Minimally Adequate Ain't Gonna Make the Grade

“Minimally Adequate” Ain’t Gonna Make the Grade

Gary West

January 14, 2006

On December 29, 2005, a law suit originally brought by forty school districts against the State of South Carolina was resolved in Manning by the Third Circuit Court of South Carolina. The suit had been filed in 1993, alleging that the State was not meeting its constitutional and legal obligations for funding schools in poor and rural school districts.

The judge in the case ruled that the State was substantially meeting its obligations as defined in the State Constitution and as clarified by the State Supreme Court – although the State could do more for children aged four and five – children in need of “early childhood development.”

The ruling has been reported by the news media, who have quoted lawyers for both sides, saying, “Our side won – but, hey, our clients just might appeal anyway.”

The really worthwhile news, however, is not necessarily the final ruling or in future appeals. The real news about this case – and the ruling of the Third Circuit Court – is the interpretation by that court of the State Constitution and earlier Supreme Court definitions of the State’s obligations to fund public education.

Based on those interpretations and definitions, there is no real reason for state-mandated accountability in education – making everything from learning standards to PACT testing to school report cards unnecessary for public schools. More importantly, there is a huge gap between what is required of the Legislature in support of public education and what is required of the schools in delivery of that public education.

That “gap” between what the State is expected to do and what the State expects schools to do is the real “achievement gap” in South Carolina’s education system. It is the cause – the single most important and systematic cause – of the continuing inequities in public education in South Carolina.

As you read through this article, you’ll understand the standards on which the court made its ruling, you’ll understand the impact of the “real achievement gap” on local schools, and you’ll understand why South Carolina is exactly where it is – educationally, economically, and politically – and why you can expect it to remain there.

The fact is: We just don’t have the constitution to do it right…

The Legal Definition of Public Education in South Carolina

The South Carolina Constitution [1] states that “[t]he 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.” [2] This is referred to as the “education clause” of the State Constitution.

Certain terms are important in the education clause [3]:

· The “shall provide for” part of that clause refers to money.

· The “maintenance and support” part refers to programs and services.

· The “free” part of “free public schools” refers to the school costs incurred by the families of school-aged children.

· The “all” part of “all children” refers to each and every child in the State.

In 1993, forty school districts [4] in South Carolina filed suit against the State and its elected officers, citing alleged discrepancies and deficiencies in meeting the “shall provide for” and the “all” parts of the education clause. Currently, eight school districts [5] remain in the suit as a result of several court decisions, appeals, and amendments since the suit began.

In 1996, the South Carolina Supreme Court issued a ruling with regard to the General Assembly’s responsibility for meeting the requirements of the education clause in the State Constitution. The Supreme Court stated that “the education clause requires the General Assembly ‘to provide the opportunity for each child to receive a minimally adequate education.’” [6] (Italics are mine – because the Third Circuit Court’s definition of “minimally adequate education” is as significant as it is appalling.)

After making that decision, the Supreme Court sent the case to the Court of Common Pleas of the Third Judicial Circuit.

After more than 100 days of testimony, Judge Thomas Cooper, Jr., for the Court of Common Pleas, released his findings [7] in the twelve-year-old case between poor and rural school districts and the State of South Carolina.

Judge Cooper concluded that the State of South Carolina does not adequately fund early childhood intervention programs for children aged four and five. [8] He also ruled that all other requirements of the education clause of the State Constitution, as defined by the 1993 Supreme Court declaration, are being met by the General Assembly and the State’s elected officers. [9]

Not to Decide is to Decide

Both sides have claimed victory in Judge Cooper’s ruling; however, both sides continue to talk about appealing the decision. [10]

The newspaper accounts of Judge Cooper’s ruling have focused on who won and what it’ll cost. The decision itself, however, is really anti-climactic when you look at the constitutional foundations on which that decision was made – and when you understand what those foundations have meant in the past and what those mean for public education in South Carolina for the future.

Instead of focusing on the winner-loser aspects of the court’s findings, I’d like you to consider the defining statements that are buried within the body of those findings. These defining statements are the legal foundations on which Judge Cooper made his decision – and those statements point toward the continuing failure of public education in our state.

