Thursday, January 16, 2014

South Carolina School Funding Goes Progressive?

Haley bioPicThe details are not all in, but South Carolina Governor, Nikki Haley, has unveiled a new budget that is pleasing most of the state's educators.  This coming year, South Carolina expects to bring in an additional $200 million in tax revenues, based on economic growth.  Gov. Haley is proposing that $160 million of that increase go to education.  In education, the key question is more often how the money is spent, not just how much money is spent.  As Education Law Center reports have shown, some states spend a lot of money, but it is disproportionately spent in wealthy districts that do not necessarily need it.  Initial indications suggest Governor Haley is moving in the right direction on this question as well.  The state's current education funding formula is outdated.  She proposes to change it and drive an additional 20 percent in state funding toward high need students and districts.

The interesting side note here is that Haley, who has not been particularly popular in the state, is up for reelection.  This move on funding could help her pick up education votes, particular those in the political middle, which would tend to go against her.  But more important is the pending school finance case before the state supreme court.  It ordered rehearing a year and a half ago because, at that time, the case had been on the court's docket for years and the underlying facts had changed so much.  If Haley's proposal becomes law, the facts before the court would once again be stale.  This portends two significant possibilities.  First, the court once again fails to render a decision and all but drops the case, making itself effectively irrelevant in the protection of students' constitutional rights.  Or, two, the court could issue a relatively strong decision, based on the old facts, indicating that the state must do more for education, but remand to the trial court for a remedy.  At the trial court, the new facts would come in and show that the state had taken steps consistent with the supreme court's holding and, thus, no additional remedy is necessary.  In other words, it would be much easier for the supreme court to articulate a meaningful constitutional standard when the state has already complied.  This would theoretically make for good doctrinal precedent that could be drawn on later, but, as a practical matter, would beg the question of the supreme court's relevance.

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I am glad that the state's politicians are beginning to think about education again and not putting all of this surplus toward tax cuts, as I would have expected. However, I suggest that there could be a third option for the court. Based on this move, which I agree seems directed at ensuring the Governor's reelection, the court could decide (rightly or wrongly) that the political process is sufficient to protect education over the long term and dismiss the case as a political question. I think that outcome is more likely now than I thought it was before.

Posted by: Scott Bauries | Jan 16, 2014 12:28:18 PM

Scott, thanks for reemphasizing the always looming separation of powers problem. If South Carolina went that route, it would seem to put itself in a class unto itself, as courts taking that approach have tended to take it on the front end of an adequacy case, as opposed to the tail end. South Carolina is now a decade and a half into this case. I agree it is possible to cite the political process now, but the rationale by which it would do so would be tortured. My reading from the oral arguments in this case is that the court is not doctrinally worried about separation of powers or announcing a standard; it is worried about being ignored. Announcing a standard after the state has acted would avoid that problem, though it would create others.

Posted by: Derek Black | Jan 17, 2014 5:26:56 AM

Yes, I think you're right about that. Separation of powers dismissals usually happen on the front end, where they make the most sense, but they have happened after years of litigation, as well. The most prominent example is the Alabama litigation, which began with a plaintiff victory, but then wound its way up and down the state court system until the state Supreme Court finally held that it was a mistake for the courts to become involved in the first place. I don't think that will happen here, but it is a possibility, and one that is more likely now that it appears that political factors are in fact influencing positive changes to education funding.

Posted by: Scott Bauries | Jan 17, 2014 7:39:37 AM

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