Program Beneficiaries’ Right to Intervene: Arkansas Supreme Court Expands Rule 24(a)(2) in Challenges to the LEARNS Act

Introduction

In Erika Lara, Katie Parrish, and Nikita Glendenning v. Gwen Faulkenberry, Special Renee Sanders, Anika Whitfield, and Kimberly Crutchfield, 2025 Ark. 205, the Arkansas Supreme Court addressed a procedural but highly consequential question: when may beneficiaries of a state program intervene as of right to defend that program against a constitutional and “illegal exaction” challenge?

The case arises from litigation attacking the LEARNS Act—Arkansas’s sweeping education reform measure—and, more specifically, the Arkansas Children’s Education Freedom Account (“Education Freedom Account”) program, a form of education-voucher or education-savings-account assistance. Taxpayer plaintiffs (the appellees) sued state officials to halt the program and claw back funds already paid. Parents using or eligible to use the Education Freedom Accounts (the appellants) sought to intervene to defend the program. The Pulaski County Circuit Court denied intervention.

On interlocutory appeal, the Arkansas Supreme Court—over a sovereign-immunity–based dissent—reversed and held that the parents are entitled to intervene as of right under Arkansas Rule of Civil Procedure 24(a)(2). In doing so, the Court clarified:

That direct economic harm from the potential invalidation of a government program is a “recognized interest” sufficient to support intervention, even when the beneficiaries lack a present enforceable legal entitlement to future payments; and
That state officials defending a broad policy may not “adequately represent” the narrower, personal, economic and educational interests of program beneficiaries.

This decision strengthens the ability of individuals directly affected by state programs—especially education-choice programs—to become parties in litigation challenging those programs. It builds on and extends earlier Arkansas precedents on intervention, particularly Cherokee Nation Businesses, LLC v. Gulfside Casino Partnership and UHS of Ark., Inc. v. City of Sherwood.

I. Background of the Case

A. The Parties

Appellants (Proposed Intervenors): Erika Lara, Katie Parrish, and Nikita Glendenning – parents of school-age children who are eligible for, and seek to benefit from, the Education Freedom Account program.
Appellees (Original Plaintiffs): Gwen Faulkenberry, Special Renee Sanders, Anika Whitfield, and Kimberly Crutchfield – Arkansas residents who brought a taxpayer/constitutional challenge to the LEARNS Act, including an illegal-exaction claim.
Original State Defendants (in official capacities):
- Education Secretary Jacob Oliva
- Governor Sarah Sanders
- State Board of Education Chair and members
- Arkansas Department of Finance and Administration Secretary Jim Hudson
These officials are responsible for administering the LEARNS Act and the Education Freedom Account program.

B. The LEARNS Act and the Education Freedom Account Program

In 2023, the Arkansas General Assembly enacted Act 237, known as the “LEARNS Act” (Literacy, Empowerment, Accountability, Readiness, Networking, and School Safety). Section 42 of the Act created the Arkansas Children’s Education Freedom Account program. Under this program:

Eligible parents receive public funds (over $6,600 per child) to help pay for:
- Private-school tuition; or
- Approved home-school expenditures.

In substance, the program allows parents to use state-funded accounts to pursue education options outside traditional public schools.

C. The Underlying Lawsuit

The appellees sued various state officials in their official capacities, alleging that the LEARNS Act—and in particular the Education Freedom Account program—violates:

Article 14, §§ 1–3 of the Arkansas Constitution (provisions governing public education and the use of school funds); and
Article 16, § 11 of the Arkansas Constitution (relating to the use and appropriation of public funds).

They asserted an illegal exaction claim, contending that:

State tax revenues are being unlawfully diverted to private purposes (private-school tuition and home-school expenditures); and
The Education Freedom Account program therefore constitutes an unconstitutional expenditure of public funds.

The plaintiffs sought:

To “stop payments” for private-school tuition and vendor payments on behalf of home-school parents; and
To “claw back” funds already disbursed under the program.

Thus, the litigation threatens both future benefits and funds already received by parents under the program.