I don’t mean the failure of public education itself – I mean the systematic failure of public education by our Legislature and elected officers – despite Judge Cooper’s ruling to the contrary.

Furthering the Legal Definition of Public Education in South Carolina

In the final court order regarding public school funding – Judge Cooper’s ruling – there is much discussion (as there is in most court findings) about what the plaintiffs (the school districts) must prove in order to win their case. Similarly, there is discussion about what the defendants (the State and its officers) must show in order to win their case. Much of that discussion is about definition of terms that will be considered by the court in advance of its decision. Those definitions are a matter of law and/or a matter of precedent.

The definitions considered by Judge Cooper in this case are critical to his decision – and those definitions are critical to understanding the state of education in South Carolina – both past and future.

“Opportunity”

Judge Cooper states that the Constitutional standard on which his decision is based was defined by the State Supreme Court to be a matter of “opportunity.” [11]

In his decision, Judge Cooper points out that having the “opportunity” to learn is “materially different from the requirements of other states, which tend to focus more on achievement than opportunity.” He cites cases in North Carolina (where the state constitution guarantees that each child will receive an education) and Kentucky (where the state constitution includes specific goals of educational achievement).

Judge Cooper defines his task as determining whether or not students have the “opportunity to acquire a minimally adequate education” – the standard set by the State Supreme Court – rather than actually getting an education [both italics are mine].

This is a significant determination. Significant – and, at the same time, insufficient. [12]

Judge Cooper states further that he began his examination of the “opportunity” standard by giving specific significant words “their plain and ordinary meaning.” [13]

After acknowledging that “perhaps the most important word in [this case] is ‘opportunity’,” Judge Cooper states, “It hardly requires legal authority, however to determine the plain and ordinary meaning of the term. Opportunity means the chance [italics are Judge Cooper’s] for progress or achievement to occur…Opportunity does not [italics are mine] mean that progress, advancement or achievement will, in fact, occur.” [14]

Judge Cooper then states that the education clause of the South Carolina Constitution “does not install educational achievement as the paramount duty of the State.” [15]

If the State’s obligation to public education is to provide “opportunity” and if the State Constitution does not include the duty to require “achievement,” where is the State’s moral authority to require accountability of others involved in the process of providing only the “opportunity” for an education?

Consider how that might work in the real world – you know, the world out here where everybody talks about life-long learning and the global economy and world markets:

Prior to the enactment of the Education Accountability Act of 1996, there were some teachers who took the following stance with regard to teaching students: “I am here to teach the subject I know. I teach it every day. It is up to the students to learn it. I’m doing my job. It’s the students’ faults if they do not learn what I am teaching.” That’s giving every student an “opportunity” to learn. That is not the creation of learning – which the Education Accountability Act requires – but which the State Constitution does not require.

“Minimally Adequate Education”

Judge Cooper then begins his definition of “minimally adequate education” (the phrase established by the 1993 Supreme Court decision regarding the Legislative obligation to public education).

After a discussion of the individual words, using his “plain and ordinary” approach, Judge Cooper states that the term “’minimally adequate’ refers to the least possible quantity of a thing that is suitable for the occasion [16]… ’Minimal adequacy’ is a very low standard, which by definition does not require the best policies or practices.” [17]

The “plain and ordinary” interpretation here would be that the Legislature is not required to develop best policies or follow best practices in providing an opportunity for students to learn. There is then the question of responsibility when anything less than best policies or best practices is mandated – for example, when the Legislature mandates specific subject matter or mandates the manner in which specific subjects can be taught.

Judge Cooper elaborates on the previous Supreme Court definition of “minimally adequate education” by stating, “It is important, therefore, to note some things that are not [italics are Judge Cooper’s] part of a minimally adequate education as defined by our Supreme Court. A minimally adequate education does not require instruction in music, art, physical education, or foreign languages. Nor does it include extracurricular activities or sports…these are not constitutionally required…” [18]

If the State’s obligation to public education is to provide “minimally adequate” facilities and resources and if the State Constitution does not include the duty to require “achievement,” where is the State’s moral authority to require accountability of others involved in the process of providing only a “minimally adequate education?”

