Judge’s action likely to set up a constitutional showdown between three government branches
By Gary D. Robertson
Associated Press
RALEIGH, N.C. (AP) — A North Carolina trial judge on Wednesday ordered the state to pay out $1.75 billion to help narrow the state’s public education inequities, angering Republicans who said the directive usurps lawmakers’ constitutional authority over state coffers.
Superior Court Judge David Lee, who is charged with overseeing corrective responses related to school funding litigation that began over a quarter-century ago, said the legislative and executive branches have been afforded every courtesy over the years to act decisively. But, he said, “this court’s deference is at an end at this point.”
The judge’s action likely will set up a constitutional showdown between the three government branches.
Lee said his order wouldn’t take effect for 30 days, giving GOP leaders at the legislature or others time for a legal challenge, which is likely. Republicans say only the General Assembly can appropriate funds in state accounts and that Lee violates the state constitution if he acts contrary to that.
The state Supreme Court ruled in 2004 in the Leandro lawsuit — named after an early student plaintiff — that while North Carolina’s children have a fundamental right to the “opportunity to receive a sound basic education” under the constitution, the state had not lived up to that mandate.
“The repeated failure by the state is a constitutional violation that has to be remedied,” Lee said during a court hearing, saying he’s hopeful the order will “minimize the encroachment on legislative authority through the least intrusive remedy that I can come up with.”
Lee’s order, which largely backs the wishes of local school boards and guardians of current students who remain plaintiffs, tells state finance officials to send enough funds to two education agencies and the health department to cover two years of a remedial spending plan that targets at-risk children.
The plan, which is based on an outside consultant’s report and input from Democratic Gov. Roy Cooper and the State Board of Education, calls for at least $5.6 billion in new education funding by 2028. That plan includes funding to improve teacher recruitment and salaries, hire more school support personnel, expand pre-kindergarten and boost funding to educate children in low-wealth counties and students with disabilities.
An appeal of Lee’s order would mean near-term education funding will depend on a two-year state budget bill that Cooper and Republicans could resolve as soon as next week. Cooper inserted the remedial package in his spending proposal months ago, but House and Senate budget bills fell well short of that total.
House Speaker Tim Moore and Senate leader Phil Berger said after the hearing that a judge “does not have the legal or constitutional authority to order a withdrawal from the state’s general fund.”
“This case has devolved into an attempt by politically allied lawyers and the governor to enact the governor’s preferred budget plan via court order, cutting out the legislature from its proper and constitutional role,” the Republicans said in a joint statement.
But Cooper said in a written statement that “legislators can’t simply erase this right because they don’t like it. We have an effective, court-approved roadmap for making education better in North Carolina and it’s time to get it done.”
Lawyers for the plaintiffs and their allies have said the state has shirked its responsibilities to too many children in the generation following the 2004 ruling, and there’s no excuse to act now when more than $8 billion in unused funds are in state accounts. They said Supreme Court decisions, combined with language in the North Carolina Constitution approved by voters, give Lee authority to order funds be spent without a specific law passed by the General Assembly.
Lee cited a part of the state constitution that says “the people have a right to the privilege of education, and it is the duty of the state to guard and maintain that right.”
Every Child NC, composed of advocacy groups, praised Lee’s order, adding that minority students, rural students and those learning English were among those hurt the most by school system failures: “Today is an unambiguous victory for North Carolina’s 1.5 million students, their families and the communities across the state that all benefit from strong, inclusive public schools and early education.”
The legislature’s response to the 2004 ruling received sporadic attention for more than a decade from lawmakers and a previous judge. Lee then took over, and a consultant’s report released in 2019 declared the state was further away from meeting its obligations than when the first Supreme Court ruling in Leandro was released in 1997.
School funding litigation in several other states has surfaced in recent years. In Washington, the Supreme Court found the legislature in contempt and issued fines against it for failing to carry out funding reforms. And a Kansas court threatened to close schools unless legislators addressed funding equity.
