Shared from the 11/27/2017 The State eEdition

Court refused to do its duty, or make Legislature do its duty


In 1999, the S.C. Supreme Court issued a monumental decision in Abbeville v. South Carolina. It held that “the South Carolina Constitution’s education clause requires the General Assembly to provide the opportunity for each child to receive a minimally adequate education.” The trial that followed made national headlines. After reviewing the trial record in 2014, the Supreme Court found that the state had “failed in (its) constitutional duty to ensure that students … receive the requisite educational opportunity” and ordered it to remedy its failures.

By a vote of 3-2 this month, the court terminated this landmark case without even bothering to offer a reasoned explanation.

The majority’s driving motivation appears to be the belief that the court should never have been involved in the first place because it lacks authority to require the state to improve our public schools. This very same argument was rejected by the court in 2014. The only difference now: The justices on the court have changed. The majority also pointed to numerous “good faith efforts” by the state to comply with the 2014 order.

These explanations are inconsistent and flat wrong. If the court lacks authority to rule on the education rights of S.C. school children, the state’s efforts are irrelevant. Either the court can adjudicate the case or it cannot. The court cannot have it both ways, justifying its refusal to further entertain the case with the notion that it does not matter anyway because the state has made what the majority characterizes as “good faith” efforts.

Inconsistencies aside, the belief that an earlier decision in the case was wrong is not enough to justify dismissing the case later. The 2014 Abbeville decision is the settled constitutional law of this state and specifically controls this case.

One need look no further than the roughly 70,000 criminal convictions that are appealed across the nation each year to appreciate how troubling this dismissal is. Appellate judges often disagree with trial court outcomes or change their mind about a case after reviewing it several times over the course of years. But these judges do not simply reverse convictions because they did not like the decision of some earlier judge.

In our court system, the scales are heavily weighted toward respecting settled law and outcomes in prior proceedings. Any divergence from this presumption requires compelling new evidence and fully explained justifications. In ending the Abbe-ville litigation, the court offers no such evidence or justification.

Our Supreme Court now stands as an outlier. The brief dismissal reads as though courts do not generally get involved in cases regarding inadequate resources and outcomes for public school children. Yet a majority of state courts have affirmed their role in ensuring that states fulfill their education duties under the constitution. Our own court said the same thing twice in the past.

Just a few weeks ago, the Pennsylvania Supreme Court, in stirring language, explained that cases implicating the education rights of children are at the heart of an independent judiciary: “It is fair neither to the people of the Commonwealth nor to the General Assembly itself to expect that body to police its own fulfillment of its constitutional mandate (in education). This is especially so in light of the many competing and not infrequently incompatible demands our legislators face to satisfy non-constitutional needs, appease dissatisfied constituents, and balance a limited budget in a way that will placate a majority of members in both chambers despite innumerable differences regarding policy and priority.”

The only evidence before our Supreme Court since its 2014 order for the state to fix our broken education system was the state’s own progress reports. Those reports have yet to be subjected to rigorous scrutiny. Simply filing a report — any report — appears enough for this Court.

Were these reports tested, the state would have to account for evidence that school funding remains far below prerecession levels, even though tax revenues have rebounded and produced substantial surpluses in recent years. It would also have to explain how little it has done to expand access to high-quality teachers and preschool education.

But this evidence will never see the light of day. Our court has left students’ right to a quality education solely in the hands of the Legislature. As the Pennsylvania Supreme Court makes clear, legislative self-policing is a far more dangerous proposition to our children and South Carolina’s future than the possibility of judicial overreach.

Dr. Black is a professor at the USC School of Law; contact him at

See this article in the e-Edition Here