SC Has Its Own Constitutional Crisis

INSIDE THE SUPREME COURT’S “MINIMALLY ADEQUATE” RULING  By FITSNEWS || If you Google “constitutional crisis” these days, chances are you’ll find a flood of articles related to U.S. President Barack Obama‘s dictatorial effort to rewrite America’s immigration laws. We don’t necessarily disagree with everything Obama is trying to do, mind you,…


By FITSNEWS || If you Google “constitutional crisis” these days, chances are you’ll find a flood of articles related to U.S. President Barack Obama‘s dictatorial effort to rewrite America’s immigration laws.

We don’t necessarily disagree with everything Obama is trying to do, mind you, but we emphatically rebuke the manner in which he is trying to do it.

Anyway, what you won’t read much about is the constitutional crisis that exists here in the Palmetto State as it relates to the S.C. Supreme Court’s recent ruling in the “minimally adequate” government-run education case.  We addressed this verdict last week (HERE), but there is one key component of it we neglected to consider in our initial coverage.

Namely, the constitutional basis for the court’s decision …

Don’t get us wrong: It goes without saying South Carolina’s government-run schools are not “minimally adequate.”  They are totally inadequate – despite receiving billions upon billions of dollars in new money over the past few decades.  And the S.C. Supreme Court’s finding of said inadequacy – which you can read HERE – is as compelling an indictment of this state’s failed status quo as we’ve ever read.

Seriously … it amazes us a liberal justice like Jean Toal ever put her name on some of the explicit rebukes of the government-run establishment contained in this ruling.

For example this passage …

Inadequate transportation fails to convey children to school or home in a manner conducive to even minimal academic achievement. Students in the Plaintiff Districts receive instruction in many cases from a corps of unprepared teachers. Students in these districts are grouped by economic class into what amounts to no more than educational ghettos, rated by the Department of Education’s guidelines as substandard. Large percentages of the students in the Plaintiff Districts—over half in some instances—are unable to meet minimal benchmarks on standardized tests, but are nonetheless pushed through the system to “graduate.”

While the Defendants and the dissent point to the amount of spending in the Plaintiff Districts, this spending fails to provide students with the opportunity to obtain a minimally adequate education. Rather, the evidence demonstrates that there is a clear disconnect between spending and results.

Wow … weren’t “transportation” and “accountability” always among the first criticisms leveled by bureaucrats against expanded parental choice?


And hasn’t this website been saying for years that “more money” isn’t the answer to what ails our failed “one size fits all” system?

Anyway, while Toal’s ruling hits the nail on the head when it comes to the Palmetto State’s institutional failure … and the failure of “more money” to fix it.  Less clear is the court’s basis (i.e. justification) for weighing in on issue.

The South Carolina constitution has this to say about education …

The General Assembly shall provide for the maintenance and support of a system of free public schools open to all children in the state and shall establish, organize and support such other public institutions of learning as may be desirable.

Wait … where are the “minimally adequate” words everyone keeps talking about?  They’re nowhere to be found.

“Minimally adequate” is a term created by the court – and having been created, is then defined by the court.  Specifically, it’s determined to be a student who possesses “a fundamental knowledge of economic, social and political systems, and of history and governmental processes.”

Wait … the court is creating a new standard, arbitrarily defining that standard and then demanding the other branches of government follow this standard?

Yes …

Where, exactly, does it get off doing that?  Toal claims “nothing in the text of the article precludes the judiciary from exercising its authority over the article’s provisions.”

“While the remedy in this case may affect future policy decisions regarding the State’s education system, we disagree with the dissent that this controversy is non-justiciable,” she wrote. “Rather, interpretation of the law — and evaluation of the government’s acts pursuant to that law — are critical and necessary judicial functions. As such, we find that judicial intervention is both appropriate and necessary in this instance.”

How Obama-esque of her …

Just like that, with a few strokes of the chief justice’s pen, the judicial branch of government in South Carolina presumed to tell the other two branches where to go …

In a scathing dissenting opinion, justice John Kittredge expressly rebuked Toal’s logic – saying bluntly “the Court has overstepped its bounds.”

According to Kittredge, the suit asks the court to “not only enter into, but to be the ultimate decider of, the longstanding debate over the merits of state education policy decisions and mandates.”

These decisions and mandates “are quintessentially non-justiciable political questions which the constitution indubitably assigns to the General Assembly,” he concludes.  Correctly, we might add.

“I acknowledge that to some courts and judges, the concept of ‘the rule of law’ has  expanded over time from adjudicating to legislating,” Kittredge wrote in his dissent.  “In some circles, the constitution has been reduced to nothing more than a vending machine that allows a person to select constitutional ‘rights’ that mirror personal preferences. That is not my view of the rule of law or the United States Constitution or South Carolina Constitution. While judges have a duty to strike down legislation in violation of the constitution, it is my view that judges must demonstrate restraint in the enforcement of our duty, particularly when it comes to creating law.”

