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STATE OF SOUTH CAROLINA

STATE OF SOUTH CAROLINA	)	IN THE COURT OF COMMON PLEAS
	)	OF THE
COUNTY OF LEE	)	THIRD JUDICIAL CIRCUIT
	)
Abbeville County School District, et. al.,	)	Case number 93-CP-31-0169
	)
Plaintiffs,	)
	)
vs.	)	ORDER
	)
The State of South Carolina, et. al.,	)
	)
Defendants.	)
	)

NELSON MULLINS RILEY & SCARBOROUGH, LLP

Stephen G. Morrison
Carl B. Epps, III
Laura Callaway Hart
1320 Main Street, 17th Floor
Post Office Box 11070 (29211)
Columbia, South Carolina 29201
Attorneys for Plaintiffs

SOWELL GRAY STEPP & LAFITTE, L.L.C

Robert E. Stepp
Elizabeth Van Doren Gray
A Jackson Barnes
Roland M. Franklin, Jr. (on brief)
1310 Gadsden Street
Post Office Box 11449
Columbia, South Carolina 29211
Attorneys for Defendants Senate and House of Representatives of the State of
South Carolina

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA

Henry D. McMaster
J. Emory Smith, Jr.
Elizabeth R. McMahon
Rembert C. Dennis Building
Post Office Box 11549
Columbia, South Carolina 292111-1549
Attorneys for Defendants State and Governor of South Carolina

�� A non-jury trial commenced in this matter on July 28, 2003, and ended on December 9, 2004.� During the course of 102 days of trial, 112 witnesses testified in person or by deposition, generating approximately 23,100 pages of transcript.� Approximately 4,400 documents were received into evidence.� This Court carefully considered the testimony of the witnesses, all of the exhibits, and the proposed findings of fact and conclusions of law submitted by the parties.�

�� This Court found and concluded:

�� The instructional facilities in the Plaintiff Districts are safe and adequate to provide the opportunity for a minimally adequate education as defined in Abbeville County School District v. State, 335 S.C. 58, 515 S.E.2d 535 (1999).

�� The South Carolina curriculum standards at the minimum encompass the knowledge and skills necessary to satisfy the definition for a minimally adequate education as set out in Abbeville County.�

�� The South Carolina system of teacher licensure, including the minimum passing scores on Praxis I and the different Praxis II tests, is sufficient to ensure at least minimally competent teachers to provide instruction consistent with the curriculum standards.

�� Inputs into the educational system, except for the funding of early childhood intervention programs, are sufficient to satisfy the constitutional requirement.

�� The constitutional requirement of adequate funding is not met by Defendants as a result of their failure to adequately fund early childhood intervention programs.

�� The students in the Plaintiff Districts are denied the opportunity to receive a minimally adequate education because of the lack of effective and adequately funded early childhood intervention programs designed to address the impact of poverty on their educational abilities and achievements.

�� The Plaintiff Districts and Defendants[1] both filed Rule 59(e), SCRCP, motions to alter or amend.� This Court has carefully considered the motions, and finds and concludes as follows: ��

Plaintiffs� Motion to Alter or Amend

�� A.�� Inputs

�� 1.�� Plaintiffs contend that the level of �inputs,� or resources, available to educate students in the Plaintiff Districts is insufficient to create the opportunity for each child to acquire a minimally adequate education.� (Plaintiffs� Motion to Alter or Amend, �� 1-3, 5, & 6).� Plaintiffs do not suggest what level of these inputs would be necessary to create that opportunity.� This makes it difficult for the Court to determine the levels are insufficient.� However, plaintiffs do itemize certain specific alleged deficiencies in �inputs� which are treated below.

�� Teacher quality issues

�� 2.�� Plaintiffs assert �the fact that quality teachers can and do make a difference in providing educational opportunities was endorsed by every witness.�� However, the definition of a �quality teacher� was a matter of some disagreement.� Moreover, the extent of the relationship between teacher characteristics and achievement is minimal.�

�� 3.�� Defendants, on the other hand, offered credible evidence proving the lack of correlation between certain teacher characteristics and better student achievement.� The analyses performed by Dr. Michael Podgursky and Dr. David Armor are significant in that regard.� Thus, the claim that the relatively lower levels of student achievement in the Plaintiff Districts are the result of relatively lower levels of certain positive teacher characteristics is not supported by any objective evidence.�

�� 4.�� Plaintiffs� attempt to equate teacher characteristics with teacher quality is not supported by the evidence.� While Dr. Linda Darling-Hammond and others maintained otherwise, Dr. Berry, who is a disciple of Dr. Darling-Hammond, admitted there is �scant� evidence to support the notion that particular methods of teacher preparation favored by Dr. Darling-Hammond increase student achievement.�

�� 5.�� While teachers do matter, the things that make a difference cannot be objectively measured.� As Plaintiffs� own witness Dr. Lorin Anderson put it, �[w]hat you do is more important than who you are.�� (Tr. Trans. (11/29/04), p.64, line 24-p.65, line 1).� To the extent that teachers in the Plaintiff Districts are not employing the techniques that make a difference in achievement, they should be encouraged to do so.� This does not require action by the General Assembly.�

