Opinion No. 2018-027

December 20, 2018

The Honorable Bill Sample
State Senator
2340 North Highway 7
Hot Springs Village, AR 71909

Dear Senator Sample:

This is in response to your request for an opinion on whether Arkansas State University at Newport (“ASUN”) qualifies as a public school under Amendment 98 to the Arkansas Constitution, the “Arkansas Medical Marijuana Amendment of 2016.” You have provided the following background information:

It is my understanding ASUN services area high schools by providing the opportunity for high school students to earn college credits while still attending their high school. Students complete coursework and show acquisition of the same skills learned by students on campus in order to earn these college credits. This opportunity is provided for students in both the areas of General Education and Applied Science …. In the fall of 2016, ASUN enrolled 2,718 students of which 831 were under the age of 18. Of the 1,052 public schools in 2017–2018, all but 67 had student populations of less than 831.

In addition, pursuant to Amendment No. 98 of the Constitution of the State of Arkansas of 1874 the Arkansas Medical Marijuana Commission (AMMC) adopted and promulgated rules and regulations governing the application for, issuance, and renewal of licenses for medical marijuana cultivation facilities and dispensaries in Arkansas. AMMC rules define school as:

(10) “School” means a facility or building operated by a public school district; open-enrollment public charter school, as defined in Ark. Code Ann. § 6-23-103; or a private entity including parochial schools providing preschool, elementary, or secondary education but does not include postsecondary institutions of higher education, community colleges, or the residences of students being home schooled under Ark. Code Ann. § 6-15-501 et seq.

In light of the above background information, you have asked the following question:

Does Arkansas State University at Newport, which notes more than 800 high school students currently taking concurrent classes in partnership between the public university and area public schools, qualify as a public school as defined by Amendment No. 98 of the Constitution of the State of Arkansas of 1874?

RESPONSE

In my opinion, the answer to your question is that a court would likely defer to the AMMC’s interpretation of “school” in Amendment 98 to exclude colleges and universities, including Arkansas State University at Newport.

DISCUSSION

Amendment 98 prohibits locating medical marijuana dispensaries “within one thousand five hundred feet (1500’) of a public or private school, church or daycare center,”[1] and prohibits locating medical marijuana cultivation facilities within 3000 feet of the same list of institutions.[2] Although Amendment 98 contains an extensive definitional section,[3] that section does not define “school” or “public school.” The AMMC has defined “school” to only include preschools, elementary schools, and secondary schools, excluding institutions of higher education.
Amendment 98’s use of “school” and “public school” is ambiguous

Amendment 98 was enacted by initiative petition in 2016; it has since been amended by the General Assembly in dozens of bills pursuant to the General Assembly’s amendment power under section 23 of that amendment, but the provision your question regards was contained in the original ballot initiative.[4] “When interpreting the language of a provision of the Arkansas Constitution [enacted by the voters], th[e] [Arkansas Supreme Court] endeavors to effectuate the intent of the people passing the measure,” i.e., “the intent of the voters.”[5] Thus, in “interpreting provisions of our State Constitution” enacted by the people, the Arkansas Supreme Court “give[s] language [therein] its plain and ordinary meaning.”[6] For the people would understand a proposed amendment’s language to bear its ordinary meaning; thus, the people should be understood to have intended an amendment’s ordinary meaning in voting for it.

It is undeniable that “public school” is frequently used in ordinary writing and speech to exclusively refer to elementary and secondary education. Indeed, many dictionaries only define “public school” in these terms. See, e.g., The American Heritage Dictionary of the English Language 1424 (5th ed. 2011) (exclusively defining “public school” as “[a]n elementary or secondary school in the United States supported by public funds”); Random-House Webster’s Unabridged Dictionary 1563 (2d ed. 1998) (exclusively defining public school as “a school that is maintained at public expense for the education of the children of a community or district”); Black’s Law Dictionary 1546 (10th ed. 2014) (exclusively defining public school as “[a]n elementary, middle or high school . . . open and free to all children of the particular district where the school is located”). Likewise, many Arkansas statutes use “public school,” without any specialized legal definition, in ways that plainly exclude institutions of higher education.[7]

