# Appendix — Wilson v. Huckabee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1383%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2003 - **Citation:** 538 U.S. 1035 ## Text nTime I Se eee seenaeeneteeena eterna adam atieaaamnmmmmannmeiimliiiiiiiniie aie ete Supreme Court, U.S. FILED 0214 51 Mar 1 9 2003 No. @PPICE OF THE CLERK &) IN THE SUPREME COURT | OF THE UNITED STATES | J. L. WILSON, ROY C. LEWELLEN, DON TRIMBLE AND E. DION WILSON, Counsel for the Plaintiff class represented by the Lake View School District No. 25, Phillips County, Arkansas, et. al., Petitioners v. MIKE HUCKABEE, Governor, et. el. Respondents On Petition For A Writ of Certiorari To The Supreme Court of Arkansas APPENDICES TO PETITION FOR A WRIT OF CERTIORARI EUGENE G. SAYRE Counsel of Record Jack, Lyon & Jones, P.A. 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 (501) 375-1122 Special Counsel for Petitioners VOLUME 2 eleeinhtta eat aiaied tal ci aan tee ihe TABLE OF APPENDICES J. L. WILSON, ROY C. LEWELLEN, DON TRIMBLE AND E. DION WILSON, Counsel for the Plaintiff class represented by the Lake View School District No. 25, Phillips County, Arkansas, et. al., Petitioners v. MIKE HUCKABEE, Governor, et. el. Respondents On Petition For A Writ of Certiorari To The Supreme Court of Arkansas Appendix1: Opinion of Arkansas Supreme Court, i | App. 1 Appendix 2: Final Order of Chancery Court of Pulaski County, Arkansas, ET Oy OE 8b bos vo dedaeacanaes App. 77 Appendix 3: Opinion of Arkansas Supreme Court, Menor sithes hin snd CERT ETe App. 132 Appendix4 Appellants’ Attorneys’ Separate Petition for Rehearing on Attorneys’ ah EEE ETT TTT OeT TT ETT App. 156 cei -ll- Appendix5 Lawor Chancery Mandate Arkansas Supreme Court December 19, 2002 ........... App. 167 Appendix 6 Appellants’ Attorneys Motion For the Court to Take Judicial Notice of Current Attorney Fees Awarded In Federal ERISA Litigation ....... App. 168 Appendix 7 Suggestion of Disqualification . . . App. 177 Appendix8 Letter Order on Suggestion for Disqualification Arkansas Supreme Court ....... App. 183 Appendix 9 Appellants’ Motion Requesting Disqualification of Certain Specific Elected and Appointed PUNE «is cise esetpcng eee App. 184 Appendix 10 Letter Order on Motion Requesting Disqualification of Certain Specific Elected and Appointed PO 5 0 ssi tig a App. 194 Appendix 11 Attachment A to Compilation of Attorney Fee Awards in Common Fund/Common Benefit Class Action Cases .................. App. 195 Appendix 12 Letter Order of Chancellor Kilgore Regarding Attorneys’ Fee Issues dated May 3,2002 ........... App. 204 App. 1 LAKE VIEW SCHOOL DISTRICT NO. 25 of Phillips County, Arkansas, et al., Appellants v. Governor Mike HUCKABEE; Senator Mike Beebe, President Pro Tempore of the Senate; Representative Shane Broadway, Speaker of the House; State Auditor Gus Wingfield; State Treasurer Jimmie Lou Fisher; Director of the Arkansas Department of Education Raymond Simon; Arkansas State Board of Education Members Luke Gordy, William Fisher, Jonell Caldwell, Anita Yates, Lewis Thompson, Claiborne Deming, Richard Smith, Betty Pickett, Robert Hackler, and Shelby Hillman; and Director of the Arkansas Department of Finance and Administration Richard Barclay, Appellees; and Rogers School District No. 30 and Bentonville School District No. 6 of Benton County, and Little Rock School District of Pulaski County, Intervenors/ Appellees 01-836 91 S.W.3d 472 Supreme Court of Arkansas Opinion delivered November 21, 2002 A ee from Pulaski Chancery Court; Raymond Collins ilgore, Chancellor; affirmed in part; reversed in part; attorney's fees affirmed as modified; stay issued. COUNSEL E. Dion Wilson; Don Trimble; and Letcellen & Associates, for appellant class; and Jack, Lyon & Jones, P_A., by: Eugene G. Sayre, special attorney for appellant class. Mark Pryor, Att'y Gen., by: Dennis R. Hansen, Depu Att'y Gen.; Brian G. Brooks, Sr. Ass't Att'y Gen.; and Timothy G. Gauger, Ass't Att'y Gen., for State appellees. Matthews, Campbell, Rhoads, McClure, Thompson & Fryauf, P.A., by: David R. Matthews, for intervenors-appelilees Rogers and Bentonville Public School Districts. Friday, Eldredge & Clark, by: Christopher Heller and John C. Fendley, for intervenor-appellee Little Rock School District. Mitchell, Blackstock, Barnes, Wagoner, Ivers & Sneddon, ee App. 2 by: Clayton R. Blackstock and Mark Burnette, for amicus curiae Arkansas Education Association. Kaplan, Brewer, tig A & Haralson, P.A., by: Regina Haralson, tor amicus curiae Arkansas Public Policy Panel and Rural School and Community Trust. Dudley & Compton, by: Cathleen V. Compton, for amicus curiae Arkansas Policy Foundation. Lavey & Burnett, by: John L. Burnett, for amicus curiae. Arkansas Advocates for Children and Families. Barrett & Deacon, A Professional Association, by: D.P. Marshall Jr., Leigh M. Chiles, and Brian A. Vandiver, for amicus curiae Arkansas State Chamber of Commerce, Inc., and Associated Industries of Arkansas, Inc. OPINION LEAD ROBERT L. BROWN, Justice. This is an appeal from the final order of the Pulaski County Chancery Court entered ey 25, 2001, which concluded that ‘the current school-fundin system is unconstitutional under the Education Article (Article 14, § 1) and the Equality provisions (Article 2, §§ 2, 3, and 18) of the Arkansas Constitution.’ The trial court also awarded counsel for Lake View School District No. 25 and the resulting class total attorneys’ fees in the amount of $9,338,035. We affirm the trial court’s order regarding the unconstitutionality of the to excess debt service as a credit against each school district's uniform rate of 25 mills. We affirm the ge of attorneys’ fees but modify the amount to an award of $ in the amount of $309,000. This case has been in liti gation for more than ten years. . Amendment 80 to the Arkansas Constitution which became effective July 1, 2001, designated all courts as “circuit courts,” iii App. 3 On August 19, 1992, Lake View School District No. 25, school district officials, and certain individuals residing in Phillips County (hereinafter Lake View) sued the Governor of the State, the State Treasurer, the S eaker of the House of Representatives, the President of the Senate, Officers of the State Department of Education, and the State Board of Education (hereinafter referred to collectively as the State). The complaint prayed for (1) a declaration that the school- funding system was unconstitutional under both the United States Constitution and the Arkansas Constitution, and (2) an injunction against implementing the unconstitutional system. On November 9, 1994, then-chancery judge Annabelle Clinton Imber found that the school-funding system did not violate the United States Constitution, but that it did violate the Education Article (Article 14, § 1) and the Equality rovisions (Article 2, §§ 2, 3, and 18) of the Arkansas onstitution. In December 1994, Judge Imber modified her November order slightly with two additional orders. For purposes of this opinion, the three orders will be referred to as the 1994 order. The chancery judge stayed the effect of her order for two years to enable the Arkansas General Assembly to enact a constitutional school-funding system in accordance with her opinion. In 1995, the vacant judge denied Lake View counsel oceanic g fees. On March 11, 1996, this court dismissed an appeal oy the State contesting the 1994 order based on the fact that the order was not final, since the two- fag stay was still in effect. See Tucker v. Lake View School Dist. 0. 25, 323 Ark. 693, 917 S.W.2d 530 (1996) (Lake View I). In Lake View I, we expressl referred to the fact that Lake View’s rights in the matter had not been concluded and that further hearings before the trial court were necessary before the trial court’s order could be placed into execution. At the expiration of the two-year stay near theend of calendar year 1996, neither per View nor the State appealed from the trial court's 1994 order. During its General Session in 1995, the Arkansas General Assembly enacted several acts for the ape gg of establishing a new school-funding system. Specifically, Acts 2 The style of this case reflects the appellees as identified in the State’s notice of appeal. App. 4 916 and 917 were enacted, as well as Act 1194, which appropriated over $1.3 billion in school funding for the first year of the next biennium and more than $1.4 billion for the second year of the biennium.’ On August 22, 1996, following Lake View’s third and fourth amended complaints, the trial court certified the Lake View class, as requested by Lake View, which included all school districts in the state, students and parents of students in all school districts, school board members of all school districts, and school district taxpayers who support the system. On November 5, 1996, the people of Arkansas ght by majority vote Amendment 74 to the Arkansas onstitution which fixed a uniform rate of 25 mills for each school district as the ad valorem property tax rate for the maintenance and operation of the public schools and permitted increases in the uniform millage rate as “ variances” to enhance public education. At its next General Session, the General Assembly enacted new legislation providing for public school financing, including Act 1307 of 1997, codified in part at Ark. Code Ann. §§ 6-20-302 et seq. (Repl. 1999). Act 1307 repealed portions of Act 917 of 1995 but, in addition, made legislative findings relating to educational adequacy, defined a “uniform rate of tax” under Amendment 74, defined terms used in the school- funding formula, and provided incentives for school districts to encourage millage assessments to enhance public education. The General Assembly also enacted Act 1108 of 1997, now codified at Ark. Code Ann. §§ 6-15-1001 through 1011 (Repl. 1999), which set educational goals, and Act 1361 of 1997, which appropriated funds totaling over $1.5 billion for each year of the next biennium for grants and aid to the state’s school districts. In 1998, there was an effort by Lake View and the State to settle the lawsuit. The trial court, however, declined to >This court subsequently held that Act 916 of 1995 was unconstitutionally adopted due to an alteration of the bill, which ran counter to its original purpose as stated in the bill’s title. See Barclay v. Melton, 339 Ark. 362, 5 S.W.3d 457 (1999). App. 5 approve the settlement.‘ On August 17, 1998, the trial court dismissed Lake View’s fourth amended complaint on the ounds that with Amendment 74 and the 1995 and 1996 egislative acts,.a new standard for public school funding had been implemented. Legislative acts are presumed to be constitutional, the trial court observed, and, thus, the fourth amended complaint and show-cause petition for why theState should rot be held in contempt of the 1994 order were moot. No attorneys’ fees were granted to Lake View counsel. The 1998 Dismissal Order was appealed to this court, and we reversed. See Lake View Sch. Dist. No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000) (Lake View II). In Lake View Il, we remanded the matter for a compliance trial to be held regarding the constitutionality of the post-1994 legislative acts and for a determination of attorneys’ fees. See id. In its 1999 General Session, the General Assembly mg pes peng funds for public education — more than $1.6 billion for the first year of the biennium and more than $17 billion for the second year. See Act 1392 of 1999. The General Assembly also enacted Act 999 of 1999, amending Ark. Code Ann. §§ 6-15-401 through 407, 6-15-419 through 422, and 6-15-1003 (Repl. 1999), and ——— Arkansas Comprehensive Testing Assessment and Accountability Program (ACTAAP) to assess and evaluate academic progress and performance in the public schools with an emphasis on reading and writing, literacy, and mathematics from the earliest grades. Prior to the compliance trial in 2000, a total of 144 school districts sought to intervene and align themselves with the State’s position that the post-1994 legislation had cured the constitutional deficiencies. The trial court denied the motions. In September and October of 2000, the trial court conducted 4In ,cnuary 1997, Judge Imber assumed her role as Associate Justice of the .irkansas Supreme Court. Chancellor Collins Kilgore was subsequently assigned the case. 5 For acomplete history of this case throu h March 2, 2001, refer to Lake View Sch. Dist. No. 25 v. Huckabee, 340 Ark. 481, 10 S.W.3d 892 (2000) (Lake View iT). App. 6 the compliance trial over nineteen days. Thirty-six witnesses testified, including some for a second time. One hundred and eighty-seven exhibits were introduced and considered. The porte a record was ninety-nine volumes and totaled 20,8 pages. On September 19, 2000, Lake View filed a revised petition for an award of attorneys fees in the amount of $32.5 million and for litigation costs of at least $200,000. On September 22, 2000, the Rogers and Bentonville School Districts filed a cross-complaint against the State in which they contended that the school-funding system was constitutionally inadequate. Judge Kilgore entered his final order on May 25, 2001, as already referenced, in which he declared the current school- funding system to be unconstitutional on the twin grounds of inadequacy «under the Education Article and inequality under the Equality provisions of the Arkansas Constitution. See Ark. Const. art. 14 § 1, art. 2, §§ 2, 3, 18. He further awarded Lake View’s counsel attorneys’ fees of $9,338,035 but denied their request for costs. I. Posture of the Parties Though Lake View prevailed on the core issue of the unconstitutionality of the post-1994 legislative acts, it filed the first notice of — on June 22, 2001, and raised issues including Judge Kilgore’s failure to deem Judge Imber’s 1994 order law of the case, the failure to classify desegregation money as state aid, the failure of the trial court to award a attorneys’ fees, the failure of the trial court to hold the State in contempt of court for failure to pops A with the 1994 order, and the failure of the trial court to order specific remedies. Little more than one hour later on June 22, 2001, the State appealed the 2001 order on both the constitutionality points and the award of attorneys’ fees. Over the ensuing year, the parties jockeyed for position on various issues such as who was the true appellant and who was the cross-appellant, who would prepare the abstract of testimony, and whether a separate brief on attorneys’ fees was warranted. This court concluded that Lake View was the appellant and the State was the cross-appellant, that the State could reabstract the testimony and