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SC Has Its Own Constitutional Crisis




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 …