However, “public school” is also used in ordinary writing and speech to refer to public educational institutions generally, inclusive of colleges and universities. Some dictionaries define “public school” to include colleges and universities. See, e.g., New Oxford American Dictionary 1411 (3d ed. 2010) (defining “public school” as “a school supported by public funds”); id. at 1563 (defining “school,” alternatively, as “an institution for educating children” or “another term for university”). “Public school” is sometimes used in popular writing to specifically refer to public universities. See, e.g., Andrew Greif, Oregon Ducks make Joe Salave’a one of college football’s highest-paid defensive line coaches, The Oregonian, Jan. 13, 2017, available at https://perma.cc/AD4Z-WNX2 (“Leavitt[‘s] . . . salary of $1.15 million is the highest for a Pac-12 assistant [coach] at a public school.”). And some state statutes use “public school” to include public colleges and universities.[8]

The phrase “public school,” then, has multiple ordinary meanings. Under “the doctrine of noscitur a sociis, which allows for a word to be defined by the words accompanying it”[9] where those words list items “of a similar nature,”[10] this ambiguity could potentially be resolved by the other terms on the list of institutions that a dispensary or cultivation facility cannot be located near. But ultimately noscitur provides little help in resolving this ambiguity.

The other institutions on the list are “private school, church, or daycare center.”[11] It is true that churches and daycare centers are attended by children, among others. As for “private school,” it, like “public school,” is ambiguous between a meaning that only includes private educational institutions attended by children and one that includes private colleges and universities. Even bracketing the ambiguity of “private school,” the fact that the remaining institutions on the list are attended by children does not strongly militate in favor of one or the other reading of “public school.” Whichever reading is adopted, public schools attended by children would be covered; the only question is whether institutions of higher education largely attended by persons in their late teens and early twenties are also covered. Nothing about the inclusion of daycare centers and churches—the latter of which are attended by persons of all ages, including ones in college—sheds dispositive light on whether “public schools” includes colleges and universities.

Another traditional tool of interpretation that could potentially resolve the ambiguity is consideration of other uses of “public school” or “school” in Amendment 98, both given the presumption that Amendment 98 uses those terms consistently, and because voters attempting to discern what Amendment 98’s reference to public schools meant might have drawn upon the amendment’s other uses of the same or similar terms. As originally enacted, Amendment 98 contained only three other references to schools. The first and potentially most helpful is its provision clarifying that the amendment does not permit persons to possess or use medical marijuana “[o]n the grounds of a daycare center, preschool, primary or secondary school, college, or university.”[12]

Differing inferences about the meaning of “school” in Amendment 98 could be drawn from this provision. On the one hand, the provision distinguishes “schools” from colleges and universities, and tends to suggest that when Amendment 98’s drafters intended to refer to institutions of higher education, they used terms other than “school” to do so. On the other hand, it could be argued equally tenably that had the drafters of this language intended to use “school” throughout the Amendment to only refer to preschools, primary and secondary schools, or thought “school” only covered such schools, the words “preschool,” “primary,” and “secondary” would have been unnecessary; only “school” would have been used. If anything, these cross-cutting inferences only deepen the ambiguity of “public school” in the dispensary/cultivation facility siting section.

Next, Amendment 98 provides that “[a] school or landlord shall not refuse to enroll, refuse to lease to, or otherwise penalize an individual solely for his or her status as a qualifying patient or designated caregiver unless doing so would put the school or landlord in violation of federal law or regulations.”[13] For a number of reasons, the term “school” in this provision initially appears to include institutions of higher education. First and most powerfully, a “designated caregiver” must be, by definition, 21 years of age or older;[14] elementary or secondary schools would not be in a position to deny them enrollment. Second, it is at least somewhat doubtful that Amendment 98 would have forbade elementary and secondary schools from refusing to enroll medical marijuana patients, but would not have imposed the same stricture on colleges and universities. Third, the prohibition’s application to landlords suggests that the patients it protects include adults.

However, none of these arguments is unanswerable. It is possible that the provision’s protection of designated caregivers simply has no practical application to schools, as opposed to landlords; this would not make schools’ inclusion in the provision meaningless, as they would still be prohibited from refusing to enroll qualifying patients. It is also possible that the drafters of Amendment 98 intended to give colleges and universities, which have more latitude than elementary and secondary schools in admissions decisions generally, greater latitude than elementary and secondary schools in admitting medical marijuana users—a distinction arguably suggested by the use of the word “enroll,” rather than “admit,” the word generally associated with colleges and universities’ admission choices. As to landlords, while the “qualifying patients” that landlords are prohibited from discriminating against undeniably include adults as a factual matter, that does not preclude, grammatically or otherwise, the “qualifying patients” that schools cannot refuse to enroll from exclusively being minors as a factual matter.

