Published Online: January 22, 1997

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Ala. High Court Agrees System Unconstitutional

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Nearly four years after a judge struck down Alabama's school finance laws, the state supreme court has joined the cause, agreeing that the school system is unconstitutional and giving the legislature a year to fix it.

The split court said that legislators and state officials will need time to devise a constitutional system. If they fail to do so within a year, the trial court may adopt its own solution, the justices said in their Jan. 10 decision.

C.C. "Bo" Torbert, a lawyer for the districts that had originally sued the state, called the ruling a "big win," but added that he was disappointed with the delay.

"We do know this now: We were right when we said back in 1990, when we first filed the suit, that the way Alabama funds its schools is constitutionally impermissible," added DeWayne Key, a former superintendent in Lawrence County whose district was among the original plaintiffs. "That affirmation gives us cause to declare victory."

The long-running case is hardly over. Gov. Fob James Jr. plans to ask the justices to reconsider part of their decision.

Compared with other states, Alabama spent one of the smallest amounts on K-12 education in 1995, just $4,569 per pupil--almost $1,000 below the national average. When the funding case was tried, experts chronicled dismal school conditions, including encyclopedias dating to 1975 and dilapidated portable classrooms.

Split Decision

The Alabama Supreme Court was not asked to rule on the merits of the school funding case. Instead, the court turned back a technical challenge to the landmark 1993 state circuit court decision that found the school system neither equitable nor adequate. That ruling by Montgomery County Circuit Court Judge Eugene W. Reese found the state responsible for the sorry condition of K-12 education in its districts and blamed lawmakers for the critical funding differences between them. ("Ala. Judge Strikes Down Finance System, Cites Lack of Money," April 14, 1993.)

Later in 1993, Judge Reese ordered a solution--agreed to by both sides in the case but not put before the legislature--to bring the schools and their finances up to constitutional levels. But since Gov. James took office in 1995, the state has resisted orders to upgrade its schools. That same year, Mr. Reese was removed from the case because of questions over his impartiality. He was replaced by Judge Sarah M. Greenhaw, who continued to oversee the remedy order.

It was Judge Greenhaw who rejected a 1995 request by the Republican governor and the state attorney general for her to vacate Judge Reese's orders in the case. The state argued, in part, that the judge had overstepped his legal bounds in ordering the legislature to take action.

This month's high court ruling addressed the state's appeal of Judge Greenhaw's decision as well as appeals brought by both state officials and a citizens' group.

The decision showed differing views among the justices. The court came down 7-1 in favor of Judge Reese's original ruling, but split 5-3 on his remedy order. The majority opinion ran 43 pages, while the chief justice issued a stinging 91-page dissent.

The supreme court has nine elected justices, but one removed himself from the case after defeating Judge Reese for the high court seat.

Rod Nachman, the lawyer for Gov. James, declined last week to comment on his request for the court to reconsider part of its ruling because he had not yet filed the request. But he said the justices offered so many different viewpoints that "it's a little difficult to say just exactly what the court held."

Alfred Sawyer, a spokesman for Gov. James, noted, "This is not a total disaster."

"We, from the outset, had no problem with the court saying that the schools were not equitably funded," Mr. Sawyer said. "That is role of the court. What we objected to was the court going on to prescribe the remedy. We felt that was crossing the line in terms of separation of powers."

Mr. Sawyer also said that the governor believes the state has "more than met" the requirements of the remedy order through a school funding bill lawmakers passed in 1995. That program redistributed state aid to benefit low-wealth districts but authorized no new spending.

An Opportunity?

The high court said the ball is now in the legislature's court.

"Although the judiciary is not without the power to enforce judgments designed to remedy constitutional defects in the educational system," the majority opinion said, "the judiciary should exercise this power only in the event the legislature fails or refuses to take appropriate action."

But the court also clearly signaled that it will not shy away from imposing a solution if one is not forthcoming from state officials. "We reiterate that the power inherent in this judicial scrutiny also includes the power to fashion a remedy and to require compliance therewith," the majority wrote.

Meanwhile, Chief Justice Perry Hooper disagreed vehemently. "This court has done nothing to address the flagrant legal abuses in Judge Reese's orders," Justice Hooper wrote in his dissent.

What happens over the next year depends on factors as different as the legislative calendar and political will.

"I look at it as a year of opportunity," said Cathy Gassenheimer, the managing director of the A-Plus Research Foundation, a citizens' school-improvement group.

But despite several efforts, substantive change has not occurred since the 1993 decision. In 1994, the legislature failed to pass bills that would have addressed the adequacy and equity issues.

When the 30-day legislative session opens Feb. 4, lawmakers already have an agenda packed with welfare- and tort-reform. Whether Gov. James would call a special session remains unclear.

"Gov. James is absolutely opposed to the court having any say in this issue," Ms. Gassenheimer said. "He has already declared education reform has been accomplished."

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