This website has made no bones about its views on education.  Which is why in the aftermath of the ruling we made it abundantly clear that fixing our worst-in-the-nation government-run system requires bold, broad and long-overdue reform of the free market variety.

“The only thing that will save our schools is the accountability of the marketplace,” we wrote.  “Accompanied by a long overdue recognition that our loyalty belongs not to the status quo forces profiting from this failed system, but the children and parents who continue to be failed by it.”

Indeed … but at the end of the day it’s up to the S.C. General Assembly and Gov. Nikki Haley to reach that conclusion and take the requisite action.

As much as the court might wish it could create standards, define them and then impose affirmative obligations for specific remedies – that simply isn’t it’s job.

At least not under the current state constitution …


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$11500 per student,yet failure November 21, 2014 at 3:03 pm

Great point on the use of “minimally adequate”…if that’s the standard everyone wants then the legislatures should codify it. Otherwise, it is judges performing the duty of the legislature in which case we don’t need them. (prolly don’t anyway, but that’s a different issue)

RogueElephant November 21, 2014 at 3:10 pm

“the concept of ‘rule of law ” has expanded from adjudicating to legislating. The whole problem with the judicial system. Judges are appointed to interpret the law not make it say what they want. This has become the single biggest road block to freedom in the country. A huge percentage of the voters in a given state can be negated by one judge. How can that ever be right ?

Bible Thumper November 21, 2014 at 3:58 pm

In spite of the merits or good intentions of the courts, this decision moves our states education in the opposite direction needed to bring improvement and will lead to increased failure.
Any improvement must be from the parents up and not from the state down. This decision will result in more state control, less local control and completely ignores the influence of the parents roll in a child’s educational success. Expect more “Gruberish” solutions from the state that are destined to fail.

American People November 22, 2014 at 1:45 pm

SC has proven over and over again that it can’t provide a level of education that meets national standards. The federal government needs to step in for the sake of the citizens and for the betterment of the country as a whole. Providing a cheap labor force is about the only thing SC contributes to the rest of the USA, while sucking so hard off the federal government’s tit.

Bible Thumper November 22, 2014 at 2:36 pm

Why is it that when a system is failing you want to double down on a failed top down approach.

Look at the success of the Federal approach.
Washington DC Public Schools
DC spent $29,409 per pupil in FY 2009.(Over twice that of SC) They had a 10.92 teacher /student ratio. The average educator was paid $67,000 in 2010.
In 2008, in terms of testing 36% of students demonstrated proficiency in mathematics and 39% demonstrated proficiency in reading.

Go to Church Tomorrow November 22, 2014 at 2:04 pm

Right sentiment,Dumb conclusion.

Fine argument there,but what about kids who have rotten parents?Whats your solution?

The Hell with em?

Bible Thumper November 22, 2014 at 2:22 pm

The free market has proven that it does require 100% of customers making good decisions to improve the quality of a product or service for every one. In the seventies, the US market was making crappy cars and the Japanese began to dominate the market. Some people(Rotten parents) still bought those crappy cars, but the lose of market was enough to cause American auto makers to improve quality that in the end helped all buyers. The Free market does not protect people from bad decisions yet they benefit anyway. Of course some regulation is involved, but free market incentives are the primary mover of economic progress.

Can’t you admit that some free market incentives could help public education?

See u in church.

Won't See You In Church November 22, 2014 at 5:03 pm

Non responsive,but unsurprising.

You still are,in effect, saying to children who have irresponsible parents,

Drop Dead!

Your free market blather is very typical of a Right Wing extremist .They always fall back on those words anytime inconvenient facts interfere with their ideological predilections.

Deo Vindice SC November 21, 2014 at 4:58 pm

Hot Pussy ?

HD November 21, 2014 at 5:25 pm

“Rebuke” must have been on your word-of-the-day toilet paper today.

Bible Thumper November 21, 2014 at 11:12 pm

This verse explains Will’s use of “rebuke” and feelings towards Nikki.
Proverbs 27:5
Open rebuke is better than secret love.

How? November 21, 2014 at 7:52 pm

Will, you have much to say about section 3 of Article 11 “The General Assembly shall provide for the maintenance and support of a system of free public schools open to all children in the State and shall establish, organize and support such other public institutions of learning, as may be desirable.”

How do you reconcile Section 4 with your desire for the state to fund private schools?

Section 4 states “No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.”

Bible Thumper November 21, 2014 at 8:47 pm

The key word is “direct.” If the money goes to the parent or student, then it is direct. Is it?

Lawman November 22, 2014 at 5:17 am

Depends, if the legislature sets up a system whereby parents or students are given state funds that are restricted to use for private school tuition and costs, then the argument could reasonably be made that the funds are “direct” even though they pass though an intermediary.

Section 4 is likely to be problematic if the legislature seeks to put in place a system of vouchers or tax credits for private schools. The overall intent of Section 4 seems clear, the state shall not pay monies to support private schools.

