Who decides on ‘sound basic’ spending? Stay tuned

By: - August 16, 2022 7:11 am
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Like it or not – and there are plenty of reasons to worry amid the familiar end-of-summer bursts of excitement – another school year will soon get under way. The pressures on our public schools are immense as kids’ setbacks during the pandemic come into focus, as teacher vacancies spike, and as the schools become battlegrounds in politically driven culture wars.

Against that backdrop, a momentous dispute over the state’s support for its public schools – how much money is spent, where it’s spent, and who decides – could be seen as the last thing we need.

Or, if our state Supreme Court follows through on a long-standing mission, it might be exactly what we need.

When the seven justices convene on the morning of Aug. 31, they will have before them a case still setting off shock waves after almost three decades.

In 2004, the justices ruled that North Carolina wasn’t meeting its responsibility under the state constitution to ensure that all public school students could get a “sound basic” education – one giving them a fair chance at becoming productive citizens. That the constitution embodies the right to such an education had been declared by a unanimous Supreme Court back in 1997.

Money or the lack thereof certainly isn’t the only determinant of academic quality. Still, mediocre schools were found especially in poorer counties that couldn’t afford to boost the state’s modest appropriations and where needs were exceptional. It was in a group of those counties that the so-called Leandro lawsuit seeking school improvements had originated in 1994.

What occurred post-2004 is a tangled tale. Officials and leaders in both the legislative and executive branches dragged their feet despite years of prodding from judges assigned to make sure the schools were brought up to snuff.

At long last, an eight-year, $8 billion “comprehensive remedial plan” was developed. It was agreed to by plaintiffs in the case and in June 2021 endorsed by the supervising judge, who directed that it be carried out. But majority-Republican legislators refused to honor the plan’s terms. That put the General Assembly and the courts on a collision course.

Order from the court

Finally last fall came the crash. Superior Court Judge David Lee, assigned to oversee the case, invoked the courts’ duty to abide by the constitution and its guarantee of access to a sound basic education. He directed the state to put up the money needed to carry out the remedial plan’s initial phases – some $1.7 billion. That sent legislative chiefs into a hissy fit of resistance, claiming it was their prerogative to decide how state funds should be spent.

The plan hinges on such common-sense steps as making sure every classroom has a well-qualified teacher and every school a well-qualified principal. Pre-kindergarten programs would be expanded, low-wealth school districts would get extra help and systems to track school performance would be strengthened.

Goals of that sort have long proved elusive, even when North Carolina under education-oriented governors was making progress in teacher pay and professional development. They’ve become even more of a mirage during recent years of conservative legislative leadership in which the state’s public schools have seen their national standing on various metrics stagnate or worse.

Now there’s a crisis afoot, with schools facing the new academic year struggling to fill faculty slots and with the teacher training and recruitment pipeline drying up as low pay and lack of respect take their toll. In some communities, teachers seem to have become favorite scapegoats for those who resent societal changes and perceived challenges to traditional worldviews.

The Supreme Court can’t be expected to address those kinds of issues, not directly at least. But it can go far towards affirming the fundamental premise that our government rests on constitutional requirements and guarantees – and that it is the judiciary which has the final say on constitutional compliance.

Late last year, after legislators finally enacted a new state budget, the Leandro controversy became focused on how much of the spending called for under the remedial plan during the budget period ending next June would be covered.

A court-ordered analysis put the figure at 55 percent. That meant a shortfall of some $742 million. Judge Lee, noting that state coffers were flush with surplus cash, exercised what he declared was the court’s authority to require the money to be made available. But his directive was sidetracked after appellate judges sided with legislators who argued that Lee was out of line. That’s when the whole mess spilled back into the lap of the Supreme Court.

Policies and power

It would be unfair to suggest that Senate President Pro Tem Phil Berger, House Speaker Tim Moore, and their Republican colleagues don’t want the state’s young people to be well-educated. Of course they do.

But Republican views on how to achieve that goal carry an unmistakable hostility, colored by partisan politics, toward the public schools and the educators who try amid difficult circumstances to make them work. For instance, private schools are boosted with taxpayer-financed vouchers while public schools endure what amounts to penny-pinching (spending totals may increase but not enough to keep up with population growth or with investments by other states).

So legislators may resist forced compliance with the Leandro plan because of policy disagreements. Notably, they want to continue with aggressive tax cuts that would be harder to achieve while school outlays were making a significant jump.

Yet the Supreme Court already has made it plain that it sees school improvements not only as a series of policy choices but beyond that as a necessity in order to uphold students’ right to the quality of education to which they’re entitled. In our system of government, a judicial decree on that level is supposed to be the last word.

To the leaders of our General Assembly, that’s a bitter pill undercutting their power to have the final say over state expenditures. They will argue on Aug. 31 that the constitution requires all state spending to be accomplished via legislative appropriation, leaving no option for a court to direct that money must be moved around.

Yet the plaintiffs in the case (now known as Hoke County Board of Education vs. State, No. 425A21-2) say that if the constitution must be read as guaranteeing the right to a sound basic education, it also must be understood as making the appropriations needed to secure that right.

Funding by right

In a brief filed with the Supreme Court on Aug. 1, Raleigh attorney Melanie Dubis, lead counsel for the plaintiffs, laid out that argument. She noted the constitution’s explicit guarantee of “the right to the privilege of education” and its mandate for a tax-supported system of free public schools “wherein equal opportunities shall be provided for all students.”

Those provisions carry with them the obligation to provide sufficient funding, Dubis wrote. “Otherwise, the legislature could appropriate a mere $100” for the required public school system “and the people of North Carolina would have no judicial recourse.”

Hoping that obstructionist legislators could be thrown out in the next election wouldn’t help students abandoned in the meantime. Their right not only to an education but also to one meeting the “sound basic” standard of quality would be meaningless.

After the Aug. 31 courtroom showdown, the Supreme Court will have to decide whether the views crystallized by Dubis and her clients will prevail over those advanced by attorneys for Sen. Berger, Speaker Moore and their Republican colleagues.

Their task will be shadowed by the upcoming elections, in which two seats on the court now held by Democrats are being contested. If Republicans continue their recent success in races for the state’s appellate judgeships, they could put an end to the court’s current 4-3 Democratic majority.

It scarcely would be a surprise if Republican justices sided with the legislature’s position on school funding, past rulings notwithstanding. By the same token, the court’s Democrats have shown their willingness to interpret the constitution more broadly. That could put them more in line with the approach taken by their predecessors during the long sweep of the Leandro litigation.

The N.C. Council of Churches, reflecting its support for social justice and equal opportunity, is among those hoping to see the state finally act decisively to give all its young people access to a public school education that puts them on track to a fulfilling life.

That action calls for expertise, good judgment, and, yes, money. The legislature’s defense of its powers remains the chief obstacle. It’s now up to the Supreme Court to make it abundantly clear that our schools, their students, and their communities deserve better.

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.

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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