Lastly, and most importantly, even if the word “school” includes institutions of higher education in Amendment 98 when that word is unmodified, it does not follow that the terms “public school” and “private school” include institutions of higher education. While dictionaries generally define “school,” standing alone, to include such institutions, the phrases “public school” and “private school” are often exclusively defined by the same dictionaries to exclude those institutions.

For similar reasons, the original amendment’s allotment of medical marijuana tax revenues to the Vocational and Technical Training Special Revenue Fund “for grants to . . . vocational-technical schools,” since repealed,[15] does not control the meaning of “public school.” Some vocational-technical schools in Arkansas are postsecondary;[16] thus, as used in this since repealed section, the word “schools” included post-secondary schools. That, however, does not mandate a like interpretation of “public or private schools” in the dispensary/cultivation facility siting provision. Just as the phrase “vocational schools” has a specific meaning that includes post-secondary schools, the phrases “public schools” and “private schools” may exclude post-secondary schools, independently of whatever “school” means sans modifying adjectives. Moreover, the provision’s repeal weakens whatever bearing it might have had on the interpretation of “public school.”

Finally, after Amendment 98 was enacted, the General Assembly added a provision that specifically refers to “public schools.” This provision clarifies that Amendment 98 does not require “[a] public school to permit a qualifying patient who is a student to be present on school grounds, to attend a school event, or to participate in extracurricular activities in violation of the public school’s student discipline policies when a school office has a good faith belief that the behavior of the qualifying patient is impaired.”[17] It is by no means clear whether the phrase “public school” as used in this provision includes colleges and universities. While the provision’s terms may, on first blush, appear to particularly sound in elementary and secondary education, colleges and universities also have “grounds,” “school events,” “extracurricular activities,” and “student discipline policies.”

Further, even if this provision were best read to use “public school” to exclude colleges and universities, it is questionable that that would have any bearing on the interpretation of the term in the dispensary/cultivation facility siting section. Voters never saw this provision, so it does not help resolve what they intended in voting for another provision that used the phrase. To the extent the General Assembly may have been implicitly interpreting “public school” to exclude colleges and universities, “legislative interpretation of constitutional provisions is never binding on the courts, and . . . only entitled to some consideration.”[18] And were it the case that Amendment 98’s reference to “public schools” originally included colleges and universities and therefore prohibited dispensary/cultivation facility siting near those institutions, reading the General Assembly’s enactment of this provision to implicitly exclude those institutions from the meaning of “public school” in Amendment 98 would amount to an implied repeal of that prohibition. Implied repeals are only recognized in cases of irreconcilable conflict or a wholesale revision of a statute, which the General Assembly has not undertaken in its amendments to Amendment 98.[19] As it is possible to read “public school” either way in the provision the General Assembly enacted, there can be no irreconcilable conflict between its meaning in that provision and its meaning in the parts of Amendment 98 enacted by the voters, and it therefore must be assumed that the General Assembly’s amendment did not impliedly narrow the term’s meaning.

In sum, then, both a reading of “public school” in the dispensary/cultivation facility siting provision that excludes colleges and universities, and a reading of “public school” that includes them, are reasonable readings of Amendment 98.[20] Given that this is so, a court would likely defer to the AMMC’s interpretation.

