Attorney Melanie Dubis representing the plaintiffs (Photo: Screen grab Supreme Court of NC)
After 28 years of legal wrangling, North Carolina lawmakers continue to fail the state’s children by not adequately funding public schools, lawyers for the plaintiffs in the long-running Leandro school funding case told the state Supreme Court on Wednesday.
The case, which some thought had been settled decades ago, returned to the high court for oral arguments to address Superior Court Judge Michael Robinson’s ruling that the state must spend $785 million to fully fund the first two years of a comprehensive remedial plan designed to improve academic outcomes for children.
Melanie Dubis, a lawyer representing the plaintiffs, argued that the court has the authority to command lawmakers to fund the plan to provide necessary resources for children to receive a constitutionally mandated sound basic education.
“The legislature is not above the law,” Dubis said. “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 intervenors want to continue to do in perpetuity.”
The intervenors to which Dubis referred include Senate President Pro Tem Phil Berger and House Speaker Tim Moore. The two Republicans contend that only the General Assembly can appropriate money from the state treasury.
Matthew Tilley, the attorney for the GOP leaders, argued further that North Carolina’s schools are already adequately funded. He noted that the state’s current budget appropriates more money for K-12 education than any previous budget.
“Twenty-two billion over two years for more than 41% of the state’s biennial budget for K-12 education,” Tilley said.
In November, Superior Court Judge David Lee, whom Robinson replaced in March, ordered the state to transfer $1.75 billion to pay for two years of the school improvement plan designed by education consultant WestEd.
Lee’s order requiring the state treasurer, controller and budget director to transfer the money from state coffers, was blocked by a three-judge state Court of Appeals panel.
Attorney Robert Hunter, representing State Controller Nels Roseland, noted that Gov. William Holden was impeached in the late 1800s for taking money out of the treasury without legislative approval.
Roseland would also face legal sanctions for an unauthorized transfer of state dollars, Hunter said.
“The [Lee’s] order put him in a double bind,” Hunter said. “Does he obey the court order, the statutes or the Constitution?”
The Leandro case began nearly three decades ago when school districts in five low-wealth counties sued the state, claiming that children were not receiving the same level of educational opportunities as students in wealthier counties. School districts in Cumberland, Hoke, Robeson, and Vance counties joined Halifax County in the lawsuit.
In 1997, the state Supreme Court issued a ruling, later reconfirmed in 2004, in which it held that every child has a right to a “sound basic education” that includes competent and well-trained teachers and principals and equitable access to resources.
Dubis cited the current teacher and staff shortages and poor academic performance of hundreds of thousands of children as evidence state lawmakers aren’t providing students with a quality education.
School districts responding to a North Carolina School Superintendents Association survey reported more than 11,000 teacher and staff vacancies this month. Dubis said there were more than 400,000 children who performed poorly on state tests in 2020-21.
Chief Justice Paul Newby pushed back on that assertion. “If you look at 2020-21, you’re looking at folks who went through two years of COVID,” Newby said. “Are you saying that COVID had no impact on the school children of North Carolina?”
Dubis countered that even before the COVID-19 pandemic many children performed poorly.
“In 2019, pre-COVID, the 2018-19 school year, there were over 300,000 third through eighth graders across North Carolina who could not read at grade level,” Dubis said.
Newby asked whether any court-ordered remedy should extend beyond Hoke County, which was designated the representative school district for whether the state provides students a sound basic education.
“We [the Court] even said for the other four counties, that’s got to be decided [whether there are constitutional violations] at trial,” Newby said. “To the best of my reading of this record that has never been done.”
Tilly said the trial court “mistakenly assumed” that the 2004 “Leandro II” ruling established a statewide constitutional violation.
Amar Majmundar, a senior deputy Attorney General at the N.C. Department of Justice, said that the record shows that the court intended for its order to go beyond Hoke County.
“This court looked at Hoke County, said it was a representative county, restricted the evidence to Hoke County and took those declaratory judgments findings declaring the constitutional right and spread them across the state to ensure that we don’t have another generation of undereducated North Carolinians,” Majmundar said. “I hate to think of the [Maya] Angelous and [Charles] Kuralts that we’ve lost along the way.”
At the conclusion of Wednesday’s oral argument, advocates supporting the plaintiff school districts called on the justices to order the disbursement of the necessary funds.
At a news briefing hosted by the advocacy group Every Child NC, attorney David Hinojosa of the Washington, DC-based Lawyers Committee for Civil Rights Under Law derided the position of the legislative defendants as “deny, deny, deny” — “Deny that there was ever a statewide violation of the right to a sound basic education. Deny that they played any role in that statewide violation. And deny that the state courts themselves can do [anything] to stop the legislature from denying [students] the right to a sound basic education for all children.”
Hinojosa noted further that there was less discussion during the argument as to whether the judiciary has the constitutional authority to order the release of funds and that this, ultimately, would be the key determination the court must make.
The North Carolina Justice Center, which has long supported the plaintiffs’ cause and helped organize an amicus brief that was submitted to the court in August, issued a statement calling on the court to answer that question in the affirmative.
“To hold otherwise would render the constitution a nullity, a result never envisioned by its drafters, nor by the citizens of North Carolina,” the statement said. “The legislature has no right to fund an explicit fundamental constitutional right, guaranteed to our children, in an unconstitutional manner.” [Note: Policy Watch is an editorially independent project of the Justice Center.]
Last week, the state’s top Democrats criticized the Republican-led General Assembly for underfunding schools and demonizing the teaching profession.
Pointing to a $6 billion state budget surplus, Democratic House leader Robert Reives said the state has the money to adequately fund schools.
“In fact, we are sitting on billions of dollars in reserves while students are going back to class without teachers and other essential employees that make our schools work,” Reives said.
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