Courts As School Boards

Public schools in South Carolina are now under judicial oversight. Right after Christmas, a state circuit judge issued his final order in the South Carolina school funding litigation. The plaintiffs in the litigation (school districts, parents, and students) argued that the South Carolina General Assembly has failed to provide children with the opportunity to acquire a minimally adequate education under the state constitution. Finding for the school districts, the trial court ordered the General Assembly to increase funding for early childhood educational programs. The school funding order raises many issues, but none more important than the role of our courts, if any, in making education policy. 

This school funding litigation began over a decade ago, and, in 1996, the trial judge issued an order declaring that the adequacy of the education system was a political question for the elected branches of government and thus beyond his authority. The state supreme court, however, disagreed and reversed. The state supreme court issued specific instructions and sent the matter back for a trial which resulted in the order entered during the last week of 2005. 

At the core of the litigation is the state constitution’s education clause, which provides that “[t]he General Assembly shall provide for the maintenance and support of a system of free public schools open to all children and shall establish, organize and support such other public institutions of learning, as may be desirable.” In instructing the trial judge after his 1996 order, the state supreme court held that the clause requires more than just public schools—the General Assembly must “provide the opportunity for each child to receive a minimally adequate education.” (Note that the phrase “minimally adequate education” appears no where in the state constitution.) The supreme court went on to define minimally adequate education as including skills in English, mathematics, science, economics, history, and government. 

After many weeks of receiving evidence, the trial court found that low academic achievement in the Plaintiff school districts was not related to money, teacher characteristics, or other school inputs. Instead, the trial court found that “the principal factor that is directly associated with different kinds of student performance is poverty” and that the relationship between poverty and performance is “greater in the very young.” The judge found that the supreme court’s instructions “impose[] an obligation upon the General Assembly and the State of South Carolina to create an educational system that overcomes, to the extent that it is educationally possible, the effects of poverty on the very young.”

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].