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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Abbeville County School District, Allendale County School District,

Bamberg County School District 1, Bamberg County School District 2,

Barnwell County School District 19, Barnwell County School District

29, Barnwell County School District 45, Berkeley County School

District, Chesterfield County School District, Clarendon County

School District 1, Clarendon County School District 2,. Clarendon

County School District 3, Dillon County School District 1, Dillon

County School District 2, Dillon County School District 3, Florence

County School District 1, Florence County School District 2, Florence

County School District 3, Florence County School District 4, Florence

County School District 5, Hampton County School District 1,

Hampton County School District 2, Jasper County School District,

Laurens County School District 55, Laurens County School District

56, Lee County School District, Lexington County School District 4,

Marion County School District 1, Marion County School District 2,

Marion County School District 3, Marion County School District 4,

Marlboro County School District, McCormick County School District,

Orangeburg County School District 1, Orangeburg County School

District 2, Orangeburg County School District 3, Orangeburg County

School District 6, Orangeburg County School District 8, Saluda

County School District and Williamsburg County School District,

William L. Mills, individually, and as a taxpayer residing in Allendale

County and as Guardian ad Litem of Waylon Priester, Waylon

Priester, a minor, by and through William L. Mills, as Guardian ad

Litem, Betty Bagley, individually, and as a taxpayer residing in

Bamberg County and as parent and Guardian ad Litem of Tyler

Bagley, Tyler Bagley, a minor, by and through Betty Bagley, as

Guardian ad Litem, Evert Comer, Jr., individually, and as a taxpayer

residing in Bamberg County and as parent and Guardian ad Litem of

Kimberly Comer, Kimberly Comer, a minor, by and through Evert

Comer, Jr., as Guardian ad Litem, Marla Q. Jameson, individually,

and as a taxpayer residing in Barnwell County and as a parent and

Guardian of Eleanor Jameson, Eleanor Jameson, a minor, by and

through Marla Q. Jameson, as Guardian ad Litem, Victor M.

Lancaster, Sr., individually, and as a taxpayer residing in Barnwell

County and as parent and Guardian ad Litem of Christie Lancaster,

Christie Lancaster, a minor, by and through Victor M. Lancaster, Sr.,

as Guardian ad Litem, Dr. Charles Clark, individually, and as a

taxpayer residing in Chesterfield County and as parent and Guardian

ad Litem of Candace Clark, Candace Clark, a minor, by and through

Dr. Charles Clark, as Guardian ad Litem, Colonel Larry Coker,

individually, and as a taxpayer residing in Clarendon County and as

parent and Guardian ad Litem of Corrie Coker, Corrie Coker, a

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minor, by and through Colonel Larry Coker, as Guardian ad Litem,