�� Teacher licensure

�� 6.�� Plaintiffs question the sufficiency of the South Carolina teacher licensing procedures, and particularly the Praxis examinations utilized in that process.� This criticism assumes, however, that the General Assembly has constructed the Praxis test and is responsible for its content, which is not the case.� The Praxis tests, of which there are many, are published by Educational Testing Services, who, presumably, are experts in their field and are qualified to determine the content level of the tests they offer.� The State Department of Education (SDE) elects to use Praxis as a part of its teacher licensing procedures, although it is free to use different tests if it feels Praxis is not sufficiently rigorous.� The fact that many states use the Praxis test as a part of their licensing procedure is contrary to Plaintiffs� assertion that the tests are not useful.�

�� 7.�� As to the question of whether the cut scores are appropriately set, Plaintiffs acknowledge that the Praxis II cut scores are set at the content knowledge level believed to be sufficient for an entry level teacher.�

�� 8.�� The entire process is controlled by SDE, and particularly by Dr. Poda.� If the cut scores need to be raised, there is no impediment to doing so.� Dr. Poda pointed out that cut scores for Praxis II were routinely reviewed and, in the course of such reviews, were raised and lowered as appropriate.� This Court has relied on SDE and the Board of Education to set the score appropriately under all circumstances.�

�� 9.�� There is no doubt the teacher licensing procedures in South Carolina are not perfect, but perfection is not the constitutional standard.� South Carolina has been repeatedly recognized for its efforts to improve teacher quality.� It would be anomalous in the face of such recognition for this Court to conclude the system is insufficient to insure teachers are at least minimally competent.

�� Teacher compensation

�� 10.�� Plaintiffs also argue the weight of evidence shows teachers in the Plaintiff Districts were insufficiently compensated under the constitutional standard.� While teachers� salaries are relevant, if Plaintiffs presume that pay can be increased to a level sufficient to overcome all of the other obstacles to recruitment and retention acknowledged by Plaintiffs, they have never said how much more pay would be necessary, and there is nothing in the record from which the Court (or the General Assembly) could make that determination.� While Dr. Podgursky did acknowledge that higher pay would likely increase the applicant pool in the Plaintiff Districts, there is no basis to conclude that the larger number of applicants would all have the characteristics Plantiffs value.��

�� 11.�� Plaintiffs contend that � 208 of the order pertaining to teacher salaries disregards substantial pieces of evidence entirely.� Plaintiffs, however, misconstrue � 208, which must be read in context and in its entirety.� That portion of the order speaks to Plaintiffs� reliance on �average� teacher salaries and the conclusions to be drawn therefrom.�

�� 12.�� Every Plaintiff superintendent testified they have difficulty attracting and retaining teachers of the type to which they aspire, which for the most part involves teachers with more education and experience.� Because those characteristics are not related to student achievement in any significant way, however, it cannot be said that their failure to hire such teachers explains the relatively lower levels of student achievement in the Plaintiff Districts or that improving the percentages of teachers with those characteristics would improve achievement.�

�� 13.�� More important, however, is the lack of objective evidence that higher teacher pay would result in better teacher quality.� Both Dr. Podgursky and Dr. Armor analyzed teacher pay and student achievement, and neither found any statistically significant positive relationship.��

�� 14.�� There is nothing in the record from which the Court can objectively conclude that current levels of teacher compensation deny students the opportunity to acquire a minimally adequate education, or that raising teacher pay would create such an opportunity.�

�� Curriculum

�� 15.�� Plaintiffs argue the curriculum in the Plaintiff Districts is often outdated and teachers in the Plaintiff Districts are unable to effectively deliver the curriculum to the students.� Plaintiffs ask this Court to reconsider its ruling that the curriculum and teachers in the Plaintiff Districts are adequate.

�� 16.�� As this Court noted in its order, principals of each of the schools in the Plaintiff Districts testified, via deposition, that the teachers in their schools were, for the most part, teaching the State adopted curriculum standards in their classrooms, and that the curriculum being taught in their schools was aligned to the state uniform curriculum standards.[2]� Further, many of the Plaintiff Districts certified to SDE that they were following the required instructional programs and were offering the courses mandated by SDE.� Plaintiffs have given this Court no reason to amend its prior ruling.�

�� Transportation

�� 17.�� The cost of transporting public school students continues to rise. �The State has shifted a large portion of the responsibility for paying drivers� salaries to the local school districts, while the responsibility for purchasing and maintaining the fleet of buses rests on the State. �The transition from small- or medium-sized schools, serving limited geographic areas, to large consolidated schools, some of which serve an entire county, has increased the transportation burden on local districts and the State alike. �Increases in length of routes, number of students transported, fuel costs, and bus maintenance absorb a substantial part of the budgets of the districts and the State. �A greater cost is borne, however, by the children who have to spend far too much time riding to and from school, time that is largely wasted, since it can not be devoted to any useful endeavor. �The tremendous shared cost of transportation, both monetary and otherwise, has become a necessary component in the education process. �The State has struggled to keep the fleet of buses current via the issuance of bonds and general appropriations and, with the help of SDE, has maintained an aging fleet admirably. �This Court cannot find that the necessary shifting of some of the cost of the transportation of students to the local districts rises to the level of a violation of the Constitution.

�� Time on task

18.�� The General Assembly has enacted several pieces of legislation providing for and authorizing extended learning time through summer school, after-school learning programs, homework centers and similar interventions. �Plaintiffs contend many of these are ineffective because the course offerings are limited and the sessions are too brief. �Additionally, Plaintiffs contend the programs are under-funded.