D. The Parents’ Motion to Intervene

The appellants, as parents of children eligible for Education Freedom Accounts, moved to intervene:

As of right under Arkansas Rule of Civil Procedure 24(a)(2); and, in the alternative,
Permissively under Rule 24(b).

They argued that:

They have a direct financial interest in the Education Freedom Account program because it pays over $6,600 per child, making private-school or home-school education affordable;
Shutting down the program and clawing back funds would impair their ability to educate their children and cause them concrete economic harm; and
The state defendants cannot adequately represent their narrow, personal interests in the program, which differ from the state’s broader policy interests in overall public education reform.

E. The Circuit Court’s Ruling

The Pulaski County Circuit Court denied the motion, concluding that:

The parents lacked a “direct, substantial, and legally protectible interest” in the Education Freedom Account program;
The disposition of the lawsuit did not threaten to impair any interest they might have; and
Any interests they might have were adequately represented by existing parties (the state actors).

The court also denied permissive intervention. The parents then brought an interlocutory appeal.

II. Summary of the Supreme Court’s Opinion

Justice Barbara W. Webb, writing for the Arkansas Supreme Court, reversed and remanded. The Court held that the parents are entitled to intervention as of right under Rule 24(a)(2), and it was therefore unnecessary to address permissive intervention.

The Court’s key holdings are:

Timeliness: The motion to intervene—filed eleven days after the complaint—was timely and undisputed.
Recognized Interest: The parents have a “direct, substantial, and legally protectible” interest in the litigation. The potential loss of more than $6,600 per child (and the risk of clawback of funds already received) constitutes “economic damage” sufficient to create a recognized interest under Rule 24(a)(2), drawing on Cherokee Nation Businesses and UHS of Ark., Inc..
Impairment: The challenge to the Education Freedom Account program directly threatens the parents’ ability to continue receiving funds, and the requested clawback directly threatens their resources. As a practical matter, the litigation may impair their ability to protect their interests.
Inadequate Representation: The state defendants do not adequately represent the parents’ interests because:
- The state’s focus is on the broad overhaul of public education, while the parents’ interest is the specific educational opportunities for their own children; and
- The parents can “put a human face” on the program and contribute evidence relevant to equitable balancing that the state, as a broad institutional actor, is not positioned to provide.
The Court analogized to Cherokee Nation Businesses, which held that busy state agencies did not have the “sole interest” and thus did not adequately represent a private party’s narrower economic interests.

The Court conducted a de novo review of the intervention issue and concluded that all Rule 24(a)(2) elements were met. It reversed the circuit court and remanded for further proceedings, now with the parents as intervenor-defendants.

Chief Justice Karen R. Baker, joined by two special justices, dissented, arguing that sovereign immunity—addressed in a companion case, Arkansas Department of Education v. Faulkenberry—required dismissal of the underlying action under Board of Trustees of the University of Arkansas v. Andrews, 2018 Ark. 12. On that view, the Court should not have reached the merits of the intervention issue at all.

III. Detailed Analysis

1. Procedural Posture and Standard of Review

The appeal is from an interlocutory order—an order issued before final judgment—denying a motion to intervene. Arkansas appellate rules permit such an appeal in intervention cases, recognizing that improper denial of intervention can irreparably prejudice a nonparty’s ability to protect its interests.

The Court applies de novo review to a denial of intervention as a matter of right, meaning:

The Supreme Court gives no deference to the circuit court’s legal conclusions about whether the Rule 24(a)(2) criteria are satisfied.

Rule 24(a)(2) provides that a nonparty must be allowed to intervene when it:

“has made a timely application and claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.”

Thus, the elements are:

Timely application;
A recognized interest in the property or transaction at issue;
Potential impairment of that interest as a practical matter; and
Inadequate representation by existing parties.

Timeliness was undisputed; the core disputes concerned the “recognized interest,” “impairment,” and “adequate representation” elements.

2. “Recognized Interest” and Economic Damage

a. The Cherokee and UHS Framework

The Court draws heavily on Cherokee Nation Businesses, LLC v. Gulfside Casino Partnership, 2021 Ark. 17, 614 S.W.3d 811, which, in turn, relied on UHS of Ark., Inc. v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988), to define what counts as a “recognized interest” under Rule 24(a)(2).