John Whiteside, individually, and as a taxpayer residing in Florence

County and as parent and Guardian ad Litem of Joel Whiteside, Joel

Whiteside, a minor, by and through John Whiteside, as Guardian ad

Litem, Dr. Francis Mills, individually, and as a taxpayer residing in

Hampton County and as parent and Guardian ad Litem of Amy Mills,

Amy Mills, a minor, by and through Dr. Francis Mills, as Guardian ad

Litem, Benny Burrison, Jr., individually, and as a taxpayer residing

in Hampton County and as parent and Guardian ad Litem of Shamon

Burrison, Shamon Burrison, a minor, by and through Benny Burrison,

Jr., as Guardian ad Litem, Robert Elisha Short, individually, and as a

taxpayer residing in Laurens County and as parent and Guardian ad

Litem of Robert B. Short, Robert B. Short, a minor, by and through

Robert Elisha Short, as Guardian ad Litem, Dr. Keith A. Bridges,

individually, and as a taxpayer residing in Laurens County and as

parent and Guardian ad Litem of Jorgana Ranson Bridges, Jorgana

Ranson Bridges, a minor, by and through Dr. A. Keith Bridges, as

Guardian ad Litem, Hampton L. Logan, individually, and as a

taxpayer residing in Lee County and as parent and Guardian ad

Litem of Kimberly Logan, Kimberly Logan, a minor, by and through

Hampton L. Logan, as Guardian ad Litem., Dr. John Nobles,

individually, and as a taxpayer residing in Marlboro County and as

parent and Guardian ad Litem of Erin Nobles, Erin Nobles, a minor,

by and through Dr. John Nobles, as Guardian ad Litem, Patricia

Hampton, individually, and as a taxpayer residing in McCormick

County and as parent and Guardian ad Litem of Krystle Hampton,

Krystle Hampton, a minor, by and through Patricia Hampton, as

Guardian ad Litem, Matlin P. Brown, individually, and as a taxpayer

residing in Orangeburg County and as parent and Guardian ad Litem

of Tanisha P. Brown, Tanisha P. Brown, a minor, by and through

Matlin P. Brown, as Guardian ad Litem, James Berry, individually,

and as a taxpayer residing in Orangeburg County and as parent and

Guardian ad Litem of Dondrea Berry, Dondrea Berry, a minor, by and

through James Berry, as Guardian ad Litem, Gerald Smith,

individually, and as a taxpayer residing in Orangeburg County and as

parent and Guardian ad Litem of Brenda Smith, Brenda Smith, a

minor, by and through Gerald Smith, as Guardian ad Litem, Thomas

Shealy, individually, and as a taxpayer residing in Saluda County and

as parent and Guardian ad Litem of Thomas Shealy, Jr., Thomas

Shealy, Jr., a minor, by and through Thomas Shealy, as Guardian ad

Litem,

Appellants,

v.

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The State of South Carolina; David M. Beasley, as Governor of the

State of South Carolina; Nikki Setzler, as Chairman of the Senate

Education Committee and Chairman of the Education Subcommittee

of the Senate Finance Committee, in his representation capacity as a

properly designated representative of the South Carolina Senate;

David H. Wilkins, as Speaker of the House of Representatives and as

representative of the South Carolina House of Representatives;

Barbara S. Nielsen, as State Superintendent of Education and as a Respondents.

representative of the State Department of Education; and Celia

Gettys, as Chairman of the South Carolina State Board of Education,

Appeal From Lee County

Thomas W. Cooper, Jr., Judge

Opinion No. 24939

Heard October 9, 1997 - Filed April 22, 1999

AFFIRMED IN PART; REVERSED IN PART

Curtis L. Ott, of Turner, Padget, Graham & Laney, P.A.,; and

Carl B. Epps, II, of Nelson, Mullins, Riley & Scarborough, LLP,

both of Columbia, for appellants.

W. Hogan Brown and Kenneth A. Davis, of Columbia, for

respondent Setzler.

Attorney General Charles Molony Condon, Deputy Attorney

General J. Emory Smith, Jr., both of Columbia; Ashley B.

Abel, of Jackson, Lewis, Schnitzler & Krupman, of Greenville,

for respondents State, Beasley, and Gettys.

Stephen L. Elliott, Executive Director of Research, of the

House of Representatives, of Columbia, for respondent

Wilkins.

George C. Leventis, of Columbia, for Respondent Nielsen.

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Barbara E. Brunson and Nancy McCormick, both of Columbia,

for the Intervenors South Carolina Protection & Advocacy

System for the Handicapped, Inc., Suber and Cook.

FINNEY, C.J.: T his is a declaratory judgment action brought by

appellants challenging the State's funding of public primary and secondary

education. Appellants are forty less wealthy school districts, their public

school students, and their taxpayers; respondents (the State) are the State of

South Carolina and individuals sued as representatives of governmental

bodies. The circuit court granted the State's Rule 12 (b) (6), SCRCP, motion

and dismissed appellants' complaint for failure to state a cause of action.

The complaint alleged violations of the South Carolina Constitution's

education clause (art. XI, § 3), the state and federal equal protection clauses,

and a violation of the Education Finance Act (EFA), South Carolina Code

Ann. §§ 59-20-10 to -80 (1990 & Supp. 1998). We reverse the education

clause ruling, and affirm as to the remaining issues.

In South Carolina, public education is funded by the federal,

state, and local governments. State funding of education is done primarily

through mechanisms established by two acts: the EFA and the Education

Improvement Act (EIA), S.C. Code Ann.§§ 59-21-420 to -450 (1990 & Supp.

1998). The EFA distributes funds using a wealth-sensitive formula, which

results in appellants receiving proportionately more state money than

wealthier districts. Unlike the EFA, the EIA distributes funds without

regard to the school district's tax base. This Court has previously denied

constitutional challenges to these statutory distribution methods, including

an equal protection challenge, to the EFA's funding scheme. Richland

County v. Campbell, 294 S.C. 346, 364 S.E.2d 470 (1988) (Campbell).

