Columns » Ernest Dumas

Can the Supremes bluff again?


The report of the masters in the constitutional school case, so briefly but breathlessly anticipated, landed at the Arkansas Supreme Court last week with a resounding thud. Talk about an anticlimax. Critics of the legislature, which included Gov. Huckabee and many of the school forces involved in the Lake View lawsuit, hoped for a ringing denunciation of the General Assembly for failing to consolidate high schools or to equalize school programs across the state. The masters didn't do it. Neither did they, as legislators, the attorney general and a few of the largest school districts had argued was deserved, give a rousing endorsement to the lawmakers for the 125 or so laws that they passed in 2003 and 2004 to comply with the Supreme Court's mandate that they provide Arkansas kids an adequate and equal education. Former justices Bradley D. Jesson and David Newbern, the court-appointed masters, punted the issue back to the Supreme Court, which, despite all the expectations, was all that they could do. But they did it in a way that gives the Supreme Court cover for whatever it is that the seven justices are inclined to do: hold the schools, the legislature and the governor in their sights for another year or two to monitor the effects of all that legislation and the follow-up legislative session next year, or, which is more likely, close the file finally on Lake View III. The Supreme Court has not been exactly consistent on these school rulings and it is now going to have to flout one or another of its orders. It said in 2002 that it would not review the government's response to its directive to overhaul public education in the Lake View case ("On Jan 1, 2004," it said, " . . . this case will be over." Any challenge would have to be in a fresh lawsuit. But then it reopened the case after Jan. 1 and appointed the masters to help it conduct precisely such a review. The masters' 128-page report, mostly a summary of all the laws enacted by the legislature and the meager steps the state Education Department has taken to implement them, suggests just how mushy the court's job will be. Only on a couple of the 10 issues that the court asked them to evaluate were Jesson and Newbern conclusive. The state had not evaluated the condition of public school facilities and offered no explanation, they said. And clearly, they said, teacher salaries across the state are going to be nowhere near uniform so that the teacher drain from poor districts would stop. On everything else, including the main issue of bringing funding up in poor schools, the legislature acted, often "laudably," but the masters simply could not say whether the steps were sufficient. The state could not reliably forecast what individual school districts would do with the new money so there was no way to divine now whether it would meet the constitutional tests. On the key issue of having equal programs across the state, they thought it was an impossibility since the state Constitution allows a school district to raise its own taxes to provide superior programs. Whatever parts of all the conflicting testimony that the masters collected that one believes, Arkansas next year or any foreseeable year will not give children across the state the same opportunities. Though many poor and culturally deprived children will get early childhood training for the first time next year, which will help, the classrooms where they are supposed to learn to read, write and cipher and the harried teachers will get no help. The major recommendation of the state's adequacy study was to sharply reduce class sizes in the primary grades, the one proven remedy, and the legislature concluded that it would cost too much. Teacher salaries still will be widely divergent, favoring those in large and rich districts. Small high schools will still offer barebones programs that don't prepare youngsters for college or a technological economy. The masters pointedly suggested that the state did not have the fortune that it would take to pay for such programs for so few children in tiny high schools. The school consolidation act passed by the legislature, they noted, does not close a single high school. But what can, or will, the Supreme Court do about any of those shortcomings? In both the unanimous opinion of the Supreme Court and a concurring opinion by Justice Jim Hannah, the court said it would not impose remedies of its own, suggesting that it would be an abuse of the judicial power and a usurpation of the legislature's prerogative. The court had specifically refused to order the state to provide pre-kindergarten programs even while acknowledging that it seemed to be a good remedy for the inequalities. The Supreme Court does not even have at its disposal the National Guard, which may be required to provide an education for the children of Lake View, which announced that it would defy the law requiring it to consolidate or be annexed. All that the courts can count on is respect for the law and, additionally, respect for a little bluff. It worked with the appointment of the masters, which impelled the legislature into unprecedented action. If the court keeps supervision of the case, it might work again.

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