Bolton: Want good government in SC? Sue

THE DIRECTOR of one of the advocacy groups that sued Gov. Nikki Haley and the Department of Social Services said they aren’t seeking damages; they just want the state to fix the broken system that has been allowing children to be killed and abused.

I know what you’re thinking: It shouldn’t take a court challenge. Why not just ask the Legislature and governor to reform DSS?

Good thinking. That’s the way our government should work. But, unfortunately, that’s not the way we do things in South Carolina. Too often in the Palmetto State, if you want leaders to reform poorly performing, poorly funded and poorly supported agencies and services, you’ve got to sue.

Our republic might be a government of laws, but our state is governed by lawsuits.

For years, that’s been the sad and shameful remedy. South Carolina’s leaders are notorious for engaging in neglect and foot-dragging rather than taking bold or even moderate steps to address glaring, ruinous conditions that threaten this state’s people and quality of life. If they do act, it’s often in such an incremental fashion that you’re reluctant to celebrate. Then you embrace it, realizing that’s about as good as it gets.

Or you sue.

It ought not be that way, but it is, which is why we’ve seen one frustrated group after another sue to bring change.

That’s what’s at the heart of the federal class action lawsuit filed against DSS last month by the national advocacy organization Children’s Rights, the S.C. Appleseed Legal Justice Center and Columbia attorney Matthew Richardson.

“We are tired of the Band-Aid approach,” Appleseed’s Sue Berkowtiz said. “DSS has had numerous problems for decades, and they have been reported by LAC (the Legislative Audit Council), and the agency has not taken the steps to protect the children under their care.”

Among other things on a long list of grievances, the lawsuit alleges that Gov. Haley and DSS are responsible for drastic foster home shortages, excessive caseloads for agency workers and a failure to provide children with basic health care.

The lawsuit is but the latest aimed at getting good government for South Carolinians through the courts because of our failed legislative and executive leadership.

Prisons and schools

Around the same time the DSS lawsuit was being filed, the state’s prison system was agreeing to set aside several million dollars to help improve the treatment of mentally ill inmates in its care, as part of the settlement for a 10-year lawsuit. The agreement between the Department of Corrections and the nonprofit Protection & Advocacy for People With Disabilities came a year after a judge ruled the agency is failing to care for mentally ill prisoners.

Circuit Judge Michael Baxley ruled early last year that the state long has treated mentally ill inmates poorly and ordered it to clean up its act. The ruling wasn’t surprising. For years, our state’s “lock ’em up and throw away the key” approach led to unacceptable neglect, as legislators passed laws that increased the inmate population without providing sufficient funding to help Corrections officials deal with overcrowding, rehabilitation and inmate care.

The neglect prompted the 2005 lawsuit that led to Judge Baxley’s ruling, in which he said treatment given to S.C. inmates suffering serious mental illness is so substandard that it’s unconstitutional.

Believe it or not, Corrections initially wanted to appeal the ruling but decided to negotiate a resolution after Bryan Stirling took over as new prisons director.

While all of these conditions that have prompted outside forces to seek legal remedies to bring reform are inexcusable, the fact that the state fought for decades to keep from offering quality education to all students is among the most unconscionable.

As 2014 came to a close, the state Supreme Court finally ended a two-decades-old lawsuit over the issue. Frankly, the poor districts seeking relief never should have had to sue state leaders, whose job is to provide an education for all of our children.

But having seen generation after generation of students neglected, they saw no alternative.

We all know our state hasn’t offered a quality education to all students. We all know that what ZIP code you live in dictates the kind of schools you attend. We all know that we need to better educate our children in order to provide businesses and industry with a steady flow of competent workers. Yet, the Legislature failed — refused? — to do the right thing and take steps to ensure that students had access to quality schools no matter where they live. Instead of putting money and energy into exploring ways to improve schools, lawmakers paid lawyers to fight the lawsuit seeking to improve kids’ educational opportunity.

In November, the Supreme Court ruled 3-2 that South Carolina failed to provide children in poor, rural districts with the adequate public education required by the S.C. Constitution. Instead of recommending specific actions, the court ordered lawmakers and the school districts to craft a plan to address problems such as weak rural tax bases, aging facilities and the difficulty of recruiting quality teachers to rural areas.

The Supreme Court allowed this case to languish far too long. Yet even after it finally ruled in favor of the school districts, the governor and others sought to get the court to rehear the matter. Really? That’s how backward we are in South Carolina. Yes, Gov. Nikki Haley had led the charge last year to begin making changes that would aid poor school districts. But while that was a positive step in the right direction, it was a small one. The court pointed out the obvious in saying the state and the districts have much work to do. Why not just move on and let your actions speak rather than continue a fight that, if you won, would undermine your supposed good intention?

And juvenile justice

Finally, you might recall that the Department of Juvenile Justice at one time had become a warehouse for young offenders, a place where youths not only learned to become hardened criminals but were exposed to outrageous abuse.

Things were so bad that in 1990, attorney Gaston Fairey filed a lawsuit on behalf of six juveniles alleging chronic mistreatment. In 1995, U.S. District Judge Joe Anderson placed DJJ under court supervision and urged the agency to correct problems. But reports of juveniles being physically or sexually assaulted by other youths or staff continued. While the directors bore much of the responsibility for improving conditions, the governor and the Legislature provided little leadership and support in pushing for change.

It wasn’t until 2003 — 13 years after the lawsuit had been filed — that change came. That’s when then-Gov. Mark Sanford selected Bill Byars, a former family court judge, to head DJJ. Mr. Byars made it a priority to improve the conditions at the agency and, more importantly, to have a positive impact on the lives of juveniles. He outlined improvements and went to work on them, gaining the admiration and backing from Mr. Fairey. By the end of 2003, Judge Anderson lifted his 1995 order, saying DJJ had made dramatic improvement.

But why did that take a lawsuit? And why so long? What is it about South Carolina that we can’t get some of the most important things right unless we’re forced to? We’ll spend hundreds of thousands, even millions of dollars in legal fees fighting against changes that are needed to improve the present and future of our state and its citizens.

You’d think we’d have learned by now, right? Don’t count on it.

Reach Mr. Bolton at (803) 771-8631 or wbolton@thestate.com.

This story was originally published February 12, 2015 at 9:00 PM with the headline "Bolton: Want good government in SC? Sue."