Consider how that might work in the real world – you know, the world out here were real people live and where those people have some idea of what’s going on:

“Minimally adequate” is the equivalent, in the construction industry, of telling your workers to build the house based on the architects diagrams – but that you’ve determined that a house is only floors, walls, ceilings, and a roof over it all; thus, you’ll provide only the resources to build it that way. “Best practices” need not apply. Then, when the house doesn’t sell, you blame your workers for not putting in the windows and the doors, for not painting the walls, and for not clearing the lot around the house. You then show them a picture of a house built (or imagined) by somebody else and you tell them this is what it should have been. Then you fire them for doing the job you paid them to do – but not doing it the way it should have been done if you’d given them the resources to do it right.

The Visual Definition of Public Education in South Carolina

The original 1993 law suit was brought to court by forty school districts. Judge Cooper’s ruling included eight specific school districts, selected from among the original districts, for which school facilities and instructional programs were less than adequate, according to those who brought the suit.

Evidence presented in court defined the current status of school facilities in those districts as being representative of the conditions in the other poor and rural districts of South Carolina. The attorneys [19] for the school districts have posted photographs from the school districts represented in court. You can see the photos from each school by clicking this link – http://www.scschoolcase.com/education-trial-presentations.cfm (use CTRL-CLICK if you are reading this article in Word). Under each district’s name, look for “School Facility Photos.”

In addition, a video entitled “Corridor of Shame” [20] documented conditions in poor and rural school districts across the state. You can watch the complete “Corridor of Shame” video from the SCETV website [21] by clicking this link -- http://web3.scetv.org/etvforums/shame.wmv (use CTRL-CLICK if you are reading this article in Word).

After you’ve taken a moment to view the pictures of existing school conditions in the links above, consider the following statement from Judge Cooper’s ruling:

“[The State Constitution does] not require a system assuring substantially equal educational facilities and services throughout the State.” [22]

In other words, the Legislature is not required by the State Constitution to provide equal or equitable funding to schools in South Carolina. Constitutionally, it is acceptable for the State to provide fewer resources to some school districts than to others.

In effect, the State can provide more “opportunity” to some students than to other students – as long as every student has some opportunity for a minimally adequate education. And, as you watch “Corridor of Shame” (see the link above), you will see that this is the reality of public education in our State.

The Legislature is required to provide only “minimally adequate” funding for schools and instructional programs – and, Judge Cooper ruled, the Legislature is already doing that for school facilities and programs – except for instructional programs in early childhood education. Judge Cooper ruled that all existing school facilities – even those documented in “Corridor of Shame” – meet the “minimally adequate” requirement of the Constitution.

Now, If you haven’t already looked at the visual definitions of the poor and rural schools mentioned above, please do so now – remembering that Judge Cooper has said these facilities are “minimally adequate” for educating your children and mine in a safe and secure environment.

The Local Definition of Public Education in South Carolina

Judge Cooper’s ruling includes several other important factors relating to the State’s obligation to provide a “minimally adequate education” for all students:

· As noted above, Judge Cooper ruled that the State Constitution does “not require a system assuring substantially equal educational facilities and services throughout the State.”

· “…while the State has a duty to provide the opportunity for a child to acquire a minimally adequate education, no State or constitutional provision obligates the State to be the exclusive source of the opportunity’s funding.” [23]

· The South Carolina Legislature is the only government entity with the power to tax…“the local revenue raised for education by [the local] political subdivision [town council, county council, school board, etc.] is, in fact, State revenue procured by the State through the delegation of the power to tax.” [24]

These three factors in Judge Cooper’s decision are important for several reasons:

(1) If the State is not responsible for opportunities in your district being equal to those in other districts (as the first bullet above states), then that responsibility for facilities and programs belongs to the local school district and its community (who else would do it?);

(2) The second bullet above says that the Legislature is not even obligated to pay for the “opportunity” to get a minimally adequate education in every district – and that the Legislature can count a district’s federal funding in meeting its minimal obligation (although federal law expressly limits that funding to programs that go beyond what the State requires); and

(3) The third bullet above states clearly that local governments – city and county councils and local school boards – may not provide additional funding for public schools without specific permission from the State Legislature (and it is this factor that will become important this year in South Carolina as the Legislature moves to eliminate or reduce your local community’s ability to supplement the State’s minimally adequate funding – there’ll be more on that issue later).

