PAUL E. DANIELSON, Justice.
Appellants Carol Walker, individually and on behalf of her minor children Rachel Walker, James Walker, and Heather Walker; Patrick O'Bryant and Tawnya O'Bryant, husband and wife, individually and on behalf of their minor children Christopher O'Bryant and Sean O'Bryant; Jerry Ferguson, individually and on behalf of his minor children Kole Ferguson, Kerra Ferguson, and Kannon Ferguson; and Keli Waggoner, individually and on behalf of her minor children Jaycee Waggoner and Bradley Halsell (hereinafter collectively "the Parents") appeal from the circuit court's order affirming the decision of appellee the Arkansas State Board of Education (Board), which granted appellee/intervenor the Two Rivers School District's petition for approval to close the Fourche Valley K-12 school campus. Their sole point on appeal is that the circuit court erred in affirming the Board's decision approving the closure of Fourche Valley Elementary and High School because the Board should be enjoined from acting on petitions for closure until the State fulfills its constitutional duty to define "excessive transportation time" and to adequately fund Arkansas school districts' transportation needs. The Board cross-appeals, arguing that the circuit court erred by failing to dismiss the Parents' petition for judicial review (1) because the Arkansas Administrative Procedure Act (APA) did not apply, and (2) for lack of standing. We affirm both on direct appeal and on cross-appeal.
The instant appeal stems from the Two Rivers School District's Board of Directors' 6-1 vote to close the Fourche Valley K-12 campus, as an isolated school.
On May 12, 2009, the Parents filed a petition for judicial review pursuant to the APA, naming the Board and the District as defendants. In their petition, they claimed that they would be "dramatically and negatively impacted" by the District's attempt to close the Fourche Valley campus. Specifically, they alleged that
They further averred that the Board could not evaluate the District's best interest, when the District refused to disclose to the Board or others the fiscal information related to any alternatives to closure.
On May 28, 2009, the Parents filed their first amended petition for judicial review. In that petition, the Parents alleged that their children's fundamental rights to an adequate educational opportunity would be denied if the Fourche Valley schools were closed in that closure would force them "to endure total transportation time of up to four hours a day with an undetermined negative impact on their academic achievement." They maintained that the General Assembly had recognized that student transportation was a necessary component of an adequate education, and they asserted that the decision of the District and the Board to close was not supported by substantial evidence; was arbitrary, capricious, and an abuse of discretion; and was in violation of their fundamental rights.
On June 12, 2009, the Board moved to dismiss the Parents' petition for judicial review. It alleged that the petition was barred because the APA did not apply to the Board's consideration of the District's petition, as there was no adjudication before the Board. Accordingly, the Board urged, the circuit court was without jurisdiction. The Board further asserted that the Parents lacked standing to seek review, as they failed to allege sufficient facts to show that they suffered an injury to their persons, business, or property as a result of the Board's action. Finally, the Board asserted, the petition was barred by the doctrine of res judicata in that the constitutional claims raised by the Parents were fully litigated and resolved in the Lake View School District litigation.
Also on that day, the District filed its motion to dismiss and, alternatively, motion to intervene. In it, the District averred that the Parents' petition for judicial review was barred as to the District, because the District was not a state agency for purposes of the APA. For that reason, it claimed the circuit court lacked jurisdiction to hear the petition as against it. It further asserted, like the Board, that the petition was barred because the APA did not apply to the Board's consideration
The circuit court held a hearing on the foregoing on June 26, 2009, and on July 8, 2009, the circuit court filed an order denying the Board's motion to dismiss, granting the District's motion to dismiss and motion to intervene, and dismissing the Ferguson family as plaintiffs. In addition, the circuit court remanded the matter to the Board to adopt findings of fact and conclusions of law. On July 13, 2009, the Board held another hearing on the matter and issued findings of fact and conclusions of law, which the Board then filed with the circuit court. On July 14, 2009, the District filed its supplemental motion to dismiss the remaining Parents for lack of standing, on the basis that their students had transferred to other districts.
The next day, the Parents filed their supplemental petition for judicial review, response to the District's first supplemental motion to dismiss, and motion for reconsideration. They contended that it was irrelevant where their children were going to school, as they were injured and their constitutional rights violated by the closure of the Fourche Valley campus. They alleged that they had been forced to choose among unconstitutional alternatives and that their standing was not lost simply because they had taken steps to mitigate their constitutional injury. They further urged the circuit court to reconsider its dismissal of the Fergusons.
