Burrow v. Pocahontas School District

Arkansas has struggled for much of its history to fund the education of its children—particularly during the Great Depression, when the state found itself unable to pay its debts, match federal aid for such things as food commodities, or pay teachers in order to keep schools open for a full term. At that time and others, the Arkansas General Assembly and the governor, in search of remedies to get through a crisis, enacted laws that seemed at odds with the state and federal constitutions. Disputes over these acts went to state courts and sometimes to the Arkansas Supreme Court. One such case was Burrow v. Pocahontas School District No. 19, in which the Supreme Court upheld a legislative remedy allowing a bankrupt school to turn its school buildings over to teachers, who would teach youngsters only if parents paid tuition in return for teachers’ instruction. Jesse W. Burrow, the mayor of Pocahontas (Randolph County), insisted on his two children being schooled but did not think the state constitution allowed officials to charge him tuition for what was supposed to be free.

The Arkansas Constitution of 1874, like the U.S. Constitution, carried lofty principles—such as equal rights and equal justice for all—but owing to economics, social issues, or simple politics, strict adherence to the constitution was difficult. It was (and still is) firm that the state is always obliged to provide a free, suitable, and equal educational opportunity for every child in the state, making no allowance for unusual economic conditions.

When the Great Depression hit and the state began to find it impossible to maintain its meager funding of schools while the legislature and governor continued to cut taxes, in 1931, the General Assembly passed Acts 169 and 174 allowing school boards that found themselves unable to carry on education for a full term to turn school facilities over to teachers and to require parents who wanted their children to be in classes for the full term to pay tuition to the teachers. Many Arkansas schools faced the same crisis, and schools either closed or gave teachers county scrip—IOUs. Pocahontas schools ran out of money in early 1934, and in February the school board voted to turn the buildings over to the teachers to operate a subscription school for the next term beginning in mid-March and to require parents to pay $10 per child to finish the term. Mayor Burrow did not want to pay the tuition—twenty dollars—but sent his children to school anyway. The superintendent or the teachers sent them home.

Burrow’s attorney, George H. Steimel, filed a lawsuit in chancery court contending that the constitution required the school district to instruct his children free for the full term. The chancery judge, Alvin S. Irby, instructed Burrow to put the twenty dollars of tuition in escrow with the court, which would be returned to him if he ultimately won his case. Then he ruled against Burrow. Judge Irby adopted the school district’s theory that the tuition-for-entry school was not really the school district’s operation but effectively a private school in public school buildings, so the constitution’s mandate that public schools be free did not apply.

A year later, in March 1935, the Arkansas Supreme Court affirmed Judge Irby’s decision. Justice Edgar McHaney wrote for the majority that the 1931 act authorized school boards to permit the use of school facilities for any “public purpose.” Operating what was essentially a private school, the court said, obviously was a public purpose. Burrow’s suit cited a virtually identical case (School District No. 65 of Logan County v. Bangs, 1920) from an earlier economic crisis, where the Arkansas Supreme Court had held that a similar legislative act in 1919, allowing tuition charges by a school district, violated the constitutional mandate for free schools. The 1935 Supreme Court said Pocahontas had provided a somewhat different remedy from 1919: although the school facilities were owned by the school district and the superintendent and janitor were paid by the district and the district paid for heating and lighting, the actual school program—the classroom instruction—essentially belonged to the teachers, who were independent agents. The teachers, not the school district, were charging the tuition, which makes it legal, the court majority said.

The federal government later sent the state some more money, which reimbursed the schools for half of the tuition. Burrow got ten of his twenty dollars refunded.

Chief Justice Cecil E. Johnson cast the only vote against the decision. He thought Burrow was right about the constitutional mandate, and he saw no significant distinction between the 1920 case and the 1935 case, determining that schooling had to be free.

For additional information:
Burrow v. Pocahontas School District No. 19, 190 Ark. 563 (Ark. 1935).

Special School Dist. No. 65 of Logan County v. Bangs, 144 Ark. 34 (Ark. 1920).

Ernest Dumas
Little Rock, Arkansas

Last Updated: 04/20/2022