If the State is not responsible for facilities and services beyond the minimally adequate, then local districts are responsible for the condition of facilities and for the types of instructional programs used in providing a minimally adequate education. But, the Legislature can determine that minimally adequate is all that is required and can withhold its permission for the local government to raise revenues beyond the minimally adequate.

That is the basic summary of the three items above.

What’s Left to Consider

Several bills [25] have been or will be introduced in the Legislature this month that will reduce or eliminate the ability of local government and local school boards to raise funds to meet the needs for school facility maintenance, safety, and security beyond what exists already.

Those bills, if passed in the Legislature, will remove the ability of local governments to generate tax revenues for local schools and will put a cap on the ability of local governments to manage growth within their communities – completely ignoring the fact that many South Carolina communities are growing rapidly and that, when a community grows, its schools grow.

One of the bills, as an example, is S0069 (http://www.scstatehouse.net/sess116_2005-2006/bills/69.htm), by Senators Thomas, McConnell, Cromer, Knotts, Hawkins, Grooms, O’Dell, Fair, Mescher, Bryant, and Verdin. This bill would raise the State’s sales taxes from 5% to 7% (other bills go as high as 7.5%) while lowering or eliminating property taxes on homes, apartment buildings, cars, trucks, and motorcycles. [26] The sales tax would be completely controlled by the State and would be sent to local governments and school boards only after the State meets its other obligations.

Now, I know the last part of that last sentence will be questioned by the authors of S0069 – but you need only to look back over the last four years to see how the State short-changed local governments and school districts when the economy went into recession. Recession affects sales and decreased sales affects the collection of sales taxes. Decreased collection of sales taxes decreases revenue for the State. Decreased revenue for the State means decreased funding for schools.

And if local governments and school districts cannot raise revenue from local sources, they cannot maintain their schools and services – beyond the State’s definition of “minimally adequate.”

Conclusions

In a political environment where budget decisions are made for ideological reasons [27] rather than being based on the real needs of the State and its citizens, there is concern that “minimally adequate” is not enough to make South Carolina competitive in world markets.

The education clause of the State Constitution is not sufficient to cause the business world to believe that South Carolina is serious about being competitive. The State’s defense of that position sanctions its acceptance of “minimally adequate” rather than a position of “excellence” on the world stage.

If South Carolina is to take advantage of its economic opportunities, it must not settle for “minimally adequate” in preparing its students to succeed. It must not lose its economic opportunities to simple ideologies that propose to spend minimally to educate minimally to learn minimally – although, right now, the “learning” part of the equation is missing from the State’s commitment to the future.

A change in the State Constitution – a change to insist that learning is caused and created by an excellent public school system – is imperative. Without that commitment, the 1993 Supreme Court ruling and the 2005 Abbeville County ruling are embarrassments to our State and its citizens.

“Minimally adequate” goes back to the “Basic Skills” days of South Carolina education – when “basic” was enough. That’s a long way from “excellence” and “accountability” – the requirements of today.

In today’s marketplace, “minimally adequate” simply ain’t adequate. It's just embarrassing. [28]

Endnotes

[1] South Carolina Constitution; http://www.scstatehouse.net/scconstitution/scconst.htm.

[2] Article XI, section 3; http://www.scstatehouse.net/scconstitution/a11.htm.

[3] The explanations and definitions in this paragraph seem to be make sense – from a common sense point of view. This paragraph is not intended to be a legal interpretation of the State Constitution (only lawyers and law-makers may provide official definitions, with most of those depending on one or more political points of view).

[4] The forty school districts included mostly rural and poor districts, including Abbeville County Schools. Because the plaintiffs – the forty school districts – were listed alphabetically, the case became known as “Abbeville County School District v. The State of South Carolina.” Despite several amendments to the suit, including the absence of Abbeville County School District as a plaintiff in the current case, the suit is still known as the Abbeville case, based on the original suit begun in 1993.

