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Judge forced into Legislature’s role over schools
By BOB MCALISTER
Guest columnist
Circuit Judge Thomas Cooper must have felt like a groom at a shotgun wedding: He did his duty but probably didn’t enjoy the consummation.
He knew he had no business getting involved in the longstanding funding dispute between “poor” school districts and the General Assembly. In his 1996 ruling dismissing the lawsuit filed by the districts that claim poverty, Judge Cooper wrote that judicial intervention “would clearly violate the education clause and arguably the separation of powers clause” of the S.C. constitution.
The education clause simply says, “The General Assembly shall provide for the maintenance and support of a system of free public schools open to all children in the state and shall establish, organize and support such other public institutions of learning as may be desirable.”
But the suing school districts appealed his decision to the S.C. Supreme Court, which put that simple sentence in the judicial blender, scrambled it and concocted an activist brew bitter to anyone who insists that judges not legislate from the bench.
The high court discovered that the constitution requires the legislature to provide a “minimally adequate education,” though the phrase does not exist in the text. The majority even defined what a minimally adequate education looks like, including “fundamental knowledge of economic, social and political systems, and of history and governmental processes.”
Like an errant child caught in the act of being bad, the court majority denied doing what it clearly did. They denied any intention of usurping legislative authority. The most discreditable claim of all: “We do not intend for the courts of this state to become super-legislatures or super-school boards.”
That was exactly the outcome. The Supreme Court ruling kept the lawsuit alive and sent it back to the judge who originally threw it out. He was forced to become a super-legislature whom the voters did not elect and to whom he is not accountable.
The judge was much more restrained than his superiors. The Legislature got passing grades in most subjects. His order notes that in recent years, the Legislature has almost doubled state funding for the districts that sued, and per-pupil spending in most of those districts is higher than the state average.
Allendale spends $3,300 per pupil above the state average, and spending has increased by 206 percent over a decade. Per-pupil spending in Hampton 2 is $1,200 above the state average, while state spending has skyrocketed by 184 percent in 10 years.
The judge acknowledged what is obvious to everyone but the education bureaucracy: Throwing money at schools does not automatically produce better students.
He noted that some of the better test scores come from students whose schools are in terrible physical shape. He also found that the state turns out teachers who are at least minimally qualified and get paid competitive salaries.
Even his one venture into judicial overreaching was restrained. While finding the state does not have minimally adequate early intervention for children in poverty, he resisted the temptation to dictate a specific price tag and curriculum, as judges elsewhere have done.
He also seemed to acknowledge that any pre-kindergarten or kindergarten program to help poor children has its limits. No government program can overcome irresponsible parenting.
Gov. Mark Sanford has urged the Legislature not to appeal this decision, which is wise counsel. Early childhood education was already a funding priority for Sanford, House Speaker Bobby Harrell and Senate Education Committee Chairman John Courson; the order will accelerate it. There’s no disagreement with Judge Cooper’s view that it makes educational, humanitarian and economic sense.
A basic question is whether the people are happy with what the state constitution demands of public education. Whether one interprets the constitution strictly or accepts the more liberal interpretation of the Supreme Court, neither sufficiently expresses the urgency of producing an educated work force capable of competing for jobs in the global economy.
If we do not improve the work force, we will never raise income levels that are among the nation’s lowest.
But until the constitution is amended, the Legislature — not the governor, the superintendent of education or the courts — is responsible for the quality of education. That means the voters, through the ballot box, have the ultimate control of their children’s destiny and cannot pass the buck.
Mr. McAlister owns a public relations company in Columbia. You can comment at http://bobmcalister.thecolumbiarecord.com/.
