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‘Opportunity’ turns judicial activism into model of restraint
By CINDI ROSS SCOPPE
Associate Editor
I WAS skeptical when I heard that Circuit Judge Thomas Cooper had found that the state was not meeting its constitutional mandate to give every child an opportunity to receive a decent education because it isn’t providing enough early intervention.
While I agree wholeheartedly that early intervention is the smartest, most effective way to overcome the effects of poverty, I tended to agree with Senate President Pro Tem Glenn McConnell, who noted that the constitution doesn’t say anything about early childhood intervention. “I think that’s a policy decision,” he told The (Charleston) Post and Courier. Even Judge Cooper acknowledged that such interventions “lie outside the traditionally accepted scope of education policy.”
But as I read the opinion, I could not find a judge who had swallowed the education establishment’s arguments whole and determined to substitute his policy judgment for that of elected officials. Just the opposite. Time after time, Judge Cooper swallowed the state’s arguments whole — even the specious ones.
He endorsed a favorite rhetorical trick of anti-schools activists, noting that spending on the districts has doubled since 1993, without acknowledging the effect of inflation. He credited the PR ploy by the Republican House to “move education to the front of the budget bill so that it would be the first item that was taken up in the State budget every year.” He even pointed to a proviso that “allows school districts the flexibility and discretion to transfer funds from categories where there is a surplus of funding and expend funds in areas where there is a critical need,” as though this empowered school districts, when all it actually did was (slightly) ameliorate budget cuts.
Judge Cooper went on to dismantle the conventional wisdom of public school supporters — finding that the evidence showed poor districts were not losing teachers to wealthier districts, better pay did not attract better teachers, better-credentialed teachers did not produce better-educated students. He even obliterated the emotional center of the case — those dilapidated facilities made famous by the “Corridor of Shame” video — pointing out that fewer than a tenth of the pictures presented to the court were of “educational spaces” and that most of the maintenance problems had since been corrected.
How, then, could a judge so completely not taken in by the education elite come to the conclusion that the state has an obligation to provide day care on steroids for poor kids?
I believe it comes down to a crucial word in the state Supreme Court’s 1996 ruling in this case —a word whose effect most people got completely backwards.
In reviving the lawsuit Judge Cooper had initially dismissed, the high court said the state constitution requires the Legislature “to provide the opportunity for each child to receive a minimally adequate education.”
Education supporters bristled at the term “minimally adequate” — and continue to do so today, as though a constitution can require anything more than a minimum of anything. And debate ensued over what it took to meet the court’s delineation of that education. But lost in that debate was the word opportunity.
The best idea to come out of contemporary Republicanism is that government’s job is not to guarantee success but to make sure everyone has an equal opportunity to succeed. And so to the extent that people paid attention, they saw the word “opportunity” as the state’s out: We’re giving poor districts more money than rich ones, they could argue; we can’t help that the kids there aren’t taking advantage of that opportunity to learn.
But as Judge Cooper noted, the standard of opportunity “is materially different from the requirements in other states, which tend to focus more on achievement than opportunity.” And as it turns out, it probably would have been easier to meet a results-pegged standard, or one tied to such benchmarks as the age of the schools, percentage of teachers with advanced degrees or number of books in the library.
While the judge agreed that the state provides teachers and books and standards enough to meet the constitutional mandate, he disagreed that the state provided poor children with the opportunity to take advantage of the schools, to actually learn.
The only way the state could do that, he reasoned, was by overcoming the crushing effects poverty has on children’s readiness to learn. And the only way it could do that was to go outside of those traditional responsibilities of the education system.
The state laid the groundwork for this, by putting up experts who argued that poverty accounts for the poor performance of students in poor districts and that the best way to overcome the effects of poverty is through early intervention. (Eliminate the effects of poverty, the state’s experts told the judge, and you could eliminate two-thirds of the achievement gap “without changing any other variables, such as teacher characteristics, funding, professional development days, or teacher turnover.”)
The Legislature itself made this easier territory for a judge to venture into, through two decades of laws that enunciated the importance of early intervention and pledged to provide it to poor kids. In that sense, you could almost read his ruling as saying: Forget the constitution; simply keep the promises you have made in the laws you have passed.
Almost, but not quite, because Judge Cooper didn’t actually order the Legislature to keep its promises. And he certainly didn’t order lawmakers to meet their constitutional obligation. He didn’t order the Legislature to spend any particular amount of money, to provide any particular level of intervention — to do anything. He merely concluded that the state is not meeting that obligation.
Argue all you like that the original Supreme Court’s ruling enunciating the opportunity mandate amounted to judicial activism. Nothing in Judge Cooper’s ruling meets that definition — or even comes close.
Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.
