IT WAS A BIG WEEK for the poor, rural school districts that have been fighting for 23 years to force the state to do more to provide a decent education for their students: They won a significant victory in the state Supreme Court — by not losing.
On its face, Tuesday’s order in the Abbeville v. South Carolina school adequacy case seemed pretty mundane: The court denied the school districts’ request to order the Legislature to do more — and more quickly — to help the districts. It also denied the Legislature’s request to stop monitoring what the Legislature is or isn’t doing. Instead, the court praised the work lawmakers had done this year — particularly work by the House — and told the Legislature and the districts to report back in June on what they have accomplished.
But up until it released that order, it seemed entirely possible that the court was about to wash its hands of the whole matter, leaving the Legislature to comply or not comply with the landmark 2014 ruling that ordered the state to provide the children in our poorest districts with the education they need to get good jobs and support their families and pay taxes and in other ways help make our state a better place for us all.
Little wonder, then, that despite having all of his arguments about the Legislature’s foot-dragging and counter-productive actions rejected, the school districts’ lead attorney, Carl Epps, pronounced himself pleased by the order.
The Abbeville decision has been tenuous from the start: It contained no enforcement mechanism and was signed by three justices but flatly rejected by the other two. A year ago, that same three-justice majority ordered the Legislature and Gov. Nikki Haley to jointly appoint a member to a panel it was creating to review an education “plan” that it ordered the state to present by Feb. 1, and the two dissenters in Abbeville I objected to that enforcement order.
After legislative leaders refused to comply with what they declared an unconstitutional mandate, the court backed down and said they need only file an update this summer. But by then, lawmakers were gearing up to elect a replacement for retiring Chief Justice Jean Toal, who had written both the Abbeville I and II decisions, and some of the legislators — it’s hard to know how many — were determined to find a new justice who would reverse those 3-2 rulings.
John Few, then chief judge of the S.C. Court of Appeals, answered questions at his screening hearing in a way that left lawmakers and court watchers convinced that he would be that third vote to flip the opinions, and in February legislators elected him handily to fill Ms. Toal’s then-vacant seat.
But Justice Few didn’t participate in Tuesday’s order, and gave no reason for not participating. (I emailed him Thursday to ask why, but didn’t get an answer; I don’t know if he just didn’t want to answer, or if he didn’t think it was appropriate to do so.) One court watcher said he might have decided not to participate because he wasn’t involved in the 2015 enforcement ruling that was the crux of Tuesday’s order. But unless he has a conflict of interest, there’s nothing to stop him from participating when this comes back before the court in June, so it’s hard to guess where the court might be then.
Perhaps a clue is the fact that the court was not divided in its Tuesday order: Chief Justice Costa Pliecones and Associate Justice John Kittredge, who had dissented in Abbeville I and II, signed it along with Associate Justices Don Beatty and Kaye Hearn, who had joined Ms. Toal in the majority on those orders. Add that to the fact that none of the justices took credit for writing the order, and it’s easy to read this as a negotiated compromise.
It certainly has a different tone than the previous orders. Whereas the 2015 order seemed to suggest that the court was going to pass judgment on the policies the Legislature was pursuing, the court on Tuesday said merely that it would “continue to monitor the progress towards a constitutionally compliant education system.”
I think the court got it right here. Its enforcement order a year ago was heavy-handed, and quite possibly over a constitutional line. But unless it’s going to reverse itself on the original Abbeville decision — unless it’s going to say the state is already providing all children the opportunity to get a decent education — the court can hardly walk away from the case at this point.
And I doubt our legislative leaders really want the court to walk away: Both House Speaker Jay Lucas and Senate President Pro Tempore Hugh Leatherman seem genuinely committed to changing the curricula, governance, focus and funding of our public schools so that they provide a decent education to the children who live in the 40 rural school districts concentrated in what has come to be known as the Corridor of Shame.
But all those legislators who thought they were electing a justice who would overturn Abbeville — well, they don’t want to do that. And the court’s continuing jurisdiction makes it easier for Messrs. Lucas and Leatherman to keep them on board.
Ms. Scoppe writes editorials and columns for The State. Reach her at email@example.com or (803) 771-8571 or follow her on Twitter @CindiScoppe.