19.�� These additional learning opportunities were provided as supplements to the normal school day and school year. �Nowhere does Abbeville County mandate these supplemental interventions as a constitutional requirement. �Clearly, the programs are beneficial, especially to at-risk students. �However, the lack of such programs does not amount to a constitutional violation. ��

�� Instructional materials

�� 20.�� Plaintiffs assert that �testimony from superintendents, principals and teachers . . . demonstrate that the Plaintiff districts did not have, and lacked the funding to purchase, adequate instructional materials.�� The question is whether the Plaintiff Districts receive adequate revenues to purchase instructional materials and supplies.� The evidence clearly shows that they do.�

21.�� The In$ite data for 1999-2000 through 2002-2003, show that each Plantiff District other than Orangeburg 3 and Dillon 2 spent more than the State average for instructional materials, in most cases by a significant amount.� (Defendants� Exhibits 3263, 3153, 3327-3336).� For example, for 2003, the average district in the State spent just over $150 per pupil in this category.� For the same year, Jasper spent in excess of $500 per pupil, Orangeburg 3 spent over $300 per pupil, and Florence 4, Lee, and Hampton 2 spent over $200 per pupil.� These figures do not support Plaintiffs� argument that materials and supplies are massively underfunded in the Plaintiff Districts.� Additionally, each principal specialist in the Plaintiff District receives additional funds for materials and supplies, as does each teacher specialist.�

�� Vocational education

�� 22.�� Every Plaintiff District offers vocational programs that comply with State regulations.� This fact alone is certainly evidence from which the Court can conclude that students in the Plaintiff Districts have the opportunity to acquire vocational skills.� Nevertheless, Plaintiffs would prefer to offer vocational programs other than the ones they currently are offering.� Abbeville County, however, does not specify that particular vocational courses must be made available.� Thus, no constitutional violation can be premised on the failure of the Plaintiff Districts to offer particular courses.

�� B.�� Facilities

�� 23.�� Plaintiffs contend the facilities in their districts do not meet the �safe and adequate� standard of Abbeville County.� (Plaintiffs� Motion to Alter or Amend, � 4).� They aver this Court�s order, with respect to all the Plaintiff Districts, and especially with regard to J.V. Martin Junior High School in Dillon County School District 2, and West Hardeeville Elementary School in Jasper County, is without evidentiary support.��

�� 24.�� The issue of facilities was treated extensively in this Court�s order.� (See Order, �� 262-393).� This Court concluded all the facilities in the Plaintiff Districts were either safe, adequate, and sufficient to provide students the opportunity to acquire a minimally adequate education, or had deficiencies that were being remedied by the district.

�� 25.�� Plaintiffs� contention that this Court�s order is without factual support as to all of their facilities is flawed because Plaintiffs do not distinguish among any of the facilities, and would have the Court declare them all to be unsafe and inadequate.� Such a blanket condemnation is unsupported by the evidence.� For example, Jasper County is currently building two new PK-12 facilities which will accommodate all students in that district.� All of the facilities in Orangeburg 3 are either new or newly renovated, Dillon 2 has renovated many of its schools, and Florence 4 has recently completed an addition to its K-12 facility to include additional space.� Therefore, Plaintiffs� argument that the facilities, generally, in their districts are unsafe and inadequate is without merit.

�� 26.�� Further, yearly report cards, required from each of the Plaintiff Districts, show continuing renovations and construction in many of the districts.[3]� Allendale�s 2004 and 2005 report cards reflected renovations to Allendale-Fairfax Middle School.� Dillon 2�s report card for 2004 noted renovations to Stewart Heights Elementary School, Gordon Elementary, and J.V. Martin Junior High School, as well as updates to the district�s technology infrastructure.� Renovations at Lower Lee and West Lee Elementary Schools were mentioned in both the 2004 and 2005 report cards from Lee County School District.� Both Lower Lee and West Lee contain a new inquiry science lab in line with the state�s science standards.� In Marion 7, grants enabled the district to partially re-roof and renovate Rains Centenary Elementary, and the old high school in Britton�s Neck was completely renovated to become the new Britton�s Neck Elementary.� In 2005, Orangeburg 3 closed two high schools and consolidated them.� The new Lake Marion High School and Technology Center is partnered with Orangeburg-Calhoun Technical College.� These report cards show that facilities in the Plaintiff Districts continue to be renovated.[4]��

�� 27.�� Moreover, Plaintiffs have not conclusively shown that facilities have an impact on the quality of instruction or performance in the Plaintiff Districts.� As noted in this Court�s order, �[t]here is no empirical evidence that would support a finding that achievement is related to the condition of facilities.�� (Order, � 268).� For example, Dillon 2 noted, in its 2004 and 2005 report cards, that renovations and new construction are needed at all of the district�s schools and at the district office.� However, in 2004 and 2005, Dillon 2 had an average absolute rating, the highest of any of the Plaintiff Districts.[5]

�� 28.�� Finally, the Plaintiff Districts have not satisfied their burden of proving that their facilities are unsafe.� Each of the Plaintiff Districts certified to the State Department of Education that its facilities comply with DHEC regulations; are adequate in size and arrangement to house its programs; comply with fire marshal regulations; have safe and adequately maintained playgrounds, physical education, and play equipment; have sufficient fire extinguishers; have adequate light, ventilation, and heating; and comply with all OSHA standards.�

�� C.�� Race

�� 29.�� Plaintiffs contend race is a relevant factor to consider in determining whether an opportunity for a minimally adequate education exists.� (Plaintiffs� Motion to Alter or Amend, � 7).��

�� 30.�� As this Court previously ruled on each of the many occasions the issue was raised:

�� (a)�� The issue was not injected until the fourth amended complaint was filed, just weeks before the trial began.� By that time, the case was several years old, had been through a second and third amended complaint, had been to the Supreme Court and back, extensive discovery had been completed, and the case was on the eve of trial.� The issue was simply raised too late.