From those precedents, the Court reiterates that:

The intervenor’s interest must be:
- Direct, not merely tangential or collateral;
- Substantial; and
- Legally protectible (it is a type of interest that the law recognizes as worthy of protection).
A recognized interest arises when, “as a result of a ruling on a governmental regulation, the putative intervenor would suffer economic damage.”
Crucially, Cherokee rejected the notion that intervention requires a “present enforceable interest.” The would-be intervenor does not have to show a matured contractual right or vested property interest—risk of economic harm from the court’s decision suffices.

In UHS of Ark., the Court allowed intervention where a private party’s economic interests were threatened by governmental regulatory decisions. In Cherokee, the Court likewise held that a casino competitor could intervene in litigation involving a casino license because the regulatory outcome would significantly affect its economic position. The interest was “legally protectible” because the law treated this sort of economic stake in the regulatory outcome as legitimate and important.

b. Application to the Parents’ Interest in Education Freedom Accounts

Applying this framework, the Court found that the parents have a clearly recognized interest in this litigation:

They stand to receive more than $6,600 per year per child in public funds for private-school or approved home-school expenses.
If the Education Freedom Account program is held unconstitutional:
- They lose this funding for future years, creating a substantial economic loss; and
- The requested “clawback” would require them to return funds already used for their children’s education.

The Court characterizes this as obvious economic damage. It is not a speculative or remote interest; the funds are the very subject of the lawsuit. The Court emphasizes:

“Loss of $6600 that they could put toward private-school tuition or home-school expenses is clearly an economic loss. Likewise, the disposition of this action directly affects the Appellants’ interest in the Education Freedom Account program. Finally, the claw-back provisions in the Appellees’ complaint directly threatened the Appellants’ resources.”

Thus, the parents’ interest is:

Direct – the litigation targets the very program under which they receive money.
Substantial – the sums are large enough to significantly influence educational choices.
Legally protectible – under Cherokee and UHS, an economic stake in the outcome of governmental regulation is sufficient. No present enforceable entitlement need be shown.

By explicitly reaffirming that no “present enforceable interest” is required, the Court confirms that beneficiaries of active government programs—whose continued funding depends on the program’s survival—can possess a recognized interest for Rule 24(a)(2) purposes.

c. Practical Significance of This Holding

This aspect of the decision does important work:

It validates program beneficiaries’ standing to defend the legality of the programs they rely upon, at least in the procedural sense of intervention.
It identifies the threat of economic loss from judicial invalidation of a program as a sufficient “recognized interest,” expanding the set of parties who can intervene.
It helps ensure that litigation about the validity of state programs includes the perspectives of those most directly affected.

3. Adequate Representation: Distinguishing Government’s Role from Beneficiaries’ Interests

a. The General Standard

Under Rule 24(a)(2), even if a proposed intervenor has a recognized interest, intervention is not required if that interest is “adequately represented by existing parties.”

The Court quotes Matson, Inc. v. Lamb & Assocs. Packaging, Inc., 328 Ark. 705, 947 S.W.2d 324 (1997), for the principle that:

“A litigant’s interest is adequately represented when it is identical to, or not significantly different from, that of the proposed intervenor.”

Thus, if the state’s and the parents’ interests were genuinely congruent—seeking the same relief for essentially the same reasons—the Court could deny intervention as unnecessary.

b. The Court’s Reliance on Cherokee’s “Busy State Actor” Reasoning

The Court is “persuaded by the court’s reasoning in Cherokee” on adequate representation. In Cherokee, the Arkansas Supreme Court rejected the argument that the Arkansas Gaming Commission and the Department of Finance and Administration adequately represented the interests of a private casino operator, reasoning that:

These state entities had much broader institutional responsibilities; and
Their interests in the litigation were not the “sole interest,” and thus not identical to those of the private party.