Appellants raise a number of challenges to the State's current

education funding system. Essentially, they allege that the system is

underfunded, resulting in a violation of the state Constitution's education

clause, art. XI,§ 3; that to the extent funds are distributed without regard to

district wealth under the EIA, the system violates the state and federal

constitutional guarantees of equal protection; and that the EFA created a

private cause of action. Unlike similar suits brought in other states,

appellants do not seek "equal" state funding, since they already receive more

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than wealthier districts, but instead allege that the funding results in an

inadequate education. On appeal, appellants allege the circuit court erred in

granting the State's 12 (b) (6) motion, and also allege procedural error.

We address the procedural issue first. While the order purports

to decide a Rule 12 (b) (6) motion, it is clear that the judge in fact granted

respondents summary judgment, making numerous factual determinations,

and finding appellants failed to present "clear and convincing" evidence to

support their claims. In this appeal, we decide the Rule 12 (b) (6) issue:

Does appellants' complaint state a cause of action?

We next address appellants' equal protection causes of action.

Campbell is dispositive of appellants' claim that the EFA and/or the EIA are

violative on their face of either the state or federal equal protection clause.

Further, appellants' federal equal protection claim, predicated on inadequate

funding, is foreclosed by the United State Supreme Court's decision in San

Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).

Finally, appellants' state-based equal protection claim that the EIA has a

disparate impact on appellants since its funds are distributed without regard

to the individual district's financial needs also fails. A neutral law having a

disparate impact violates equal protection only if it is drawn with

discriminatory intent. State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994).

There is no claim of discriminatory intent here. We affirm the circuit court's

dismissal of appellants' equal protection claims.

We also affirm the dismissal of appellants' EFA claim because we

agree with the circuit court that the EFA does not create a private cause of

action. Appellants' EFA claim rests on the language of § 59-20-30, titled

"Declaration of legislative purpose":

It is the purpose of the General Assembly in this chapter:

To guarantee to each student in the public schools of South Carolina

the availability of at least minimum educational programs and services

appropriate to his needs, and which are substantially equal to those

available to those students with similar needs and reasonably

comparable from a program standpoint to those students of all other

classifications, notwithstanding geographic differences and varying

local economic factors.

p.5

Since the EFA does not specifically create a private cause of action, one can

be implied only if the legislation was enacted for the special benefit of a

private party. Citizens for Lee County v. Lee County, 308 S.C. 23, 416

S.E.2d 641 (1992). In determining whether a statute creates a special duty

owed to individuals rather then to the public at large and is therefore

enforceable by a private cause of action, this Court has outlined a six part

test:

(1) an essential purpose of the statute is to protect against a particular

kind of harm;

(2) the statute, either directly or indirectly, imposes on a specific

public officer a duty to guard against or not cause harm;

(3) the class of persons the statute intends to protect is identifiable

before the fact;

(4) the plaintiff is within the protected class;

(5) the public officer knows or has reason to know the likelihood of

harm to member of the class if he fails to do his duty; and

(6) the officer is given sufficient authority to act in the circumstances

or he undertakes to act in the exercise of his office.

Jensen v. Anderson County DSS, 304 S.C. 195, 403 S.E.2d 615 (1991).

The purpose of providing a public education is to benefit not just

the individual receiving it, but also the public at large. Since the EFA was

not created for the special benefit of a private party, no private cause of

action is implied. Citizens of Lee County, supra. Further, there is no single

"public officer" or group of "public officers" charged with carrying out the

'duty' allegedly established by§ 59-20-30. Jensen, supra. We affirm the

dismissal of this cause of action.

The novel issue in this case involves the education clause of the

state constitution. S.C. Const. art. XI,§ 3 is entitled "System of free public

schools and other public institutions" and provides:

The General Assembly shall provide for the maintenance and support

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of a system of free public schools open to all children in the

state and shall establish, organize and support such other public

institutions of learning as may be desirable.

At the heart of this controversy is the question of the duty imposed upon the

General Assembly by this constitutional provision. The trial court held this

section imposes no qualitative standards, and that absent an allegation that

there was no system of free public schools open to all children in the state, no

claim was stated under the education clause. The trial court also found the

complaint's "bald legal conclusion" that the education furnished is

inadequate did not state a clear and convincing constitutional claim, and

concluded that judicial restraint, separation of powers, and/or the political

question doctrine prevented it from considering this education clause claim.

Appellants challenge all these rulings.

It is the duty of this Court to interpret and declare the meaning

of the Constitution. State ex rel. Rawlinson v. Anson, 76 S.C. 395, 57 S.E.

185 (1907). Accordingly, the circuit court erred in using judicial restraint,

separation of powers, and the political question doctrine as the bases for

declining to decide the meaning of the education clause.