On July 16, 2009, the circuit court held a second hearing. At that hearing, the circuit court ruled that the Parents had standing, that there was substantial evidence for the closing, and that the Board's decision was not arbitrary or capricious. It then memorialized those rulings in its order of August 10, 2009, wherein the circuit court made the following findings, in pertinent part:
The Parents now appeal and the Board cross-appeals. Because both points on cross-appeal raise the possibility of a dismissal, we address them first.
For its first point on cross-appeal, the Board urges that the circuit court erred in
Our standard of review for the denial of a motion to dismiss is whether the circuit court abused its discretion. See Arkansas Dep't of Envt'l Quality v. Oil Producers of Arkansas, 2009 Ark. 297, 318 S.W.3d 570. The question of whether a petition for judicial review under the APA is based upon a final agency decision is a jurisdictional matter that a court can address at any time. See Munson v. Arkansas Dep't of Corr. Sex Offender Screening & Risk Assessment, 369 Ark. 290, 253 S.W.3d 901 (2007).
Arkansas Code Annotated § 25-15-212(a) permits that, "[i]n cases of adjudication, any person, except an inmate under sentence to the custody of the Department of Correction, who considers himself or herself injured in his or her person, business, or property by final agency action shall be entitled to judicial review of the action under this subchapter." Ark.Code Ann. § 25-15-212(a) (Repl.2002). The Board contends that its approval of the District's petition for closure was not an adjudication subject to the APA; however, we disagree.
This court has previously observed, in the context of granting a writ of prohibition, that the Arkansas State Board of Education is an administrative agency, whose decisions are subject to appeal as governed by the APA. See Arkansas State Bd. of Educ. v. Purifoy, 292 Ark. 526, 731 S.W.2d 209 (1987) (per curiam). In Purifoy, relied on by the Parents, this court held that a chancery court did not have jurisdiction to hear an action filed by a school district against the Board because the Quality Education Act of 1983, then Ark. Stat. Ann. § 80-4606, provided that appeals from rulings by the State Board of Education may be made to a "court of competent jurisdiction." Id. at 527, 731 S.W.2d at 209. This court then deemed a court of competent jurisdiction to be the circuit court. See id.
Section 80-4606 of the Arkansas Statutes Annotated is now codified as Ark. Code Ann. § 6-15-203, which pertains to the notification by the Department of Education to school districts failing to meet standards for accreditation for elementary and secondary schools. See Ark.Code Ann. § 6-15-203 history (Repl.2007). In that section, school districts are permitted the right to appeal to the State Board of Education the Department's determination if the school district believes the Department has improperly determined that a school or district fails to meet the accreditation standards. See Ark.Code Ann. § 6-15-203(b)(1). But in addition, as part of the Omnibus Quality Education Act of 2003, the General Assembly amended the provision cited in our Purifoy decision to provide that an aggrieved school district may appeal the Board's ruling "to Pulaski County Circuit Court pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq." Ark.Code Ann. § 6-15-203(b)(5). Thus, the General Assembly has now specifically provided that such appeals may be had pursuant to the APA. While that may be, the Board's decision in the instant case does not fall within section 6-15-203, thus, Purifoy is inapposite. Nonetheless, we hold that the APA is applicable to a decision by the Board regarding
As set forth above, the APA applies to "final agency action." Ark.Code Ann. § 25-15-212(a). "Agency" is defined within the Act as "each board, commission, department, officer or other authority of the government of the State of Arkansas, whether or not within, or subject to review by, another agency, except the General Assembly, the courts, and Governor" and includes "the Division of Child Care and Early Childhood Education of the Department of Human Services and the Child Care Appeal Review Panel for purposes of administrative appeal." Ark.Code Ann. § 25-15-202(2)(A)-(B) (Supp.2009). However, the General Assembly has made clear that "agency" does not include "the Arkansas Public Service Commission, the Arkansas Pollution Control and Ecology Commission, the Workers' Compensation Commission, and the Department of Workforce Services, it being determined by the General Assembly that the existing laws governing those agencies provide adequate administrative procedures for those agencies." Ark.Code Ann. § 25-15-202(2)(C). Pursuant to the plain language defining the term "agency," it is clear to this court that the State Board of Education is an agency for purposes of the APA.