Transposing that reasoning here, the Court emphasizes:

The Arkansas Department of Education and other state defendants are responsible for the entire public education system and for implementing a broad legislative overhaul (the LEARNS Act);
Their litigation strategy likely reflects system-wide concerns, political accountability, fiscal implications, and potential settlements, rather than solely the parents’ educational and financial interests; and
Therefore, their interests are not “identical to, or not significantly different from,” those of the parents.

The Court adds a qualitative dimension: the parents’ testimony and perspective “put a human face on the learning opportunities represented by the Education Freedom Account program.” Their participation could materially assist:

“a court of equity [to] weigh the equities implicated by the Appellees’ complaint.”

This notion goes beyond pure legal argument. It recognizes that:

In equitable and constitutional litigation, courts often consider practical impacts and balance harms; and
Those who directly experience the program (here, parents and children) are uniquely positioned to inform that analysis.

c. The Court’s Conclusion on Adequate Representation

The Court holds that the state defendants do not adequately represent the parents’ interests because:

The state’s focus on “the broad overhaul of public education in Arkansas” is fundamentally different from the parents’ narrow concern “over the education of their children.”
The parents’ interests are more confined, personal, and potentially in tension with broader state-level compromises or policy reevaluations.
As in Cherokee, where the state agencies were “busy state actors” without a singular focus on the private casino’s economic interest, the agencies here are not oriented solely toward preserving the parents’ benefits.

By recognizing even these types of differences as sufficient to show inadequate representation, the Court sets a relatively permissive standard for intervention when a state agency is a party but individuals or private entities have more targeted, concrete interests.

d. Relationship to Federal Intervention Doctrine

While the Court does not explicitly invoke federal law, it is worth noting that:

Federal courts under Fed. R. Civ. P. 24(a)(2) often presume that a government entity adequately represents citizens when defending a statute or regulation, and require a stronger showing to overcome that presumption.
The Arkansas Supreme Court’s approach in Cherokee and Lara does not embrace such a strong presumption. Instead, it focuses on whether the intervenor’s interests are materially narrower, more specific, or different in kind from the government’s institutional interests.

The Lara opinion continues this more flexible Arkansas approach, making it significantly easier for beneficiaries of state programs to intervene alongside government defendants.

4. Impact and Future Consequences

a. Expanded Ability of Program Beneficiaries to Defend State Programs

The decision has immediate and broader implications:

Immediate context: Parents using or eligible for Education Freedom Accounts may now join the litigation as intervenor-defendants, presenting evidence and argument about:
- The educational benefits their children receive;
- How the funds are used; and
- The practical consequences of terminating or clawing back funds.
Broader trend: Beneficiaries of other state programs (e.g., healthcare subsidies, licensing regimes, business incentives) can invoke Lara to argue that:
- The invalidation of a program would cause them direct economic damage; and
- State agencies do not fully represent their narrower economic or personal interests.

Future challenges to public-benefit programs or regulatory schemes will thus more frequently include:

Private intervenors whose benefits, incomes, or business models depend on the validity of the challenged program or regulation.

b. Effects on Illegal-Exaction and Constitutional Litigation

Arkansas’s constitutional illegal-exaction provision historically empowered taxpayers to sue to prevent unlawful public expenditures. Before Lara, these suits frequently pitted taxpayers against the state alone. Now:

Beneficiaries of the alleged “illegal exaction” (e.g., parents receiving educational funds) may intervene as defendants.
Courtrooms will more often hear from:
- Taxpayers alleging misuse of funds;
- State actors defending the lawfulness and policy of the expenditure; and
- Beneficiaries defending the practical necessity and fairness of the benefits they receive.

This multi-sided structure is likely to:

Produce richer factual records; and
Make equitable balancing more nuanced, especially when courts consider remedies such as injunctions or clawbacks.

c. Institutional Consequences for State Agencies

For state agencies and officials:

Litigation complexity will increase. More intervenors mean more discovery, more motions, and potentially more trials with multiple aligned or partially aligned defense parties.
Settlement dynamics may change. The state might wish to compromise or restructure a program, but beneficiaries-turned-intervenors may resist, insisting on full defense of their particular benefits.
Resource allocation becomes more complex. Agencies must coordinate litigation strategies with aligned but independent intervenors, who may be represented by different counsel with distinct priorities.

