Here we go again; Uh oh, the Supremes are serious

Editorial

Arkansas Democrat-Gazette

Saturday, December 17, 2005

Here is what seems the essence of the state Supreme Court’s decision Thursday in the Lake View case and epic:  Arkansas’ constitution says the state “shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education.”  A five-judge majority of the court believes the constitution means what it says. Those justices also believe that it’s the court’s duty to see that the state follows its constitution. A two-man minority of the court may believe in those fine words, too, but it is not prepared to back them up with a court order. At least not now. And maybe never if the other branches of state government can continue to do something about education but not enough.

For the state’s highest court actually to order the legislators and the governor to meet their constitutional obligations, the dissenters argue, would interfere with the prerogatives of the legislative and executive branches of government, chief among them, apparently, their right to do less than what the state’s constitution demands. For that would be making policy, not interpreting the law. It’s an interesting judicial philosophy. Also an effective way to dodge the law.

But the majority of the court means business, or rather education. And that’s why the court has told the Legislature—and the governor—to meet constitutional standards. Now. Or rather by the first of December next, which, considering the pace at which the wheels of justice grind, is legalese for Now. 

YOU DON’T have to be a Supreme Court justice to decide whether this state now has a general, suitable and efficient system of public education. 

Just go into some of the state’s poorest school districts and take a look at the buildings, or the test scores. 

Just look at all the money that’s going into legislators’ pet projects instead of education. 

Just you try to find out how much the state is spending on high school football teams instead of improving academic programs. 

Just look at the sheer number of school districts in this state, each with its own duplicative bureaucracy, and ask if that’s an efficient system. 

In short, just take the words of the constitution seriously. Which is what the Supreme Court, or rather a majority of it, did Thursday. 

To sum up the gist of the court’s reasoning: This state had an unconstitutional system of public education before the Lake View case began its tortuous, 13-year trek through the courts, and it still does. Ergo, the Legislature and the governor need to pull up their socks and get to work again. Q.E.D. The majority decision, written by The Hon. Robert Brown, may be longer than that, but its conclusion is just as unassailable. 

The Legislature worked hard during its sessions on education, but it made two mistakes, or rather two of its mistakes were big ones:  It ignored its own Act 57 of the Second Extraordinary Session of 2003, which required regular reports on the progress being made toward meeting constitutional standards of education and cost-of-living raises for teachers. (The Ledge did not fail to give other state employees such raises.) Nor did the Ledge ignore its own members’ pet projects, handing out $52 million for that purpose. Instead of spending that money on the schools. 

The court blew the whistle on the Ledge on both counts. The legislators no doubt had their own reasons for allocating the people’s money as they did. Some of those reasons, like providing health insurance for teachers instead of giving teachers cost-of-living increases, may even have been good policy. 

But they weren’t good law.In its sublime insouciance, the Ledge not only missed a court deadline or two, but substituted its own judgment for the law, confident it knew better. And that was the underlying mistake that led to all the others: a view of the law as something to be loosely negotiated rather than strictly followed. 

IN THE END as in the beginning, we come back to the plain words and mandate of the Constitution of 1874. Tom Glaze cited them in his concurring opinion in this case. Mr. Justice Glaze’s turned out to be the best and most forceful opinion of a varied lot, which happens with some regularity. He made it clear the court was not going to be a party to meeting the constitution’s standard for education only part-way, or substituting lip service for action. The best part of his opinion was written by someone else—in 1874:  Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education. 

—Constitution of the State of Arkansas IN A DISSENTING opinion that showed a mastery of legalistic argumentation unobscured by constitutional vision,¹ the Supreme Court’s chief justice, Jim Hannah, felt obliged to note that he, too, believes in the state constitution’s fine words:  “No one on this court disagrees that the children of Arkansas should be provided the opportunity to obtain the best possible education. That is unquestionably the desire of every member of this court. No less than any member of this court, I desire that the schools of this state be fixed immediately . . . .”  That’s nice, but we would never have suspected as much from the rest of his opinion. One thing we learned from our own education was that action speaks louder than words. Which is why we are so grateful the court has acted.

1 In his dissenting opinion, the learned chief justice of the state’s Supreme Court quoted a U.S. Supreme Court decision written by John Marshall and dating back to the era of the Trail of Tears. That opinion denied the rights of the Cherokee to their ancestral lands in Georgia in that one instance—while even so recognizing the Cherokee as a “dependent domestic” nation of their own. (The Cherokee Nation v. Georgia, 1831) Later, in other circumstances, the greatest of American chief justices would defend those rights stoutly against Andrew Jackson’s barbaric policies. Those of us who still revere John Marshall’s memory have reason to resent latterday jurists who carve up his sweeping vision of America’s future into bite-sized pieces they can use for their own small purposes, in this instance to curb the rights of future generations to a suitable education. To quote a document even older than the constitutions of Arkansas and the United States: “Where there is no vision, people perish.”—Proverbs 29:18. The same effect can be achieved where there is no suitable education.