�� (b)�� It was not necessary to consider race as a factor separate from poverty to grant relief to Plaintiffs because, in this case, race and poverty are practically synonymous.� Certainly, race and poverty are collinear, inasmuch as the percentage of students on free and reduced lunch (the agreed-upon proxy for poverty) is very nearly the same as the percentage of African-American students in each district.� Any remedy or relief accorded to those students in poverty will necessarily inure primarily to the benefit of African-American students as well.�

�� (c)�� Plaintiffs� argument that the State�s failure to present a �culturally relevant� instructional program addressing the peculiar needs of ethnicity amounts to a constitutional violation also fails.� Meeting students �where they are� has always been and will always be an instructional challenge even among the so-called �middle class white culture,� which Plaintiffs claim to be the basis of the typical educational pedagogy.� Moreover, the teachers in this case testified about their efforts to make the curriculum relevant to all of their students.� Finally, there is no established template for instruction unique to African-American students living in poverty that differs from instruction given to Caucasian students living in poverty.� By and large, the baggage of poverty is the same despite differences in race.� Single parent households, a lack of reading material in the home, and the lack of a stable family unit are just examples of obstacles which poor children, both Caucasian and African-American, must overcome in order to thrive.�

�� 31.�� There is no established constitutional standard that distinguishes between the instruction of poor African-American students and poor Caucasian students.� Further, it is clear that any change in the Plaintiff Districts that benefits students in poverty will also benefit African-American students.� For these reasons, and because the issue of race was injected late in the proceedings, this Court stands by its ruling as to the issue of race.

�� D.�� Comparison of the Plaintiff Districts to other districts

�� 32.�� As Plaintiffs note in their motion, this Court admitted evidence of comparison to national averages and state averages, but ruled comparison evidence between particular schools or school districts was inadmissible.� Plaintiffs ask this Court to reconsider its holding.� (Plaintiffs� Motion to Alter or Amend, � 8).�

�� 33.�� Much of the data introduced at trial was derived from various standardized tests (BSAP, PACT, etc), the results of which were used to compare students and schools to each other, to a norm, or to establish an average standard.� Comparisons were essential to give meaning to the standardized test results and to enable this Court to evaluate that evidence in assessing the �outputs� of the educational process in the Plaintiff Districts.� However, such comparisons are different than comparing a specific Plaintiff District to a non-plaintiff district in an attempt to prove that the distinctions between them evidence a constitutional violation.� That type of equal protection argument was rejected by the Supreme Court in Abbeville County.

�� 34.�� In holding that Plaintiffs� federal equal protection claim, based on inadequate funding, and state equal protection claim, based on inequitable funding, both failed, the Abbeville County Court foreclosed further argument tending to prove that the failure to fund the Plaintiff Districts at a level equal to the non-plaintiff districts violates the educational clause of the constitution.�

�� 35.�� As Plaintiffs note in their memorandum supporting their motion, this Court used comparisons to assist in establishing a baseline against which the opportunity to acquire a minimally adequate education may be determined.� It found poor PACT results alone were not evidence of a lack of an opportunity to receive a minimally adequate education.� Nor was the high incidence of poverty in the Plaintiff Districts alone evidence of the lack of an opportunity to receive a minimally adequate education.� Instead, this Court found that �when those two factors come together so dramatically as they do in the case of the Plaintiff Districts, this Court is led to the conclusion that the children of the Plaintiff Districts are not receiving the opportunity to obtain a minimally adequate education.�� (Order pp.159-160).� The high percentages of students on free and reduced lunch and the percentage of students scoring below basic in English/Language Arts and Math, taken together, assisted this Court in its decision.�

�� 36.�� Necessarily, this Court�s decision rested implicitly, at least, upon a comparison to the percentage of students in other districts in the same disputed categories.� While that type of comparison was necessary to this Court�s decision, the comparisons sought by the Plaintiff Districts were not.� The issue was not how a particular Plaintiff District compared to a particular non-plaintiff district.�

�� 37.�� A violation of the education clause of the South Carolina Constitution would not be proven by evidence, for example, that a Lee County District did not possess the same local funding capacity, facilities and/or instructional opportunities as a Greenville County District.� No real purpose would have been served by that evidence other than to state the obvious: the Plaintiff Districts do not have the same level of local funding, and in many cases, the same type of facilities and other �inputs,� and do not perform as well as many other, non-plaintiff districts.�

�� E.�� Use of deposition testimony

�� 38.�� Plaintiffs objected to the use of deposition testimony of employees of the Plaintiff Districts, primarily on the issue of curriculum standards, alignment with curriculum standards, and personnel qualifications.� The objections have two principal bases: (1) the South Carolina Rules of Civil Procedure do not allow the use of the depositions in this manner; and (2) the deposition testimony was taken out of context and improperly ruled upon by the Court.� (Plaintiffs� Motion to Alter or Amend, � 10).��

�� 39.�� Defendants offered the deposition testimony of approximately two dozen current and former employees of the Plaintiff Districts, some of whom testified at trial.� This Court chose to allow testimony via deposition in an effort to avoid the further prolongation of the longest civil trial in the history of our state.� Without the live testimony of the witnesses in question, the trial lasted 102 days.� The addition of the live testimony of these witnesses would have added at least 20 days to the trial.