Bible Thumper November 22, 2014 at 10:32 am

The South Carolina Tuition Grants Program is a need-based fund that underwrites higher education for the state’s neediest college applicants.  Participating public and private colleges administer gift-aid that does not require repayment.  Increasing access for disadvantaged students, and promoting diversity within the student body are the fund’s primary objectives. Application starts with a timely-filed FAFSA that allows campus financial aid administrators to assess each applicant’s need for these grants from the State Higher Education Commission.

Lawman November 22, 2014 at 11:27 am

Article 11 deals with “Public Education”, the accepted definition of this term is K-12 Education, or any education that is free to school age children. Colleges and universities would not fall under the term public education, they would fall under “higher education”. Article 11 would not restrict how the state spends monies on colleges or universities.

Look, all I’m saying is that there is a reasonable argument to be made that the state is precluded from funding, in any form, tuition or monies that go to private K-12 schools. I believe that IF the legislature moves to create a wholesale K-12 voucher / credit / whatever program, someone is going to make that argument and the SC Supreme Court is going to decide the issue of what exactly Section 4 means.

I want MY country BACK! November 22, 2014 at 2:01 pm

You’re right of course.

Fits, Bible Thumper and the rest of their ilk here only play that “Constitution” card when it benefits their argument

Actually they couldn’t care LESS about the “Constitution.”

Bible Thumper November 22, 2014 at 3:11 pm

Wrong! I always put the process and the Constitution before policy preferences.

I want My country BACK! November 22, 2014 at 4:59 pm

Then ,you must conclude that Lawman certainly has an arguable legal point and,as he correctly asserts, any effort along the lines you are advocating faces some serious Constitutional issues.

Bible Thumper November 22, 2014 at 5:17 pm

Agreed. There would be no US Constitutional issue since other states have vouchers to religious schools and I assume they have survived court challenges.
The state courts may make the same distinction that the Feds do. That the vouchers are going to the individual and not the institution. If the state doesn’t see it that way there is a “process” to amend the state constitution.

Bible Thumper November 22, 2014 at 12:51 pm

 “…if the legislature sets up a system whereby parents or students are given state funds that are restricted to use for private school tuition and costs…”

I support vouchers for both public and private institutions. Vouchers would improve public schools also.

Bible Thumper November 21, 2014 at 9:33 pm

Article X II Section 4:

Supreme Being

No person who denies the existence of a Supreme Being shall hold any office under this Constitution.

Motown November 21, 2014 at 10:26 pm

Does Diana Ross count?

Bible Thumper November 21, 2014 at 10:53 pm

Or Clarence Thomas.

Slartibartfast November 21, 2014 at 10:54 pm

Beer out the nose!

No ego here November 24, 2014 at 10:44 am

One has to wonder if you can believe in yourself as being the “supreme being”.

Reply November 22, 2014 at 11:37 am

Nothing will ever change until you purge SC government and the courts of the smelly old people.

Bubba Todd November 22, 2014 at 1:41 pm

Being an old Tea Partier is the best! I get all the benefits of govt assistance and then blame the govt for everything that FoxNews tells me is wrong in the world. It’s a confusing, but simple life.

SBD November 24, 2014 at 10:45 am

There’s nothing worse than an old timer downing prunes to stay regular.

Queen Jean November 23, 2014 at 10:18 pm

My name is Jean Hoefer Toal and I will do as I damn well please. Fuck you, pissant, Billy Folks. I know your people and your kind and I am fed up with your insinuations, i was raised to be in this position and I am now the most powerful politician in South Carolina. This was my father’s dream and I have done it and gotten away with it. If you don’t like it, take it to my Fed do-boy, Bill Nettles and ask him.

Toyota Kawaski November 24, 2014 at 8:17 am

Yes’ah Mr. Rich the ole Goat of a wife needs a new Michael Kors purse could u please send the Dec. check early.

Bible Thumper November 24, 2014 at 8:54 am

I wish to thank you. The checks arrived this weekend. Just in time for Black Thursday.
— Jean

ELCID November 25, 2014 at 1:34 pm

SC has some of the highest rated schools in America: Public or Private. So this claim is not accurate. What SC has is a massive imbalance in school funding. Which is caused by the way SC uses property taxes to fund schools.

Note: Public Utilities generally pay the most property taxes in nearly every county in SC.

If you have large public utilities like SCE&G with expensive power plants & infrastructure in your county like Lexington County. Or, you have both large Utility investments and massive factories to tax like Greenville/Spartanburg Counties. Then you have great funding for your public schools, and fantastic schools.

If you live in Government owned or operated Santee Cooper, or COOP, served areas that pay little or no property taxes; then you have no tax base to fund your schools. If you have Santee Cooper, COOPs and no industry only farm lands, then you really don’t have any tax money for schools. Except from the poor people who live there.

It’s simple math. Sell Santee Cooper and COOP assets to public utilities that pay taxes. Funny thing is: SCE&G rates are the same, or lower, than Santee Cooper’s COOPS sell electric power. Thus, you get cheap power and paid for public schools.

PROBLEM SOLVED, with no tax increases from the public.


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