RALEIGH (November 9, 2022) – We now know how long it takes the NC Supreme Court to lose patience with “recalcitrant” state legislators who refuse to fully fund public education in North Carolina.
After 28 years of litigation in the case known as Leandro, under both Democratic and Republican legislatures, the Court ordered state administrators Friday to transfer hundreds of millions of dollars to the state’s public schools, bypassing the process where the General Assembly normally decides how to allocate state funds.
“We do not do so lightly,” Justice Robin Hudson wrote in the majority opinion, which was signed by the Court’s four Democratic justices. “Nevertheless, years of continued judicial deference and legislative non-compliance render it our solemn constitutional duty to do so…
“When other branches indefinitely abdicate this constitutional obligation, the judiciary must fill the void.”1
Previous rulings in the case, starting in 1997, found the state does not provide all North Carolina children “the opportunity for a sound basic education,” as required by the state Constitution.
The issue in this instance was who has authority to spend state funds to make up the shortcomings: The legislature or the courts.
THE CASE IS NOT OVER – and it could be reconsidered, in light of Republicans claiming a 5-2 majority on the Court in Tuesday’s elections.2
The Court reinstated a November 2021 order from Superior Court Judge David Lee directing state administrators to transfer $1.7 billion to the Department of Public Instruction, Department of Health and Human Services and UNC System to pay for years 2-3 of an 8-year plan called the Comprehensive Remedial Plan.
Parties in the case developed and agreed to the plan with California education consultant WestEd.
Shortly after Lee’s order, the legislature and Gov. Roy Cooper approved a budget for 2021-22.
Superior Court Judge Michael Robinson, who succeeded Lee in the case, found in April 2022 that the budget still fell $785 million short of what the plan calls for. But Robinson stopped short of ordering the funds transferred.
In early July, the legislature and Cooper approved a new budget for 2022-23. So in its ruling Friday, the Court returned the case to Robinson to again determine how much of the plan is covered by the new budget.
The Court specifically cited Lee’s order, though, in ruling the funds must move: The State Budget Director, State Treasurer and State Controller must “‘take the necessary actions to transfer the total amount of funds necessary to effectuate years 2 & 3 of the Comprehensive Remedial Plan….’”3
SEPARATION OF POWERS
The majority made it clear that since the Court’s last Leandro decision in 2004, “For (18) years, the executive and legislative branches have repeatedly failed to remedy an established statewide violation of the constitutional right to the opportunity to a sound basic education….
“The court has repeatedly deferred. The State has repeatedly failed. All the while, North Carolina’s schoolchildren, their families, their communities, and the state itself have suffered the incalculable negative consequences. These extraordinary circumstances demand swift and decisive remedy.”4
While the NC Constitution does empower the General Assembly as the only branch of government that can allocate state funds, the justices found, legislators must at the same time comply with provisions in the Constitution that guarantee every child the opportunity to a sound, basic education.5
THE DISSENT, signed by the Court’s three Republican justices, was authored by Justice Philip Berger Jr., son of NC Senate President Pro Tem Phil Berger. It focused largely on procedural issues, including questions of whether any court ever issued an order finding a statewide violation in the case.
And Berger repeatedly attacked the Court for taking an action normally reserved for legislators.
“The blatant usurpation of legislative power by this Court is violative of any notion of republican government and fundamental fairness,” he wrote.
“Under no circumstance … should this Court take the astonishing step of proclaiming that ‘inherent authority’ permits the judiciary to ordain itself as super-legislators. This action is contrary to our system of government, destructive of separation of powers, and the very definition of tyranny as understood by our Founding Fathers.”6
HUDSON, THOUGH, cited repeated instances where judges in the case warned that if the legislative and executive branches didn’t fulfill their constitutional responsibility, the courts would.
She noted that on the day the case was filed in 1994, those challenging the state said its education failures result in enormous losses in both dollars and human potential.
“All the while, the judiciary has continued – patiently but with increasing concern – to defer,” she wrote.
“Today, that deference expires. At this point, to continue to condone delay and evasion would render this Court complicit in the constitutional violation.”7
Amen.
After 28 years of lawyers arguing – and an entire generation of children who’ve passed through our schools – it’s past time for the children of North Carolina to receive what they deserve under the Constitution our state legislators take a solemn oath to uphold.
1 https://www.documentcloud.org/documents/23266854-hoke-county-board-of-education-et-al-v-state-of-north-carolina-et-al-425a21-2, p. 125.
2 https://www.wral.com/tighter-gop-grip-on-north-carolina-legislature-high-court-limits-democrats-options/20565460/; https://www.newsobserver.com/news/politics-government/article268512867.html.
3 Ibid, pp. 110-111.
4 Ibid, p. 118.
5 Ibid, pp. 83-87.
6 Ibid, p. 227.
7 Ibid, p. 136.
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