DEEP BREATH: We have stepped back from the precipice on which our government had been teetering since Senate President Pro Tem Hugh Leatherman and House Speaker Jay Lucas declared a Supreme Court enforcement order unconstitutional and vowed to ignore it.
Though there remain I’s to dot and T’s to cross, two important developments this week should allow legislators to resume work toward changing the curricula, governance, focus and funding of our public schools so that they provide a decent education to all children — even those who live in the 40 rural school districts concentrated in what has come to be known as the Corridor of Shame. That work was threatened as the legislative and judicial branches stared each other down over who had what authority.
Why this matters: We can’t throw these kids away
The impasse grew out of the Supreme Court’s Sept. 24 enforcement order requiring the Legislature and Gov. Nikki Haley to jointly appoint a member to a panel to review an education “plan” that it ordered the state to present the court by Feb. 1. The order provided teeth to the nearly year-old Abbeville v. South Carolina school adequacy decision, which found that the state had failed in its constitutional duty to provide a decent education to all children and told lawmakers to work with the 40 plaintiff districts to craft a remedy.
The political problems with the enforcement order are huge, as is always the case when people are told to do something they don’t want to do, particularly if they’re used to doing the telling instead of being told. The likely constitutional problems are more discrete: creating a panel that seems to have legislative authority, and allowing it, and the court, to review something that isn’t a law — thereby, potentially interfering in the lawmaking process.
School districts seek final deadline for school funding fix
On Monday, the state filed a motion asking the court to vacate that order. That step, which gives the court the vehicle it needs to change its order, should have been automatic. But some officials were adamantly against filing anything, since that suggested they were not actually ignoring the order.
Beyond filing the motion, it’s encouraging that there is nothing in that motion that suggests the court overstepped its authority in the 2014 decision that told the state to fix the schools. In fact, the otherwise-outrageous letter that Messieurs Lucas and Leatherman fired off to Chief Justice Jean Toal last month rejecting the legitimacy of the enforcement order actually acknowledged the legitimacy of the Abbeville decision.
Leatherman-Lucas letter to Toal puts state just one step from crisis
The second important development occurred on Wednesday, when the school districts asked the court to eliminate the expert panel and the Feb. 1 deadline. Instead, they suggest the court appoint its own expert to help it evaluate the Legislature’s actions, which it clearly has authority to do, and order the state to produce a program — that is, a law — by the end of the 2016 legislative session, in June. This marks a dramatic show of faith in the Legislature’s good intentions, and it leaves the court with no reason to maintain those parts of the enforcement order that so irritated legislators.
SC legislative leaders ask high court to vacate its order
Of course, the Legislature doesn’t want any deadline, and I sort of wish that if the court must set a deadline, it would be merely for a progress report. Eliminating deadlines takes away an excuse for anger and obstruction from those legislators who are inclined to be angry and obstructionist. And the court can always impose one later, if the reform plans being crafted by House and Senate panels get bogged down.
At the same time, though, legislative leaders have already said they won’t obey the order, and they insist that they are working diligently to craft a solution — and it looks like at least the House is making good progress. So even if the court simply adopts the plaintiffs’ proposal, there is no reason the state can’t render the deadline moot, by passing a law before it is ordered to do so.
I can’t overstate how important it is that the two sides in the lawsuit — and particularly the plaintiffs — would take these steps, because the Legislature’s objection was of a far different character than the objections we normally hear to court orders.
How Legislature, Supreme Court resolved their last impasse
The court has ways to force local governments and businesses and individuals to do what it orders them to do. It has no ways to force the legislative and executive branches to do what it orders them to do. Even if the justices were willing to hold Sen. Leatherman and Rep. Lucas and Gov. Haley in contempt, who would arrest them? The Bureau of Protective Services, the Highway Patrol and SLED all think they work for the governor.
Now, all that remains is for the court to accept the gift that the plaintiffs have given it — and us. Well, that and for the Legislature to actually follow through by passing the law or laws needed to deliver on the promise our constitution makes to provide a decent education to all children in our state.
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or (803) 771-8571 or follow her on Twitter @CindiScoppe.