But still, the right to judicial review under the APA is limited to "cases of adjudication." Ark.Code Ann. § 25-15-212(a). "Adjudication" is defined within the APA as the "agency process for the formulation of an order." Ark.Code Ann. § 25-15-202(1)(A). "Order" is defined as "the final disposition of an agency in any matter other than rule making, including licensing and rate making, in which the agency is required by law to make its determination after notice and hearing." Ark.Code Ann. § 25-15-202(5) (emphasis added). Where there has been no adjudication before the administrative agency, there has been no final agency action to be reviewed pursuant to section 25-15-212. See Arkansas Prof'l Bail Bondsman Licensing Bd. v. Frawley, 350 Ark. 444, 88 S.W.3d 418 (2002).
Claiming there was no adjudication, the Board argues that its decision to approve or disapprove of a district's petition is an administrative decision, rather than a judicial one. In Sikes v. General Publishing Co., Inc., 264 Ark. 1, 568 S.W.2d 33 (1978), this court drew a distinction between the two, stating:
264 Ark. at 5-7, 568 S.W.2d at 35-36 (emphasis in original). In Sikes, the State Printing Board awarded several printing contracts to the Hurley Company; however, a few days after the execution of the contracts, the Board was informed that the company had failed to file performance bonds within the required time. See id. The Board reviewed the matter at a meeting and voted to rescind the contracts and award them to other bidders. See id. The Hurley Company then sued the Board under the APA. See id. That differs from the decision at issue in the instant case.
In this case, pursuant to the statute, the District was prevented from closing the Fourche Valley campus unless it adopted a motion to close the school either by a unanimous vote or a majority vote and with consideration and approval by a majority of the Board. See Ark.Code Ann. § 6-20-602(b)(1)-(2)(A). The statute further provided that the Board "shall only approve a motion to close isolated schools or parts thereof ... if the closure is in the best interest of the students in the school district as a whole." Ark.Code Ann. § 6-20-602(2)(C)(ii). Thus, the Board is charged with making this determination and was given a standard for review for making such a determination. The statute further provides:
Ark.Code Ann. § 6-20-602(2)(B)(i) (emphasis added). Consequently, the determination is prompted by a school district's petition, which must contain statutorily required information,
For its final point on cross-appeal, the Board argues that the circuit court erred in failing to dismiss the Parents' petition for judicial review due to their lack of standing. The Board asserts that the Parents did not show that they had suffered an injury as a result of the Board's decision and, thus, they lacked standing. It avers that the Parents failed to allege a concrete, specific, real, and immediate injury required for standing under the APA. The Board maintains that the Parents cannot show that their constitutional rights have been violated by the closure because they have no constitutional right to attend the school or campus of their choice and that they cannot show that their transportation time is any more burdensome than that of any other students residing in rural Arkansas. For these reasons, the Board claims, the Parents lacked standing and their petition for judicial review should have been dismissed.
The Parents respond that all that was required of them to establish an injury under the APA was a showing that the agency's act had a prejudicial impact on them. They maintain that their claim of constitutional injury was sufficient to confer standing, but, further, the disruption in their children's education resulting from changing schools was also sufficient prejudicial impact. Accordingly, the Parents contend that the circuit court properly denied the Board's motion to dismiss on this basis.
The question of standing is a matter of law for this court to decide, and this court reviews questions of law de novo. See Arkansas Beverage Retailers Ass'n, Inc. v. Moore, 369 Ark. 498, 256 S.W.3d 488 (2007). In Moore, this court held that, for purposes of the APA,
Id. at 505-06, 256 S.W.3d at 494.
Here, the Parents alleged in their petitions for judicial review that their
For their sole point on appeal, the Parents argue that the Board's approval of the District's petition for closure was in violation of their children's constitutional rights. They contend that transportation is a necessary component to the provision of an equal opportunity to an adequate education. The Parents aver that the Arkansas Constitution requires the State to define "excessive transportation" and to adequately fund the transportation needs of school districts. They claim that until the State so defines and funds, the Board should be enjoined from authorizing the District's petition for closure.