A court would likely defer to the AMMC’s interpretation

The AMMC has been constitutionally charged with the responsibility to “adopt rules necessary to . . . [p]erform its duties under th[e] amendment,”[21] including rules governing “the manner in which it considers applications for . . . licenses of dispensaries and cultivation facilities.”[22] Such rules are deemed rules as defined in the Arkansas Administrative Procedure Act.[23] The AMMC has adopted such rules, and in them, has defined “school” for purposes of dispensary and cultivation facility siting to “not include postsecondary institutions of higher education [and] community colleges” and applied that definition to dispensary and cultivation facility licensing applications.[24] The Arkansas Supreme Court gives “great deference to an agency interpretation of a statute” rendered by the agency charged with administering it, as the AMMC is charged with administering the relevant provisions of Amendment 98, “and will not overturn the construction of a state statute by an administrative agency unless it is clearly wrong.”[25] The AMMC’s interpretation of “school” in Amendment 98, far from being clearly wrong, is clearly permissible. A reviewing court, therefore, would likely defer to it.[26]

Finally, your question points out that hundreds of high-school students take classes at Arkansas State University at Newport. This fact does not render the AMMC’s interpretation of “school” to exclude institutions of higher education clearly wrong as applied to Arkansas State University’s Newport campus. As your question notes, the high-school students taking classes at the Newport campus are enrolled in college classes; Arkansas State University does not provide secondary education. The AMMC has reasonably interpreted “public school,” consistently with its most common ordinary meaning, to include high schools and exclude colleges. Under that interpretation, Arkansas State University at Newport is not a “public school;” a college does not transform into a high school because secondary school students take college classes there.

In this regard, your question also notes that the AMMC has issued an advisory memorandum clarifying that under its rules, a juvenile detention facility is a school because local school districts provide secondary school instruction at such facilities. It does not follow that Arkansas State University at Newport is a “school” under the AMMC’s interpretation of Amendment 98. The critical distinction between juvenile detention facilities and the Arkansas State University at Newport is that secondary school instruction identical to the instruction students would receive at a high school if not incarcerated is provided at the former, while at the latter, college instruction identical to that provided to the University’s college-age students is provided to secondary school students. The kind of education offered at juvenile detention facilities, not the age of the persons detained there, is the driver of the AMMC’s interpretation.[27] While the AMMC is free to interpret “public school” more broadly to include colleges and universities, it is doubtful at best that it could interpret “public school” to generally exclude colleges and universities, but include them whenever secondary school students receive college credits on their campuses. That hybrid interpretation of “public school” is not a meaning of “public school” in ordinary use.

In conclusion, it is my opinion that a reviewing court would uphold the AMMC’s interpretation of “public school” to exclude colleges and universities, and apply that interpretation to exclude Arkansas State University at Newport.

