Amendment 33

Amendment 33 was the first of three constitutional amendments ratified by voters in the decade after the beginning of World War II to try to curb political interference with large government agencies and institutions. It prohibited the governor and the Arkansas General Assembly from diminishing the powers of state agencies and institutions, as well as from interfering with their governing boards by dismissing members before their terms expired or increasing or reducing the membership of the boards.

The amendment, ratified in 1942, followed Governor Homer M. Adkins’s purging of the board of the University of Arkansas (UA) in Fayetteville (Washington County) in order to fire the university’s president J. William Fulbright, who was the son of a political foe of the governor. The amendment was aimed at protecting state colleges from such interference in the future, but it included charitable, penal, and correctional institutions as well. Subsequently, another amendment adopted in 1944 (Amendment 35) ensured the independence of the Arkansas Game and Fish Commission, and another in 1952 (Amendment 42, commonly known as the Mack-Blackwell Amendment) protected the Arkansas Highway Commission.

When Adkins defeated his longtime adversary, Governor Carl E. Bailey, in 1940, he set out to settle political scores. As Arkansas’s collector for the Internal Revenue Service in the administration of President Franklin D. Roosevelt, Adkins had exercised control of federal patronage in the state, which was a major source of his political power. Roberta W. Fulbright, the outspoken publisher of the Northwest Arkansas Times in Fayetteville, had supported Bailey and criticized Adkins in her newspaper column. When he was governor, Bailey had suggested her son, J. William Fulbright (a law professor and a former football hero at the school), as a successor to the university’s president, who had been killed in a car wreck. The university’s trustees appointed Fulbright, who became UA president in 1939. In one of his first acts as governor in 1941, Adkins installed his own trustees and had Fulbright fired. Fulbright was elected to the U.S. House of Representatives the next year and to the U.S. Senate in 1944, defeating, among others, Homer Adkins.

Following community outrage over Adkins’s machinations, Robert A. Leflar, dean of the university’s law school, wrote Amendment 33. Petitions were circulated, and the proposal was placed on the general election ballot in 1942. Voters narrowly approved it, 39,756 to 38,167. The amendment prohibited the governor from removing without cause any member of a board of an institution of higher learning or of the boards of correctional, penal, and charitable institutions. It prohibited the legislature from increasing or reducing the membership of an institution’s board, and the terms of members had to correspond to the number of members of the board—that is, five-year terms for a five-member board, seven years for a seven-member board, and ten years for a ten-member board, so that the term of only one member of each board would expire every year. It said that the powers of a board could not be reduced unless the institution was abolished or consolidated with another. A governor could fire a member of a board only for cause and only after the rest of the board approved it.

Amendment 33 proved to be an impediment to future efforts by governors and legislatures to regulate the administration and mission of the colleges and universities. In 1961, the legislature created the Commission on Coordination of Higher Educational Finance, which was supposed to bring uniformity to the budgeting for the state’s four-year and two-year institutions, which previously had depended on the lobbying strength of each school. Aware of the limitations imposed by Amendment 33, the legislature gave the agency no power to evaluate or approve programs at the schools but merely to recommend budgets. Ten years later, the legislature replaced the commission with the Department of Higher Education, controlled by a board appointed by the governor. The name change suggested greater powers for the department and its board, but the act did not specifically strengthen the department’s authority over the schools, and the presidents, chancellors, and boards of the institutions continued unfettered. In 1983, the legislature enacted a law requiring the department to review academic programs at each institution, but it did not explicitly grant it power to veto programs on the campuses. But the legislature in 1989 finally gave it authority to terminate or prevent unproductive programs.

The University of Central Arkansas (UCA) in Conway (Faulkner County) challenged that power in 1995. When the Department of Higher Education rejected the university’s plans for doctoral programs in physical therapy and school psychology, the university’s board sued the department and its board (Board of Trustees of UCA et al. v. State Board of Education et al.). The Faulkner County Circuit Court ruled in 1996 that the state board had violated Amendment 33 by usurping powers held exclusively by the colleges. The state appealed the order to the Arkansas Supreme Court, but the state board, hoping to forestall a binding precedent from the Supreme Court, withdrew its disapproval of the programs. The appeal was dropped, and the circuit court’s order was vacated, leaving the question of the division of authority between the state and the individual schools unsettled.

The legislature, state board of higher education, and the institutions have operated since that time under an uneasy truce. The legislature has maintained control over appropriations and budgetary matters and, from time to time, has restricted the schools’ use of tuition and fees, and the institutions have not challenged it as a violation of Amendment 33.

In 2023, the Arkansas General Assembly passed, and Governor Sarah Huckabee Sanders signed, Act 185, which amended the law concerning the secretary of the Arkansas Department of Corrections, making that person serve at the pleasure of the governor, rather than the Board of Corrections. Act 659, passed that same year, states that the directors of both the Division of Correction and the Division of Community Correction serve at the pleasure of the secretary rather than the board. Conflict between the governor and the board came to a head later in the year when Gov. Sanders publicly called for the ADC to increase the number of prisoners detained in state facilities. Board members expressed concern about prison overcrowding, especially amid staff shortages, but Corrections Secretary Joe Profiri sided with the governor. On December 14, 2023, the board voted to suspend Profiri with pay and to direct outside counsel to file a lawsuit against Sanders, Profiri, and the ADC, asserting that Act 185 conflicted with Amendment 33. The next day, Pulaski County Circuit Judge Pattie James issued a temporary restraining order, ruling that Acts 185 and 659 usurped the board’s power under the state constitution. Also on December 15, Attorney General Tim Griffin filed suit against the Board of Corrections, alleging that the board had violated the state’s Freedom of Information Act in hiring outside counsel during a closed session, but on December 19, Judge Tim Fox of the Pulaski County Circuit Court ruled that Griffin’s lawsuit violated his statutory duty to represent the state, meaning that the attorney general was essentially suing his own clients, and Fox threatened to dismiss the case without prejudice.

For additional information:
Amendment 33, Arkansas Constitution. Justia.com. https://law.justia.com/constitution/arkansas/amendments/amendment-33/ (accessed December 15, 2023).

“Factors Influencing the Rising Cost of Tuition in Arkansas.” Bureau of Legislative Research. Research Report, September 17, 2009.

Johnson, Ben F., III. Arkansas in Modern America since 1930. 2nd ed. Fayetteville: University of Arkansas Press, 2019.

Luck, H. D. Arkansas Higher Education, 1971–1995. San Antonio: The Watercress Press, 1996.

Moritz, Gwen. “Arkansas Colleges Live with Legacy of 1942 Vote.” Arkansas Business, February 29, 2016, pp. 1, 10.

Stuck, Dorothy D., and Nan Snow. Roberta: A Most Remarkable Fulbright. Fayetteville: University of Arkansas Press, 1997.

Ernest Dumas
Little Rock, Arkansas