Leader Blues

Wednesday, June 15, 2005

EDITORIAL>> Can divided court stand?

It is settled then. The Arkansas Supreme Court has the power to immediately review the work of the General Assembly and the governor on public education, and it is going to do it. That should be a fine victory for the public schools, the children and all of us who believe that the caliber of their schooling holds our future as well as theirs.

But now that the question of the court’s jurisdiction is settled — to the extent that there was ever any question that the court could do anything that a majority wanted to do - we fear that it is a pyrrhic victory. The court was more narrowly and bitterly divided than we have ever seen it. The accusations back and forth among the justices were not what we normally describe as “strongly worded” opinions. They were personal and resentful, which tells us that the court may not be able to make its mandate stick.

A bare 4-to-3 majority granted a petition for the court to dissolve its mandate in the Lake View school case and take a look at the deliberations of the just-finished legislative session to see if the General Assembly and the governor complied with the court’s order in 2002 that they bring all Arkansas schools up to constitutional snuff. The Constitution requires that the state provide suitable, efficient and equal educational opportunities for every child in Arkansas.

This will be the court’s third reflection in three years on how well the state government is meeting its responsibility to school children, and three members of the court believe one was all that the court was lawfully supposed to undertake. The minority, led by the new chief justice, Jim Hannah, says that the court was finished with the case when it ruled unanimously that the schools were operating unconstitutionally and that the legislature and governor needed to fix it.

They argue that the schools that believe that the state did not fulfill the mandate must file a fresh lawsuit in Pulaski Circuit Court. To continually review legislative work themselves, Justice Hannah said, makes the Supreme Court a super legislature and abridges the separation of powers. The court commits itself, the minority suggested, to second-guessing the legislature every time that it meets from now until doomsday.

But this is really not the court’s third pass at a constitutional review of the schools but the fifth in our generation, and we may be forgetting a genuflection or two at the issue. In 1983 and again 10 years later, the Supreme Court declared that the schools were operating in violation of the Constitution. In the first two instances, the court was largely judging the equity of how schools were funded from one corner of the state to another, from poor Lake View to Bentonville, which pays its football coaches more than the entire faculty and administration of many school districts. The Lake View case goes deeper, to the suitability or adequacy of school programs, a standard that obviously is forever changing in an economic order that knows no borders.

The majority — Justices Robert L. Brown, Thomas A. Glaze, Betty Dickey and Donald Corbin - were mindful of that 25-year-history of court orders and disobedience, beginning with the first trial in the original Dupree case in 1980. To tell schools and the whole state that this process would have to start once more and work its way back up to the Supreme Court in, say, 2008 or 2009 seemed, well, foolish. Their remedy may be extraordinary in the annals of Arkansas jurisprudence, but it seems rational to laymen. Where is the wisdom in delaying an unpleasant task when it may be addressed now?

So the majority turned once again to two former justices, who will take testimony on the school laws of 2005 and the condition of the schools and then compare them with the general prescriptions of the Supreme Court in its 2002 order. Who can envy the task of Bradley D. Jesson of Fort Smith and David Newbern, the court-appointed masters?

They will answer to a court that cannot possibly be satisfied and that disagrees in almost seven directions about what the task ahead is. One of the four majority judges seemed to have switched sides from last June, when he was inclined to close the case because the legislature at a special session in 2004 had done right by the schools.

Another, Betty Dickey, who was appointed by Gov. Huckabee to complete an unexpired term, was shaky this week. She voted with the majority with great reluctance. But she at least tried to be consistent. Huckabee wanted the court to keep the case open a year ago when he was mad at the legislature, and she did that.

On the day of this decision, her patron and former employer (she was Huckabee’s legal counsel), who now wants the case closed, denounced her and the other three, although not by name. Justice Dickey is not apt to stay the course if the masters suggest big shortcomings by the legislature and the governor.

Huckabee’s other appointee, Carol Dalby of Texarkana, predictably went his way. The court, it must be remembered, did not declare the legislature and governor in default, yet. The schools that petitioned for the review merely made allegations, and Jesson and Newbern will advise the court by Sept. 1 whether those allegations are true. If they are, the feuding justices then will decide what to do about it.

In similar straits last week, the Kansas Supreme Court - unanimously — gave the legislature and governor until July 1 to put another $143 million into the school budget for the next school year or else, presumably, shut the schools down.

Three Arkansas justices clearly find such a notion repugnant and we suspect that a fourth would follow.

Our own view is that the legislature did fall short. Clearly, it did not meet its own standard, which was $2 billion or more in improvements in school facilities. It appropriated only $104 million and made no provision for future additions unless the state again runs a huge surplus. It might have given voters a recipe for permanently meeting the facility needs through intermittent bond issues, much in the way that the legislature did a dozen years ago when it provided for periodic bonds for water improvements around the state.

The masters can hardly ignore the legislature’s failure to provide even a dime more money for schools the next school year under the state equalization formula. Forty percent of Arkansas schools will receive less state aid in 2006 than in 2005. Legislators, Gov. Huckabee and Attorney General Mike Beebe, who must defend the first two in court while he runs for governor, have a defense for that failing, but it is a hard sell.

But for a court so splintered, querulous and nervous, a poor job may begin to look just good enough.