As judicial-legislative collision looms, path forward in providing NC students with a constitutional education is clear

By: - September 13, 2021 12:00 pm

A momentous clash between North Carolina’s General Assembly and the state’s judicial system looks to be coming to a head. At stake is the ability of the state’s public schools to meet the needs of all students – specifically, those students who live in communities where the proper financing of schools can be an overwhelming challenge. Young people’s futures are very much on the line, as the state Supreme Court first acknowledged in a landmark ruling 24 years ago.

That ruling’s long-lasting aftershocks now have put two of state government’s three branches on a collision course.

If the courts prevail, they will affirm their power to say when legislative action or inaction conforms to the state constitution and when it doesn’t, as well as their authority to require remedial steps.

If the legislature wins the unfolding battle, it will have shown that its decisions about raising and spending state funds cannot be overridden by judges who believe the constitution is being violated. In other words, at least in the critically important arena of public education, it would be tough luck for what we like to think of as the rule of law.

The Supreme Court in 1997, confronting the ugly truth about under-financed schools in several struggling counties, declared that under the constitution, every student must have an equal opportunity to get a “sound basic education.”

That ruling in the lawsuit known as Leandro came with a set of quality standards that school systems would have to meet. Both the legislature and the executive branch under the governor were told they needed to step up their game on the schools’ behalf. School systems in poor counties couldn’t fix the problems by themselves, the court agreed.

Fast forward, then, all the way to Wednesday, Sept. 8, 2021. David Lee, a state Superior Court judge from Union County under assignment by the Supreme Court, did some “‘splaining” to legislative chiefs.

After all this time, an exasperated Lee made clear during a hearing in his courtroom, the General Assembly still has failed to honor its obligations in the Leandro case. Those obligations were most recently set forth in an action plan Lee approved in June. The plan calls for a healthy increase in public school funding – at least $5.6 billion over the next seven years.

Fair warning

If the legislature, which now is in the throes of trying to work out a new state budget, doesn’t get that funding on track by the next scheduled hearing on Oct. 18, Lee said, he’ll have to consider how to secure compliance with the plan.

“I don’t want to hold anybody in contempt,” The News & Observer of Raleigh quoted him as saying. “I far prefer to go another route. But it wouldn’t be a stretch, even at this point, for the court to find beyond a reasonable doubt a continuing and willful and conscious refusal and neglect to follow the Constitution of this state.”

He might as well have added, “Don’t make me come down there!”

Lee in fact has been a paragon of patience, even if that patience is wearing thin. He’s now been on the job as the Leandro case overseer for nearly five years. The legislature, in its school funding decisions, hasn’t entirely ignored the plight of those systems lacking sufficient resources of their own to attain that “sound basic education” standard. But since the bulk of school funding comes from the state, it’s the state’s funding level that tells the tale. And that level still leaves much to be desired.

The price tag to come up to the Leandro benchmark was derived via a comprehensive study by the WestEd consulting firm, chosen by the court to gauge the challenge. Its proposed action plan was agreed to by the Leandro plaintiffs, the office of Gov. Roy Cooper and the State Board of Education.

The plan reflects hard evidence of the public education system’s shortcomings: lagging performance among at-risk students, teacher pay that trails national averages despite some modest gains, overall per-student expenditures that put North Carolina low in the rankings. Guess which school systems are especially plagued by such deficiencies. Hint: It’s not those in the state’s affluent metro regions such as the Triangle and Charlotte-Mecklenburg. Tens of thousands of children see their prospects diminished as a result.

Short rations

Under the action plan, an additional $691 million in public school spending would have to be provided during the current July-to-June fiscal year, and $1.06 billion the following year. That compares to a total state budget now projected at some $25.7 billion for the first year.

Neither of the proposed budgets now being stitched together by House and Senate negotiators would meet the Leandro plan’s requirements. The Senate would fund some 28% of the recommended amount in 2021-22 and 20% the following year, according to calculations submitted to the court by the Leandro plaintiffs. The House would hit some 54% of what’s needed in the first year, then 30% in 2022-23.

As to why the shortfall, there’s no good answer. It’s no coincidence, though, that ongoing tax cuts remain high on the legislative agenda.

The opportunity gap between affluent and poverty-ridden counties has of course been aggravated by the pandemic. When most classes were conducted online, decent home internet service and computer gear became de facto prerequisites for academic success – meaning that many kids in poor areas lost out. The added stresses on teachers made it harder than ever to keep the teaching ranks adequately filled. Now, teacher shortages tied to onerous working conditions and subpar pay have put smaller, rural school systems even farther up the creek.

Perhaps if Judge Lee were to stop beating around the bush and tell us what he really thinks (yes, he came close), he’d take note of how the Republican-controlled legislature has continued to stockpile state funds even while the need for public services has grown. Case in point: The budget now being finalized looks as though it could yield an annual surplus in the range of $5 billion, and there’s been a healthy pot of cash on hand.

It’s true that the federal government has supplied money to help cope with the pandemic. That eases some pressure on state expenditures. But it shouldn’t take the state off the hook when it comes to using its own resources to confront an ongoing, slow-motion crisis such as public schools that still leave thousands of students in the lurch.

The N.C. Council of Churches supports robust, well-planned investment in public education because it creates a path toward better lives for young people who otherwise would not have a fair chance to see their innate abilities and talents bear fruit. And the success of each younger generation is indispensable for a society that would prosper and put aside the conflicts born of deprivation and grievance.

One could say, then, that good schools are indispensable if a democracy respecting the rights of all to be treated fairly is to survive. Let there be no doubt that the template for academic quality now being pushed along by Judge Lee – quality that would benefit each and every public school student across our state – is nothing short of essential, for all of us.

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Steve Ford
Steve Ford

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 at