record, and that Lake View was entitled to a App. 7 brief on the merits of the case as well as a brief on attorneys’ fees. The Rogers and Bentonville school districts were designated as Intervenors/ Appellees, as was the Little Rock School District. The three school districts intervened in support of the trial court’s conclusion that the school-funding system was unconstitutional on adequacy and inequality grounds. No other school districts intervened on appeal. The rulings and orders made by this court over the past year were memorialized in an opinion of this court. See Lake View Sch. Dist. No. 25 v. Huckabee, 349 Ark. 116, 76 S.W.3d 250 (2002) (per curiam) (Lake View III). This opinion included reference to the filing of amicus curiae briefs. With the permission of this court, the following groups filed amicus curiae briefs in this matter: the Arkansas Education Association (in support of the trial court’s order); the Arkansas State Chamber of Commerce, Inc. and the Associated Industries of Arkansas, Inc. (in support of the trial court’s order); Arkansas Advocates for Children and Families (in support of the trial court’s order); the Arkansas Public Policy Panel and the Rural School and Community Trust (in 6 et of the trial court’s order); and the Arkansas Policy Foundation (in support of the State’s position). II. School-Funding System At the time of the 2001 final order, there were 310 school districts in Arkansas. In Lake View II, this court a the school-funding system as it existed in 1994 as ollows: In 1994, school districts received approximately thirty percent of their revenue from local funds, sixty percent from state aid, and ten percent from federal funds. Lake View II, 340 Ark. at 484, 10 S.W.3d at 894. In his 2001 final order, Judge Kilgore presented what he described as a “simplified explanation” of the school- funding formula, which no party has contested. According to the trial court, under the formula, the State Department of Education first calculates a “base level revenue” which is determined by adding all state and local money available to all public schools throughout the state and dividing that figure by the average daily membership of all students statewide. The ussntincihabanniidiantenentieuiinians i Gili tat aie pat ca App. 8 base level revenue per student according to the 2001 order was $4535 for the 1996-97 school year. The State then calculates the local resource rate for students in each individual school district. This calculation is made by first determining the assessed value of personal, real, and utility pro erty within the school district, and then multiplying that igure by 98 percent. That figure is multiplied by the uniform rate of 25 mills pursuant to Amendment 74. The resulting number is then divided by the average daily membership of students in that school district which results in the local resource rate. If the local resource rate is less than the base level revenue per student ($4535 in 1996-97), the Department of Education will make up the difference through its Equalization Aid so that all school districts in the state will receive equal revenues per student under the formula.® The 2001 school-funding formula is essentially the same as what was in place in 1994, which Judge Imber described in her order. The principal differences are that in 1994 the Department of Education used a “charge” of 26.7 mills rather than the uniform rate of 25 mills pursuant to Amendment 74, which was approved two years later, and the average daily membership was “weighted” for fictional students to provide school districts with funds for students with special needs. The 1994 “weighted” —_ changed in 1995 with Act 1194, in which the Genera Assembly began providing —~ and aid for special needs through specific categories. In 1994 and in 2001, based upon the two court orders, the State sought to achieve equal o portunity for Arkansas students by equalizing per-student revenues statewide according to the base level rate. In 1994, as in 2001, individual school districts could pass additional millages assessed against district property to enhance local education, whether for — programs or for maintenance and operation. Indeed, Amendment 74 a contemplates variations in millages among school istricts for maintenance and operation: (a) The General Assembly shall provide * State statutes refer to “base local revenue per student” rather than “base level revenue” and “local revenue per student” rather than “local resource rate.” See Ark. Code Ann. § 6-20-303(5) & (15) (Repl. 1999). pos, el ee ls MRA OD ae App. 9 for the support of common schools by general law. In order to provide quality education, it is the goal of this state to provide a fair system for the distribution of funds. It is recognized that, in providing such a system, some funding variations may be necessary. The primary reason for allowing such variations is to allow school districts, to the extent permissible, to raise additional funds to enhance the educational system within the school district. It is further recognized that funding variations or restrictions thereon may be necessary in order to ae od with, or due to, other provisions of this Constitution, the United States Constitution, state or federal laws, or court orders. The State provides other funding and guarantees to school districts as well. For example, it provides what the trial court described as “additional base funding,” which arantees that all school districts will have a minimum state and local revenue per average daily membership that is at least eighty percent of the state and local revenue available for a school district at the ninety-fifth percentile.” The State also has programs to assist school districts with capital improvements, although the Growth Facilities Funding rogram for new buildings and equipment was phased out in 00T. What remains is General Facilities Funding for purchases of buses, computers, facility repairs, and maintenance, and Debt Service Funding to assist school districts in paying their debt service incurred for capital improvements. The trial court concluded that these programs for capital improvements were inadequate: 7 The school district at the ninety-fifth percentile is determined pursuant to Ark. Code Ann. § 6-20-303(17) (Repl. 1999), which provides: “Local school district at the ninety-fifth percentile” means, when ranking school districts in descending order by the total state and local revenue per average dail membership, a district which falls at the ninety-fift rcentile of the total number of pupils in attendance in a9 ol of this state, as described by 34 C.F.R. § 222.63 1994)[. PRR AE ERE RII 2 SER CTO App. 10 Even with these three programs, some districts cannot afford to build new buildings, complete necessary repairs or buy buses. Either the money is not available through General Facilities or Growth Facilities Funding or the district is too poor to incur sufficient debt to finance new construction and take advantage of the Debt Service Funding Supplement. The trial court further alluded to three formulas commonly used to determine whether disparities in funding among the school districts exist. In doing so, the court drew a distinction between revenues provided to the school districts by means of local and state funding and expenditures made by the school districts for the benefit of their students: 20. The purpose of the three formulas (Federal Range Ratio, Coefficient of Variation and GINI Index of Inequality) is to aid in analyzing disparities in funding for schools, school districts and students. But the question, as framed by the Supreme Court, is do unconstitutional disparities exist? Does the state fulfill its constitutional duty to provide each of its children an education adequate to give the child the Sapna 4 to realize his potential, enrich his life and be an asset to his community? The formulas do not provide an exclusive way to answer the questions. (Greene, Def. Ex. 68, fn 1) 21. Using expenditures in the calculation of the Federal Range Ratio, this court finds that there is more than a 25% difference between the 5™ and the 95" percentile in amount spent per = which is not in compliance with the 1994 Order. However, using revenues, the State is within the 25% range differential. Using expenditures in the Coefficient of Variation, the State is not in compliance. Using expenditures in the calculation of the GINI Index of Inequality, the State is in compliance. » App. 11 Finally, federal funds are distributed to the school districts for special-need students. These funds are dispersed outside of the school-funding formula and are not subject to the discretion of the school districts. III. Standard of Review Our standard of review in chancery cases has been often stated: We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancery court unless it is clearly erroneous. Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999); Office of Child Support Enforcement v. Eagle, 336 Ark. 51, 983 S.W.2d 429 (1999). A finding of fact by the chancery courtis clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999); RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). It is this court’s duty to reverse if its own review of the record is in marked disagreement with the chancery court's findings. Dopp v. Su ee) tine Co., 288 Ark. 18, 702 S.W.2d 393 1986 (citing Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Walt Bennett Ford v. Pulaski County Special Sch. Dist., 274 Ark. 208, 624 S.W.2d 426 (1981)). State Office of Child Support Enforcem’t v. Willis, 347 Ark 6, 11- 12, 59 S.W.3d 438, (2001). See also Wisener v. Burns, 345 Ark. 84, 44 S.W.3d 289 (2001). We initially must address which order we are reviewing. Are we reviewing Judge Imber’s 1994 order, Judge Kilgore’s 2001 order, both orders, or some combination of the two? We are convinced that what is on appeal is Judge Kilgore’s 2001 order in which he found the post-1994 esas Hr acts to be unconstitutional. In Lake View II, we referred to Judge Imber’s November 1996 orders, where she App. 12 found that the 1995 legislation constituted new facts and that law of the case would not apply to her 1994 order. We then remanded this case for a compliance trial on whether the post- 1994 legislation and Amendment 74 had corrected. the constitutional deficiencies. That is the task which Judge Kilgore undertook—an examination of thenew legislative acts in light of constitutional mandates. We further note on this point that Judge Imber’s 1994 order was never appealed after itreached finality, but that the State and Lake View specifically appealed from tse Kilgore’s order. Accordingly, it is the 2001 order that is before us for review. With this in mind, we turn to the merits of this appeal. Because the State’s points on appeal go to the heart of the matter, we will consider them first. IV. Justiciability The State devotes a substantial portion of its openin brief to its argument that the constitutionality of the school- funding system is a nonjusticiable issue for the courts. In the State’s view, the courts unduly interfere and even usurp ne orig te and executive branch functions when they declare school-funding systems unconstitutional. This, the State maintains, equates to a mandate to the General Assembly to appropriate more funds for the public schools which violates the separation-of-powers clauses in the Arkansas Constitution. See Ark. Const. art. 4, §§ 1, 2. Moreover, the State contends, citing Baker v. Carr, 369 U.S. 186 (1962), that the funding of our public schools is a political question involving —. policy and the interplay between the State and local school districts, which is best left to the General Assembly to resolve. In support of its nonjusticiability argument, the State directs our attention to five cases from other jurisdictions. See James v. Alabama Coalition for Equity, Inc, So. 2d__ (Alla. May 31, 2002) (not yet released for ublication); Marrero v. Commonwealth of Pennsylvania, 559 Pa. 14, 739 A.2d 110 (1999); Coalition for Adequacy & Fairness in School Funding v. Chiles, 680 So. 2d 400 (Fla. 1996); Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 672 N.E.2d 1178 (1996); City of Pawtucket v. Sundlun, 662 A.2d 40 (RI. 1995). As a corollary to this argument, the State urges that the courts should avoid getting “mired down” in endless litigation in an effort to supervise the public schools. App. 13 The State’s nonjusticiability point appears to have been raised for the first time in this appeal. The State implicitly claims that a violation of separation of powers is a question of subject-matter jurisdiction, which, of course, can be raised at any time or even ” this court on its own motion. See hae = v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). Regardless of this argument, we believe that the issue of nonjusticiability was laid to rest in a previous school- funding case in which we discussed the distinctive roles of the legislative and Ngee ay branches. See DuPree v. Alma Sch. Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983). The State never discusses DuPree in connection with this point, but in that case, we quoted favorably from a seminal school-funding opinion by the California Supreme Court: The a answer to the above arguments is simply that this court is not now engaged in—nor is it about to undertake—the “search for tax equity” which defendants prefigure. As defendants themselves recognize, it is the Legislature which by virtue of institutional competency as well as constitutional function is assigned that difficult and perilous quest. Our task is much more narrowly defined: it is to determine whether the trial court committed prejudicial legal error in determining whether the state school financing system at issue before it was violative of our state constitutional provisions aca equal protection of the laws insofar as it denies equal educational opportunity to the public school students of this state. If we determine that no such error occurred, we must affirm the trial court's judgment, leaving the matter of achieving a constitutional system to the body equipped and designed to perform that function. DuPree, 279 Ark. at 349-50, 651 S.W.2d at 95 (quoting Serrano v. Priest, 18 Cal. 3d 728, 759, n. 38, 557 P.2d 929, 946, 135 Cal. Rptr. 345, 362 (1976) (internal citations omitted)). We continue to adhere to our opinion in DuPree and its discussion of the respective roles of the legislative and judicial branches relative to school funding. Clearly, the roles are different, and we conclude that the two branches do not operate at cross App. 14 purposes in the school-funding context. We further observe that the Education Article in the Arkansas Constitution designates the State as the entity to eae a general, suitable, and efficient system of free public schools: Intelligence and virtue being the safeguards of liberty and the bulwark of a free an good government, 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. Ark. Const., art. 14, § 1 (emphasis added). That is not the case in the state constitutions in four of the five cases cited by the State as authority for its nonjusticiability position; rather, in those state constitutions it is incumbent upon the General Assembly to provide, maintain, or promote the public schools. See James v. Alabama Coalition for Equity, Inc., supra (“The legislature may by law provide for or authorize the establishment and operation of schools. . . .”); Marrero v. Commonwealth of Pennsylvania, supra (“The General fea’ shall provide for the maintenance and support of a thorou and efficient system of public education. . . .”); Coalition te Adequacy & Fairness in School Funding, Inc. v. Chiles, supra (“Adequate provision shall be made by law for a uniform —. of free public schools. . . .”); City of Pawtucket v. undlun, supra (“[I}t shall be the duty of the general assembly to promote public schools. . . .”). As a historical footnote, our own Education Article in our current state constitution was we in 1874 and amended by Amendment 53 in 1968. The four preceding constitutions in Arkansas all stated that the General Assembl would provide for public education. See Ark. Const. of 1836, art. VII; Ark. Const. of 1861, art. VII, § 1; Ark. Const. of 1864, art. VIII; Ark. Const. of 1868, art. IX, § 1. In 1874, however, that duty was expressly shifted to the State, which signaled, in our judgment, a deliberate change. The people of this state pag syne wanted all ee of state government to be responsible for providing a general, suitable, and efficient system of public education to the children of this App. 15 state. The State’s argument appears to be that not only are legislative acts resumed to be constitutional, see, e.g., Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999), but that they are per se constitutional and not subject to judicial review. Thus, the State’s ae is that the judiciary has no role in examinin school funding in light of the Arkansas Constitution, thou the annual appropriation constitutes almost one half of the State’s total budget and affects the vast majority of school- aged children in this State. We 77. the State’s argument. This court's refusal to review school funding under our state constitution would be a complete abrogation of rag? wipers responsibility and would work a severe disservice to the people of this state. We refuse to close our eyes or turn a deaf ear to claims of a dereliction of duty in the field of education. As Justice Hugo Black once sagely advised: “[T]he judiciary was made independent because it has... the primary responsibility and duty of giving force and effect to constitutional liberties and imitations upon the executive and legislative branches.” Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 870 (1960). Early on, this court announced: The | of the State, in the rightful exercise of their sovereign powers, ordained and established the constitution; and the only duty devolved upon this court is to expound and interpret it. State v. Floyd, 9 Ark. 302, 315 (1849). And then in 1878, we said: [We claim it to be a right and a duty to interpret our own Constitution and laws; and in local concerns, so long as they do notconflict with the Constitution and laws of the United States, they are supreme.... Graham v. Parham, 32 Ark. 676, 684 (1878). The Supreme Court of Kentucky has emphasized the need for judicial review in school- ding matters. The language of thatcourt summarizes our position on the matter, App. 16 both eloquently and forcefully, and, we adopt it: Before proceeding . . . to a definition of “efficient” we must address a point made by the appellants with respect to our authority to enter this fray and to “stick our judicial noses” into what is argued to be strictly the General Assembly’s business. ... [In this case] we are asked — based solely on the evidence in the record before us—if the present system of common schools in Kentucky is “efficient” in the constitutional sense. It is our sworn duty, to decide such ie when they are before us by applying e constitution. The duty of the judiciary in Kentucky was so determined when the citizens of Kentucky enacted the social compact called the Constitution and in it provided for the existence of a third equal branch of government, the judiciary. ... lo avoid deciding the case because of “legislative discretion,” “legislative function,” etc., would be a denigration of our own constitutional duty. To allow the General Assembly (or, in point of fact, the Executive) to decide whether its actions are constitutional is literally unthinkable. The judiciary has the ultimate power, and the duty, to apply, interpret, define, and construe words, phrases, sentences and sections of the Kentucky Constitution as necessitated by the controversies before it. It is solely the function of the judiciary to so do. This duty must be exercised even when such action services as a check on the activities of another branch of governmentor when thecourt’s view of the constitution is contrary to that of other branches, or even that of the public. hss chon ee A nin a ii App. 17 Rose v. Council for Better Education, Inc., 790 S.W.2d 186, 208-10 (Ky. 1989) (emphasis in original). For these reasons, we conclude the matter before us is justiciable. V. Adequacy We turn then to a review of the trial court’s declaration that the State’s school-funding system violates Article 14, § 1. To reiterate, § 1 of the Education Article reads: a oer, and virtue being the safeguards of liberty and the bulwark of a free and good government, 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. The specific intention of this amendment is to authorize that in addition to existing constitutional or statutory provisions the General Assembly and/or deg school districts may spend public ds for the education of persons over twenty-one (21) years of age and under six (6) years of age, as may be provided by law, and no other interpretation shall be given to it. [As amended by Const. Amend. 53.] The State first contends that this court did not remand this case in Lake View II for a compliance trial on adequacy under Article 14, but only for a trial on equality under Article 2, §§ 2, 3, and 18. The State is incorrect. In Lake View II, this court remanded the case to the trial court for a determination of whether the post-1994 legislation had satisfied the two constitutional deficiencies underscored by Judge Imber in her 1994 order. Judge Imber had concluded that the school- funding system failed as inadequate under Article 14 and inequitable under Article 2 of the Arkansas Constitution. Indeed, Lake View had filed a separate lawsuit ye eer school funding as constitutionally inadequate, and the tria court properly approved a nonsuit of that action by Lake View because adequacy issues were already before the court in the compliance trial. The State’s argument is meritless. App. 18 a. Adequacy Study. The —— of the State’s adequacy argument is that an adequate education in Arkansas is impossible to define. We observe that on this point, the Department of Education and the General Assembly may be at odds. In her 1994 order, a Imber stated that there had been no studies on the per- student cost to provide “a general, suitable and efficient” educational opportunity to Arkansas schoolchildren. In 1995, the Arkansas General Assembly seized upon that theme and called for an adequacy study: (c) The State Board of Education shall devise a process for involving teachers, school administrators, school boards, and parents in the definition of an “adequate” education for Arkansas students. (d) The State Board shall seek public guidance in defining an adequate education and shall submit proposed legislation defining adequacy to the Foint Interim Committee on Education prior to December 31, 1996. Act 917 of 1995, § 6(c-d). Despite this directive from the General Assembly, nothing has been done by the erg of Education, and pte years have passed. adie Kilgore echoed this in his 2001 order: Pursuant to Act 917 of 1995, and in order that an amount of funding for an education system based on need and noton the amount available but on the amount necessary to provide an adequate educational system, the court concludes an adequacy study is necessary and must be conducted forthwith. Stated simply, the fact that the Department of Education has refused to prepare an adequacy study is extremely troublesome and frustrating to this court, as it must be to the General Assembly. Indeed, the General Assembly in two 1997 Acts partially addressed what an adequate education in App. 19 Arkansas would entail: (c) The General Assembly finds that a suitable ee system of public education should: (4) Assure that: (A) All students graduating from high school are able to demonstrate a defined minimum level of competence in: (i) English communications, oral, reading, and writing; (ii) Mathematical skills; and (iii) Science and social studies disciplines[.] Act 1307 of 1997, § 1, codified at Ark. Code Ann. § 6-20- 302(c)(4)(A) (Repl. 1999). (a) Arkansas public school students will achieve competency in the basic core of knowledge and skills. (1) Students will meet required standards in academic areas of the curriculum that will serve as a basis for students to pursue immediate and lifelong educational and employment opportunities. (2) Students will achieve competency in language arts (writing, spelling, speaking, listening, and reading), math (computation, measurement, probability and _ statistics, problem solving, basic algebra, data analysis, and geometry concepts), science (physical and life science knowledge, and scientific problem App. 20 solving), and social studies (history, geography, economics, and civic education). (b) Arkansas public school students will apply practical knowledge and skills. (1) Students will meet required academic standards in those areas that will better prepare them for lifelong career opportunities. (2) Students will achieve competency at the local level in computer science and other technologies, practical economic and consumer skills, and be offered courses in vocational- preparation skills. (c) Arkansas public school students will demonstrate achievement. (1) Students will participate in the state assessments in the basic core of knowledge and skills as defined by the State Department of Education in the Arkansas Comprehensive Testing and Assessment Program. (2) The students’ numerical and tee caewes 0 scores on the High School roficiency Examination will be recorded on their transcripts, and the examination will be a part of the local school grading systern in a way to be determined by the local school district. (3) Each local school district shall report to the State Department of Education how it will incorporate the assessment system required by this subsection into the district's grading system. Act 1108 of 1997, § 3, codified in slightly different language at Ark. Code Ann. § 6-15-1003(a), (b), (c) (Kepl. 1999). In short, the General Assembly is well on the way to defining adequacy while the Department of Education, from all indications, has App. 21 been recalcitrant. Without the benefit of an adequacy standard developed 5° f mn Department of Education, both Judge Imber and Judge Kilgore looked to the case of Rose v. Council for Better Education, Inc., supra, for a definition of “efficient” education: We concur with the trial court that an efficient system of education must have as its goal to provide each and every child with at least the seven following capacities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices, (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market. Rose, 790 S.W.2d at 212. Many of the “Rose standards,” as we will call them, were adopted by our General Assembly with Act 1108 and Act 1307 in 1997, as has already been set forth in this opinion. In addition to the State’s argument that an adequate education is incapable of definition, it further contends that there is no correlation between enhanced school funding and better student performance. For example, it argues that more money has been spent on education since the DuPree decision App. 22 in 1983, and student performance has not appreciably improved. The State points to the ACTAPP program for assessing and evaluating student performance in English and mathematical skills as a positive step the State has recently taken. The State also fiercely contends that the Arkansas Constitution does not require pre-school a, Ie such as those, it contends, were mandated by Judge Kilgore. b. Educational Deficiencies. What theState does not address are Arkansas’ abysmal rankings in certain key areas respecting education. What follows is a compendium of the trial court's findings, which the State does not contest: I. Arkansas ranks fiftieth among the States in per capita state and local government expenditures for elementary and secondary education. II. Arkansas students scored several tenths below the national average in a standardized test (ACT) between 1990 and 1999. Il. Arkansas ranks lower than the national average for the percentage of adults twenty-five years and older who have graduated from high school. IV. Arkansas ranks forty-ninth in the country for the percentage of the population age twenty-five or older with a Bachelors degree or higher. V. Arkansas is tied for fiftieth in the country in percentage of adults with graduate degrees. VI. Arkansas’ fourth- and eighth-grade students are below the national average for —? in math, reading, science and writing. App. 23 VII. On the first ACTAPP test, —_ forty- four percent of the fourth-grade students tested were proficient in reading and only thirty-four percent of those tested were proficient in math. VIII. Arkansas’ per pupil revenue under the ry 2 peo, formula in school year 1996-97 was $4,535, while the national average was $5,923. IX. Arkansas ranks between forty-eighth and fiftieth among the states in teacher pay. Results of the State’s own Benchmark testing for eighth-grade students in April 2000 showed that only sixteen ercent were proficient or above in math statewide, and in the ittle Rock School District only nine percent were proficient or above. Arkansas has no funding for the remediation of individual students and no funding to train teachers for remediation