Sincerely,


Leslie Rutledge
Attorney General

[1]Ark Const. amend. 98, § 8(g)(2)(C)(i).
[2]See Ark. Const. amend. 98, § 8(g)(2)(C)(ii).
[3]See Ark. Const. amend. 98, § 2.
[4]The General Assembly added language in subparagraph 8(g)(2)(C) of Amendment 98 specifying the method of measuring the minimum distance between a dispensary or cultivation facility and the various institutions listed there, including public and private schools, but 8(g)(2)(C)’s prohibition was enacted by the people. See 2017 Arkansas Laws Act 1100 (H.B. 2011) § 1 (inserting “which shall be calculated from the primary entrance of the dispensary to the nearest property boundary of a public or private school, church or daycare center” into §§ 8(g)(2)(C)(i)–(ii)).
[5]City of Fayetteville v. Washington Cnty., 369 Ark. 455, 473, 255 S.W.3d 844, 857 (2007) (citing Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001)).
[6]Allred v. McLoud, 343 Ark. 35, 41, 31 S.W.3d 836, 839 (2000).
[7]Many of these statutes expressly distinguish between public schools and colleges; others regulate public schools in ways that could not plausibly apply to colleges. See, e.g., Ark. Code Ann. § 4-75-808(a) (“It shall be unlawful to furnish any free equipment other than to public schools, parochial schools, private schools, colleges, or universities.”); Ark. Code Ann. § 6-18-603 (banning “[a]ny public school fraternity [or] sorority”); Ark. Code Ann. § 6-64-1101 (calling for “a partnership between the university, public schools, and the private sector so that the public schools may be best prepared to give the training necessary to students prior to entering college and so that the colleges are prepared to build on that training”); Ark. Code Ann. § 6-80-107(a)(1) (defining “electronic transcript” as a student transcript “formatted and transmitted electronically in the uniform method prescribed by the Department of Higher Education and the Department of Education for use by public schools and institutions of higher education in this state”).
[8]See, e.g., Ark. Code Ann. § 22-1-203 (defining “public school system” to include “any . . . college or university in the State of Arkansas which is supported wholly or in part by tax dollars”).
[9]Edwards v. Campbell, 2010 Ark. 398, at 5, 370 S.W.3d 250, 253.
[10]Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 167, 970 S.W.2d 198, 201 (1998).
[11]Ark Const. amend. 98, § 8(g)(2)(C)(i)–(ii).
[12]Ark. Const. amend. 98, § 6(a)(2)(B).
[13]Ark. Const. amend. 98, § 3(f)(1).
[14]See Ark. Const. amend. 98, § 2(6)(A).
[15]See Ark. Const. amend. 98, § 17(b)(6)(A), repealed, 2017 Ark. Laws Act 670 (H.B. 1369) § 1.
[16]See Ark. Code Ann. § 6-51-902(a)(1) (imposing requirements on “postsecondary vocational-technical schools”).
[17]See Ark. Const. amend. 98, § 6(b)(6).
[18]City of Fayetteville, 369 Ark. at 473, 255 S.W.3d at 857.
[19]See Sesley v. State, 2011 Ark. 104, 4, 380 S.W.3d 390, 391–92.
[20]Of course, the General Assembly could enact a definition of “public school” in Amendment 98 or in particular subsections of it. Under section 23 of the amendment, the General Assembly may amend Amendment 98, with the exception of section 23 of the amendment and six subsections of sections 3 and 8 not relevant here, “so long as the amendments are germane to this section [evidently a scrivener’s error for “amendment”] and consistent with its policy and purposes.” Ark. Const. amend 98, § 23(a); see also Martin v. Haas, 2018 Ark. 283, 11 (broadly interpreting identical language in Amendment 51).
[21]See Ark. Const. amend. 98, § 8(b)(1).
[22]See Ark. Const. amend. 98, § 8(d)(1).
[23]See Ark. Const. amend. 98, § 8(b)(2).
[24]See Rules and Regulations Governing the Application for Issuance and Renewal of Licenses for Medical Marijuana Cultivation Facilities and Dispensaries in Arkansas, §§ III(10), IV(5)(c), V(5)(c), https://www.mmc.arkansas.gov/Websites/mmsar/images/MMCMedicalMarijuanaRules.pdf.
[25]Brookshire v. Adcock, 2009 Ark. 207, 11, 302 S.W.3d 22, 29 (citing Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999)).
[26]To be sure, here the AMMC is interpreting a provision of the Arkansas Constitution, not a statute. However, Amendment 98, unlike most other provisions of the Arkansas Constitution, vests rulemaking authority in an agency, the AMMC, to fill in the details of its provisions. See Ark. Const. amend. 98, §§ (3)(b)(1), (3)(d). In one of the few other instances of a constitutional grant of administrative rulemaking authority—Amendment 35, section 8, which authorizes the State Game and Fish Commission “to divide the State into zones”—the Arkansas Supreme Court deferred to the responsible agency’s constitutional interpretation of “zone” to authorize the agency to make “every identifiable body of water [in the state] a separate zone.” Magruder v. Ark. Game & Fish Comm’n, 293 Ark. 39, 40, 732 S.W.2d 849, 850 (1987). The court reasoned that “Amendment 35 does not define ‘zone,’” and that “[g]iven the broad authority the people have conferred on the commission, [and the court’s] previous recognition that the intent of Amendment 35 is to take advantage of the expertise of that body,” the court would defer to the agency’s permissible interpretation. Id. at 43, 732 S.W.2d at 852. Likewise, Amendment 98 does not define “school” or “public school,” and confers broad authority on the AMMC to fill out the details of Amendment 98’s dispensary and cultivation facility licensing requirements. I therefore believe that the courts would likely defer to the AMMC’s interpretation of the undefined term “public school” in Amendment 98.
[27]See Arkansas Medical Marijuana Commission, Advisory Memorandum II for Potential Cultivation Facility and Dispensary Applicants at 2 (Aug. 11, 2017), available at https://www.mmc.arkansas.gov/Websites/mmsar/images/ApplicationAdvisoryMemorandumII.p-df (explaining that a juvenile detention facility qualifies as a school because such facilities “provide school instruction that the [juveniles] incarcerated would ordinarily receive if not incarcerated,” and because the Department of Education recognizes such facilities as non-traditional schools).