LITTLE ROCK — Legislators failed to reach a consensus Monday on a new state rule prohibiting the use of state funds for religious instruction at Arkansas preschools.
Their inaction does not stop legislative consideration of the rule. It goes before the Administrative Rules and Regulations Committee on Tuesday.
Members of the House and Senate committees on education debated the rule for more than three hours Monday before hearing a motion to deny it a favorable recommendation. They did not act on the motion by Rep. Robert Dale, R-Dover, because by that time there were not enough members present to take a vote.
The proposed rule would prohibit preschools that receive funding from the Arkansas Better Chance early childhood education program from holding religious activities during the "ABC day," which is defined as seven hours beginning with the first ABC activity of the day.
The rule also would require any preschool that receives ABC funding to maintain a separate bank account for state funding and not commingle that money with money from private sources. State funds could not be used to fund any religious activities at the schools, regardless of the time of day.
State education officials drafted the rule after receiving a complaint that Growing God’s Kingdom preschool in West Fork, an ABC-funded school owned by Rep. Justin Harris, R-West Fork, was using state funds to promote religion in violation of the First Amendment.
The state Board of Education approved the rule in July, subject to legislative review.
Harris testified in opposition to the rule during Monday’s hearing.
"These are low-income children that in the small town of West Fork have two choices: They can go to a secular program or go to a faith-based program. But what we’re seeing is that we’re wanting to have that choice taken away," he said.
"Do you think our Constitution is wrong?" asked Rep. Randy Stewart, D-Kirby.
Harris said he did not think the Constitution was wrong, but that he believed it guaranteed "freedom of religion, not freedom from religion."
Stewart said the rule would only to apply preschools that request state funding. He said that as a farmer, if he applies for federal money to build a fence and the government tells him he has to build the fence a certain way, "I say well thank you, I’m not going to apply. It’s the same situation here."
Harris said after the hearing that he has not ruled out the possibility of suing the state if the rule is put in place.
"All options are on the table," he said.
Donna Schillinger of Clarksville testified that she chose to enroll her son in the state-funded His Little Lambs preschool in Clarksville because it is owned by a person who goes to her church and "has the same values that I do."
"Our Constitution guarantees freedom of religion," she said. "It requires neutrality. These rules are not neutral. To say ‘no religious activity’ is not a neutral stance."
Schillinger said later that if the rule is put in place she expects to sue the state over it.
The panel also heard testimony from Stephine Lacey, a Little Rock lawyer who said she is affiliated with, but not a representative of, the former Allied Defense Fund, now known as the Alliance Defending Freedom, which represents Christian organizations in First Amendment cases.
Lacey objected to language in the rule stating that sectarian-affiliated programs must be reviewed to assure that approval of ABC funding for them will not result in a violation of the First Amendment.
"I think by including that language you actually have created a constitutional issue rather than solved a constitutional issue," she said. "Everybody’s application should be considered whether they are going to comply with the constitution, not just sectarian organizations."
Rep. Tim Summers, R-Bentonville, asked attorneys with the state Department of Education and the state Department of Human Services, ‘Would you not agree that today’s youth would need any help they could possibly get on questions of moral and discipline?"
Breck Hopkins, chief counsel for DHS, answered, "There’s nothing in this rule that prohibits the teaching of morality or discipline, because those things can be taught in a religiously neutral way."
Sen. Mary Anne Salmon, D-North Little Rock, said she believed the rule would benefit religious families.
"If someone came in and tried to teach our Christian children some other religion … I think we would be very upset with that, and I think we have to not have tunnel vision on this," she said.
State Sen. Johnny Key, R-Mountain Home, who owns two state-funded preschools with religious affiliations, did not attend the hearing.