A lawsuit is underway challenging the legality of Arkansas’ school voucher program, where families receive tax dollars to finance their kids’ private, religious or homeschool education.
Both the group suing to get rid of vouchers and the group fighting to keep them think they can win. On one side you have Richard Mays. He's a 60 year veteran of the law with a small practice in Little Rock.
“I try not to take cases that I dont have a lot of confidence in,” he said. “I try to prepare them in a way that will obtain a good result for my clients.”
Mays is suing to get rid of so-called “education freedom accounts,” the pile of tax money available for parents to enroll their children in private schools. Some people call them vouchers. They are the bulk of the Arkansas LEARNS Act, passed by lawmakers last year, and perhaps its most controversial provision. Mays is representing four plaintiffs, all parents and educators who want the program gone.
“I have no objection to private schools,” he said. “But you certainly can't take 100 million dollars out of the public schools and not have an impact. And it would have a negative impact.”
The crux of his argument is this: Education Freedom Accounts violate the Arkansas Constitution. Specifically, Article 14 section 1. Here's the quote at the heart of the case:
“The State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education.”
Mays says, that's enough to say that vouchers should be declared illegal.
But Joe Gay, a lawyer working pro-bono to defend the voucher program, sees it differently.
“The Arkansas constitution says the legislature has to create a system of free public schools,” he said. “Arkansas has done that. But that's a floor on what the legislature has to do. But, it can do more than that.”
Both sides in this case are leaning some on court precedent, but more on the interpretation of the state constitution itself. And they both say the language of Article 14 proves their side.
Gay isn't going alone in his quest to protect the voucher system. He is represented by the Institute for Justice, a non-profit law firm that specializes in defending voucher programs nationwide. The group has won similar lawsuits in West Virginia where the state supreme court upheld the legality of the voucher system despite or because of language in the constitution. Kentucky’s high court also made the same call.
Their Arkansas court filing contains affidavits from parents expanding on the perceived value of vouchers. These are mothers of learning disabled students who say their children thrive at the private schools receiving taxpayer funds.
Mays says this is all irrelevant. The lawsuit should just be about the constitution.
“I think it injects a human relations type aspect into the case that will make the court more sympathetic to them,” he said. “ I think a court will agree with us that this is not the issue.”
He says if you don't like the constitution you should amend it.
Mays also says the Institute For Justice doesn't have standing to argue this lawsuit. Usually, cases against programs created by laws are defended by the state Attorney General.
On the other hand, Gay says if the voucher program was cut off by a court injunction, it could be “devastating.”
“Families have received these accounts and they have made plans for the upcoming school year based on these accounts,” he said. “And so it's hard to overstate how catastrophic it would be to the pull the rug out from under all of these families.”
But, this lawsuit is not likely to be resolved soon. It could spend years worming its way up the state court system, an ongoing debate about what we are owed as taxpayers living under the state constitution.
In a statement, Attorney General Tim Griffin said: “I appreciate the support of the Institute for Justice and EdChoice, and I will continue to vigorously defend the LEARNS Act.”
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