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
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
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
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
George C. Leventis, of Columbia, for Respondent Nielsen.
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
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.
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
(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
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
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
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
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
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
TOAL, WALLER, and BURNETT, JJ., concur. MOORE, A.J.,
dissenting in separate opinion.
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
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
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).
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
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.