after ACTAPP evaluations. With respect to Arkansas high school students entering state universities, fifty-eight percent needed remediation in either English or math. For the Rogers fe School students entering a university (including some students with 3.0 grade averages), — percent needed remediation in either English or math. Judge Kilgore concluded in his 2001 order that the “State has a remarkably serious problem with student performance.” We agree. Arkansas’ entry level for teacher salaries is last when compared to our eight bordering states, and Arkansas spends twenty percent less than the national average for teachers across the board. The entry level salary for Arkansas school districts bordering Memphis, Tennessee, was about $5,695 less than that offered in Memphis school districts, and for more experienced teachers the differential was almost $6,000. A similar disparity exists for beginning salaries between school districts in Texarkana, Arkansas, and Texarkana, Texas. Arkansas school districts pay about $4,000 less than those in App. 24 Texas. Serious disparities also exist in teacher salaries among school districts within the State of Arkansas. One example given by the trial court was the science teacher with two masters degrees and forty-one years’ teachin experience receiving a salary of $31,500 in the Lake View School District, while a teacher with comparable degrees and experience received $43,524 in the Fort Smith School District. Poor school districts with the most ill-prepared students are losing their teachers due to low pay. Both recruitment and retention of teachers are difficult in those districts. The Bentonville School District, which is not impoverished, will lose fifteen percent of its teachers in the next three years due to retirement. Low pay and competition from the private sector present real obstacles to teacher recruitment in that district. Dr. Raymond Simon, Director of the Department of Education, had this to say about the salary crisis: MR. HELLER: And I wanted to ask you whatelse you -- you think we should be doing in Arkansas to address students’ above and beyond ACTAPP? DR. SIMON: I think we’re facing -- I think the most critical thing we need to address now is the issue of teacher's soleion. ACTAAP, Smart Start, Smart Step, all of that depends primarily on the classroom teacher to function. And we are beginning to see a crisis now in our State of quality teachers, some retiring. My generation has had all of this they want in many cases, and they’re -- they’re retiring. MR. MATTHEWS: That's right. Okay. We’re getting there. Track with me. In order to implement ACTAPP, you've got to have good teachers? DR. SIMON: Yes. App. 25 MR. MATTHEWS: In order to have good teachers, we’ve got to have more -- DR. SIMON: Money. MR. MATTHEWS: Money. Dr. SIMON: For teachers’ salaries. Mr. MATTHEWS: And until we have more money for teachers’ salaries, we jeopardize the efficiency, the suitability, and the quality of the ACTAPP program, wane you and others have implemented. Isn’t that true! Dr. SIMON: That's correct, yes, sir. In short, the Benchmark testing and the ACTAAP program which represent the paramount initiatives by the State to correct the course of educational deficiencies in Arkansas are dependent on quality teachers. And, according to the Director of the Department, quality teachers is an area where we have a crisis. Testing, rankings, and teacher salaries do not tell the whole story. According to the uncontested findings of the trial court, in the Lake View School District, which is undeniably a oor school district, ninety-four percent of the students are on ree or reduced school lunches. That school district has one uncertified mathematics teacher who teaches all high school mathematics courses. He is paid $10,000 a year as a substitute teacher and works a second job as a school bus driver where he earns $5,000 a year. He has an insufficient number of calculators for his trigonometry class, too few electrical outlets, no compasses and one chalkboard, a computer lacking software and a printer that does not work, an inadequate supply of paper, and a duplicating machine that is overworked. Lake View’s basketball team does not have a — set of uniforms, while its band has no uniforms at all. The college remediation rate for Lake View students is 100 percent. The Holly Grove School District has only a basic curriculum and‘ no advanced courses or programs. The App. 26 Starting salary for its teachers is $21,000. Science lab equipment, computers, the bus fleet, and the heating and air conditioning systems need replacing. The buildings have leaking roofs and restrooms in need of repair. Because millage increases are difficult to win in the school district, Holly Grove must borrow 2 pare next year’s revenues to repair a falling library roof and leaking gas line. The Barton Elementary School in Phillips sre has two bathrooms with four stalls for over one hundred students. Lee County schools do not have advanced placement courses and suffer also from little or no science lab equipment, school buildings in need of repair, school buses that fail to meet state standards, and only thirty computers for six hundred students. Some buildings have asbestos problems and little or no heating or air conditioning These are just a few examples of deficiencies in buildings, equipment, and supplies that plague the State’s school districts. School districts experiencin fast-growing student populations such as Rogers and Bentonville in Northwest Arkansas need additional buildings. Buildings in disrepair are rampant in Eastern Arkansas. And qualification for debt-service-funding supplements from the State depends on how much debt can be incurred by the school districts. Poorer districts with deteriorating physical plants are unable to incur much debt. The Rogers School District has mushroomed by 4,300 students in the last decade. Since 1987, the enrollment in the Bentonville School District has increased 83.57 percent. About $432 of the revenue available per student in — oes to debt. With the influx of the Latino population, an English-as-a- second-language program is a critical need. In 1991, “ey four students were enrolled in the program. In 2000, there were 2,615 students enrolled. Rogers received $743,000 for the program from the State and spent $1,013,000. In response to poor student performance, the State instituted academic distress programs in 1995 for school districts not meeting State Standards of Accreditation. See Ark. Code Ann. §§ 6-20-1601 through 6-20-1610 (Repl. 1999). Deficient test scores trigger Phase I, which requires the school App. 27 district to submit an improvement plan to the Department of Education; then Phase II, where the Department prepares the improvement plan; and finally Phase Ill, where the Department may mandate consolidation or a take-over of the district. Of the twelve school districts on the academic distress list at the time of the 2001 order, all were classified as poor. c. Constitutional History. We return then to our starting point and that is what Article 14, § 1, of the Arkansas Constitution requires of the State for education: ere + ate and virtue ree the safeguards of liberty and the bulwark of a free and good government, 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. Education has been a constitutional focus and mandate since the founding of our state. The framers of the first Arkansas constitution adopted the following Education Clause in 1836: Knowledge and learning generally diffused through a community being essential to the preservation of a free government, and diffusing the opportunities and advantages of education through the various parts of the State being highly conducive to this end, it shall be the duty of the General Assembly to rovide by law for the improvement of such ands as are, or hereafter may be, granted by the United States to this State for the use of schools, and to apply any funds which may be raised from such lands, or from any other source, to the accomplishment of the object for which they are, or may be, intended. The General a shall from time to time pass such laws as shall be calculated to encourage intellectual, scientific and agricultural improvement by allowing rewards and App. 28 immunities for the promotion and improvement of arts, science, commerce, manufactures and natural history, and countenance and encourage the principles of humanity, industry and morality. Ark. Const. of 1836, art. VII., reprinted in Ark. Code Ann. Constitutions 497 (1987). The 1836 Education Articleembodied two fundamental ideas: the inherent value of education in creating a virtuous citizen and the crucial role of an educated citizenry in a functioning democracy. The Secessionist Constitution of 1861 contained a truncated Education Article: The General Assembly shall apply any and all funds which may be raised for the purpose of education, to the accomplishment of the object for which they ong be raised; and from time to time, pass such laws as shall be calculated to encourage intellectual, scientific and ap rst improvement, by allowin rewards and immunities for the promotion an improvement of art, science, commerce, manufactures, and natural history; and countenance and encourage the principles of humanity, industry and morality. Ark. Const. of 1861, art. VII, § 1, reprinted in Ark. Code Ann. Constitutions 520 (1987). The 1864 Constitution reverted tothe language used in the 1836 Constitution. See Ark. Const. of 1864, art. VIII, § 1, reprinted in Ark Code Ann. Constitutions, at 543. The Reconstruction Constitution in 1868 contained an Education Article that mandated a common schoolsystem, provided for the distribution of school funds, created a public officer responsible for the school system, and detailed how acommon fund for the school system should be created and financed. The relevant language read: A general diffusion of knowledge and intelligence among all classes being essential to the preservation of the rights and liberties of App. 29 the people, the General Assembly shall establish and maintain asystem of free schools, for the gratuitous instruction of all persons in this State between the ages of five and twenty- one years, and the funds eT riated for the support of common schools shall be distributed to the several counties in proportion to the number of children and youths therein .... Ark. Const. of 1868, art. IX, § 1, reprinted in Ark. Code Ann. Constitutions, at 567. Following reconstruction, the 1874 Constitution contained the following clause: cere, ae and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable, and efficient system of free schools whereby all persons in e State between the ages of six and twenty- one years may receive gratuitous instruction. Ark. Const. of 1874, art. 14, § 1. After Amendment 53 was — in 1968, we have the Education Article as we know it today. That education has been of paramount concern to the citizens of this state since the state’s inception is beyond dispute. It is safe to say that no ‘¢ of state government takes precedence over it. In 1983, this court em asized that “Te]ducation becomes the essential prerequisite that allows our citizens to be able to appreciate, claim and effectively realize their established rights.” DuPree v. Alma Sch. Dist. No. 30, 279 Ark. at 346, 651 S.W.2d at 93. We further said in DuPree that “we believe the right to equal educational apg toe A is basic to our society.” Id. However, we shied away in DuPree from proclaiming education to be a fundamental right of each school child under the Education Article of our constitution. Indeed, the DuPree decision primarily dealt with the dispari in equal educational opportunity caused by the school- funding system and not with whether the system was inadequate under the Education Article. App. 30 d. Constitutional Duty Our constitutional history underscores the point that education has — been of supreme importance to the people of this state. The General Assembly recognized this in 1997, when it acknowledged that the state is constitutionally required to provide a general, suitable, and efficient system of free public schools, and that the Arkansas courts have held that obligation to bea” paramount duty.” See Act 1307 of 1997, § 1 (d)(1-2), codified at Ark. Code . § 6-20-302(d)(1-2) (Repl. 1999). There is no question in this court’s mind that the requirement of a general, suitable, and efficient system of free public schools places on the State an absolute duty to provide the school children of Arkansas with an adequate education. The next question, however, is whether this language also implies a fundamental right vested in the people of this state so as to require strict scrutiny of ali legislative actions regarding it. In resolving this question, we look first to the Arkansas Constitution. Article 2 of the Constitution, entitled Declaration of Rights, deals with the personal rights vested in the people of is state, including equality, free speech and free press, the i to trial by jury, the right to due process and bail, the right to be protected against self-incrimination and doublejeopardy, the right to be protected against unreasonable searches and seizures, and the right to religious freedom. The Education Article is found in a separate article, Article 14, and it is couched in terms of the state’s duty and not in terms of a personal right vested in the people. This court has said repeatedly that in construing the language of our constitution, we must ae the language its plain, obvious, and common deri ee, e.g., Maddox v. City of Fort Smith, 346 Ark. 209, 56 S.W.3d 209 (2001); Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998). Nonetheless, Lake View and the intervening school districts urge that a fundamental right can be implied from the language of Article 14. See, C$ Claremont Sch. Dist. v. Governor, 142 N.H. 462, 703 A.2d 1353 (1997) (constitution’s specific charge to legislature to provide education is sufficient to afford fundamental-right status to beneficiaries of that duty). Other states in the last decade have wrestled with the issue of whether education is a fundamental right under the App. 31 Education Article of their state constitutions, thus necessitating strict scrutiny of all legislative actions affecting education. Of course, the education language in each state constitution varies. Some states that have found their school- funding systems to be inadequate under their respective education articles simply have not addressed the issue of whether an adequate education is a fundamental right. See, e.g., DeRolph v. State, 78 Ohio St. 3d 193, 677 N.E.2d 