In determining the meaning of the education clause's language,

"The General Assembly shall provide for the maintenance and support of a

system of free public education. . . .," the Court must be guided not only by

the "ordinary and popular meaning of the words used,"1 but also by S.C.

Const. art. I § 23: "The provisions of the Constitution shall be taken,

deemed, and construed to be mandatory and prohibitory, and not merely

directory, except where expressly made directory or promissory by its own

terms." Since the education clause uses the term "shall", it is mandatory.

See also Washington v. Salisbury, 279 S.C. 306, 306 S.E.2d 600 (1983) ("The

plain language of [the educational clause] places the responsibility for free

public education with the General Assembly. . . .

The circuit court held the phrase "maintenance and support of a

system of free public schools" means simply that there be such a system, and

p.7

that the clause contains no qualitative component. The court held the clause

does not require the schools be adequate or equal. The State does not defend

the circuit court's conclusion that our Constitution's education clause does

not impose a qualitative standard, but rather argues that the appellants

have not properly defined it. According to the State, since the complaint

does not contain the correct definition, it does not state a proper claim, and

therefore we should affirm the circuit court, without interpreting the clause.

We will not accept this invitation to circumvent our duty to interpret and

declare the meaning of this clause. State ex rel. Rawlinson v. Anson, supra.

We hold today that the South Carolina Constitution's education

clause requires the General Assembly to provide the opportunity for each

child to receive a minimally adequate education. Compare Opinion of the

Justices, 624 So.2d 107 (Ala. 1993) (holding qualitative standard created by

clause "The Legislature shall establish, organize, and maintain a liberal

system of public schools throughout the state for the benefit of the children

thereof ); R.E.F.I.T. v. Cuomo, 655 N.E.2d 647 (N.Y. 1995) ("The

legislature shall provide for the maintenance and support of a system of free

common schools" requires that each student receive a sound basic education);

Fair School Fin. Council of Oklahoma v. State, 746 P.2d 1135 (Ok. 1987)

(constitutional provisions requiring the "establishment and maintenance of a

system of free public schools" means a basic adequate education): Tennessee

Small Schools Sys. v. McWherter, 851 S.W.2d 139 (1993) (holding

constitutional clause "The General Assembly shall provide for the

maintenance, support and eligibility standards of a system of free public

schools" embraces a qualitative component); see also Gould v. Orr, 506 N.W.

2d 349 (Neb. 1993) (no violation of clause "The legislature shall provide for

the free instruction on the common schools of this state" alleged where no

claim of "inadequate schooling"). Further, the General Assembly itself has

acknowledged the need to "To guarantee to each student in the public

schools of South Carolina the availability of at least minimum educational

programs and services. . . .". 2

We define this minimally adequate education required by our

Constitution to include providing students adequate and safe facilities in

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which they have the opportunity to acquire:

1) the ability to read, write, and speak the English

language, and knowledge of mathematics and physical science;

2) a fundamental knowledge of economic, social, and

political systems, and of history and governmental processes; and

3) academic and vocational skills.

See generally, Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989);

McDuffy v. Sec. of the Exec. Office of Educ., 615 N.E.2d 516 (Mass. 1993);

Leandro v. State, 488 S.E.2d 249 (N.C. 1997); and Randolph County Bd. of

Educ. v. Adams, 467 S.E.2d 150 (W.Va. 1995). We recognize that we are not

experts in education, and we do not intend to dictate the programs utilized in

our public schools. Instead, we have defined, within deliberately broad

parameters, the outlines of the constitution's requirement of minimally

adequate education.

Finally, we emphasize 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. We do not intend by

this opinion to suggest to any party that we will usurp the authority of that

branch to determine the way in which educational opportunities are

delivered to the children of our State. We do not intend the courts of this

State to become super-legislatures or super-school boards.

For the reasons given above, the order under appeal is affirmed

in part and reversed in part. We find the complaint does state a claim of

inadequate educational opportunity, and therefore remand this matter for

further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

TOAL, WALLER, and BURNETT, JJ., concur. MOORE, A.J.,

dissenting in separate opinion.

p.9

MOORE, A.J.: Because the majority's analysis of our Education Clause far

exceeds the constraints of judicial construction, I am compelled to dissent.

As the majority notes, at the heart of the Education Clause issue is the

question of what duty the constitution imposes on the legislature by mandating it

"provide for the maintenance and support of a system of free public schools open

to all children." The majority concludes this clause "requires the General

Assembly to provide the opportunity for each child to receive a minimally

adequate education" and proceeds to define what such a minimally adequate

education is.