�� 40.�� Rule 32(a)(3)(E), SCRCP, allows the use of deposition testimony under �such exceptional circumstances as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.��

�� 41.�� The witnesses in question had been deposed under the Rules, and lawyers for all parties had the opportunity to participate.� This Court found the interests of justice were well served by allowing the deposition testimony to be used under the �exceptional circumstances� created by the length and scope of this trial.�

�� 42.�� The question of whether this Court drew improper or incorrect conclusions from the testimony will be answered by the appellate court�s review of the depositions, the entirety of which were made a part of the record.� Further, this Court notes it did not rely entirely on deposition testimony to make its decision; the deposition evidence constituted only a part of the fact finding process.��

�� F.�� Remedial issues resulting from the factual findings

�� 43.�� Plaintiffs ask the Court to reconsider its decision not to require Defendants to take specific action to address the constitutional failure to provide the opportunity for a minimally adequate education as found by the Court.� (Plaintiffs� Motion to Alter or Amend �� 11 & 12).� ��

�� 44.�� The mandates and limitations of the Abbeville County opinion are clear:

�� (a)�� Plaintiffs� claims that the Education Finance Act of 1977[6] (EFA) and/or the Education Improvement Act[7] (EIA) are unconstitutional on their face because of funding deficiencies, inadequacies, or inequities were struck down by Abbeville County.� Our Supreme Court held Richland County v. Campbell[8] was dispositive of Plaintiffs� claim that the EFA and/or the EIA are violative on their face of either the state or the federal equal protection clause.� Further, our Supreme Court held Plaintiffs� equal protection claim, predicated on inadequate funding, was foreclosed by the United State Supreme Court�s decision in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).� This Court is bound by the decision of our state Supreme Court.

�� (b)�� The Abbeville County Court, while defining �within deliberately broad parameters, the outlines of the constitution�s requirement of minimally adequate education,� recognized that the members of the Court were �not experts in education,� and did �not intend to dictate the programs utilized in our public schools.�� 335 S.C. at 69, 515 S.E.2d at 540.�

�� (c)�� Further, the Abbeville County Court emphasized �that the constitutional duty to ensure the provision of a minimally adequate education to each student in South Carolina rests on the legislative branch of government.�� 335 S.C. at 69, 515 S.E.2d at 541.� ��

�� 45.�� Plaintiffs ask this Court to require Defendants to draft a proposal for a new education system in South Carolina and to fund and support said system.� Further, Plaintiffs ask this Court to require Defendants to do so within a court-mandated time frame.� A decision by this Court requiring Defendants to take such actions would, in effect, make this Court the super-legislature or super-school board which the Abbeville County Court warned against, and would be counter to the judicial restraint the Supreme Court mandated in Abbeville County.�

�� G.�� Clerical error

�� 46.�� Plaintiffs alerted this Court to an error in the original order.� In paragraph 14 of the order, this Court referred to the third amended complaint.� The complaint in effect at the time of the July 3, 2003, hearing, and under which this case was tried, was the fourth amended complaint.� ��

Defendants� Motion to Alter or Amend

�� H.�� Burden of proof

�� 47.�� Defendants argue that the burden of proof in this case is beyond a reasonable doubt.� (Defendants� Motion to Alter or Amend, � 1).� Defendants base their argument on the doctrine that statutes are presumed constitutional and will only be declared unconstitutional when their invalidity is shown beyond a reasonable doubt.� Further, Defendants argue a finding that the educational system is unconstitutional necessarily entails a finding that the statutes upon which the system is based are, at least in part, unconstitutional either facially or as applied to Plaintiffs.� ��

�� 48.�� The Plaintiff Districts, however, do not challenge the constitutionality of individual statutes.� Rather, they challenge the constitutionality of the educational opportunities offered to children in the Plaintiff Districts.� This is an equitable civil case assessing the constitutionality of the educational system as a whole.� Therefore, the proper burden of proof is by a preponderance of the evidence.�

�� I.�� This Court�s finding that the State must overcome the effects of poverty to the extent it is educationally possible

�� 49.�� Defendants argue the Court erred in concluding the State is required to overcome the effects of poverty, �to the extent that it is educationally possible,� (Order � 428) on academic achievement, because such a finding is (1) outside the scope of the education clause, and (2) creates a standard that is higher than the one defined in Abbeville County.� (Defendants� Motion to Alter or Amend, �� 2-3).� ��

�� 50.�� Defendants further contend poverty is the primary explanation for the great deficiencies in achievement levels in the Plaintiff Districts.� Defense experts opined that, after adjusting for poverty, students in the Plaintiff Districts are scoring similarly to students in the rest of the state.

�� 51.�� After again considering Defendants� arguments, this Court finds the defense experts� testimony unpersuasive.� This Court stands by its order, which stated:

In determining whether opportunity actually accords �the chance for progress or advancement to occur,� one must examine not only the means by which the opportunity is offered, but also the characteristics of the one to whom it is offered.� . . . While factoring out poverty is possible in statistical analysis, poverty is a reality in the lives of the students in the Plaintiff Districts which can not be factored out.

