There must be days when the title “justice” is a heavy mantle about the shoulders, and the bearer yearns to be on the other side of the bench. Such was Thursday, when the Arkansas Supreme Court heard oral arguments on a motion by 47 Arkansas school districts, including the Pulaski County Special School District, that the court reopen the Lake View school case.
We do not envy the court its task. However it rules, it cannot escape the criticism that it has been fickle and impetuous, not good qualities in an appellate court that is the final arbiter of law in the state. After finally holding the Arkansas public school funding formula unconstitutional and assigning responsibility to the Legislature and the governor, it declared the case closed in 2002, then reopened it when the legislature and the governor dallied in 2004, then seemed to close it again after the legislature had leaped into action and passed a few taxes and a lot of school laws.
Now the school districts contend that the 2005 legislature reneged on the commitments that led to the court’s finding last year that it was in compliance with the Constitution. The court has to decide whether it has retained jurisdiction or whether the Lake View case is indeed legally dead, in which case schools must start over with a fresh suit in Pulaski Circuit Court.
If it retains jurisdiction, then in very short order it may have to face a graver choice than the justices have yet faced, whether to order the legislature or perhaps the governor to take concrete steps to make the schools constitutionally whole. In the most painful and direct questioning by Justice Donald L. Corbin, the schools’ lead attorney, David Matthews of Lowell, explained what that final step might be. The court need not order new taxes — a truly unprecedented step in this state — but it could order the state’s chief fiscal officer, who serves the governor, to cut warrants to school districts representing the amount of money that the court deemed constitutionally appropriate.
The Supreme Court’s original order said the legislature could no longer simply divide up the state’s general revenues each year and assign a portion to all the services that it had mandated. That is the Revenue Stabilization Act, which has ruled the distribution of taxes since 1947. Rather, since an adequate education is specifically mandated in the Constitution and other programs are not, the state must determine what the schools must have first, then distribute what remains elsewhere.
Last year, that is precisely what the legislature did and the Supreme Court found it to be good. This year, however, the legislature kept the schools’ per-child aid for the coming year at exactly that of the current year because it had so many other demands to meet: colleges, prisons, Medicaid, public employee raises, the hustle by local groups for pork projects. That almost by definition defies the new rule of obliging the schools first.
It is always dangerous to predict future court votes by oral arguments, but we will be shocked if the court reopens the case and keeps jurisdiction. The court has seemed to be split 4-3 in the past. Justices Corbin, Tom Glaze and Betty Dickey have wanted to keep the case before the court and hold the legislators’ feet to the fire.
Glaze has been eloquent in saying that the court should not flinch when it is so close finally to achieving a constitutional school system. Corbin and Glaze still seem to be of the same mind. Dickey, who serves a temporary appointment on the court from Gov. Huckabee, was with Glaze and Corbin last time, perhaps because Huckabee at the time wanted the legislature punished for not embracing his school consolidation remedy. Now that Huckabee is on the other side — he says the legislature did marvelous work this time — Dickey may join Chief Justice Jim Hannah, Justices Jim Gunter and Robert L. Brown and another special Huckabee justice if she is needed, all of whom seem to want to consider the case over.
Justices Brown and Hannah have all along said the court could not be a superlegislature, mandamusing either taxes or the specific distribution of them, a role they say is assigned exclusively to the legislative branch. The newly elected Jim Gunter seems to be of the same mind.
Were we to guess, we would imagine that the court will let this cup pass from its hand this time but send a strong message to the state officials and to the next trial court that next time — next time, by golly — it will not brook half measures.