[5] The eight school districts still named in “Abbeville v. SC” are Allendale, Dillon 2, Florence 4, Hampton 2, Jasper, Lee, Marion 7, and Orangeburg 3. Demographics and other information about each of those school districts can be found in the order (http://www.thestateonline.com/news/pdfs/AbbevilleOrder.pdf) released by the court on December 29, 2005.

[6] Quoted from the December 29, 2005, ruling (http://www.thestateonline.com/news/pdfs/AbbevilleOrder.pdf); page 6, item 10. The Supreme Court defined “minimally adequate education” to include “providing students adequate and safe facilities in which they have the opportunity to acquire: 1) the ability to read, write, and speak the English language, and knowledge of mathematics and physical science; 2) a fundamental knowledge of economic, social, and political systems, and of history and governmental processes; and 3) academic and vocational skills.”

[7] State of South Carolina, County of Lee, Abbeville County School District, et. al., versus the State of South Carolina, et. al.; In the Court of Common Pleas of the Third Judicial Circuit; Case number 93-CP-31-0169; http://home.earthlink.net/~garywwest2/SchoolFundingOrder-051230.pdf.

[8] State of South Carolina, County of Lee, Abbeville County School District, et. al., versus the State of South Carolina, et. al.; In the Court of Common Pleas of the Third Judicial Circuit; Case number 93-CP-31-0169; Section XVI, page 162; http://home.earthlink.net/~garywwest2/SchoolFundingOrder-051230.pdf. (This reference will be called “Judge Cooper’s ruling” in future endnotes.)

[9] Judge Cooper’s ruling (http://home.earthlink.net/~garywwest2/SchoolFundingOrder-051230.pdf); Section XVI, page 161.

[10] “Sanford opposes appeal of ruling”; The State (Columbia, SC); December 31, 2005 (http://www.thestate.com/mld/thestate/13521465.htm). Since the initial “We won” statements from both sides, there is still some posturing going on about appealing the ruling. My guess is that the State will not appeal the ruling – after all, it dodged a big bullet when the court ruled that it was not responsible for the physical condition of school buildings beyond the condition those buildings are already in.

[11] Judge Cooper’s ruling (http://home.earthlink.net/~garywwest2/SchoolFundingOrder-051230.pdf); paragraph 26; page 14.

[12] I don’t mean to imply that Judge Cooper’s determination is insufficient. I do mean, specifically, that the wording of the Supreme Courts ruling in 1996 is insufficient in today’s setting of education accountability.

[13] Judge Cooper’s ruling (http://home.earthlink.net/~garywwest2/SchoolFundingOrder-051230.pdf); paragraph 31; page 15.

[14] Judge Cooper’s ruling (http://home.earthlink.net/~garywwest2/SchoolFundingOrder-051230.pdf); paragraph 34; page 16.

[15] Judge Cooper’s ruling (http://home.earthlink.net/~garywwest2/SchoolFundingOrder-051230.pdf); paragraph 36; page 17.

[16] Judge Cooper’s ruling (http://home.earthlink.net/~garywwest2/SchoolFundingOrder-051230.pdf); paragraph 38; page 18.

[17] Judge Cooper’s ruling (http://home.earthlink.net/~garywwest2/SchoolFundingOrder-051230.pdf); paragraph 39; page 185.

[18] Judge Cooper’s ruling (http://home.earthlink.net/~garywwest2/SchoolFundingOrder-051230.pdf); paragraph 42; page 20.

[19] Mullins Nelson Riley and Scarborough, LLC; http://www.nelsonmullins.com. Photos from the represented schools can be seen at http://www.scschoolcase.com/education-trial-presentations.cfm. (Adobe Acrobat Reader is required to view the PDF files. You can download a free copy of Reader from http://www.adobe.com.)

[20] “Corridor of Shame: The Neglect of South Carolina’s Rural Schools”; http://www.corridorofshame.com/. Ferillo and Associates, 2005.