The goal of ensuring all South Carolina's children an adequate education is

unquestionably a laudable one. Under our system of government, however, it is

not one entrusted to the judicial branch. Our constitution leaves to the General

Assembly, the representatives of the people of this State, the entire responsibility

and discretion for determining the quality of public education.

We have previously observed that our constitution "places very few

restrictions on the power of the General Assembly in the general field of public

education .... the details are left to its discretion." Richland County v. Campbell,

294 S.C. 346, 349, 364 S.E.2d 470 (1988) (quoting Mosely v. Welch, 209 S.C. 19, 39

S.E.2d 133 (1940)). Moreover, in interpreting our constitution, we are bound by

certain fundamental principles of constitutional law.

Under our form of government, the legislative power of the General

Assembly is subject only to those restrictions contained in the constitutions of

this State and the United States. Deese v. Williams, 236 S.C. 292, 113 S.E.2d 823

(1960). Absent constitutional restrictions, the General Assembly's power is

otherwise plenary. Knight v. Salisbury , 262 S.C. 565, 206 S.E.2d 875 (1974).

Accordingly, our constitution is to be examined, not to ascertain whether a power

has been conferred, but to determine whether it has been taken away. Floyd v.

Parker Water & Sewer Sub-District, 203 S.C. 276, 17 S.E.2d 223 (1941). Further, a

constitutional provision must not be construed to impose limitations on legislative

power that are not clearly within the meaning of the provision. State v. Broad

River Power Co., 177 S.C. 240, 181 S.E. 41 (1935); Scroggie v. Scarborough, 162

S.C. 218,160 S.E. 596 (1931).

Our Education Clause requires only that the General Assembly "provide for

the support and maintenance of a system of free public schools." It contains no

directive regarding the quality or adequacy of the education that must be

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provided. Since neither this clause nor any other provision restricts the

legislature's power to control the quality of public education, we may not impose

judicial limits on that power by adding education requirements not found in the

constitution. It is for the General Assembly, and not this Court, to determine

whether statewide standards of adequacy in education should be set and what, if

any, those standards should be.

Although there is no consensus to be found in Education Clause cases,

others courts have declined to set adequacy standards in deference to their

respective legislatures.1d I concur completely with the conclusion of the Florida

Supreme Court finding no appropriate standard for determining adequacy that

does not present a substantial risk of judicial intrusion into the powers and

responsibilities assigned to the legislature. Coalition for Adequacy and Fairness

in School Funding, Inc. v. Chiles, 680 So.2d 400 (Fla. 1996). To read any standard

of adequacy into the Education Clause infringes on the legislature's discretion

and results in excessive judicial involvement in enforcing judicial standards of

adequacy. See City of Pawtucket v. Sundlun, 662 A.2d 40, 59 (R.I. 1995)

(eschewing the New Jersey Supreme Court's twenty years of judicial oversight

under its Education Clause as "a chilling example of the thickets that can entrap

a court that takes on the duties of a Legislature.").

Our legislature has in fact taken action to ensure an adequate education to

all children by enacting such measures as the Education Finance Act, the

Education Improvement Act, and, most recently, the Education Accountability

Act. The Education Finance Act specifically purports to "guarantee to each

student in the public schools of South Carolina the availability of at least

minimum educational programs and services...." While I agree with the

majority's holding that appellants have no private cause of action under the

Education Finance Act, I find it disconcerting that the majority concludes, on the

other hand, that appellants can maintain such an action under the Education

166, 672 N.E.2d 1178 (1996) (courts may not legislate in the field of public

education); City of Pawtucket v. Sundlun, 662 A.2d 40 (R.I. 1995) (in light of

legislature's plenary powers in educational matters, legislature is endowed with

virtually unreviewable discretion); Edgewood Indep. School Dist. v. Meno, 917

S.W.2d 717 (Tex. 1995) (legislature's discretion tethered only by limits the people

have dictated in the constitution); Scott v. Virginia, 247 Va. 379, 443 S.E.2d 138

(1994) (General Assembly has the ultimate authority for determining and

prescribing the standards of quality for public schools).

p.11

Clause which contains no reference to minimum standards. The incongruous

result is that legislative education standards are not subject to judicial

enforcement but standards emanating from judicial embellishment on our

constitution are.

In conclusion, I dissent from that part of the majority opinion regarding the

Education Clause and would affirm the trial judge's ruling that the Education

Clause imposes no qualitative standards.

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