Schools' equity case inevitable in days of activist judiciary

e-mail this story discuss this issue in our forums Guest column • : A mother's worth should never be underestimated (10/05/03) • David Shi: Women in politics are scarce in South (10/04/03) • Barbara S. Nielsen: Let's set the record straight on No Child Left Behind (10/04/03) • Sen. Ernest F. Hollings: U.S. trade needs help to become competitive (10/03/03) • : Greenville County school board needs a reality check (10/02/03) More details Bob McAlister, born and reared in Greenville, is a public relations consultant in Columbia. He was a journalist for WFBC television and radio, a speechwriter for Sen. Strom Thurmond in Washington and chief of staff for Gov. Carroll Campbell.

They were bound to try.

Most monumental decisions affecting American culture in the last 40 years were made, not in boisterous halls of legislatures, but quiet chambers of black-robed elites.

It started in the 1960s, when the U. S. Supreme Court began discerning constitutional intent not apparent to unlearned common folk. The judiciary has gotten bolder in imposing its political will on society, culminating in the Supreme Court's Dickerson decision. The high court overturned the law Congress passed easing procedures for obtaining criminal confessions originally imposed by the court's Miranda decision in 1966.

In a shocking statement, Chief Justice Rehnquist wrote: "We hold that Miranda, being a constitutional decision of this court, may not be in effect overruled by an act of Congress."

Understand the significance of that assertion. The Supreme Court considers itself the sole power to decide the law of the land. Congress is only allowed to make laws that the justices, appointed for life and accountable to no one, agree with.

The Founding Fathers never dreamed of giving the judiciary such naked power, and the Constitution is silent on such power.

Thomas Jefferson believed issues of great import must be resolved in the untidy halls of legislatures where the people have a voice through the ballot box. He thundered against the idea of an all-powerful judiciary. "It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions," he warned. "It is one which would place us under the despotism of an oligarchy."

Welcome to Jefferson's worst nightmare.

In 1999, the S.C. Supreme Court was baptized in the waters of judicial activism when it ruled that the state constitution requires every student to be given a "minimally adequate education" when, in fact, it does not say that. Perhaps it should, but it doesn't. Here is what the constitution does say: "The General Assembly shall provide for the maintenance and support of a system of free public schools open to all children in the state..." Period.

High court soothsayers, former legislators all, did in their chambers that which they did not do when they had the power as elected officials: They rewrote the constitution. They not only divined language not there, but conjured up, Harry Potter-like, 12 categories of learning that constitute a "minimally adequate education" when the constitution makes no mention of them.

The lone dissenter, Justice James Moore, rightly slammed his colleagues for "excessive judicial involvement" in what constitutionally is a legislative matter.

The ruling allowed a lawsuit against the state to proceed, filed by eight "poor" school districts contending they are not getting enough money from the state.

It is indisputable that the Legislature, far from the heartless monster plaintiffs' lawyers portray, has favored the poor districts over those with large tax bases. The whining districts in the lawsuit have gotten more state dollars per pupil than Greenville County.

Allendale schools were so dysfunctional that the State Department of Education staged a coup in 1999 and took them over. Allendale became the No. 2 top spending district in the state with a per pupil expenditure of $10,500.

The result? High school SAT scores were a cumulative 801 before the state started running the district in 1999. After a few years of limited improvement, the 2003 scores plunged to 798.

The question before Circuit Judge Thomas Cooper is not whether the Legislature recognizes the moral obligation to help children locked into pathological conditions most of us cannot imagine. It clearly has done so.

The question is: How much money is enough and who should make the decision?

Thomas Jefferson and other Founders would say that is a decision for the people and their elected legislature, not Judge Cooper. Jefferson knew the legislative process is chaotic at times, but expressed confidence that "the good sense of our people will direct the boat ultimately to its proper point."

The good sense of South Carolinians sparked education reform over two decades. Despite the bad economy, legislators, spurred by their constituents, will debate new ideas for funding education next year. All citizens have the right to influence the debate.

That's the way it is supposed to work, if only the judiciary will cool it.