due process.

What is "constructive termination"?
A resignation made in the face of certain, impending termination. The AG has consistently treated this as termination for FOIA and procedural purposes. Whether it counts as termination under LEARNS for grievance and hearing rights is a related but separate question.

Can a district add a notice-of-nonrenewal provision to its policy?
Probably not. State law does not require notice for nonrenewals (other than for teachers in intensive support). A policy granting notice rights beyond what state law requires would create "more rights to personnel than those provided under state law" and would violate A.C.A. § 6-17-2403.

Background and statutory framework

Pre-LEARNS hearing rights. Before LEARNS, A.C.A. §§ 6-17-1501 to -1510 (Teacher Fair Dismissal Act of 1983) and 6-17-1701 to -1705 (Public School Employee Fair Hearing Act) required notice 30 days before contract expiration and a hearing on request for nonrenewals.

LEARNS Act repeals. Act 237 of 2023, §§ 33-34, repealed both statutes.

Termination hearing. A.C.A. § 6-13-636(d)(1)(E) requires notice and hearing for terminations.

Intensive support. A.C.A. § 6-17-2807 governs placement of teachers in intensive support status based on low evaluation ratings.

The grievance statute. A.C.A. § 6-17-208 was not repealed. It requires every district to have a written grievance procedure, defines "grievance" broadly, and requires a multi-level progression: lowest possible administrative level (immediate supervisor) up through superintendent and board. The Arkansas Supreme Court in Releford v. Pine Bluff School District No. 3, 355 Ark. 503, 140 S.W.3d 483 (2004), confirmed the statute "allows all school employees to challenge or appeal any disciplinary actions or other grievances through the administration and may eventually appeal to the school board."

LEARNS limits on policies. A.C.A. § 6-17-2403(a)(2)(B)(i) and (b)(2)(B)(i) prohibit a public school from adopting personnel policies that provide more rights to personnel than those provided under state law. Subsection (a)(2)(B)(ii)(a) preserves rights provided by other laws, including due process.

Federal due process. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972) (U.S. Supreme Court), recognized that when a public employer's action puts the employee's "good name, reputation, honor, or integrity" at stake, due process requires notice and an opportunity to be heard.

Standard of review of school board decisions. Caldwell v. Blytheville School District No. 5, 23 Ark. App. 159, 746 S.W.2d 381 (1988) (Arkansas Court of Appeals), confirmed that a school may decline to renew a contract for any reason that is "not arbitrary, capricious, or discriminatory, or for violating the reasonable rules and regulations promulgated by the school board."

Citations

• A.C.A. § 6-17-208 (grievance procedure requirement)
• A.C.A. § 6-17-208(a)(2)(A) (definition of grievance)
• A.C.A. § 6-17-201(b)–(c) (definition of personnel policy, including nonrenewal)
• A.C.A. § 6-17-2403(a)(2)(B), (b)(2)(B) (LEARNS limits on personnel policies)
• A.C.A. § 6-17-2807 (intensive support status)
• A.C.A. § 6-13-636(d)(1)(E) (termination notice and hearing)
• Act 237 of 2023, §§ 33-34 (LEARNS repeal of Teacher Fair Dismissal Act and Public School Employee Fair Hearing Act)
• A.C.A. §§ 6-17-1501 to -1510 (Teacher Fair Dismissal Act, repealed 2023)
• A.C.A. §§ 6-17-1701 to -1705 (Public School Employee Fair Hearing Act, repealed 2023)
• Releford v. Pine Bluff Sch. Dist. No. 3, 355 Ark. 503, 140 S.W.3d 483 (2004)
• Caldwell v. Blytheville Arkansas Sch. Dist. No. 5, 23 Ark. App. 159, 746 S.W.2d 381 (1988)
• Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972) (federal due process)

Source

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

Original opinion text

Opinion No. 2024-042
April 19, 2024
The Honorable Clarke Tucker
State Senator
Post Office Box 7268
Little Rock, Arkansas 72217
Dear Senator Tucker:
You indicate that the "Little Rock School District (LRSD) is in the process of notifying a number of current employees that they will not have employment contracts with the District for the 2024-25 school year. These decisions are based on budgetary constraints, not disciplinary issues or performance problems."

You note that Act 237 of 2023 (the LEARNS Act) prohibits school districts from "adopt[ing] a personnel policy or incorporate[ing] terms into a personnel contract that provide more rights to personnel than those provided under state law…." You have attached LRSD's personnel policy that provides a hearing for "grievances," which is defined broadly enough to include nonrenewals of employee contracts. Paraphrasing your question, you ask: Does this policy improperly provide more rights than "those provided under state law"?