733 (1997); cDuffy v. rey of the Executive Office of Educ., 415 Mass. 545, 615 N.E.2d 516 (1993); Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d 491 (Tex. 1991). This reluctance to discuss the matter, no doubt, is due in large part to the difficulty surrounding this issue. The Arizona Supreme Court commented directly on the confusion involved in the fundamental-right question. It noted that in one of its earlier decisions in 1973, it proclaimed that education was a fundamental right, but in the same opinion, upheld the existing school int mein Meg using the rational basis test rather than examining the system under strict scrutiny. See Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 179 Ariz. 233, 877 P.2d 806 (1994) (questioning Shofstall v. Hollins, 110 Ariz. 88, 515 P.2d 590 (1973)). The Arizona Supreme Court determined, however, that it need not resolve this “conundrum,” because the Arizona Constitution placed a specific duty and responsibility on the Legislature to establish and maintain the public school system. Id. The issue was whether the present financing system satisfied the constitutional mandate of a general and uniform school system and not what standard should be applied in judicial review. The Tennessee Supreme Court found its state school- funding system unconstitutional under the equal protection provisions of its constitution and, thus, refrained from deciding whether an adequate education was a fundamental right under its Education Article. See Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993). Similarly, the Vermont Supreme Court held that an adequate education was essential under its state constitution, but it did not proclaim it to be a fundamental right. See Brigham v. State, 166 Vt. 246, 692 A.2d 384 (1997). The court proceeded, however, to hold that its system “violate[d] the right to equal educational opportunities” under both its Education Article and equal App. 32 protection clause, and that there was no rational basis for the gross inequities in the educational opportunities offered to school children in different school districts in that state. Id. at 268, 692 A.2d at 397. On the other hand, the New Hampshire Supreme Court has held that an adequate education is a fundamental right in that state: We hold that in this State a constitutionally adequate public education is a fundamental pe 8 In so doing we note that “ [t]he right to an adequate education mandated by the constitution is not based on the exclusive needs of a particular individual, but rather is a right held by the public to enforce the State’s duty.” Claremont I, 138 N.H. at 192, 635 A.2d at 1381. We emphasize that the fundamental right at issue is the right to a State funded constitutionally adequate public education. It is not the right to horizontal resource replication from school to school and district to district. The substance of the right may be achieved in different schools possessing, for example, differing library resources, teacher-student ratios, computer software, as well as the myriad tools and techniques that may be employed by those in on-site control of the State’s public elementary and secondary school systems. But when an individual school or school district offers something less than educational adequacy, the governmental action or lack of action that is the root cause of the disparity will be examined by a standard of strict judicial scrutiny. Claremont Sch. Dist., 142 N.H. at 473-74, 703 A.2d at 1359. The New Hampshire court then viewed the Rose standards “as benchmarks of a constitutionally rae ne public education.” Id. at 475, 703 A.2d at 1359. See also Rose v. Council for Better Educ., Inc., supra (holding in 1998 that an adequate educatior: was a fundamental right under its Education Article). Similarly, the Wyoming Supreme Court affirmed an earlie. App. 33 decision in State ». Catapbeii County Sch. Dist., 19 P.3d 518 (2001), and reiterated that “[bJecause education is a fundamental right and our citizens are entitled to equal protection under our state constitution, all aspects of the school finance system are subject to strict scrutiny, and statutes establishing the school financing system are not entitled to any presumption of validity.” 19 P.3d at 535. Turning to our anoint in Arkansas, the seminal school-funding case, DuPree v. Alma Sch. Dist. No. 30, supra, did not measure the school-funding system against the Education Article but rather did so under the equality - provisions of the state constitution. In doing so, this court stated that it was not necessary to decide whether education was a fundamental right because “we can find no constitutional basis for the present system, as it has no rational bearing on the educational needs of the district.” DuPree, 279 Ark. at 346, 651 S.W.2d at 93. In other words, because the system failed for lack of a reasonable and legitimate governmental purpose to ee it, it was not necessary to use a heightened standard of review like strict ae, to examine the system's constitutionality. Judge Imber used the same reasoning when she ruled that the current funding system was unconstitutional in her 1994 order. She found it unnecessary to decide whether an adequate education was a fundamental right for purposes of adequacy and inequity, since the school-funding system failed to pass constitutional muster even using a rational-basis standard. In his 2001 order, Judge Kilgore did not specifically state that an adequate education was a fundamental right under the Education Article. However, he did rule that he would apply a strict-scrutiny analysis to the state’s legislation to decide whether there was constitutional compliance. Strict scrutiny usually goes hand-in-hand with a claim that a fundamental right has been impaired. See, e.g., Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002) (the right to privacy for rivate sex between consenting adults was deemed a undamental right where strict scrutiny would be the standard regarding any impairment). Judge Kilgore also announced at a pretrial hearing “that language in the Constitution is consistent with and supports the proposition that the State of Arkansas has a compelling interest in seeing that our children get adequate educations, or general, suitable and efficient App. 34 education. ... That being the case, the standard that the State will be held to in showing that we do have an adequate system of education will be strict scrutiny.” With the exceptions of New Hampshire, see Claremont Sch. Dist. v. Governor, supra, and Kentucky, see Rose v. Council for Better Educ., Inc., supra, most states in recent years have avoided proclaiming that an adequate education is a fundamental right because that carries with it the obligation of the courts to examine and scrutinize all legislation respecting education strictly. We mustadmit to some apprehension about using a strict-scrutiny standard, because it has never been this court's constitutional function to micromanage the public schools of this state or even to retain jurisdiction over the public school system until, in our judgment, an adequacy standard has been achieved. At the same time, this court is troubled by four things: (1) the Department of Education has not conducted an adequacy study; (2) despite this court’s holding in DuPree v. Alma Sch. Dist. No. 30, supra, that equal opportunity is the touchstone for a constitutional system and not merely equalized revenues, the State has only sought to make revenues equal; (3) despite Judge Imber 1994 order to the same effect, neither the Executive bra ich nor the General Assembly have taken action to correct the imbalance in ultimate expenditures; and (4) the State, in the budgetin process, continues to treat education without the priority an the preference that the constitution demands. Rath ap of whether the current school system provided by e General Assembly meets the constitutional requirements of a “general, suitable, and efficient system of free public schools....” Ark. Const. art. 14, §1. It does not. The Constitution of the State of Arkansas provides that the State must maintain a general, suitable, and efficient — of free public schools. Ark. Const. art. 14, § 1. The obligation to provide the required system of public schools belongs to the General Assembly. The Arkansas Constitution vests in the General Assembly the duty and authority to establish, maintain, and support a public school system. Barker v. Frank, 327 Ark. 589, 939 S.W.2d 837 (1997); E. Poinsett County Sch. Dist. No. 14.0. Massey, 315 Ark. 163, 866 S.W.2d 369 (1993); Saline County Educ. Bd. v. Hot Springs Educ, Bd., 270 Ark. 136, 603 S.W.2d 413 (1980). See also, Lemaire v. Henderson, 174 Ark. 936, 298 S.W. 327 (1927). In Wheelis v. Franks, 189 Ark. 373, 72 S.W.2d 231 (1934), this court stated: It has been too often held, as now to be a matter of debate, that the Legislature isclothed - by the Constitution with plenary power over the management and operation of the public schools. It is for the Legislature to declare olicy with reference to the schools, and owever much this court might doubt the wisdom of the policy declared, it has no power to alter it. Wheelis, 189 Ark. at 376. That the General Assembly has plenary power over the public schools means that it has full ower. Beard v. Albritton, 182 Ark. 538, 31 S.W.2d 959 (1930). e responsibility for the creation, organization, and regulation of that system of public schools thus is within the exclusive province of the General Assembly. Wallace Sch. Dist. v. County Bd. of Educ., 214 Ark. 436, 439, 216 S.W.2d 790 (1949). Supervision of the public schools is vested in such officers as the General Assembly may provide. Ark. Const. art. 14, §4. The role of this court is not to dictate policy; rather, it is to interpret the constitution. As this court stated in an of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986): App. 66 Ever since Marbury v. Madison, 1 Cranch 137, was decided in 1803, the Supreme Court has had the responsibility of interpreting the United States Constitution and the state courts that of interpreting the state constitutions. But the judicial authority does not extend beyond interpretation. The courts do not have the power to hold a constitutional mandate in abeyance; they should not have that power. The constitutional way of doing things may be slow at times, but it is the right way. Creviston, 288 Ark. at 293. Thus, there is no question that this court has the obligation and authority to interpret the constitutional provisions regarding schools and determine whether the General Assembly is fulfilling its constitutional duty to provide a general, suitable, and efficient system of free public schools. Previous case law confirms this conclusion regarding our duty to interpret the constitution. In the years since the present constitution was adopted, this court has had occasion to interpret provisions of Article 14 of our constitution on many occasions. As already noted, this court has declared that the General Assembly is obligated under the constitution to establish and maintain the public schools. Wallace, supra. This court has also declared that the General Assembly has the obligation to create schools and set the boundaries of districts. Beard, supra. The authority to decide how the state is to be divided up in public schools lies with the General Assembly and is “supreme.” Massey, 315 Ark. at 169. See also, Krause v. Thompson, 138 Ark. 571, 211 S.W.2d 925 (1919). The issue of funding of school districts has also been before this court on a number of occasions as it relates to the General Assembly’s duty to provide a general, suitable, and efficient school system under the constitution. ot oa v. Alma Sch. Dist. No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983); see also, Krause, supra. This court has not specifically defined the terms “general, suitable, and efficient.” The word “general” in Article 14, Section 1, means that the public schools required under the constitution must be of common benefit to those who are to be served by the schools, i.e., those who are Die ence etimitten NF TH Saag Sanit teee ee ls ee ieee ste pT Facies aid App. 67 between six and twenty-one years of age. " The public schools must offer “gratuitous instruction of all persons between the ages of six and twenty-one...” S ecial Sch. Dist. No. 65 v. Bangs, 144 Ark. 34, 36, 221 S.W. 1060 (1920). In 1885, this court stated: “It is the clear intention of the constitution and the statutes alike, to place the means of education within the reach of every youth. Maddox v. Neal, 45 Ark. 121, 124 (1885). “Education at the public expense has thus become a legal right.” Id. Under our constitution, educational opportunity may not be “controlled by the fortuitous circumstances of residence.” Dupree, 279 Ark. at345. Thus, “ eneral” means a “cevyitable” education must be afforded to all between the ages of six and twenty-one. The word “suitable” may also be understood by reference to earlier decisions of this court. In Fort Smith School ono v. Maury, 53 Ark. 471, 14 S.W. 669 (1890), this court stated: The duty to establish and keep in operation schools is not met by the employment of teachers and keeping them at the school house; but it demands that suitable persons shall be kept as teachers, and a school maintained adapted to the intellectual and moral advancement of pupils. Maury, 53 Ark. at 473. See also, Berry v. Arnold Sch. Dist., 199 Ark. 1118, 1124, 137 S.W.2d 256 (1940). This court has also stated that there should be a constant effort to raise the standards of the public schools and the General Assembly has the power to adapt our schools to the most advanced standards in order to give our youth the best education obtainable on all subjects. Dickinson, 120 Ark. at 88. In Maury, supra, this court went on to note that the duty to establish and keep schools in operation necessarily included the duty of agencies set up by the General Assembly to visit the schools, noting, and then correcting re instruction and lack of progress. Maury, 53 Ark. at 473-74. '' As the majority notes, whether early childhood education is to be provided is a public policy issue for the eneral Assembly to resolve. It is not required under the constitution. App. 68 The discussion in Maury, supra, Berry, supra, and Dickinson, supra, also casts light on the meaning of “efficient.” A system must be provided by the General Assembly that is capable of effectively fulfilling the constitutional mandate for a general and cB system of public schools. The word “efficient” is defined as “Making, causing ... Effective in gg the desired result with minimum wasted effort.” New