(Order, �� 35 & 419).� �

� �� 52.�� The evidence shows students in the Plaintiff Districts are scoring well below the state average and are not gaining the skills they need to experience �a chance at life� and the opportunity to become productive citizens.� (Order � 30).�

�� 53.�� The issue is whether each child is being offered the opportunity to acquire a minimally adequate education.� This includes students who live in poverty, and just as adjustments need to be made for handicapped children, schools need to adjust to meet the educational needs of children raised in poverty.� As this Court found, �[t]he stairway that is one child�s avenue to achievement and success is simply an obstacle to one unable to climb.�� (Order, � 35).�

�� 54.�� All witnesses, including the State�s witnesses, agreed that all students, including at-risk students, can learn at high levels.� Many witnesses, including defense experts, testified regarding the resources and programs needed for at-risk students to achieve at high levels.� Examples provided by these witnesses reinforce the conclusion that at-risk students can and do learn at high levels if provided the right learning environment and skilled teachers.�

�� 55. �� Defendants also argue the Court�s finding that the State has failed the Abbeville County test is contrary to the Court�s earlier statement in the order that issues such as poverty �lie outside the traditionally accepted scope of education policy, and require interventions beyond those traditionally produced by schools.�� (Order � 427).� This argument is without merit.� Tradition is not the standard by which this Court judges constitutionality.� The education clause in the South Carolina Constitution was designed to allow the General Assembly flexibility in meeting modern needs and changing conditions.�

�� J.�� This Court�s finding that the education clause of the South Carolina Constitution imposes an obligation on Defendants to provide early childhood intervention programs to each child

�� 56.� �� Defendants contend in their motion to alter or amend that early intervention programs are not required under the education clause for the General Assembly to meet its duty to provide a minimally adequate education.� (Defendants� Motion to Alter or Amend, �� 4, 10, & 15).�

�� 57.�� Abbeville County set the �constitutional floor below which the General Assembly may not fall, but beyond which the General Assembly is not constitutionally required to advance.�� (Order, � 43 (citing Abbeville County 335 S.C. at 69, 515 S.E.2d at 540).� The facts adduced at trial showed well beyond a preponderance of the evidence that early intervention programs are required to educate children in poverty, and the State�s policies as set forth in numerous statutes specifically acknowledge this obligation.� Early intervention programs are required to educate children in poverty.� Without early intervention programs, the opportunities for children in poverty to acquire a minimally adequate education are illusory.� By neglecting to provide early intervention programs for children in poverty, the General Assembly has fallen below the constitutional floor established in Abbeville County.� ��

�� 58.�� The education clause requires the General Assembly to provide a �system of free public school.�� S.C. Const., Art. XI, � 3.� The parameters of that �system� in terms of age or grade levels are not defined in the education clause, nor are they defined in Abbeville County.� The reason for that is simple: the education clause was designed to allow the General Assembly flexibility in meeting modern needs and changing conditions, so long as it meets its constitutional obligations.� See Richland County v. Campbell, 294 S.C. 346, 349, 364 S.E.2d 470, 472 (1988); Moseley v. Welch, 209 S.C. 19, 33-34, 39 S.E.2d 133, 140 (1946).

�� 59.�� The absence of any age or grade level parameters demonstrates that the duty of the General Assembly is to provide whatever is necessary to ensure children have the opportunity to receive a minimally adequate education.� Evidence of dismal academic achievement, combined with high levels of poverty in the Plaintiff Districts, supports the conclusion that the educational system is not providing the constitutionally required opportunity to children in poverty.�

�� 60.�� Based on the language of the South Carolina Constitution and Abbeville County, this Court found the State owes a duty to provide children in poverty early childhood interventions to ensure they have the opportunity to acquire a minimally adequate education.� The evidence presented at trial mandated such a conclusion.� The State�s own expert, Dr. Walberg, testified the �first four to six years of life can be very decisive in a child�s development� and �before schooling really begins, children [raised in poverty] are behind in the abilities that they need to succeed in school.�� (Order, � 422). �Senator Mathews testified the General Assembly recognized �the years from birth through five years of age are critical to a child�s ability to learn.�� (Appendix to Order, p.164).� The General Assembly recognized the need for early intervention in the 1984 version of the EIA.� (Appendix to Order, p. 164).�

�� 61.�� Although the General Assembly was and is aware of the necessity of early intervention programs to ensure children are prepared to start school, the programs designed to accomplish this goal were never fully funded or were never created.� (Appendix to Order, pp. 165-66).� Despite all the evidence from both Plaintiffs and Defendants which shows early intervention programs are required to prepare children in poverty for school, Defendants maintain early intervention programs are not constitutionally required to provide an opportunity for a minimally adequate education.

�� 62.�� The South Carolina Constitution and Abbeville County require that each child be given the opportunity to acquire an education.� If the State is to fulfill its obligations, children raised in poverty must be given the means to avail themselves of the opportunity to learn and receive an education.� The Court found the State has failed its youngest, most vulnerable students.� This Court did not overstep its bounds in finding that the State is responsible for implementing programs for the youngest students, for whom the effects of poverty pose a great obstacle.� Defendants� argument to the contrary is without merit.�

�� K.�� Student achievement as a factor in evaluating the existence of the opportunity for a minimally adequate education�

�� 63.�� Defendants argue the Court erred in relying on academic achievement to determine whether the constitutionally mandated opportunity for a minimally adequate education exists in the Plaintiff Districts.� (Defendants� Motion to Alter or Amend � 5).�

�� 64.�� This Court stated, in its summary, it �does not find that poor PACT test results alone are evidence of a lack of an opportunity to receive a minimally adequate education.�� (Order, p.159).� In finding that the opportunity was absent in the Plaintiff Districts, the Court did not rely on student performance alone.� The Court specifically stated:

When those two factors [poor PACT test results and a high incidence of poverty] come together so dramatically as they do in the case of the Plaintiff Districts, this Court is led to the conclusion that the children of the Plaintiff Districts are not receiving the opportunity to obtain a minimally adequate education.

