The colossal dispute over the proper financing of North Carolina’s public schools that has played out over 28 years is heading to a showdown before the state Supreme Court. Yes, again.
Sometime after April 18, the high court will decide whether the General Assembly is fulfilling its duty to ensure that the state’s public school students – and especially those in counties where poverty is endemic – have a fair chance to get an education good enough to meet the state constitution’s guarantees.
The legislature’s position? First, its leaders would say, we’re doing enough, even if in monetary terms it’s only a little more than half of what a judge acting under Supreme Court auspices said should be spent. Second, no court is going to decide how to divvy up state money. Period.
The root of this clash lies in the Supreme Court’s 1997 finding in the Leandro lawsuit, brought in 1994 by five relatively poor counties and residents of those counties. The unanimous court declared that under the North Carolina constitution, children attending the state’s public schools are entitled to an equal chance to obtain a “sound basic” education putting them on a path to becoming productive and informed citizens.
The Supreme Court followed up in 2004, accepting evidence that schools were failing to meet that standard with respect to kids facing extra challenges because of economic hardship in their families and communities.
Under the supervision of David Lee, a retired Superior Court judge from Union County assigned to the case in 2016, a plan to remedy the identified shortcomings  was drawn up and agreed to by parties on both sides of the lawsuit.
The plan called for a series of improvements and reforms in areas including school management, teacher pay and recruitment, early childhood education and financial support. The price tag was projected at some $8 billion over eight years – substantial but not overwhelming compared with existing public education outlays. Last June, Lee directed that the plan go forward.
Then it fell to the legislature, as it prepared a new two-year budget, to come up with the necessary funds, including $1.7 billion for the period through June 2023. It’s notable that legislators were not among the Leandro parties and hadn’t agreed to the remedial plan. And here’s how Lee in November characterized their response: “The failure of the State to provide the funding necessary to effectuate North Carolina’s constitutional right to a sound basic education is consistent with the antagonism demonstrated by legislative leaders toward these proceedings, the constitutional rights of North Carolina children, and this Court’s authority.”
Out of patience
It’s fair to say the judge was exasperated. His Nov. 10 order  (see page 85 and following) explained how and why he had given the legislature every chance finally to make genuine progress toward the goal of constitutionally adequate public schools. But since in his view that hadn’t occurred, with the budget still not enacted at that point, he declared he would exert his own authority to compel needed spending.
Lee ordered $1.7 billion to be transferred from the state’s General Fund. Most was destined for the Department of Public Instruction. But a state official aligned with the legislature on Nov. 24 asked the Court of Appeals to block the transfers, and on Nov. 30 two members of a three-judge panel did just that.
Two Republican judges said that while the spending might be needed, Lee didn’t have the power to order it. A Democratic judge, objecting that the decision was being rushed, called for a fuller review.
That’s when the Supreme Court again got involved. The same parties in favor of the $1.7 billion expenditure that had been endorsed by Lee asked the high court to determine whether his order remained valid, and on March 18 the court agreed to do so.
The legislature’s Republican leaders, meanwhile, argued that the state budget, which by then had become law, included enough education spending to get them off the hook. And they rejected the notion that Lee could mandate the transfer of more money.
In its order agreeing to hear the case , the Supreme Court directed that the situation first be evaluated in Wake County Superior Court, where Lee had been operating. The two-year state budget was to be analyzed to see how much of the $1.7 billion in remedial spending it contained. Then Lee’s order was to be modified if needed. The deadline for reporting back to the Supreme Court was in 30 days – April 18.
But then the plot took another twist. Chief Justice Paul Newby, a Republican, apparently decided that Lee, a Democrat, had worn out his welcome. It was Newby’s call to make. He named Special Superior Court Judge Michael Robinson, a Republican from Winston-Salem, to take over the case’s supervision.
Coming up short
When Kristin Walker, the state’s chief deputy budget director, crunched the budget numbers and compared them to what the remedial plan called for, the gaps became clear.
Her affidavit filed with the Wake court on April 4 said that the 2021-22 budget (July to June) covered 63% of the spending envisioned by the plan. In the 2022-23 budget the level dipped to 49%. The approved spending totaled $958 million, or 55% of the plan’s total for the period. Two examples of the shortfalls Walker identified:
- The plan calls for $20 million in the first budget year and $30 million in the second year toward the goal of providing one teacher assistant for every 27 students in Kindergarten through third grade. That money wasn’t in either budget.
- The plan calls for $232 million in the first budget year and $354 million in the second to raise teacher salaries. The budgets appropriated some $33 million in the first year and $71 million in the second.
A flurry of briefs was filed with Robinson on April 8. Along with Walker’s affidavit, they can be viewed at https://ncbc.nccourts.org/public/ , searching for case number 95CVS1158. More briefs are due on April 11. Then Robinson will conduct a hearing on April 13.
The judge, while tasked with assessing the state budget’s impact on education funding, also confronts the constitutional argument offered by Republican legislators.
They point to the constitution’s directive that “No money shall be drawn from the State treasury but in consequence of appropriations made by law.” In other words, as they would put it, the money has to be allocated via the state budget, which is a product of the legislature.
Judge Lee, however, had echoed the Supreme Court’s original Leandro ruling that discerned a constitutional requirement not only to finance a “general and uniform system of free public schools,” but also to ensure that those schools truly serve their purpose of helping young people get started on successful lives.
He described what could be called an embedded state commitment to paying for schools and related programs. If those efforts weren’t providing, at a minimum, the “sound basic education” specified in Leandro, then a constitutional violation was occurring, and courts rightfully could require further spending to remedy it – overriding the legislature.
These are the issues the Supreme Court will sort out after April 18, when Judge Robinson must report back. At stake are the relative powers of our courts to affect how state funds are used.
Also at stake is North Carolina’s willingness to invest adequately in the education of its youth, as promised at least implicitly in its constitution, and thus to invest in our economic, civic and cultural health down the years. The N.C. Council of Churches believes there can hardly be a greater imperative facing our elected leaders than to maximize the opportunities of those who will come after us – even those who otherwise might fall toward society’s margins.
Steve Ford, former editorial page editor at Raleigh’s News & Observer, wrote this commentary for the North Carolina Council of Churches , which was first to publish it.