Little Rock School District Attorney Responds to My Inquiry of...the Little Rock School Board? (Then I to Him/Them)

Chris Heller, attorney for the Little Rock School District, sent me the following, which he sent to members of the Little Rock School Board regarding my inquiry as to board's policy on supporting/opposing proposed legislation.

Thursday, March 24, 2011 2:32 PM

Board Members and Dr Holmes - On February 24, I reported to the LR Regional Chamber of Commerce in the morning, and to the LRSD Board in the evening, that the best course of action for LRSD to take in response to the 2010 census and Ark Code Ann 6-13-631 would be to make only the changes necessary to comply with the "one person, one vote" principle of the Constitution and not to make any changes which would jeapordize LRSD's compliance with the Voting Rights Act. I also advised that only those members whose terms end in 2012, and not the entire Board, would be required to stand for election that year. My advice was based on the following facts:

1. The LRSD election zones were established by federal court order in 1986 after the annexation of territory from PCSSD. The federal court held that the zones complied with the Voting Rights Act (I don't know why the Chamber thinks the zones were established by LRSD in 1994);

2. We won a Voting Rights case which challenged our rezoning following the 1990 census in part because we made minimal changes to the court approved zones (Judge Wright's opinion came in 1993 and the Eighth Circuit affirmed in 1995); 

3. Following the 2000 census we made only the changes necessary to comply with "one person, one vote" and there was no challenge to the new zones. Only those board members whose terms expired in 2002 stood for election that year;

4.  Because of LRSD's compliance with the Voting Rights Act, Arkansas law does not require that all board positions be filled by election in 2012.

Last Friday, each of you received from the LR Chamber the attached "Call to Action". The Chamber urged its members to support HB 2140, which would do primarily  two things; 1) require a district-wide election in 2011 to determine how LRSD (and other districts in the state) would be zoned (7 single member zones, 5 single member zones or 5 single member zones with 2 at large members); and 2)  require that "all positions" on the board "shall be up for election" in 2012. Setting aside the question of whether it makes sense to displace school board members around the state who were just elected to three, four or five year terms, and the question of whether a group which wants to change election zones should simply work to elect board members who feel the same way, HB 2140 could have created significant voting rights and equal protection issues for LRSD. To illustrate, the case against LRSD under HB 2140 might make the following points:

1. LRSD's use of seven single member zones for school board elections was established by federal court order and complied with the Voting Rights Act. There was no need to change it.

2. A few years ago, LRSD elected a majority African American board for the first time in its history.

3. 2010 census numbers show that four of the seven current LRSD board zones contain more than 60% African American population.

4. At large election zones have been recognized in Voting Rights cases as a device to diminish African American voting strength.

5. The combination of changing to a 5/2 election scheme and replacing all current board members could have the result, if not the purpose, of eliminating the African American majority on the LRSD board. 

In short, HB 2140 would have caused significant disruption in LRSD (how much confidence could a superintendent candidate place in things he or she is told by board members who would be gone the following year?) and other districts, and would have created within LRSD the potential for legal problems which otherwise would not exist. After speaking with Dr Holmes, who shared my view that most, if not all, LRSD board members would be against HB 2140, I decided to work against the bill.  Notwithstanding the Chamber's "Call to Action", which made it clear that the Chamber had the bill, it was not available on the General Assembly website for days afterward.  Mark Hudson, the House Ed staff member who distributes such biils, did not have a copy on Friday (see attached Hudson email). I finally got a copy from Rep. Hyde on Saturday before the Tuesday vote (see attached Hyde email). The House Education Committee did not get a copy until just before they were asked to vote on it ( you can watch the March 22 House Ed meeting - afternoon session -  at arkansashouse.org ).

Even though I had previously talked with Mr Newton about my view that the entire LRSD board would not be "up for election" in 2012, and later said the same thing at a LR Chamber meeting, his effort to be "deliberately public and transparent" did not include contacting me about HB 2140 or sending me a copy of it. Mr Newton wonders whether John Walker and I were "working in concert to oppose the bill". For the record, I did not work in concert with Mr Walker and had no idea that he planned to testify against the bill, although I'm glad he did  CH

PS - I'm going to send a copy of this email to Mr Newton.

He did, so I responded to him and the board.

Sat, Mar 26, 2011 at 6:29 PM

Mr. Heller and Members of the Little Rock School Board,

I regret that my simple inquiry as to the board's policy on supporting/opposing proposed legislation may have cost the district any additional legal fees. As with most organizations - public, private and nonprofit, I thought the district would have a clear, written policy on the matter.

I'm still awaiting that answer.

As he wrote he would, Mr. Heller kindly shared with me his response email to you regarding "Gary Newton, LR Chamber and HB 2140."

First, I believe a little perspective is in order. As a private citizen, I started down this road less than a month ago with a proposed Public School District Accountability Act, which in my opinion, would empower the people in the governance of their public school districts. The proposed act featured five initiatives, including 1) recall of school board members, 2) changing school election date from September to the General, 3) giving the people, not incumbent school boards, the power to determine how they will be represented in a zoned district, 4) following the February 8, 2011 directive of Arkansas School Board Association to hold all new elections following redrawing of zones based on the 2010 census, and 5) posting of qualifications, responsibilities and filing requirements of school board candidates/members on local school district and Arkansas Department of Education websites.

Representative Barry Hyde had already filed a bill (HB 1551) on recall and I was fortunate that he agreed to also sponsor 2 (but to the Primary instead of the Genera), 3 and 4.

Ultimately, after amendments, only 2, 3 and 4 survived. Two (under HB 1551) was referred to interim study, and 3 and 4 (under HB 2140) was unanimously sent to interim study by the House Committee on Education, which effectively killed the time-sensitive measure.

In other words, every one of my citizen-initiated measures were resoundingly defeated at the legislature. Obviously, I'm not very good at this.

I addressed many, if not all, of the issues raised by Mr. Heller regarding HB 2140 in my previous correspondence with you and Mr. Walker. So, there is no point in further beating this decidedly dead horse, unless you would like further explanation on any issue.

If I read Mr. Heller's recommendation correctly, the issue at hand is now whether or not you will abide by the directive issued in the February 8, 2011 Memorandum from Dan Farley, Executive Director of the Arkansas School Board Association (ASBA). If you have not read it, I've provided a link. The memo was drafted by the ASBA as a result of several meetings hosted by the Arkansas Department of Education (ADE) and including the Governor's office, the Attorney General's office, the Secretary of State's office, and the Arkansas Association of Educational Administrators (AAEA), all of whom I have cc'd on this email.

Both in reading this memorandum sent to school board members, superintendents and co-op directors and in talking with Mr. Farely in person, these are not recommendations, but instructions for what zoned districts "must do to meet the obligations of state and federal law."

The instructions do not exempt any district in the state, including the Little Rock School District.

It's apparent that I, as a citizen of the district, disagree with Mr. Heller's recommendation. I believe that it runs counter to "one person, one vote" if any person is represented by a school board member for whom they did not have the opportunity to vote.

However, if you wish to follow Mr. Heller's recommendations, I urge you to publicly make your best case to the people of the district and to the ASBA, ADE, Governor, Attorney General, Secretary of State and AAEA.

Thank you for your consideration.

Sincerely,

Gary Newton