[21] South Carolina ETV; http://www.myetv.org/about_etv/pressroom/highlights/2005/may/CorridorofShame.cfm.

[22] Judge Cooper’s ruling (http://home.earthlink.net/~garywwest2/SchoolFundingOrder-051230.pdf); paragraph 46; page 22.

[23] Judge Cooper’s ruling (http://home.earthlink.net/~garywwest2/SchoolFundingOrder-051230.pdf); paragraph 60; page 27.

[24] Judge Cooper’s ruling (http://home.earthlink.net/~garywwest2/SchoolFundingOrder-051230.pdf); paragraph 66; page 30. This part of State law – that local governments cannot tax without the authority of the state – is a new concept to me. I thought we elected our local leaders to make local decisions and to find solutions based on local needs. This does, indeed, change my perception of the importance for electing someone who is aware of all local needs and can be trusted to help all local citizens.

[25] There are so many of the tax reform bills that it’s not feasible to discuss each and its difference with the others. For more information about all these bills, go to http://www.scstatehouse.net/cgi-bin/web_subject.exe and choose taxation from the list of available topics. You should also check topics related to “property,” “education,” and “schools and school districts.”

[26] The title of S0069 describes its intent: TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 11 IN CHAPTER 36 OF TITLE 12 SO AS TO IMPOSE AN ADDITIONAL STATE SALES AND USE TAX EQUAL TO TWO PERCENT AND TO REIMBURSE PROPERTY TAXING ENTITIES FOR PROPERTY TAX CREDITS ALLOWED AGAINST PROPERTY TAXES ON MOTOR VEHICLES AND MOTORCYCLES AND OWNER-OCCUPIED RESIDENTIAL PROPERTY; TO AMEND CHAPTER 37; TITLE 12, BY ADDING ARTICLE 25 SO AS TO PROVIDE A PROPERTY TAX CREDIT AGAINST PROPERTY TAX FOR OPERATING PURPOSES OTHERWISE DUE ON PRIVATE PASSENGER MOTOR VEHICLES AND MOTORCYCLES AND OWNER-OCCUPIED RESIDENTIAL PROPERTY AND PROVIDE THE METHOD OF CALCULATING THE CREDITS AND THE REIMBURSING OF PROPERTY TAXING ENTITIES FOR THE PROPERTY TAX NOT COLLECTED BECAUSE OF THE CREDITS; TO AMEND SECTION 6-1-320, RELATING TO THE LIMITS ON ANNUAL INCREASES IN LOCAL GOVERNMENT AND SCHOOL DISTRICT PROPERTY TAX MILLAGE, SO AS TO REQUIRE ALL INCREASES, INCLUDING ADJUSTMENTS FOR INFLATION, TO BE APPROVED IN A REFERENDUM HELD AT THE TIME OF THE GENERAL ELECTION, AND TO PROVIDE TRANSITIONAL PROVISIONS AND EFFECTIVE DATES. (http://www.scstatehouse.net/sess116_2005-2006/bills/69.htm)

[27] As the legislative session continues through June, I’ll do my best to keep you informed about the bills that make it into and out of committee and onto the floors of the House and Senate. Please look for additional articles as these things are sorted out. Also, please speak with members of your legislative delegation about your thoughts and concerns.

[28] “Minimal adequacy” is not enough to create a sufficient tax reform package that will meet the needs of all constituents in the state. Perhaps the word “package” is insufficient to describe the patch-work approach to the State’s taxation laws and calls for reform. Education is just one of the constituents that suffers from the “minimally adequate” approach to tax reform – an approach that is driven by ideology rather than reason. More later.

About the Author

Gary West has lived in South Carolina more than 30 years. He respects the “plain and ordinary meaning” of life and the excellence that comes from purpose and hard work. He believes that our children learn from us – even when we’re not teaching. He believes our children will learn “minimal adequacy” whether or not we teach it. Mr. West believes South Carolina’s history has already proven that. He wonders about the future.

You can reach Mr. West at garywwest@earthlink.net.

This article and others can be found online at http://home.earthlink.net/~garywwest/. Permission is granted to share this article in electronic or printed format as long as you don’t change it or charge for it. Read responsibly.