Willie Nelson’s heroes have always been cowboys. Many of mine have been lawyers and patriots.
John Adams defended the British soldiers who shot five patriots at Boston Common in what became known as the Boston Massacre. He represented those soldiers because they were entitled to a fair trial, with the assistance of effective counsel. He put his feelings and ambition aside, and did what good lawyers do. He represented his clients within the bounds of the law. It may not have been a astute political move, but the law was upheld because Adams did his job.
There was no lynch mob, but a trial held in accordance with law. The soldiers were acquitted because they were found to have acted in self-defense.
John Adams was a patriot who knew that the rule of law was more significant than his political ambition.
Here are a few of my heroes, and I make only posthumous mention: Abraham Lincoln, Nelson Mandela, Leon Jaworski, Robert Shults, G. Thomas Eisele, Maurice Mitchell, Robert Lindsey. These were persons of unshakeable integrity, who would never shape their opinions for the sake of expediency. They would never forsake their love of country for ambition. They knew that if they did, their country would cease to exist. Their overriding ambition was to have a country where the law was sacrosanct.
Lincoln said many conflicting things in his quest to save the Union, but he ultimately did so by realizing that slavery was a cancer. His views and statements changed as the world around him changed, but his commitment was always to a higher calling.
Mandela changed his country from abominable to aspirational. When he attained power, his grace, integrity and dignity were multiplied, not diminished. Rather than be consumed by the mistreatment he endured, he found the courage to transcend the retaliatory urge so that a fresh South Africa could be born.
Where is that in America today?
Our state attorney general issued a legal opinion that our Freedom of Information Act does not apply to private schools that receive state money. He said, “To be subject to the FOIA, a private school must (1) receive public funds and (2) have its activities intertwined with those of the government.”
An attorney general’s opinion is not a legal ruling, but it is an official statement of opinion by an elected official. It should be well-reasoned and clear. Such an opinion should not be influenced by politics or ambition.
Three Arkansas governors, a U.S. representative, and a U.S. senator have served as Arkansas’s attorney general. A U.S. president got his start as our attorney general. The current attorney general and the prior incumbent are jockeying to be our next governor.
Here is why the attorney general’s opinion is wrong.
The State of Arkansas is responsible for providing Arkansas students with an adequate education. Article 14, Section 1 of our state constitution requires it.
Two major school funding decisions, Dupree and Lake View, hold that the state can delegate its work to other organizations but remains responsible and accountable. Because it is responsible, once it steps into the “private” education arena by funding a private school, the state is constitutionally intertwined. Lake View and Dupree are clear on that point.
In Lake View, the Supreme Court said that the state has an absolute constitutional responsibility to educate our children. How can a private school take the money, but not undertake the concomitant constitutional obligation?
I will add that the state should be responsible and held accountable if some students who receive vouchers do not get an adequate education. And there will be quite a lot of those.
The attorney general ignores the connection between the state money, the private school’s obligation to discharge the responsibility, and the state’s ultimate responsibility to accomplish the state-funded task.
He also ignores the plain language of the LEARNS Act. It says, “The division of Elementary and Secondary Education shall administer the Arkansas Children’s Educational Freedom Account Program under this subchapter, which shall be subject to the rules adopted by the State Board of Education.” Ark. Code Ann §6-18-2504 (a).
The LEARNS Act then goes on for about 13 pages with more rules, regulations, testing requirements and the like which apply to private schools that take taxpayer money.
Private schools that take LEARNS Act money must be accredited by the state or be on a path to become accredited.
The State Department of Education passed a number of rules which apply to private schools that take LEARNS Act vouchers. The state’s own website says it best: “The first batch of rules about the LEARNS Act. There’s a lot to unpack…”
But somehow, in the judgment of our attorney general, all of the statutes, rules, accreditation, qualifications and testing do not amount to private schools being intertwined with the state for purposes of the FOIA.
For me, the basic fact that the state is giving money to an organization to discharge the state’s constitutional obligation is enough to require that organization to comply with FOIA. That’s enough “intertwination.”
This is not a case where the state is funding some private contractor to accomplish a pedestrian task like picking up roadside trash. The state is giving money to private schools for the purpose of meeting the state’s constitutional obligation to educate its students. The public has a right to know if that work is being done correctly.
What’s more, all along this political road, the state has argued it is not blindly throwing money to any and every private school, and there is sufficient oversight to be sure this funding is being used responsibly.
You cannot have it both ways, LEARNS Act proponents. On one hand, you cannot say that taxpayer money is being spent responsibly because of the state oversight, and then on the other hand claim there is little or no state involvement.
The LEARNS Act provides state officials with opportunities to pursue their political futures. LEARNS was never about education; it was not enacted with any indication it would work, and it won’t. Public money will go to private interests, but education will not improve.
Judges don’t have police or armies. The power of their rulings comes from the reasoning in the rulings themselves. Any ruling made without sound legal and factual bases undermines the public’s respect for the courts, and leads to a disregard for every judicial ruling.
Attorney general opinions are not much different. If they are not well-reasoned and based on fact, they become meaningless.
It is basic for politics and power to become more significant than sound legal reasoning and justice. Too often, neither is popular or expedient.
I am not being overly dramatic when I say I believe our fundamental existence as a state and nation are under siege. The merger of the executive, legislative and judicial branches, on a state and national basis, will result in tyranny.
The lean reed that stands in the way of tyranny is the integrity of those in power.
Are there judges and elected officials who are robust enough to have the courage of their convictions, or are they more ambitious than patriotic?
Where is the next John Adams?
