RALEIGH (September 8, 2022) – Lawyers butted heads before the NC Supreme Court last week over whether the court can order $785 million in spending to meet the state’s constitutional promise to North Carolina students.1
After 28 years of lawyers arguing, it’s long past time for the state to pony up.
Beyond the dollars, the Leandro case is a civics lesson about whether the judicial branch of state government can force the NC General Assembly to live up to the state constitution’s guarantee to every child of an opportunity for a sound basic education.
Melanie Dubis, an attorney for the counties that first sued the state over insufficient funds in 1994, told the Supreme Court the state’s legislative and executive branches haven’t lived up to their plain responsibility.
“These branches failed the children. Now the future of the children of North Carolina is in this Court’s hands,” Dubis said.
At issue is Superior Court Judge David Lee’s ruling in the case last November for state officials to transfer $785 million to fulfill the state’s obligation to its students. The State Board of Education and Department of Public Instruction – defendants in the case – agreed to the plan Lee adopted, known as the Comprehensive Remedial Plan.
But Chief Justice Paul Newby replaced Lee with another judge – who agreed the money is due to public schools, but stopped short of ordering officials to transfer the funds.
“When the state of North Carolina violates the fundamental, affirmative constitutional right to the privilege of education for 20 years, can this court do anything about it?” Dubis asked. “… The answer is, and must be, yes.”
There’s no question about the need.
Dubis noted how public schools opened last week with more than 11,000 vacant teaching and staff positions.2
She also noted that in 2019, 300,000 third- through eighth-graders across the state could not read at grade level – a number that’s grown to 400,000 with the Covid pandemic.
“There are 400,000 children who are suffering the consequences of the last 20 years,” she said. “These are real children, Your Honor.”
Amar Majmundar, a senior deputy attorney general, acknowledged that the state has failed to meet its obligations for more than two decades. “Plan after plan, budget after budget, we never reached success,” he told the justices.
Education officials who agreed to the Leandro plan want to avoid yet another undereducated generation of students, Majmundar said.
“I hate to think of all the Angelous and the Kuralts that we’ve lost along the way. And those kids aren’t the only ones who’ve lost. We all have lost, Your Honor,” he said.
REPUBLICAN JUSTICES, led by Newby, attacked the case on procedural grounds.
Though the original case was filed in Hoke County, Newby repeatedly challenged lawyers to produce a court order that found a statewide violation warranting a statewide remedy.
Dubis said she could find at least eight. She also cited a brief from former Associate Justice Robert Orr, author of a 2004 Leandro opinion (Leandro II), that said it would be “disingenuous” to argue the case applies only to Hoke County.
Majmundar said former Superior Court Judge Howard Manning Jr., who oversaw the case for 19 years, reviewed statewide test results and found thousands of children across the state who were denied the chance for a sound basic education.
Hoke County was considered a “representative county” that served as a proxy for underserved districts across the state, he said.
Matthew Tilley, an attorney for Senate President Pro Tem Phil Berger and House Speaker Tim Moore, who joined the case only in November, said the state constitution gives only the General Assembly power to appropriate state funds.
“No case from this court has ever occasioned an appropriation by the judiciary,” Tilley said.
No finding of a statewide violation was ever entered into a judgment, he said: “The real problem is that there’s no one document to point to.”
Newby asked whether legislators had input into the plan.
“For 27 years, the legislature could have come up with a plan. They chose not to,” said Majmundar. “They intervened in November only after Judge Lee entered his enforcement order…. They waited ‘til the last moment.”
Dubis said the right to education is unique in North Carolina’s constitution. “As a co-equal branch of the state, the court has a duty to guard and maintain that right,” she said.
(Business leaders from across the state filed a friend-of-the-court brief that made a similar argument, citing the same provision in the state Constitution of 1868.)
“The legislature is not above the law. The legislature cannot carry out its constitutional duties in an unconstitutional way – which is what it has done for the last 20 years and what the (legislative leaders) want to continue doing in perpetuity,” Dubis said.
There’s no shortage of money. The General Assembly entered its short session last spring with a budget surplus of $6.5 billion3 and socked many of those dollars away in reserves.
Yet the legislature has repeatedly demonstrated – under both Democrats and Republicans – that it will not come up with funds to satisfy repeated rulings in Leandro.
A co-equal branch of government has to be able to order a solution, Dubis said.
“If the General Assembly does not live up to its obligation to guard and maintain the right to the privilege of education … what do the other branches have to fall back on?” she said.
Associate Justice Robin Hudson pointed to the 2004 Leandro ruling that when the state fails to live up to its constitutional duties, the court can specify a remedy “instructing recalcitrant state actors to implement it.”
THIS CASE HAS LANGUISHED for 28 years as an entire generation of children passed through North Carolina’s schools. The future of the state’s children is indeed in the court’s hands.
It’s time to pony up.
And it’s past time for leaders of the legislature – who’ve repeatedly ignored court rulings to enforce the Constitution they swear to uphold – to abide by the rule of law.
1 https://www.wral.com/leandro-lawmakers-debate-who-should-determine-funds-for-nc-public-education/20440842/.
2 https://www.wunc.org/education/2022-08-22/nc-has-over-11-000-vacancies-in-public-schools-a-statewide-survey-finds.
3 https://www.ncleg.gov/Sessions/2021/Bills/House/PDF/H103v4.pdf, p. 9.
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