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The conservative court 


Ignore the talk about judicially imposed taxes and a constitutional crisis. Of all the supreme court decisions of recent years ordering states to obey their constitutions and provide a good education for every child, the Arkansas Supreme Court ruling was just about the most restrained. Call it conservative.

A 5-2 majority of the court said merely that the legislature and Gov. Huckabee need only to do what they solemnly and overwhelmingly voted to do 20 months ago, nothing more, nothing less. They can do it in a quick 10 days’ work or less after the first of the year without raising a dime of taxes or crimping any other state service. So anemic are the demands on the legislature in behalf of our children that every state senator’s pork barrel, from Bob Johnson’s manhole covers in Bigelow to the possum hunters hall of fame, need not be delayed a single day to provide the necessary money for the kids.

But you would have thought that the Supreme Court had ordered the legislature to restore estate taxes on Walton and Tyson heirs. Some legislators complained about judicial tyranny and usurpation of the legislature’s prerogative over taxing and spending.

Then a couple of lawmakers from North Arkansas suggested that the justices didn’t have the guts to say specifically what should be done for education, exactly how much money should be spent and where, and where it should come from. They wanted the court to take responsibility and instruct the legislature on every step that should be taken. There has been no starker evidence of the failings of our educational system than that. Even the politicians we rear do not understand our constitutional system.

A certain tension between the judicial and the other coequal branches is inherent. It has been there since Marbury v. Madison, when it was fixed for all time that courts say when the other branches have not obeyed the constitution. The system depends upon the legislative and executive branches, regardless of the tensions, respecting the courts’ orders.

In the aftermath of the Supreme Court’s order last week, Attorney General Mike Beebe was one of the few who seemed to have much notion about the legislature’s or executive’s clear duty. While others, including Gov. Huckabee, were saying they saw no clear reason for the legislature to meet on the issue, at least anytime soon, Beebe said a special session would be needed.

The court could not have been clearer:

• “Because we hold that the public school-funding system continues to be inadequate, we further hold that our public schools are operating under a constitutional infirmity which must be corrected immediately.”

• “To assure an adequate education for the school children of this state and a substantially equal educational opportunity, which the Arkansas Constitution demands, the procedures set forth in Act 57 and Act 108 must be complied with forthwith. Otherwise, a two-year hiatus in educational adequacy will result ... [W]e call upon the General Assembly to address the deficiencies. ...”

Notice the words “immediately” and “forthwith.”

It said the shortcomings should be corrected immediately so that children would not be shortchanged even this school year. The court will withhold its mandate until Dec. 1 next year, at which time all the changes should not only have been enacted but firmly in place.

Can the state do that without new taxes?

The prima facie case for the legislature’s failure to provide an adequate education was that it did not calculate what an adequate education would cost for 2005-06 as the law it passed in 2003 required and it had not provided even a cost-of-living adjustment for foundation aid to schools while supplying it for the rest of government, including the legislature itself.

An easy determination of adequacy would be this: the same program the state financed in 2004 adjusted for inflation and the new expenses the state imposed on schools.

An inflation adjustment of 3.3 percent would cost about $75 million. The new mandated costs from the state total something less than $20 million. There is more than enough slack in current tax collections to cover those sums without cutting other state services.

The court said the legislature “grossly underfunded” the immediate repairs that lawmakers themselves had identified to correct deficiencies in school buildings — those needed to make schools safe and dry and the highest-priority construction. Those could largely be funded from surplus state funds, although something will have to be done, too, to allow the neediest schools to participate.

Eventually, the legislature will need to ask voters to issue bonds for school construction, but the lawmakers and Gov. Huckabee have been eager to do that for other programs. In seven years, with hardly a dissenting vote, they have proposed $1.7 billion in bond debt for interstate highways, colleges and water and sewer facilties, none of which is required by the Constitution.

Imagine what they would face if the Supreme Court had held them to literal compliance with the Constitution’s requirement of an efficient, suitable and equal education system.


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