RESPONSE
As explained more fully below, the LRSD policy is generally consistent with state law, but it also contains some provisions that are inconsistent with state law. The latter provisions would provide more rights than those provided under state law, and therefore, are invalid.

DISCUSSION
1. Hearings before LEARNS. Before the LEARNS Act, the Teacher Fair Dismissal Act of 1983 and the Public School Employee Fair Hearing Act required notice and hearing upon request if certain school employees, such as teachers, were recommended for nonrenewal. Any such recommendation of nonrenewal was required to be made at least 30 days before the next contract period.

2. Hearings after LEARNS. In 2023, the LEARNS Act repealed both the Teacher Fair Dismissal Act and the Public School Employee Fair Hearing Act. Although the LEARNS Act still requires notice and hearing if an employee is recommended for termination, it does not provide employees with a right to a hearing concerning the nonrenewal of a contract or recommendation for nonrenewal. Nor does it require notice to an employee whose contract will be nonrenewed, unless that employee is a teacher on "intensive support status" under A.C.A. § 6-17-2807. Thus, in general, a school need not notify an employee whose contract will not be renewed before letting the employee's contract expire. The LEARNS Act prohibits a public school from "adopt[ing] a personnel policy or incorporat[ing] terms into a personnel contract that provides more rights to personnel than those provided under state law in effect during the term of the personnel contract," but it does not allow public schools to deny "personnel rights provided by other laws, including without limitation due process."

3. State law regarding grievance procedures. LEARNS did not repeal A.C.A. § 6-17-208, which requires "[e]ach school district [to] have a written grievance procedure" that allows "[a]ll school employees…the right to file grievances and have those grievances heard." This statute "allows all school employees to challenge or appeal any disciplinary actions or other grievances through the administration and may eventually appeal to the school board."

4. Nonrenewals and grievances. So the question is whether the nonrenewal of a teacher's contract is subject to a hearing under A.C.A. § 6-17-208. It would be if the nonrenewal were considered a "grievance," which is defined as "any concern related to personnel policy, salary, federal laws and regulations, state laws and rules, or terms or conditions of employment raised by an employee." The definition of "personnel policy" explicitly includes a "teacher's employment" and "nonrenewal." Given this broad definition of a "grievance," the nonrenewal of a school employee's contract is almost certainly considered a "grievance." Therefore, to the extent that a school employee knows about the nonrenewal of his or her contract before the expiration of the terms of the contract, that employee could, in my opinion, take the nonrenewal up through the school's grievance policy as a "grievance," assuming that grievance policy complies with state law. And, in my opinion, a public school that follows this statutory process for grievances would not violate or conflict with the LEARNS Act.

Nevertheless, a public school or school district cannot incorporate notice provisions concerning nonrenewals into an employee contract without violating the LEARNS Act because no state law requires such notice. Therefore, if the grievance policy required such notice, that policy would violate LEARNS's provisions by "provid[ing] more rights to personnel than those provided under state law."

5. LRSD's Section 3.23. The foregoing analysis indicates that LRSD's policy is only partly consistent with state law.

You have provided me Section 3.23, "Licensed Personnel Grievances," from what appears to be LRSD's grievance procedures as adopted on November 19, 2018, and last revised on April 20, 2020. This document provides for informal resolution with an immediate supervisor and then, if "the grievance is not resolved to the grievant's satisfaction through informal discussions," a three-level formal grievance procedure: "Level One – Immediate Supervisor"; "Level Two – Superintendent"; and "Level Three – Appeal to the LRSD Board of Directors." The grievance procedure, under 3.23(B), expressly excludes "from this grievance procedure" "recommendations for nonrenewal, terminations, or suspensions under the Arkansas Teacher Fair Dismissal Act (A.C.A. § 6-17-1510) and the Public School Employee Fair Hearing Act (A.C.A. § 6-17-1705)," which are instead "governed by the requirements of those statutes."

It thus appears the policy has not been updated since the LEARNS Act became law because the LEARNS Act repealed those statutes. Therefore, some of the out-of-date language causes the grievance policy to conflict with A.C.A. § 6-17-208. For example, grievances related to nonrenewals skip the "lowest possible administrative level" required by § 6-17-208(a)(1), (b)(1) and move a teacher straight to "Level Three – Appeal to the LRSD Board of Directors." Based on these facts, a court could find that a public school violates A.C.A. § 6-17-208 when its grievance procedures do not meet the minimum statutory standards. Additionally, a court could find that the public school violates the LEARNS Act when it has adopted a personnel policy or incorporated terms concerning hearings and notice into a personnel contract that provide more rights than those provided under state law. So a public school should treat recommendations for nonrenewals as it does other "grievances" under its grievance policy and begin at the "lowest possible administrative level."

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General