However, from a rule-of-law perspective, Lara ensures that:

Courts do not assume that state officials always speak for all affected citizens; and
Those with the most to lose or gain from a program’s continuation can directly advocate their interests.

d. Particular Significance for Education-Choice Litigation

In the specific context of education-choice programs (vouchers, education savings accounts, etc.):

Lara makes clear that parents whose children attend private schools or home-school using public funds have a recognized, legally protectible interest when such programs are attacked.
The decision ensures that these parents will not be sidelined when plaintiffs challenge voucher-type programs on constitutional grounds.
It may embolden:
- Parents and advocacy organizations to intervene in defense of school-choice statutes; and
- Opponents of such programs to anticipate more robust opposition from organized intervenor groups.

Given the national debates about school-choice and voucher programs, Lara is likely to be cited as a significant state-level precedent on who may participate in such litigation, even though it does not directly address the underlying constitutional merits of the LEARNS Act.

5. The Dissent: Sovereign Immunity and Jurisdictional Concerns

a. Chief Justice Baker’s Position

Chief Justice Karen R. Baker, joined by Special Justices Barbara Halsey and Cory Cox, dissents. Her dissent is brief but significant:

She points to a companion case, Arkansas Department of Education v. Faulkenberry, 2025 Ark. ___, which apparently addresses sovereign immunity issues in the same litigation matrix.
She relies on Board of Trustees of the University of Arkansas v. Andrews, 2018 Ark. 12, 535 S.W.3d 616, which strongly enforced Arkansas’s constitutional sovereign-immunity provision (Article 5, § 20, stating that “The State of Arkansas shall never be made defendant in any of her courts”).
She concludes that Andrews requires reversal and dismissal of the underlying action on sovereign-immunity grounds.

On that view:

The circuit court lacks jurisdiction to adjudicate the constitutional claims against the state officials; and
Without jurisdiction over the underlying suit, the Court should not reach the intervention issue at all.

b. Sovereign Immunity and Illegal-Exaction Suits

Arkansas’s sovereign-immunity jurisprudence has been in flux since Andrews, which:

Declared that sovereign immunity is a constitutional limitation that cannot be waived by statute;
Emphasized a strict reading of Article 5, § 20, limiting suits against the state; and
Caused significant debate and uncertainty over exceptions for constitutional claims and illegal-exaction suits.

Over time, the Court has recognized at least some space for:

Suits alleging that state officials are acting ultra vires (beyond their legal authority); and
Constitutionally authorized taxpayer suits, such as illegal-exaction actions under Article 16, § 13.

Chief Justice Baker’s dissent indicates that she reads Andrews and related jurisprudence as tightly constraining even those suits, such that sovereign immunity bars the Faulkenberry litigation in its present posture. If the underlying case is barred, any decision on intervention is arguably advisory or moot.

C. Implications of the Dissent for the Majority’s Holding

The majority’s decision presupposes that the circuit court properly has jurisdiction to hear the illegal-exaction and constitutional claims against state officials. By contrast, the dissent would:

Dismiss the appeal on sovereign immunity grounds; and
Leave unanswered the question of intervention because there would be no valid lawsuit in which to intervene.

This split signals:

Ongoing division within the Arkansas Supreme Court over the scope of sovereign immunity after Andrews; and
Potential future challenges to jurisdiction in similar program-funding disputes, where the state is sued in its official capacity.

For now, however, the majority’s ruling in Lara stands as binding precedent on intervention, regardless of how sovereign immunity is resolved in the companion case.

IV. Complex Legal Concepts Simplified

1. Intervention as of Right (Rule 24(a)(2))

Intervention is when a nonparty asks to become a party in ongoing litigation. Under Arkansas Rule of Civil Procedure 24(a)(2), a person must be allowed to intervene if:

Timely application: They ask to intervene at a reasonable time, before the case has progressed too far.
Recognized interest: They have a real stake related to the property or transaction at issue—not just a philosophical or abstract concern.
Possible impairment: The court’s decision in the case might, practically speaking, make it harder or impossible for them to protect that stake later.
Inadequate representation: The existing parties do not adequately speak for their specific interests.