(Order at p. 160).�

�� 65.�� This Court did not, as Defendants allege, base its holding solely on academic achievement.� This Court based its conclusion on the interplay between achievement and poverty.� Thus, Defendants� argument is without merit.�

�� L.�� Defendants� argument that an opportunity for one student is an opportunity for all students�

�� 66.�� Defendants argue that if some students in the Plaintiff Districts are achieving success, all students in the districts necessarily have the opportunity to acquire a minimally adequate education.� (Defendants� Motion to Alter or Amend, �� 6, 7) (emphasis added).� Defendants aver any level of achievement, by any number of students, is sufficient to demonstrate that the State has fulfilled its constitutional obligations, and that those students who are not performing well have simply chosen not to avail themselves of the opportunity to acquire a minimally adequate education.� Further, Defendants assert that this assessment obviates the need to consider the end result of the educational process.

�� 67.�� Defendants� argument runs contrary to the testimony of the State�s experts, including that of Dr. James Guthrie.

�� 68.�� The State�s obligation is not merely to make education available to some.� The State is directed to provide the opportunity for �each child to receive a minimally adequate education.�� Abbeville County, 335 S.C. at 68, 515 S.E.2d at 540 (emphasis added).� All of South Carolina�s children � including poor and at-risk children � are entitled to that opportunity.�

�� 69.�� In its December 29, 2005, order, this Court directly addressed this argument.� The order provided:

The Defendants contend that [the] large percentages of students in the Plaintiff Districts [who] have scored at least the basic on the [PACT] tests indicate[] that all students in those districts have the opportunity to obtain a minimally adequate education.� The Defendants [ascribe] to the theory that the cup is �half full.�� However, the converse of that belief is that 40 to 60% of the students in the Plaintiff Districts are scoring at below basic.

(Order, � 418).� Therefore, this Court again rejects the contention that the academic success of some students is evidence of an opportunity for all.

�� 70.�� Defendants also argue all at-risk students share common characteristics and should therefore be viewed collectively when determining whether they have the opportunity to acquire a minimally adequate education.� This argument is merely another way of stating that an opportunity for one child is an opportunity for all.� This Court therefore rejects Defendants� arguments.

�� M.�� Education Accountability Act (EAA) interventions��

�� 71.�� Defendants argue the existing interventions for young students in poverty are sufficient to satisfy the constitutional obligation of the State, to the extent the State is so obligated.� They also claim this Court erred in finding the interventions under the EAA have been largely ineffective.� They argue this Court�s conclusion is not supported by proof beyond a reasonable doubt.� Defendants alternatively argue the preponderance of the evidence has shown that EAA interventions have improved achievement.� (Motion to Alter or Amend, �� 8 & 9).

�� 72.�� The evidence presented to this Court shows EAA interventions were largely ineffective.� There is no empirical or statistical evidence to suggest those monies had any appreciable impact on student achievement.� (Order � 431).� The EAA interventions do not remedy the educational needs of children in the Plaintiff Districts.�

�� 73.�� Further, the EAA intervention programs are only implemented after a school or district receives a below average or unsatisfactory report card rating.� The intended benefits from these programs are not sufficient to overcome the effects of poverty or to meet the needs of the students in the Plaintiff Districts.� The Court is not persuaded to change its ruling as to this issue.

�� N.�� Standing

�� 74.�� Defendants argue the Court erred in failing to enter judgment in their favor because the Plaintiff Districts, students, and taxpayers do not have standing to maintain this action.� (Defendants� Motion to Alter or Amend, � 11).�

�� 75.�� This argument was rejected by this Court at the motion to dismiss and directed verdict stages of this litigation.� This Court noted the Abbeville County Court recognized �the purpose of providing a public education is a benefit not just to the individual receiving it, but also the public at large.�� (335 S.C. at 66, 515 S.E.2d at 539).� This Court then held that, because the questions involved in the instant case are so important, the rules on standing should not be �inflexibly applied.�� (Order denying Defendants� Motion for a Directed Verdict, Sept. 17, 2004).

�� 76.�� This Court has considered Defendants� arguments on the issue of standing, and is not persuaded to change its ruling.� Plaintiffs had standing to bring this action.

�� O. �� Capacity to sue the State

�� 77.�� Defendants argue the Plaintiff Districts lack the capacity to sue the State.� (Defendants� Motion to Alter or Amend, � 12).�

�� 78.�� In response to Defendants� Motion for a Directed Verdict, this Court ruled the Plaintiff�s Districts� capacity to sue was an issue encompassing both issues of fact and law.� This Court found facts supporting the Plaintiff Districts� capacity to sue the State. �Defendants have not presented any reason for this Court to change its ruling.

�� P.�� Legislative immunity

�� 79.�� Defendants argue the Court erred in failing to enter judgment in their favor because legislative immunity bars claims against the Governor and the State to the extent that their legislative powers are at issue.� (Defendants� Motion to Alter or Amend, � 13).�

�� 80.�� Plaintiffs are no longer pursuing monetary damages in this action.� Therefore, legislative immunity is inapplicable and Defendants� claim must be rejected.

