The S.C. Supreme Court’s New Role: Education Czar
THE ABBEVILLE DECISION IS JUDICIAL IMPERIALISM
IN SUPPORT OF DISCREDITED POLICY
The South Carolina Supreme Court issued a momentous decision on November 12. In a case that’s been going on for years, three out of five justices ruled that the state has failed to meet its constitutionally required obligation to provide a “minimally adequate” education to students in eight suing school districts. As a result, the court has ordered both the plaintiff districts and the defendants (representatives of the state) to reappear before the court and present a plan to address the constitutional violation. The resulting plan will have to be approved by the court.
In essence, the court has granted itself legislative power over the state’s public education system.
While the court restrained itself from dictating the exact nature of the mandated policy change, any proposed policy changes will likely have to contain certain components to receive the court’s approval. Among those policy changes that may be viewed favorably by the court are: reducing administrative costs in the plaintiff districts in favor of more instructional expenditures, consolidating select school districts (in part to change their demographic composition), expanding pre-kindergarten education, and – most significantly – altering the state education funding formula to provide more funding to poorer and underperforming school districts.
In the majority opinion, written by Chief Justice Jean Toal, the current state funding system for education is referred to as a “fractured formula” that denies students in the plaintiff districts their constitutionally required opportunity.
In order to arrive at its decision, the court majority had to rely on another 1999 state Supreme Court decision, Abbeville County School District v South Carolina, that found the state had the obligation to provide a “minimally adequate education” to every child in South Carolina – the phrase “minimally adequate” meaning the opportunity to acquire an ability to read, write, and speak English; a knowledge of mathematics and science; a knowledge of economic and political systems as well as history and government processes; and academic and vocational skills. For reference, the actual text of the South Carolina constitution says nothing about the quality of education but simply requires the General Assembly to “provide for the maintenance and support of a system of free public schools open to all children in the state.”
Beginning with this foundation, the majority of the court found that the state and General Assembly had failed to provide this minimally adequate education. It arrived at that conclusion by analyzing the level of academic achievement and other factors in the eight plaintiff districts. The majority cited substandard performance on standardized tests in the plaintiff districts, a lower rate of certified teachers in the plaintiff districts compared to other districts, and unreasonably long bus rides to and from school for some students in the plaintiff districts.
The majority blames some of these failings on the internal governance of the districts, but it places far more emphasis on the state’s supposed failure to provide adequate funding. Further, the majority acknowledges that seven of the eight plaintiff districts receive per pupil expenditures exceeding the state average, and that all eight districts have received significant state funding increases since 1999.
Nevertheless Justice Toal and her concurring justices contend that increasing funding is an important step in improving educational outcomes. And they recommend other cases lawmakers should examine and emulate. In the two cases cited by the majority as guideposts for the General Assembly – Campaign for Fiscal Equity v. State of New York II and Campbell County School District v. State of Wyoming – the courts ordered the states to somehow determine the cost of providing the components of a sound education and then ensure that every district within the states receives this “proper” amount of funding.
The majority all but explicitly orders the General Assembly to carry out a similar approach. What is unclear is just how the General Assembly is supposed to determine what the proper amount of funding is in order to provide a minimally adequate education. The only clue they have so far is this: whatever the eight plaintiff districts are spending right now isn’t enough.
The dissent, authored by Justice Kittredge with Justice Pleicones, takes a very different view. Justice Kittredge argues that the majority has overstepped its bounds and usurped the legislative power from its proper branch of government. Indeed, he says he would overrule Abbeville (which established the requirement of a “minimally adequate education”) were it in his power.
Both of these positions stem from the fact that Justice Kittredge believes the determination of what constitutes a minimally adequate education is a nonjusticiable political question. Justice Kittredge is explicit on this: “In my view, the term ‘minimally adequate education’ is purposely ambiguous, objectively unknowable, and unworkable in a judicial setting.”
In addition to objections based on the proper separation of powers, Justices Kittredge and Pleicones question the evidence cited by the majority as demonstrating the state has failed in its constitutional obligation. Just as in the majority opinion, the dissenting justices note that seven of the eight plaintiff districts expend more per pupil than the average school district in South Carolina. They further point out that five of the eight plaintiff districts are among the top ten districts in the entire state in terms of revenues received.
It’s hard to see the flaw in the dissent’s argument. The high level of state funding in the plaintiff districts and their increases in funding in recent years (six of the eight districts saw double digit percent increases in per pupil expenditures from between the 2005-2006 and 2010-2011 school years) is evidence that the state has committed no constitutional violation. Justices Kittredge and Pleicones go on to note that the funding formula criticized as “inadequate” by the majority has allocated ever increasing education funds “disproportionately to the historically poorer counties.”
In the eyes of the dissent, the majority is holding the state responsible for academic achievement in the plaintiff districts with little regard for the state’s policy history on education funding. The state has made a good faith effort to provide educational opportunity to students in poorer districts, but it cannot legislate positive outcomes.
The majority’s decision is grossly misguided.
First, the Court’s majority has clearly overstepped its bounds by granting itself the power to preapprove a legislative remedy. The Court had already acted improperly in 1999 when it found the state had a constitutional duty that nowhere appears in the South Carolina constitution, and the 2014 majority confirmed that bad decision rather than rejecting it.
Second, while certain districts are likely to see increased state funding as a result of this decision, it’s unlikely they will see significant improvements in educational outcomes. There is simply no evidence that higher funding levels lead to better academic performance.
Third, to the extent that school funding is increased, this will mean either: a diversion of funds that could be used for other purposes (such as road maintenance), growth-stunting tax increases (a statewide property tax bill to pay for schools is set to be pre-filed), or new state debt that’s nothing but deferred taxation.
Even though the majority opinion contained many caveats, it seems clear that the court will not approve any plan to address the alleged constitutional violation that does not involve increased state funding for many, if not all, school districts. The good intentions of the majority notwithstanding, the eventual increase is exceedingly unlikely to have any significant effect on academic achievement. Even the Court’s majority expressed some reservations about the effectiveness of funding increases for improving academic performance, but the truth is even harsher than Justices Toal, et al., let on. The empirical evidence has demonstrated over and over, again and again, the inability of funding increases to improve academic achievement in public schools. There is even negative evidence from similar cases in other states where courts have ordered funding increases. In South Carolina, SCPC has shown there to be few if any positive connections between funding levels and achievement in public school districts. There is also little evidence to support a belief that expanding state funded pre-kindergarten programs will have any significant long-term effect on student achievement.
Despite the demonstrated failures of funding increases to public institutions, there is a policy that could improve academic outcomes for South Carolina students currently trapped in sub-par public schools. That solution is of course school choice, whether in the form of vouchers or tax credits and tax credit scholarships. If the purpose of school funding is truly to educate children (and not just to support select public institutions), then there can be little argument against allowing education dollars to follow the child. Comprehensive reviews of the academic literature as well as individual studies have found that allowing parents to send their child to the school of their choice has a positive effect on student achievement and saves public resources. The failure of public schools doesn’t stem from a lack of resources but from their nature as quasi-monopolies that feature one-size-fits-all curricula.
In short: This decision was judicial imperialism in support of discredited policy.