The Board responds, asserting initially that the Parents' argument is not preserved for appeal because they did not obtain a proper ruling on it before the circuit court. It urges that the circuit court did not issue a ruling as to whether excessive transportation time must be defined before approval of a petition for closure. The Board further states that the Parents have failed to demonstrate how their children will be denied an adequate education, as no constitutional provision requires the Board to define the term. It submits that whether the term is defined and whether appropriate funding for transportation is provided are well beyond the scope of the Board's authority and beyond this court's review under the APA; instead, it points out, a more appropriate venue to obtain such relief would be to file a declaratory-judgment action. With respect to the merits, the Board asserts that its decision was supported by substantial evidence and was in no way arbitrary or capricious.
The District responds, also arguing that the Parents failed to preserve their argument on appeal, as the circuit court did not specifically rule on the Parents' constitutional argument. It maintains that the circuit court's order should be affirmed because the Parents' claims are barred by res judicata, in that they were fully litigated and resolved in Lake View, supra. Alternatively, the District claims, substantial evidence supported the circuit court's affirmance of the Board's decision.
In determining whether a decision is supported by substantial evidence, we review the record to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. See id. In doing so, we give the evidence its strongest probative force in favor of the administrative agency. See id. The question is not whether the testimony would have supported a contrary finding, but whether it supports the finding that was made. See id. As true for any other factfinder, it is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. See id.
As an initial matter, our review of the record reveals that the Parents' argument is preserved for appeal. In the hearing before the Board, the Parents' legal counsel argued that
Moreover, before the circuit court, the Parents clearly presented their constitutional claim, arguing that
And, finally, the circuit court, in its order, as set forth above, ruled that there was substantial evidence to support the Board's ruling and that the ruling was "not arbitrary or capricious or in violation of constitutional or statutory provisions." Because it is clear that the Parents raised their argument before the Board and circuit court and obtained a ruling, the Parents' argument is preserved for this court's review. We turn, then, to the merits of the Parents' claim.
As set forth above, this court has previously held that the State has an absolute duty under our state constitution to provide an adequate education to each school child, as well as an equal education to each school child. See Lake View, 351 Ark. at 71, 78-79, 91 S.W.3d at 495, 500. Instead of challenging the evidence before the Board, the Parents urge that the State has the obligation to render a definition of excessive transportation time and to provide adequate funding, and until it does so, the Board should be enjoined from rendering any decision under section 6-20-602. However, their claim that the State is failing in its obligation does not warrant reversal of the Board's decision in this appeal under the APA.
The State was not a defendant in this case, and it is the Board's action that is the sole action subject to review under the APA. While the Board is an agency of the State, it is not the State itself, and because this is an appeal under the APA, whether or not the State itself is in violation of its constitutional duty to provide an adequate education is simply not before us. Under the APA, the Parents' challenge is limited strictly to the final action of the agency, here, the Board's approval of the District's petition for closure. See Ark.Code Ann. § 25-15-212(a). Moreover, our review is strictly limited to determining whether the substantial rights of the Parents have been prejudiced because the Board's decision was:
Ark.Code Ann. § 25-15-212(h).
Here, the Parents have asked this court to enjoin the Board from acting on petitions for closure, claiming solely that any approval to close renders their children's education constitutionally inadequate due to the State's failures. But, as it currently stands, our educational system is constitutionally firm, see Lake View School District No. 25 v. Huckabee, 370 Ark. 139,
There is the point, too, that the Parents have failed to direct this court to any authority that the Board itself was required to define excessive transportation time.
Affirmed.
CORBIN, J., not participating.
§ 6-13-1601 et seq., and § 6-13-1405(a)(5).
Ark.Code Ann. § 6-20-602(2)(B)(ii).
Ark.Code Ann. § 6-19-123 (Repl.2007). However, the plain language of the statute requires this report to be prepared not by the Board of Education, but by the Bureau of Legislative Research, in conjunction with the Division of Public School Academic Facilities and Transportation. That Division operates under the direct supervision of the Commission for Arkansas Public School Academic Facilities and Transportation, which shall consist of the Director of the Department of Finance and Administration, the Commissioner of Education, and the President of the Arkansas Development Finance Authority. See Ark.Code Ann. § 6-21-112 & § 6-21-114 (Supp.2009).