�� Q.�� Separation of powers and political question doctrine

�� 81.�� Defendants characterize the allegations in this litigation as non-justiciable political questions and argue that the Court is without the authority or power to resolve such issues because exercising such authority would violate the separation of powers doctrine.� More specifically, Defendants argue all decisions regarding the appropriation of funds are exclusively within the province of the legislature, and this Court is barred as a matter of law from basing liability on the decisions made by the General Assembly with respect to the appropriation of funds.� (Defendants� Motion to Alter or Amend, �� 14 & 16).�

�� 82.�� This Court previously held that the results of the legislative process are appropriate matters for the Court�s consideration.� Such consideration does not violate either the separation of powers doctrine or the political question doctrine.

�� 83.�� Further, the South Carolina Supreme Court found error in citing �separation of powers and the political question doctrine as the basis for declining to decide the meaning of the education clause.�� Abbeville County, 335 S.C. at 67, 515 S.E.2d at 539.

�� 84.�� Based on this Court�s prior holdings and the South Carolina Supreme Court�s holding, Defendants� Motion to Alter or Amend on this ground must be denied.�

CONCLUSION

The testimony of Dr. Paula Harris, Superintendent of the Allendale County School District, is illustrative of the divide between the Abbeville standard of an �opportunity to obtain a minimally adequate education,� and a professional educator�s goals in obtaining success for her students.

In my opinion the students are not doing better because we have not been able to present them a complete package of instruction, and that complete package would include a teacher who is highly skilled, facilities that are adequate and that are wired for technology, that are wired for electrical needs, . . . that are wired like this courtroom is.� Materials that meet their specific needs, a wealth of materials.� My children need books like you wouldn�t believe.� We are getting there with the curriculum, but having the curriculum and not being able to deliver it efficiently doesn�t help a lot, so my take on that is we haven�t been able to present a complete package that would allow our children to be successful.

(Trial Tr. (09/30/03), p.200, line 15-p.201, line 5).�

Dr. Harris asks for what every good educator should ask for and what every concerned parent wants for his/her child: the absolute best of every component involved in the child�s education. �That goal is a laudable one and it should continue to be the aspiration of everyone involved in the educational process, but IT IS NOT the constitutional standard. �As difficult as it may be to accept or understand, this case has never been about what is best for the children of the State, or what programs, facilities, and resources the court might wish were available to the children of our State.

From the adoption of our state�s first constitution until the Supreme Court decision in Abbeville County, the education clause lacked any qualitative standard. �The standard established within �deliberately broad parameters� the right of each child to receive an opportunity to obtain a minimally adequate education. �This standard created a �constitutional floor� below which the educational processes of the State could not sink.� The Abbeville Court chose to adopt a minimal standard, rather than an ideal, recognizing and acknowledging that the constitutional responsibility for the education of the State�s children was a legislative one.

When the Abbeville County Court established the enunciated standard, this case was remanded for the trial court�s determination of whether or not the standard was met in the Plaintiff Districts. �This court was faced with establishing a quantitative standard where none previously existed. �This quantitative standard was then examined through the prism of the Abbeville County qualitative standard, resulting in the findings and conclusions contained in this court�s Order of December 29, 2005.

Neither the standard adopted by the Abbeville County Court, nor this Court�s findings of December 29, 2005, indicate a lack of recognition of the many areas of improvement needed within our educational system. �Many aspects of the system cry out for improvement. �Plaintiffs have pointed out those areas throughout the history of this case. �The need for improvement in these areas, however, does not rise to the level of a constitutional violation, except in the areas of early childhood education pointed out in the Order of December 29, 2005.

In the final analysis, the responsibility rests, as it should, upon the shoulders of the elected representatives of the people of South Carolina, to decide whether the educational futures of the children of the State will rest upon the constitutional floor established by the Court, or upon a higher level.

For the foregoing reasons, the Motions of Plaintiffs and Defendants to alter or amend this Court�s order are DENIED.� Further, this Court has considered each of the arguments raised to it by Plaintiffs and Defendants.� Any issues not specifically addressed in this Order have been considered and are hereby denied.�

AND IT IS SO ORDERED.

�� /s/ Thomas W. Cooper, Jr.��

�� The Honorable Thomas W. Cooper, Jr.

�� Resident Judge of the Third Judicial Circuit

Manning, South Carolina

July 12, 2007��

[1] The House and the Senate jointly filed a Rule 59(e), SCRCP, motion to alter or amend. �The State also filed a Rule 59(e) motion.� The motions are identical, and the Court will refer to them collectively as the �Defendants� Motion to Alter or Amend.��

[2] See Order �� 118-19, 129-30, 139, 148, 158, 167, 177, & 188.��

[3] Both plaintiffs and defendants requested this Court take judicial notice of the yearly report cards issued during the pendency of this litigation.�

[4] Florence 4, Hampton 2, and Jasper did not mention any new or renovated facilities in either 2004 or 2005.� Florence 4 did construct two new classrooms in 2003.

[5] See http://ed.sc.gov/topics/researchandstats/schoolreportcard/.� In 2006, Dillon 2�s absolute rating dropped to unsatisfactory.

[6] S.C. Code �� 59-20-10 to -80 (1990 & Supp. 1998).��

[7] 1984 S.C. Acts 512.�

[8] Richland County v. Campbell, 294 S.C. 346, 364 S.E.2d 470 (1988).