Shorter Oxford — Dictionary 787 (Edition 1993). It appears doubtful to me that the framers of our constitution had a definition of “efficient” in mind similar to that set out in Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989). As noted in the majority opinion, the definition in Rose was relied upon by both fade ilgore and Judge Imber. In Rose, the Kentucky Supreme Court defined an efficient education in terms of educational subject matter and level of proficiency to be obtained. As the majority foes on to note, the General Assembly may have been influenced by the definition in Rose when Acts 1108 and 1307 of 1997 were adopted. However, whatever the definition of efficient might be, the adoption of such —— methods and goals in public education as discussed in Rose, supra, is a matter of policy left by our constitution to the General Assembly. See |Vieelis, supra. Our duty is to determine whether the public schools as presently functioning meet the constitutional requirements of a “general, suitable, and efficient system of free public schools.” Ark. Const. art. 14, § 1. Although the terms “General, suitable, and efficient” might be more finitely defined, under the facts of this case, further definition is not necessary. The meaning of the words general, suitable and efficient that may be derived from our case law is more than sufficient to use in determining whether the constitutional mandate has been met by the General Assembly. l also note that under the facts of this case, we need not determine whether judicial review is under strict scrutiny or whether there is a damental right to the constitutional] mandated general, suitable, and efficient education. In 1885, this court Feld plainly that every child entitled to a public education has a right to a general, suitable, and efficient education in the public schools. Maddox, supra. Under any conceivable standard of review, the current system is woefully inadequate and does not begin to fulfill the constitutional % i Pr 3 # oe a A x = Ratio is found in the Code of Federal Regulations (CFR). To determine the variance in funds received in the restricted ing . nr yg pone e least ing an e the school district that receives App. 84 school district that receives the most funding, the CFR requirements can be satisfied by either the use of revenues provided to the districts by the State or the amounts of actual expenditures by the school districts. 34 C.F.R. §222.60. In the 1994 trial, the court and the parties calculated the Federal Range Ratio using expenditures. Today, the State Defendants and the Intervenors argue that revenues should be used in the calculation because revenue figures from the State are more accurate than expenditure figures provided by the school districts. An analysis of the Federal Range Ratio using revenues shows the State to be in compliance with the 1994 Order. Use of expenditures shows the State not to be in compliance. On remanding the case the Supreme Court specifically referred to per pupil “expenditures” in stating, “\.Amendment 74, which allows funding variances among school districts due to local taxes, does not by itself resolve disparities in per pupil expenditures and opportunities under the State Constitution’s equal protection clauses. Correcting such disparities lay at the heart of the 1994 Order. [Emphasis added] See also DuPree v. Alma School Dist. No. 30, supra.” Lake View at 493. 3. Making an accurate determination as to how much of the revenues distributed by the State actually reach the classroom is more difficult than measuring how much revenue the State provides the schools and school districts. However, under the Constitution the State is solely responsible for the education of its citizens. Its duty does not end upon disbursement of revenues to the school districts. Moreover, the best measure of whether available funds are being efficiently applied to the education of the State’s children is by an accurate accounting of expenditures. 4. Another question in 1994 was whether the Federal Range Ratio should be calculated in terms of ADA/ ADM or WADM. ADA is average daily attendance, or the average number of students that actually attend school on a daily basis. ADM is average daily membership, or the average number of students that are enrolled in school on any iven day. WADM is weighted average daily membership. e concept of weights has to do with special costs incurred in educating certain students (e.g., students with learning disabilities, students for whom English is a second language, students that live in scarcely populated areas and require extra a Pe RE RUT eset reer App. 85 transportation costs to and from school, etc.) A school district with a greater WADM (i.e., with more special cost students) would receive more money than a school district with a lesser WADM. In the 1994 Order, as amended, the court found a’ Finding of Fact 61(a) that in the future the Federal Range Ratio should be analyzed using WADM. 5. However, after the 1995 legislation, anew school funding formula was implemented and weights are no longer used. Some of the money that was distributed under the formula voy cg is now included in the more general equalization funding that is distributed to the school districts and some is distributed under the new formula as “categorical funding.” The Defendants and the Intervenors contend it is appropriate to eliminate WADM in analyzing the Federal Range Ratio. Plaintiffs disagree. 6. Still another question has to do with desegregation money that is provided to the three Pulaski County school districts (Little Rock, Pulaski County, and North Little Rock). In 1994, the court included the desegregation money in analyzing the Federal Range Ratio. Today, the State Defendants and the Intervenors argue that the desegregation money should not be used in the formula calculation because this is money that is associated with costs that are unique to the recipients and, therefore, including it in the calculation skews the result to the detriment of the three districts. The Plaintiffs take the opposite view; namely that, in the first place the 1994 Order requires the ee ate money be used in the calculation, and, secondly, that failure to do so results in a windfall to the Pulaski County districts in which all other school districts should share. 1. Funding System 7. What follows is a simplified explanation of Arkansas school funding, but it seems sufficient for purposes of these proceedings. 8. After the 1994 Order, legislation was enacted in 1995 and 1997 along with a constitutional amendment in 1997 that changed the school funding formula. (Act 916 of 1995 [later held unconstitutional, see Barclay v. Melton, 339 Ark. 362 (1999)]; Act 917 of 1995; Act 1194 of 1995; Amendment 74 to i EOLA App. 86 Article 14, § 1 of the Arkansas Constitution; Act 1307 of 1997 and Act 1361 of 1997). The schools are funded through three major sources of revenue: federal funds which are targeted alemge to specific — of students with oe needs; tate monies which are distributed through the State funding formula; and local monies raised primarily through the property tax. 9. Local revenues for school districts depend on local property taxes. Because the local tax is levied according to the value of local property, and because the value of property differs from district to district, the amount of revenues available to the various school districts differs. Amendment 74 establishes “...a uniform rate of ad valorem property tax of twenty-five (25) mills to be levied on the assessed value of all taxable real, personal, and utility property in the state to be used solely for maintenance and operation of the schools.” (Emphasis added) Excess debt —— may be used for maintenance and operation, and thereby, school districts are allowed to obtain the uniform rate of 25 mills using debt service millages rather than millages set aside strictly for maintenance and operations. A.C.A. §26-80- 201et seq. 10. The State has determined that the constitution requires it to equalize wealth (withsome variances) among the school districts. This is accomplished with State equalization aid. 11. Under the current funding formula, a school district’s wealth is first determined based upon the assessed - value of property within that district. The assessed value is multiplied by ninety-eight percent and then that amount is multiplied by twenty-five mills. That number is then divided by the average daily membership (ADM) of the district. A.C.A. §26-80-204(4) and (10). This formula yields the “local resource rate.” The State then calculates “base level revenue” which is the total amount of money that any one student should generate based on State and local funds. (That figure is determined by adding all State and local funds available to all public schools in the State and dividing by the number of children.) At the time of trial, that amount was ap roximately $4500. If the local resource rate is three hundred dollars per student, then the State supplements that district with forty- App. 87 two hundred dollars per student to ensure equitable funding among the State’s school districts. 12. Any school district that has a local resource rate which is less than the base level revenue is given equalization aid to bring it to the base level. A.C.A. §26-80-201(4)(b)(1 thru 3). A district that is able to raise revenues equal to or in excess of the base level may receive no State equalization aid. In fact, under some circumstances, a school district that raises too much money may, because of Amendment 59, have to “roll back” its millages, thereby forcing it to spend less on its children’s education than its patrons are willing to provide - 13. In addition to the equalization money, “additional base funding” is used as a guarantee program that all school districts will have a minimum State and local revenue per average daily membership that is at least eighty percent of the State and local revenue of the school district at the ninety-fifth percentile (i.e.; ranking all school districts from the richest to the poorest, one eliminates the five richest and finds the district at the ninety-fifth percentile.) 14. After WADM was eliminated, various categories of special cost students were merged into State equalization aid but the State recognized that additional money would still benecessary for other special cost students. This additional money is called “categorical funding”. Categorical funding is provided outside the formula. Some of the categories are poverty funding (for schools that have 75% of its children in kindergarten and first grade that are on the federal free and reduced lunch program), gifted and talented, alternative learning, isolated funding, etc. 15. The present school funding formula has three methods to provide school districts with money for capital expenditures, including construction of new buildings. They are Growth Facilities Funding, General Facilities Funding, and the Debt Service Funding Supplement. Growth Facilities Funding, which is in its last year, is to assist districts with growing student populations in building new facilities and acquiring new equipment. 16. General Facilities Funding is formula-driven based on the wealth of a school district. Those funds are used App. 88 for purchases of buses, computers, facility repairs and maintenance, etc. 17. The Debt Service he ec | Supplement supplements debt payments to a district based on the wealth of the district. Less wealthy districts who are able to borrow money receive a larger supplement than richer districts. 18. Even with these three programs, some districts cannot afford to build new buildings, complete necessary repairs or buy buses. Either the money is not available through General Facilities or Growth Facilities Funding or the district is too poor to incur sufficient debt to finance new construction and take advantage of the Debt Service Funding Supplement. The State Defendant does not believe it has an obligation to provide any further funds to schools or school districts that cannot properly fund its capital improvements. 19. Federal funds are distributed outside State equalization aid. Generally school districts have no discretion as to how they are spent. 20. The purpose of the three formulas (Federal Range Ratio, Coefficient of Variation and GINI Index of Inequality) is to aid in ae disparities in funding for schools, school districts and students. But the question, as framed by the Supreme Court, is do unconstitutional disparities exist? Does the state fulfill its constitutional duty to provide each of its children an education adequate to give the child the opportunity to realize his potential, enrich his life and be an asset to his community? The formulas do not er an exclusive way to answer the questions (Greene, ef. Ex. 68, fn 1) 21. Using expenditures in the calculation of the Federal Range Ratio, this court finds that there is more than a 25% difference between the 5" and the 95" percentile in amount spent per pupil which is not in compliance with the 1994 Order. However, using revenues, the State is within the 25% range differential. Using expenditures in the Coefficient of Variation, the State is not in compliance. Usin expenditures in the calculation of the GIN! Index o Inequality, the State is in compliance. App. 89 2. Comparison of Schools and School Districts 22. Facilities, materials, teachers and other resources affect a student’s opportunity and ability to learn. The State suggests that disparity in the way funds are % accounts for the many alleged inequities at the local level; i.e., mismanagement and not inequitable distributions of funds is the cause of unconstitutional educational disparities. There is some evidence of mismanagement at the local level, but it is not sufficient to fully support the State’s position. Further, even if it were, under the Constitution, the State bears the ultimate burden of educating its children, no matter where the blame is cast. 23. Because wealthy school districts are able to provide more educational resources than poor districts all students in Arkansas do not have an equal opportunity to learn. Lake View provides an example of the limitations of a poor school district. Lake View has a relatively low student/teacher ratio. Ninety-four percent of students at Lake View are on free or reduced lunches. Lake View has one uncertified mathematics teacher for all high school mathematics courses: pre-algebra, algebra I and II, geometry and trigonometry. Calculus is available through distance learning. The mathematics teacher is paid $10,000 a year asa substitute teacher which he supplements with $5,000 annually for school bus driving. 