Scoppe: Hard truths, daunting challenges in SC school equity decision

IT NEVER has been clear to me whether our constitution requires the state to provide a good education to all children, or simply to operate public schools.

Chief Justice Jean Toal laid out a convincing argument in last week’s landmark S.C. Supreme Court opinion that we are not providing children in poor school districts with a “minimally adequate education,” and she was aggressive in pushing back against key points in the dissent.

Moreover, the first few pages of the dissent were so chock full of nearly generic made-for-tweeting-blogging-and-partisan-cable-TV-sound-bites, attacking the majority for writing law, that it was difficult to force myself to keep reading it.

But I did, and after Associate Justice John Kittredge got the red-meat-feeding out of his system and started doing constitutional analysis, he made this point that brought me back to equilibrium, at least: The plain words of our constitution say nothing about the quality of education that the state must provide. Unlike the constitutions in other states that have lost similar lawsuits, ours merely requires the Legislature to “provide for the maintenance and support of a system of free public schools open to all children in the State” and to establish such schools “as may be desirable.”

The fact is that the whole “minimally adequate” requirement that has been so roundly and unjustifiably pilloried is not in South Carolina’s constitution. It’s something the court read into the constitution when it first took up Abbeville County School District v. State in 1999. Justice Kittredge argues that the order in Abbeville I was wrong but writes in Abbeville II that even if it was correct, “What constitutes a minimally adequate education is fundamentally a policy determination to be made by the people, through their elected representatives” rather than by the courts.

It’s a powerful refutation of the majority opinion, and one that lends a lot of ammunition to lawmakers who don’t want to comply with the order to provide an adequate education to children in the districts that sued the state.

But as powerful as it is, the fact is that Justice Kittredge wrote a dissent, not the majority opinion. So from a practical perspective of what has to happen now, it does not matter whether he is right or wrong about the constitution.

This is one of those horribly painful, suck-it-up facts of life that I find myself reminding people about frequently when they complain about court orders: What a supreme court says is the law. Right or wrong. And it’s not going to change unless a federal court overturns it (not applicable here) or the majority on the court changes and is willing to overturn established precedent (not practical here anytime soon, if ever).

And the job of our Legislature, whether we like it or not, whether our legislators like it or not, is to comply with the order.

It’s not going to be easy — and I believe the challenge will be more in terms of getting the policy right than in getting the money right — but if lawmakers will look past the most quotable or inflammatory parts of the dissent and the majority opinion, they will find some useful guidance.

First, consider what Justice Kittredge, joined by Associate Justice Costa Pleicones, did not say: They did not say that our state is providing all children with a minimally adequate education. They did not embrace a laissez-faire approach that says children are to blame for not getting a good education, did not in any way imply that there is anything morally justifiable or wise about consigning whole communities of children to repeat the cycle of ignorance and poverty into which they were born. In no way did they suggest that the way for the state to meet its obligations — constitutional or not — is to fund private schools.

What they did say about the public policy considerations raised by the lawsuit was this:

Justice Kittredge also made a point of saying that “As a personal observation, I agree with” the finding by the lower court that children born into poverty start school behind, because they lack the stimulation and nurturing that nearly everyone reading this column takes for granted.

Now, consider what Justice Toal, joined by Associate Justices Don Beatty and Kaye Hearn, did not say: They did not say that the schools are blameless. They did not say that more money alone was the solution to the problem. Indeed, they made it clear that an essential part of the solution will be for the Legislature is to change the way those districts operate, and the way the Legislature deals with them.

They also said this:

The justices’ demand for more than simply money does not mean that the state can solve the problem without spending more money. To the contrary, I suspect that, like me, the justices have no idea how much money it would take to provide a good education if the Legislature would stop passing what they refer to as “multiple statutes which have no demonstrated effect on educational problems” and instead build a school system that focuses on what works, and give state officials the power to intervene when local officials aren’t getting the job done — even if that demands slaughtering whole herds of sacred cattle.

And that points to the more significant point, on which all five justices agree: The failures of our schools are ultimately the fault and responsibility of the Legislature, because it is the Legislature that is required by the state constitution to provide a free public education to all children — whether adequate or not.

The schools and the school districts are creations of the Legislature; they operate under the laws passed by the Legislature. If they’re not doing their job, it is the Legislature that has the power to change that. It is the Legislature that has the constitutional obligation to change that. What we all can hope is that, at long last, this ruling will force our Legislature to acknowledge that, and act accordingly.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.

This story was originally published November 19, 2014 at 9:00 PM with the headline "Scoppe: Hard truths, daunting challenges in SC school equity decision."