17 Years Later, School Funding Case Unresolved

September 13, 2010

Investigative Reports

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The NerveA 5-year-old South Carolina student enrolled in a poor school district in 1993 when 29 districts sued the state over its funding of poor K-12 systems would have finished high school – and possibly college – without experiencing any resolution to the landmark case.

For 17 years, the court case known as the Abbeville County School District et al v. the state of South Carolina et al has bounced between the state’s 3rd Circuit Court and S.C. Supreme Court, where it now sits.

Legal observers say the suit is easily the most important school funding case in the state’s recent history.

It’s also likely the most expensive for taxpayers. To date, the case has cost at least $14.7 million, The Nerve’s review found, though more than half of that amount is the value of donated legal services by the state’s largest private law firm in representing the plaintiff school districts.

At least $4.2 million in legal fees and costs has been paid by the S.C. Legislature in defending the suit, legislative records show.

The five-member S.C. Supreme Court, led by Chief Justice Jean Toal, last heard oral arguments in the case on June 25, 2008. More than two years later, the justices have yet to issue a ruling.

In 1999, the court, then led by Chief Justice Ernest Finney Jr., issued its initial ruling on the case, about 19 months after oral arguments.

“We don’t know why it’s taking so long,” said Rick Reames, executive director of the Pee Dee Education Center in Florence, which provides support services to 19 largely rural and poor school districts, and pushed for the filing of the original lawsuit, when contacted last week by The Nerve. “We don’t know when or if they will be making a decision.”

The Nerve last week attempted to contact Toal but was referred to Dan Shearouse, chief clerk of the Supreme Court.  Shearouse couldn’t give an estimated release date for the ruling.

“It is an extremely complicated case,” Shearouse said. “It will be issued when it’s issued.”

Contacted last week by The Nerve, several of the main attorneys in the case declined to specifically say whether they felt the court was taking too long to issue a ruling.

“I think the people of South Carolina would like to have a ruling but only when the court is ready to rule,” said Carl Epps of the Columbia-based Nelson Mullins law firm, which is representing the plaintiff school districts at no charge.

Epps, who has been with the case since 1993, noted that the record of the case is “quite voluminous,” though he added, “That said, our clients are anxiously awaiting a decision.”

Toal’s court typically issues rulings within a year of oral arguments. The school funding lawsuit, however, is no ordinary case:  Circuit Judge Thomas W. Cooper issued a 162-page ruling in December 2005 after a 102-day trial in Manning in 2003 and 2004. During the trial, which didn’t involve a jury, 112 witnesses testified in person or by deposition, generating more than 23,000 pages of court transcripts, records show. In addition, about 4,400 documents were received into evidence.

To complicate matters further, two Supreme Court justices involved with the case – James Moore and John Waller – have since retired.

Contacted last week by The Nerve, Bobby Stepp of the Columbia firm of Sowell Gray Stepp & Laffitte, which is representing the General Assembly, was guarded in his comments about the two-year lag, saying only, “I’m anxious to see a decision, but I’ll await a decision from the court.”

Stepp said he didn’t know how much his firm had billed the state over the years, referring those questions to House and Senate staff. A story in The State newspaper in February 2006, citing House and Senate records, put that figure then at $4.17 million.

The firm’s total bill for the 2008 oral arguments was $90,778.64, according to figures provided last week to The Nerve by Senate Clerk Jeffrey Gossett.

As of the end of 2005, the plaintiff school districts had spent $2.37 million on legal costs, according to the 2006 story in The State. Reames told The Nerve that he didn’t expect the present figure to be much higher, noting that some districts might have incurred relatively small legal costs since 2006.

The plaintiff districts in Cooper’s 2005 ruling were the Allendale County School District, Dillon County School District 2, Florence County School District 4, Hampton County School District 2, Jasper County School District, Lee County School District, Marion County School District 7 and Orangeburg County School District 3.

Originally, 29 districts sued the state; that number grew to 40, but some districts later merged, bringing the number down to 36. The number of plaintiffs later dropped to eight.

“When we saw that the districts did not have the ability to pay the legal costs to take through to trial, the firm took it on a pro-bono (free) basis,” Epps said last week, noting Nelson Mullins won a national pro-bono award from the American Bar Association for its work on the case.

Epps put the value of his firm’s donated fees since about 2001 at $8,025,000. Taken together with the school districts’ previous costs and the bills incurred by the Legislature, the total price tag to-date for the case is at least $14,655,778.

Besides the legal costs, millions of dollars in possible additional state funding for the plaintiff school districts are at stake in the case. In his 2005 ruling, Cooper said the state had not done enough to overcome the effects of poverty in the plaintiff districts, especially with regard to early childhood intervention programs.

“This court concludes that the students in the plaintiff districts are denied the opportunity to receive a minimally adequate education because of the lack of the effective and adequately funded early childhood intervention programs designed to address the impact of poverty on their educational abilities and achievements,” Cooper wrote in his Dec. 29, 2005, order.

Cooper noted that of the students in the plaintiff districts taking the state Palmetto Achievement Challenge Test in 2002, 31.5 to 56.9 percent scored below basic in English and language arts, while 45.3 to 80.3 percent scored below basic on the math section. At the time in those districts, 68 to 91.7 percent of the students were on free or reduced lunches – a measure of poverty.

“When those two factors come together so dramatically as they do in the case of the plaintiff districts, this court is led to the conclusion that the children of the plaintiff districts are not receiving the opportunity to obtain a minimally adequate education,” Cooper wrote.

Cooper, however, did not rule that the state had failed in any constitutional obligations toward older students in those districts, or that school buildings, curriculum standards or the state’s teacher licensing system was inadequate as claimed by the plaintiff districts.

Cooper later retired as a full-time judge. In response to his 2005 ruling, the Legislature in 2006 approved a pilot 4-year-old kindergarten program in the state’s poorest districts.

In their latest appeal to the S.C. Supreme Court, both sides argued that Cooper’s ruling fell short.

In its initial ruling in 1999, the high court said the S.C. Constitution requires that every child receive a “minimally adequate education,” gave its definition of a “minimally adequate education,” and sent the case back to Cooper to determine if state had met that standard in those districts.

A “minimally adequate education,” according to the Finney court, meant “providing students adequate and safe facilities” so that they can acquire:

  • The ability to read, write and speak the English language, and knowledge of mathematics and physical science;
  • A fundamental knowledge of economic, social and political systems, and of history and governmental processes; and
  • Academic and vocational skills.

The case was appealed to the Supreme Court after Cooper in 1996 dismissed the districts’ lawsuit, ruling that though the constitution requires that the Legislature offer a free public education to all children, the constitution did not set any educational standards.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org.