If these elements are satisfied, the judge has no discretion: intervention must be granted.

2. Illegal Exaction

An illegal exaction under Arkansas law is a claim that public funds (typically tax money) are:

Being collected or spent in a way the Constitution or laws do not allow; or
Being misapplied, misused, or diverted for unauthorized purposes.

Article 16, § 13 of the Arkansas Constitution expressly allows taxpayers to bring such suits to prevent or challenge unlawful public expenditures, making illegal-exaction suits a core mechanism of taxpayer oversight.

3. Sovereign Immunity

Sovereign immunity is the principle that the state cannot be sued without its consent. In Arkansas:

Article 5, § 20 of the state constitution states, “The State of Arkansas shall never be made defendant in any of her courts.”
Andrews strengthened this rule, holding it is constitutional and cannot be waived by statute.

However, courts have recognized exceptions or workarounds, especially:

When taxpayers use constitutional provisions (like the illegal-exaction clause) that specifically authorize suit; or
When plaintiffs allege unconstitutional or ultra vires actions by state officials (i.e., officials stepping outside their lawful authority).

4. De Novo Review

De novo review means the appellate court decides an issue anew, without deferring to the lower court’s judgment. In Lara, the Supreme Court independently evaluated whether the Rule 24(a)(2) elements were satisfied.

5. Clawback

A clawback is a demand to return money that has already been paid out, usually on the ground that:

The payment was legally invalid; or
Conditions attached to the payment were not met.

Here, the plaintiffs were not only trying to stop future Education Freedom Account payments but also to force parents to return funds already received.

6. Court of Equity and Weighing the Equities

A court of equity focuses on fairness and may grant remedies like injunctions (orders to do or stop doing something). When an equity court “weighs the equities,” it:

Balances the harms and benefits of granting or denying relief; and
Considers how different groups will be affected in practical, real-world terms.

In Lara, the Court underscores that parents’ participation will help the circuit court understand the human, on-the-ground impacts of terminating or invalidating the Education Freedom Account program.

V. Conclusion: The Significance of Lara v. Faulkenberry

Erika Lara, Katie Parrish, and Nikita Glendenning v. Gwen Faulkenberry, et al., 2025 Ark. 205, establishes an important precedent in Arkansas civil procedure and public-law litigation.

The key takeaways are:

Program beneficiaries have a recognized interest sufficient for intervention. The Court confirms that beneficiaries of a government program—like parents receiving Education Freedom Account funds—have a direct, substantial, and legally protectible interest when litigation seeks to terminate or invalidate that program, especially when they face:
- Loss of ongoing benefits; and
- Clawback of funds already received.
Economic damage from governmental regulation is a recognized basis for intervention, even without a present enforceable entitlement.
State agencies do not necessarily provide adequate representation. The Court’s treatment of adequate representation underscores that:
- State defendants have broad institutional priorities; and
- Individual beneficiaries’ personal and economic interests are distinct and sometimes narrower.
This divergence can justify intervention, particularly where beneficiaries can offer unique, fact-specific evidence and perspectives.
Intervention as of right will play a larger role in public program litigation. By expanding the recognized-interest and inadequate-representation prongs in this context, Lara opens the door for:
- Parents and other beneficiaries to enter the courtroom as full parties; and
- More multi-party, fact-rich litigation over the legality of state programs and expenditures.
The decision sits against a contested sovereign-immunity backdrop. The dissent, invoking Andrews and a companion case, would dismiss on sovereign-immunity grounds. This highlights ongoing tension within Arkansas jurisprudence about:
- When, and under what theories, suits against state officials may proceed; and
- How constitutional authorizations (like illegal-exaction suits) interact with sovereign immunity.

In the broader legal context, Lara strengthens procedural protections for individuals whose livelihoods and life choices are closely tied to state programs. It ensures that when those programs are challenged in court, their beneficiaries can stand alongside the state to defend them, rather than relying solely on government lawyers whose priorities may be wide-ranging and institutional.