24. The mathematics teacher, Roy King, teaches a trigonometry course with a Prentice Hall textbook that is a graphing calculator supported program. The calculators are expensive. There are ten students and four calculators. His classroom has two electrical outlets to support such conventional needs as overhead projectors, computers, lights and other electrical equipment. ih his geometry class he does not have compasses. Olt y one of four chalkboards is useable. His computer lacks hard and software, it has no sound chip, and the printer does not work. Paper is in short supply and the dupliceting machine, an addressograph, is generally overworked so that frequently documents, including examinations, have to be handwritten on the chalkboard. 25. Lake View has a basketball team but no App. 90 uniforms for all of the players. There are no other organized competitive sports teams at the school. The band does not have uniforms. 26. The attendance rate at Lake View is 99.05 percent, the graduation rate is 94.7 percent and the dropout rate is only two percent; all better than the State average. The college rededication rate (explained below) is-100 percent; more than twice the State average. 27. The Holly Grove School District offers only the basic curriculum required by the State for graduation. Ihere are no advanced courses or programs offered. The starting salary for a Holly Grove teacher is the State minimum, approximately $2 000.00. Teachers are continually lured away to other districts that pay more. 28. In Holly Grove, science laboratories are in need of updated equipment. Computers need replacing. The bus fleet is old and includes three diesel buses but the remainder are gasoline operated and very expensive to operate. The heating and air conditioning systems are outdated and inneed of repair or replacement. 29. —— seventy-three of the 1994 Order finds that the physical plant at Hol y Grove is inneed of repair to leaking roofs, restrooms, leaking gas line, and a falling library roof. Since the Order, only the gas line and library roof have been repaired. 30. Holly Grove recently increased its millage from a to thirty-two mills. However, because of political considerations, millage increases are hard to win in the district. In order to raise money for repairs, other needs, and generally to make ends meet, Holly Grove, has to borrow against its next year’s income. 31. Barton Elementary in Phillips County has two bathrooms with a combined number of four stalls for over one hundred children in one of its buildings. 32. Lee County Schools went two years without a band program due to lack of funds. Lee County does not offer any advanced placement courses. Required courses are being App. 91 taught in the Lee County District but suffer from a lack of funds. The science laboratories have little or no equipment. There are approximately thirty computers for six hundred students. The bus fleet of twenty-six buses has only five that meet State requirements, and the buildings need extensive repairs. 33. The Lee County School Districthas been unable to get voter approval of a millage increase in the past eight to ten years. Over the past ten years Lee County has experienced a decreasing enrollment. Financial support from the business community goes mostly to private schools. 34. By way of comparison, Fort Smith School District has over forty-five percent of students that qualify for free and reduced lunches. Out of twenty elementary school campuses, ten qualify under the Poverty Index criteria which means that there are between seventy and one hundred i of the students qualifying for free or reduced lunches. veral moreelementary schools fall between fifty and seven percent free and reduced lunches. Fort Smith has a higher student/ teacher ratio than Lake View with forty percent more students per teacher. The Fort Smith curriculum includes classes on drafting and design, machine II technology, furniture manufacturing, electronics and electricity, band, orchestra, advanced girls’ chorus, gifted and talented —— with honors courses, German, Spanish, French, ashion merchandising and yay Fort Smith also offers the basic curriculum required by the State. 3. Capital Needs 35. The Director of the Arkansas Department of Education does not believe that it is fair that a child that lives in a property poor district should be in substandard facilities. That is the situation that existed in the State in 1994 and it still exists today. 36. A school district not able to afford a building necessary to meet accreditation standards could face academic or fiscal distress resulting in probation or takeover by the State. However, the Director of the education department does not believe it is the State’s obligation to provide any assistance in addition to that being provided to relieve the App. 92 various school districts. 37. School buildings throughout the State need repairing and —s if not replacing. Some districts in faster growing areas of the State need additional buildings. The physical plant problems are particularly acute in Eastern Arkansas. They include poor heating and air conditionin systems, broken and missing windows, missin floor tiles an walls in need of repair. As Roy King of Lake View observed, itis hard to convince a child that education is important when the school facilities are so poor. The cost per student to construct anew school building is between $8,000 and $10,000. 38. Throughout the Lee County School District buildings have leaking roofs, asbestos problems, and some have little or no heating and air conditioning. Ceiling tiles are missing and molded. The Holly Grove capital fundin Pa x Bee. “A p Be. a ae. dl %, nae apes Bs 4q % >, 7 4 Le 4 ra * Ss Be Me. ia = ae. ee = = App. 115 supply the barest necessities and others to have programs generously endowed does not meet the requirements of the constitution. Bare and minimal sufficiency does not translate into equal education al opportunity. (Emphasis added) oe er protection is not addressed to minimal sufficiency but rather to the unjustifiable inequalities of state action.” San Antonio School District v. Rodriguez, 411 U.S.1, 70, 93S.Ct. 1278, 1315, 36 L.Ed.2d 16 (1972). “Whether the state acts directly or imposes the role upon the local government, the end product must be what the constitution commands. [When.a district falls short of the constitutional requirements] whatever the reason for the violation, the obligation is the state’s to rectify it. If local government fails, the state government must compel it to act, and if the local government cannot carry the burden, the state must itself meet its continuing obligation.” (Emphasis added) Robinson v. Cahill, 62 NJ. 473, 303 A.2d 273, 295. 130. A.C.A. §26-80-204(17) is the statute setting forth the calculation of the uniform rate of tax: “Uniform rate of tax” means a uniform rate of ad valorem property tax of twenty-five (25) mills to be levied on the assessed value of all taxable real, personal, and utility property in the state to be used solely for maintenance and operation of the schools. In calculating the uniform rate of tax imposed by Arkansas Constitution, Article 14, § 3, as amended b Arkansas Constitution, Amendments 11, 40, and 74, the following categories of millage may be utilized to meet the minimum base millage requirement: (A) The local school district’s maintenance and operation millage; (B) the dedicated maintenance and operation millage; App. 116 (C) Excess debt service millage; and (D) The millage derived from the ratio of the debt service funding supplements divided by the total assessment; .. . 131. A.C.A.§26-80-204(4) gives the definition for “Base local revenue per student’ as follows: ~ (A) As applied under Acts 1995, No. 917, as such may be amended from time to time, if Category 1 is fully funded, the local revenue er student in the local school district with the ighest amount of local revenue per student. (B) If Category 1 is not fully funded, the term means the revenue per student to which the state equalizes calculated by taking the sum of: (i) The total available state aid for state equalization funding per student; ii) Ninety-eight percent (98%) of the uniform rate of = times the total state assessed valuation; an (iii) Seventy-five percent (75%) of the average oe funds collected in the previous ve (5) years or the _ year, whichever is less, and by dividing the sum by the total state average daily membership for the previous year... 132. A.C.A. §26-80-204(10) states the definition of “local revenue per student” as follows: ... as applied under Acts 1995, No. 917 as such may be amended from time to time, in each year ninety-eight percent (98%) of the amount of revenue available, whether or not collected, in a local school district solely from the ai of the uniform rate of tax plus seventy-five ercent (75%) of the average miscellaneous unds collected in the previous five (5) years or eR Et eit aie 5s syn bsg eee, Cea ¢ P . . 2 . P Sa ober realy aia ace ek SOT B rt EAT RR SORE ee agi a a ak SC 4 « i os Bo a th anaes deena ae ke vis " , ies ATT Oe eR Oey coe para pevestaAOTAROAR oe eee Te Were ro mee T PE ea SO OAS OTE ORT RNG Ue Ne I TT Ne a ee PR SSD ee . Si wre Pe, ee een SNe TT 3 fs App. 117 the previous year, whichever is less, divided by the average daily membership of such local _ school district for the previous year. . . 133. A.C.A. §§6-15-401 et seq. contain the provisions for the Arkansas Comprehensive T Assessment, and Accountability Progr A.C.A. §6-15-402 (a)(1) states as follows: The purpose of the Arkansas Comprehensive Testing, Assessment, and Accountability Program Act is to provide the statutory framework necessary to ensure that all students in the ublic schools of this state demonstrate grade- evel academic proficiency through the application of knowledge and skills in the core academic subjects consistent with state curriculum awaits, erformance standards, and assessments. e State of Arkansas recognizes and declares that students who are not performing at_ grade-level standards of academic proficiency are especially harmed by social promotion because they are not equipped with the necessary academic skills to be successful and productive members of society. The Department of Education is committed to having all students perform at grade level and beyond. For this reason, the Arkansas Comprehensive Testin Assessment, and Accountability Program will emphasize point-in-time intervention and remediation upon the discovery that any student is not performing at grade level. estin am Act (ACT AABY 134. A.C.A. §6-15-419(10) states as follows: (A) (i) “Remediation” means a process of using diagnostic instruments to provide corrective, specialized, supplemental instruction to help a student in grades two through four (2-4) overcome academic deficiencies. (ii) For students in grades five through App. 118 twelve (5-12) remediation shall be a detailed, sequential set of instructional strategies implemented to remedy any academic deficiencies indicated by below-besic or basic performance on the state-mandated criterion- referenced assessments. (B) Remediation shall not interfere with or inhibit student mastery of current grade level academic learning expectations. Vv. CONCLUSIONS OF LAW A. Equity 1. The Fort Smith School District curriculum offers a variety of courses, including fashion merchandising anu =. and has access to courses at a local technical college. By comparison, Holly Grove, Lake View and Lee County aré examples of school districts that provide the bare necessities of a curriculum and struggle to do so. Perhaps the deprived schools and school districts may never be able to offer the rich curriculum of Ft. Smith and others in similar circumstances, but the stark contrast between Ft. Smith and Holly Grove, Lake View and Lee County is a clear example of students being deprived of their rights of equal protection tigi by Arkansas Constitution, Article 2, §§ 2,3 and 18 y reason of their “fortuitous circumstance of residence” as stated in i Under Arkansas Constitution Article 14, §1 and Article 2, §§2, 3 and 18, school districts throughout the State must provide substantially equal educational opportunities for their children. Denying these opportunities based solely on a school district’s location in a poorer part of the State is not a compelling reason for the State to abandon its constitutional obligations. 2. Buildings properly equipped and suitable for instruction are critical for education and must be provided. Even though supplemental money is provided to districts that incur debt for capital improvements, districts that cannot afford to incur debt receive no funding from the State for such improvements. The State cannot shift to local school districts its ultimate burden of ensuring every school district has substantially equal facilities to provide a general, suitable and = App. 119 efficient system of education. When the local district fails or has failed. because of the inequitable effects of the funding formula, or for some other reason, to build or maintain adequate facilities, or mismanages its resources for its daiiy operations, the State cannot abdicate its Constitutional responsibility and blame “local control.” The State’s constitutional role is to ensure an adequate and equitable education and consequently it must correct any constitutional deficiencies as soon as possible. To allow certain districts to continue to suffer from the results of past inequities such as lack of adequate facilities, equipment and supplies, making it harder for them to attract qualified staff, teachers and students, is itself inequitable. Improving the quality of schools has a high priority across the United States, and, perhaps, the world. School districts within the State are in competition with one another and the State competes with its neighbors. The school districts that are most fortunately endowed with resources continue to have inherent advantages, namely property wealth, that allow them to improve. Many of the schools on the bottom lack these inherent advantages as they stru pele to achieve equality. Under the present funding system, by the time the poorer districts reach the level of the more prosperous districts, ifthey can, they will still find themselves at or near the bottom. Providing equal funding to all school districts will not cure the inequities. For the reasons stated, the — protection and opportunities guaranteed by Article 2, §§ 2,3 and 18 have not been provided in that every school district does not have an equal opportunity to build, renovate and/or maintain the necessary physical plant. To provide an equal opportunity, the State should forthwith form some adequate remedy that allows every school district to be on equal footing in regard to facilities, equipment, supplies, etc. | Under Arkansas Constitution Article 14, §1 and Article 2, §§ 2,3 and 18, school districts throughout the State must provide substantially equal buildings properly equipped and suitable for instruction of students. Denying these facilities based solely on the district’s location in a poorer part of the State is not a compelling reason for the State to abandon its constitutional obligations. 