Arkansas panel OKs voucher program with ‘substantive change’ for public schools

Administrative Rules Subcommittee of the Arkansas Legislative Council meets to discuss education-related rules on July 30, 2024. (Mary Hennigan/Arkansas Advocate)

Arkansas public schools will soon have an opportunity to collect money from the state’s new school voucher program, according to a rule passed out of a state subcommittee Tuesday.

With minimal discussion, the Administrative Rules Subcommittee of the Arkansas Legislative Council unanimously reviewed and approved a permanent rule governing Education Freedom Accounts, which included a “substantive change” from previously approved emergency rules .

Under the revised rule, public schools will be listed as “education service providers” and will be eligible to receive funding reimbursements for services given to non-public school students. Public institutions were previously excluded from this distinction.

Created under the LEARNS Act , the Educational Freedom Account program provides up to 90% of the annual per-student public funding rate for use on allowable education 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. The program enters its second year with this school year.

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Critics argue that the program takes funding for public education and funnels it into private schools. A lawsuit filed in June challenges the constitutionality of the EFA program and asks a judge to block its enforcement. No hearings have been set in the case.

“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,” the complaint stated.

On Tuesday, Andrés Rhodes, chief legal counsel for the Arkansas Department of Education, presented the amended rule and told lawmakers the change would allow schools to participate in the EFA program by receiving reimbursements for services provided to non-public school students.

For example, a public school or district would be able to receive credit for providing services to homeschooled students who occasionally attend classes, Rhodes said. Other services, such as tutoring, may also qualify public schools to receive funds.

Rhodes said state law “does not exclude public schools from participating in the program.”

The change stemmed from a public comment the state education department received in August 2023, according to a summary document of all community input provided Tuesday.

Jim Buie, superintendent of the Fouke School District in southwest Arkansas, wrote that he wanted “a more level playing field for public schools.”

“A mechanism by which we can charge those who have elected to opt out of our public education system when they choose to utilize our supports and services seems like a fair way to give public schools a fighting chance in the competitive world of education,” Buie wrote.

The superintendent described several programs public schools offer that EFA participants may use, such as mental health providers, medical clinics, instructors in high-level math and science classes and award-winning educators in agriculture, music, athletics and other programs.

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“When a public school develops and maintains supports and programs that are desirable products for parents/students, they should not be excluded from billing for those desirable services when a non-public school student (for whom we no longer receive funding) desires to participate,” Buie wrote.

In addition to adding public schools as an “education service provider,” Rhodes said the updated rule includes new definitions, additional homeschool options like micro schools and learning pods, accountability criteria and language to grandfather in students with special needs, among other things.

Chair Kim Hammer, R-Benton, said the subcommittee had the full authority to approve the rule with its changes on Tuesday, and no further changes are expected to be made. The full Arkansas Legislative Council will consider the final rule in August, he said.

Gender-based rule

When the Department of Education announced it sought to remove a proposed rule regarding student overnight travel and use of lavatories from the agenda, lawmakers shared concerns.

The proposed rule aims to implement Act 317 of 2023 , which defines sex on the basis of biology , ensures public schools designate restrooms based on sex, and requires students to share sleeping quarters with students of the same sex or be provided with single-occupancy sleeping quarters.

The Department of Education is currently working to include language that allows a coach of the opposite sex of team players to enter a lavatory for a specific time period, as long as someone of the opposite sex is accompanying the coach.

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The rule aims to change the purpose of the lavatory for a limited scope and specific time.

Republican Sen. Missy Irvin of Mountain View questioned whether the subcommittee would be able to approve the rule before school started in August as to not disrupt sports at the beginning of the year.

Rep. Mary Bentley, R-Perryville, said she didn’t understand the delay and asked if the rule could be amended in committee to include necessary changes and voted on the same day.

“We should have had this ready for last school year,” Bentley said. “Now we’re getting ready for another school year and we’re not ready yet. I think it’s very wrong for our school districts to not have these rules in place so they can get ready in time for school.”

Rhodes told lawmakers the Department of Education was working to further implement flexibility into the rule based on public comment it received. Under a potential change, the person of the opposite sex to the coach would not have to be a school employee, Rhodes said.

Speaker of the House Matthew Shepherd, R-El Dorado, said the proposed rule is currently a direct conflict to existing state law.

“I understand that there have been a number of schools and coaches that are concerned because they will no longer, under certain circumstances, be able to effectively meet with a team at halftime,” Shepherd said. “But ultimately, the law is the law. Right or wrong, that’s where we’re at.”

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