Self-styled education analyst Richard Innes has now turned to the law. He states in his post "Surprise – Quality Education Isn’t Constitutionally Guaranteed" (with the subtitle, "At least in South Dakota") that a South Dakota judge issued a ruling "concerning a school funding gambit much like the 1989 lawsuit that brought KERA to Kentucky."
In South Dakota, it looks like at least one judge understands the restrictions on what the judiciary can, and cannot tell the legislature to do with tax dollars. It’s a separation of powers issue – one that probably got violated here in Kentucky in 1989.
As is too often the case, Innes got some things right and some things wrong - but still ended up with the conclusion he wanted in the first place. No money for schools.
Separation of powers is an important issue - one that lead attorney Bert Combs took great care to avoid in the 1989 Kentucky case, Rose v Council for Better Education. The court was specifically asked to render a declaratory judgment only - that the educational system was unconstitutional - and did not ask the court to direct the legislature to do anything specific. That's up to the legislature - and that was the key to avoiding what Innes suggests "probably got violated." It never did.
No specific remedy was sought, so the legislature's authority to decide what to do about its unconstitutional school system was never in question. In fact, for a brief time, legislative leaders considered a constitutional struggle by ignoring the court - but soon thought better of it.
The reverse was true in Franklin Circuit Court with Judge Thomas Wingate's 2007 decision in Young v Williams, where the schools went back to court in an adequacy suit and asked for a specific remedy - to require the legislature to raise taxes. They got a summary judgment instead.
The Rose case argued equity and adequacy. The South Dakota case is an adequacy case. Both cases focused on the education language in their respective state constitutions - but the language is different for each state.
Based on the strength of the constitutional language in Kentucky, the Supreme Court declared that education is a fundamental right, that the General Assembly is solely responsible for providing sufficient funding for schools to reach their goals but never said how, or how much.
The South Dakota Constitution requires that the legislature establish and maintain a "general and uniform" system of public schools, adopt all "suitable means" to secure the advantages and opportunities of education, and set up taxes to "secure a thorough and efficient" school system.
The South Dakota judge noted that their state Constitution does not specifically require a "quality" education.
The constitutional language requires an education system that provides students with the opportunity for a free public education that is "adequate to allow students to be responsible and intelligent citizens," the judge said. However, adequacy does not require an education that prepares a student to find meaningful employment or qualify for higher education, the judge wrote. This is what passes for a solid decision at BIPPS.
Then without presenting any evidence of it, Innes proclaims,
South Dakotans are incensed by the million dollar waste this has caused to date.
There is, however, evidence of students going to school in trailers because school districts can't afford to build proper buildings, and the legal challenge is being supported by two-thirds of the state's 161 school districts. Some of those folks are probably incensed.
And of course, in the best scenario, the legislature would sufficiently support its schools as is its constitutional duty, and nobody would have to sue anybody.
In any case, this issue is going to be decided at the Supreme Court level, just like in Kentucky. This is South Dakota's first school funding challenge. Stay tuned.