3. a) There are three reasons that expenditures App. 120 and not revenues should be used in calculating the Federal Range Ratio: 1) The Supreme Court used the term “expenditures” in expressing concern that “disparities in per pupil expenditures” be corrected; 2) An accurate accounting of expenditures is the best measure of whether available funds are being efficiently applied to education; and 3) The 1994 Order specifies that expenditures and not revenues be used in the calculation. Number 3 can be discounted because of the 1996 order that found the law of the case doctrine would not be applicable at a later trial; however, the other two reasons are sufficient to require expenditures as the component of the Federal Range Ratio. No doubt to the extent reliance is placed upon the formula, this puts a heavier administrative burden on the State, but the responsibility of equitably funding the educational system is solely the State’s, and therefore the State must take necessary steps to effect a more accurate accounting of expenditures. b) The desegregation money provided to the Pulaski County School Districts should not be included in calculating the Federal Range Ratio because they represent funds that compensate the Pulaski County School Districts for expenses unique to them. See also Magnolia School District No. 14 of Columbia county, et al. v. Arkansas State Board of Education, et al., 303 Ark. 666, 799 S.W.2d 791 (1990). c) The Plaintiffs were unable to overcome the presumption of constitutionality in the State’s use of categorical funding rather than Weighted Average Daily Membership in the school funding formula. By passing new legislation, the State has attempted to make improvements in the school funding formula provisions for special or high cost students. The improvements may not ideal, but the Plaintiffs have failed to prove them unconstitutional. Therefore, it is not necessary to use Weighted Average Daily Membership in calculating the Federal Kange Ratio. 4. The teachers’ salary disparity within the State is a violation of Article 2, §§ 2,3 and 18, because the disparity is the result of local school district discretion and bears no rational relation to the State’s interest in ewe a general, suitable and efficient education for our children. Moreover, the salary disparities act to destabilize local districts that cannot or will not pay competitive salaries and are unable to App. 121 hire and retain quality teachers. 5. The Plaintiffs have raised the issue that Amendment 74 and Article 2, §§ 2, 3 and 18 have been violated by allowing under A.C.A. §26-80-201 et seq. school districts to use the excess debt millages to satisfy the uniform tax rate of 25 mills. However, the court finds otherwise. Plaintiffs’ argument is that Amendment 74 requires school districts to levy twenty-five mills to be dedicated to maintenance and operations, and that by failing to do so the State loses substantial sums of money that would otherwise be available for Arkansas “re schools. Some school districts have levied various millages in order to secure debt incurred through bond issues. Because of the requirementthat millages dedicated to the retirement of debt be equal to 150% of the indebtedness there are virtually always excess debt millages. In fact, it is represented in the bond indenture, and, therefore, the voters must be presumed to know that the excess millages are to be available for maintenance and operations. Plaintiffs complain that this use of excess debt service mills does not satisfy Amendment 74 and that the amendment requires each school district to levy twenty-five mills, independent of any other mills, exclusively for maintenance and operations. However, Amendment 74 (b)(2) states in part, “Except as provided in this subsection the uniform rate of tax shall not be an additional levy for maintenance and operation of the schools but shall replace a portion of the existing rate of tax levied by each school district available for maintenance and operation of schools. . .” The Plaintiffs argue for a result that could easily have been obtained by more specific language in the amendment. However, no such oe is present, and therefore, the method of counting mills to meet the uniform rate of tax used by the State complies with the language of the Constitution. 2. Adequacy 6. A comparison of Arkansas teacher salaries to Memphis, Tennessee and Texarkana, Texas (competitive markets) illustrates a dire situation. Money may not be the only motivator to attract quality personnel, but it appears to be App. 122 the most consistent one. This is even more of a factor for teachers in specialized fields (e.g., teachers of English for students for which English is a second language and teachers in newly evolving technologies). Teachers’ salaries in this State are wholly inadequate under the Rose standards to attract and maintain ualified teachers to provide our students with the education Article 14, § 1 of our Constitution requires and as articulated in detail in Rose and the 1994 Order. The requirements of ACTAAP cannot be met without high quality personnel, but there is no money available to hire them. No deficiency in our education system is in more urgent need of attention than teachers’ salaries. 7. Three facts were uncontroverted at trial: 1) A substantial number of our children are entering kindergarten and first grade significantly behind their peers; 2) Those children that enter the first grades — remediation will have a difficult time performing at grade level by the third grade; and 3) If a student cannot perform at grade level, especially in reading, by the third grade, then he is unlikely to ever do so. The only possible conclusion is that in order to — our children with an adequate education as required y the Constitution and ACTAAP, the State must forthwith provide programs for those children of pre-school age that will allow them to compete academically with their peers. The poi olf of this need equals that of the deficiency in teacher salaries. 8. An uneducated person has virtually no chance today to sample much more than a harsh subsistence. Dupree was decided eighteen years ago when the Supreme Court found the State’s funding system to be unconstitutional and that many of Arkansas’ students were receiving only the bare rudiments of an education. Not much has changed since then except that nineteen classes have graduated from our high schools; practically a generation. This case was begun in 1992. Since then, nine classes have graduated from our high schools. One wants to believe that at least our better students are being well educated. However, the Rogers School District program to pay for college remediation for its top students reveals the sad reality of the quality of our education system today. If our best are not being prepared for the rigors and trials of an ever | - : ae Atl App. 123 peters complex world, what is happening to the least advantaged to whom we owe an equal or greater duty? If an adequate education system exists for all of Arkansas’ students, then it follows that the system will be equitable. The State funds its educational system by first determining how much money is available and then decidin how to divide it. The State refers only to available funds an not to Constitutional requirements. Perhaps an adequate amount of education funding can be determined in this manner, but that seems impossible to this court. Pursuant to Act 917 of 1995, and in order that an amount of funding for an education system based on need and not on the amount available but on the amount necessary to provide an adequate educational system, the court concludes an adequacy study is necessary and must be conducted forthwith. C. Contempt 9. Plaintiffs’ request that the State Defendants be held in contempt of court for failure to comply with the terms of the 1994 Order. This the court declines to do. While it is true that some of the constitutional deficiencies found in the 1994 Order still exist, the State has attempted through legislation, particularly Act917 of 1995, and Amendment 74 to ensure a more equitable funding of the schools. For the reasons stated above, these efforts fail to correct all of the constitutional shortcomings found in 1994, but there is insufficient evidence to indicate that the failure was wilful or contemptuous. VI. REMEDY The court recognizes the exceptional intractability and complexity of the problem at hand. There is a shortage of resources. Taxation, political and cultural hurdles to a solution may seem to create a Gordian knot; a problem not to be solved. It seems impossible to read a newspaper, news magazine or listen to a news broadcast without encountering opinions of all varieties addressing education; how to do it, how to fund it. Countless books have been written on the same subjects. However, it can be safely said that the one constant is the agreement that an adequate education for our children is necessary. Our Constitution requires it. Too many App. 124 of our children are leaving school for a life of deprivation, burdening our culture with the corrosive effects of citizens who lack the education to contribute not only to their community’s welfare but who will be unable to live their own lives except, in many cases, on the outermost fringes of human existence. No problem we face as a State needs more immediate attention. We should resort to the courts in forming a remedy for the many problems noted here only when all else has failed. They are not equipped to undertake the task. And, speaking for this court, it would only be with utter and ame reluctance that it would attempt such an endeavor. owever, it is difficult to overstate the urgency and magnitude of these issues which are, for now, left to the legislature. If any of the findings of fact are deemed to be conclusions of law or any conclusions of law are deemed to be findings of fact, then they are hereby adopted as such. All issues raised in the various pleadings listed on pages 6-7 have now been addressed except for the request for attorneys’ fees addressed in the next section. If the other requests were not addressed directly by this order, the relief requested is denied. VII. Attorneys’ Fees The Supreme Court, in its March 2, 2000, Order in Lake View, held that this court erred in denying attorneys’ fees to the Plaintiffs. The fee request was based on the benefit derived by the State and all members of the Class from new legislation passed since the 1994 Order. The Supreme Court stated this case is analogous to Millsap v. Lane, 288 Ark. 439, 706 S.W.2d 378 (1986), wherein the Supreme Court decided that Millsap’s derivative suit on behalf of Millsap Processed Foods (MPF) preserved a value of over $540,000 in corporate assets. The Court increased the attorneys’ fees based on the economic benefit to MPF resulting from counsel's efforts. “Here, there is no question but that a substantial economic benefit has accrued not only to the poorer school districts as a direct result of Lake View’s efforts but to the state App. 125 as a whole.” Lake View at 495. The Court held that even though sovereign immunity applied as a defense for the State Defendants, that the State waived that defense by agreeing to notices to the Class advocating attorneys’ fees be paid. The Court did decline to mandate a particular method for calculating fees or to state a particular fee amount. Arkansas generally follows the American rule, which is that attorney fees are not chargeable as costs in litigation unless specifically permitted x! statute. Millsap, 706 S.W.2d at 379. exception to the American rule is the common fund theory of awarding fees. The common fund theory allows that where a plaintiff has created or augmented a common fund for the benefit of others as well as himself, attorney fees may be awarded. Id. Incommon fund cases such as this, courts allow the lawyers to recover fees if there has been a substantial benefit to members of a class. In Lake View, the Supreme Court states the common fund of $130,000,000 benefits the Plaintiffs and the whole State of Arkansas. The rationale for allowing fees to the lawyers is one of fairness in that those not directly involved in the litigation, namely the members of the Class and the State, have benefitted from the efforts of the lawyers while incurring no risk themselves. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973). Or put another way, persons who obtain a benefit of a lawsuit without contributing to its costs are unjustly enriched at the successful litigant’s expense. Boeing v. Van Germert, 44 U.S. 472 (1980). It is based on the equitable theory that those who have benefitted from litigation should share its costs. See Report of the Third Circuit Task Force, Court Awarded Attorneys Fees, 108 FRD 237 (Arthur R. Miller, Reporter 1985). In this case, the attorneys agreed that a common fund of $130,000,000 for school districts was created through new legislation by the Plaintiffs’ lawyers efforts. As stated in the Lake View opinion,”... atthe April 6, 1998 hearing, James M. Llewellyn, r., on behalf of the State advised the chancery court that ‘at least One Hundred Million and probably more’ was created by the effects of Amendment 74 alone and that ‘all of us still stand on the Agreed Order recitation that there was [a] One hundred and Thirty Million Dollar fund created.” Lake App. 126 View at 495. Further, the substantial or common benefit theory of recovery would apply here too. Under that theory, the common d doctrine would be applied to cases where lawsuits produce nonmonetary benefits. See generally Mills v. Electric Auto-lite, 396 U.S. 375 (1970); Alyeska Pipeline Co. v. Wilderness Soc’y, 421 U.S. 240 (1975). Courts have treated both the common fund and the common benefit doctrines as one, but the trend is to treat them independen‘ly. The issue under both doctrines is whether a substantial benefit, pecuniary or otherwise, was conferred on an ascertainable class. Mills, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1383%3A2. Public record. Not legal advice.