Rarely has the Arkansas Supreme Court been so strenuously divided as it was last summer when a bare 4-3 majority decided to at least temporarily bow out of the struggle to give children the good education that the state Constitution requires.
The majority released its jurisdiction after expressing delight with what the legislature had done at a special session to comply with the court’s order to create a statewide school system that gives children an adequate and equal education. The four justices trusted that state officials “will do what they say they will do.”
Three justices, dissenting from that decision, accused the majority of taking a powder and of practically abandoning the children of Arkansas. They said the court, after unanimously declaring the schools unconstitutional, should keep jurisdiction until it was satisfied that the legislature, governor and state Education Department had actually kept their word about raising the schools to constitutional standards.
“This is not the time for the court to quit the race,” Justice Tom Glaze wrote in September. “The finish line is too close.”
Glaze and the other dissenting justices, Donald L. Corbin and Betty Dickey, would have kept jurisdiction over the Lake View school case until at least the 2005 legislative session ends so that that the court and the public could be sure that the reforms so hopefully promised in the special session on education last winter were actually set in place. This legislature will budget the state’s money through June 2007.
Corbin, who had served a few terms in the Arkansas House of Representatives from Lafayette County and was no stranger to the government’s lassitude and faithlessness or to budgetary pressures, was especially skeptical.
It is beginning to look like he was prophetic. A few legislators, like the Senate’s leader, Jim Argue of Little Rock, talk about keeping the faith and paying for what they began, but the financial pressures are building and some legislators believe it is time to move on to other needs. Gov. Huckabee wants to shift the emphasis to paying for an excellent higher education program and to transfer money the next two years that would have been earmarked for equalizing teacher salaries and expanding vital preschool programs for poor children to school buildings, which was the final part of the Supreme Court’s order that lays unaddressed.
You would think that the state’s fiscal problems had grown much worse in the last year but actually they are somewhat better. Tax receipts are rising modestly although two tax sources — an income tax surcharge and the entire Arkansas estate tax — are about to end. But everyone knew a year ago that those sources were drying up. President Bush needed Arkansas’s estate tax to offset his profligacy with federal revenues so (with the help of our own two senators at the time) he confiscated it, along with the inheritance taxes of most other states.
What an obvious and terrible betrayal it would be if the legislature and the governor turned their backs on school improvement only a year after flatly declaring it the state’s runaway priority and their undying commitment to it. And that is exactly what they did. The Supreme Court was so impressed with the language of three acts of the special session, Nos. 57, 59 and 108, that it signed off on 21 years of mandates to make the schools constitutional and got out of the business.
Act 57 said that insuring an adequate and equal education “shall be the ongoing priority of the state.” No. 59 declared it the “absolute duty” of the legislative and executive branches to guarantee an education system that met standards from border to border. And 108 carried the famous “doomsday provision,” which is supposed to cut all other government programs across the board to guarantee full funding for the educational improvements that it was adopting.
Great words, the dissenting judges said, but the legislature has a history of fickleness on school reform going back to 1983, when the first unanimous Supreme Court told the state that it fell far short of meeting its duty to children under the Constitution. They were afraid the court’s dismissal of the case gave the legislature cover to duck out one more time.
But while Justice Glaze thought the words sounded hollow, lawmakers and Huckabee must give some weight to the majority’s final words on the matter:
“Make no mistake, this court will exercise the power and authority of the judiciary at any time to assure that the students of our State will not fall short of the goal set forth by this court. We will assure its attainment.”
Justice Corbin predicted that the court sure enough would recall its mandate and haul the state in one more time when legislators and the governor reneged. He may have been right. The justices really could have meant it.