Lawsuit challenges constitutionality of Arkansas school voucher program

Gov. Sarah Huckabee Sanders and Education Secretary Jacob Oliva talk about the LEARNS Act and what it means for K-12 education in Arkansas at an invitation-only town hall in El Dorado on June 6, 2023. (Randall Lee/Courtesy of the Governor's Press Office)

A lawsuit filed in Pulaski County Circuit Court late Friday challenges the constitutionality of Arkansas’ new school voucher program and asks a judge to block its enforcement.

Created through the LEARNS Act , a 2023 law that made wide-ranging changes to the state’s education system, the Educational Freedom Account Program provides state funds for allowable educational expenses, including private school tuition. The EFA program is being phased in over three years, at which time it will be available to all students.

For fiscal year 2025, $97.5 million has been appropriated for the state’s voucher program. Lawmakers approved a $65.8 million increase for the program during this year’s fiscal session . A Department of Finance and Administration official told lawmakers last year that the EFA program could cost $175 million its third year .

More than 5,400 students participated in the first year of the program. Participation will be capped at about 14,000 students for the 2024-2025 school year. Around $6,600 in state funding was available to students last year. That will increase to nearly $6,900 this year.

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Gwen Faulkenberry, Special Sanders, Anika Whitfield and Kimberly Crutchfield filed the lawsuit against Gov. Sarah Huckabee Sanders, Education Secretary Jacob Oliva, the Arkansas State Board of Education and Secretary of the Department of Finance and Administration Secretary Jim Hudson. The plaintiffs are parents and guardians of public school students, including one special-needs first-grader.

The complaint contends that the LEARNS Act violates the Arkansas Constitution by transferring taxes intended to benefit public schools to the EFA program to cover things like private school tuition, uniforms and supplies. The state Supreme Court “has consistently upheld the Constitutional requirement that public school funds may not be used for non-public school purposes,” plaintiffs argue.

“The LEARNS Act represents a radical and unconstitutional departure from a public school system that has endured since the establishment of the State of Arkansas,” the complaint states. “If implemented, the LEARNS Act will drain valuable and necessary resources from the public school system and create a separate and unequal school system that discriminates between children based on economic, racial and physical characteristics and capabilities.”

Arkansas’ Constitution requires the state to maintain a “general, suitable and efficient system of free public schools,” which plaintiffs argue excludes, by its plain language, other systems that aren’t free or public.

Plaintiffs contend the voucher program violates a Constitutional provision that prohibits “money or property belonging to the public school fund” from being used for other purposes, as well as a one that establishes an ad valorem property tax of 25 mills “to be used solely for maintenance and operation” of common schools.

Furthermore, plaintiffs argue that using the 25-mill tax to support the voucher program violates a constitutional requirement that “no moneys arising from a tax levied for any purpose shall ever be used for any other purpose.”

The complaint argues that recipients of voucher funding have received illegal exactions they and should be required to reimburse the state for any amounts received under the voucher program.

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