Op-ed article for the Anniston Star By Martha Morgan
June 2002
On May 31, 2002, the Alabama Supreme Court announced its decision to halt any further proceedings to remedy the ongoing widespread violations of Alabama schoolchildren’s constitutional rights to an adequate and equitable public education. Unfortunately, the schoolchildren of our state now must add a new page to their study of the unhappy history of the long struggle to enforce their constitutional rights to education.
The Alabama Supreme Court justices’ decision was handed down in consolidated lawsuits collectively known as the Equity Funding Case. The Equity Funding Case began in 1990, when a group of poor school districts (ACE) filed a lawsuit against the State alleging violations of Alabama schoolchildren’s rights to an adequate and equitable public education under the 1901 Alabama Constitution. ACE was soon joined by groups of Alabama schoolchildren, including children with disabilities. Jointly, they demanded that education funding be equitable across all public schools within the state and that all the state’s public schoolchildren be provided an adequate education.
In 1992, a lengthy trial was held, where the plaintiffs presented extensive and uncontradicted evidence of the woefully inadequate and inequitable state of our system of public education. For example, the evidence showed that many schools lacked basic facilities such as science, computer, and language laboratories. Some schools lacked facilities such as auditoriums, gymnasiums, libraries, and playgrounds. Schools were unable to offer key courses and some were using textbooks outdated by as much as 15 years. A number of schools were infested with termites, rats, roaches, fire ants or other insects. Many schools had serious structural and maintenance problems. The list went on and on.
On March 31, 1993, Montgomery County Circuit Court Judge Eugene Reese issued a Liability Order. This order declared that the state’s public school system was in violation of the 1901 Constitution of Alabama by failing to provide Alabama’s public school children an adequate and equitable education and it directed state officials to comply with their constitutional duties.
Ironically, in their recent opinion refusing to provide any further remedy for these constitutional violations, the justices of the Alabama Supreme Court sought to portray their decision as dictated by principles of separation of powers and judicial restraint. To the contrary, the justices engaged in judicial activism unprecedented in Alabama jurisprudence by simply announcing, on their own and outside any rational judicial context, that they would review the remedy issue in this case. They then disregarded fundamental principles of separation of powers by abdicating any further responsibility for the judiciary’s essential role of ensuring that the executive and legislative branches perform their constitutional duties.
Only one of the eight justices of the Alabama Supreme Court who considered the case dissented from the court’s extraordinary handling of this case. Indeed, two of the justices wrote separate opinions suggesting that Amendment 111 (a blatantly racist provision that was added to the Alabama Constitution in an attempt to evade the United States Supreme Court’s 1954 opinion declaring that racial segregation of public schools violates the federal equal protection clause) should be recognized as valid and used even today to deny the children of this state any constitutional right to education.
The only good news is that the Alabama Supreme Court’s recent decision leaves the 1993 Liability Order in place. This means that the legislative and executive branches remain under a constitutional obligation to ensure that all of Alabama’s public school children are provided with an education that is both equitable and adequate.
The State Superintendent of Education and the State Board of Education have recently completed work on a comprehensive adequacy plan for public education in the state. But implementation of this plan will require substantial additional funding to support public education—something the legislature has thus far lacked the political courage to provide.
While another page has been added, this chapter of the history of our state remains open. The Alabama Supreme Court’s actions in this case raise important questions for all Alabamians who care about the future of our children and our state.
--Can civil rights, such as the right to education, be fully protected if the judiciary disclaims the power, and lacks the will, to enforce such rights by ordering effective remedies for their violation?
--Nearly 10 years have passed since the Liability Order was issued. When will our elected representatives fulfill their constitutional responsibility for providing adequate and equitable education to all public schoolchildren in every part of the state?
--What can concerned Alabamians do to help ensure that the Governor and the Legislature give serious consideration to the State Board of Education’s plan as they begin the process of providing a remedy for the ongoing constitutional violation of the right of Alabama’s school children to an adequate and equitable education?
--What can concerned Alabamians do to help ensure that in the future the justices of the Alabama Supreme Court will not shrink from their constitutional duty to see that the Governor and Legislature fulfill their constitutional responsibilities with respect to public education?
Unfortunately, all the Supreme Court's recent decision has provided to our State is diminished hope for our coming generations and unanswered questions. It now is up to people of good will to fill the void left by our Court's grievous abdication of judicial power and of its most fundamental responsibilities.
Martha Morgan has served as a volunteer lawyer for the ACLU of Alabama representing a class of public schoolchildren in this case since 1990. She teaches constitutional law at the University of Alabama Law School. The opinions expressed here are her own and do not necessarily reflect those of her clients or the University.
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