Could election results spur an immediate reversal of a landmark Supreme Court ruling?

Published November 17, 2022

By Steve Ford

The North Carolina Supreme Court – or at least a slim majority of its members – invoked its solemn duty to uphold constitutional rights when it agreed in a Nov. 4 ruling that the state must spend more money to upgrade its system of public education.

The General Assembly – or at least the Republicans who run things in the legislative branch’s mid-century modern temple in Raleigh – now is gearing up to invoke its solemn power to convince the court to buzz off.

It’s the legislature, and the legislature alone, that makes spending decisions in the Tar Heel state, those Republicans maintain. No quartet of Supreme Court justices – a Democratic quartet at that – is going to lecture them about constitutional violations and tell them what they have to do.

Did we mention that the crux of the issue is whether North Carolina’s public school students can count on access to an education that meets a reasonable standard of adequacy in preparing them to face the world?

Well, the GOP’s legislative majority doesn’t seem to object in principle to such a standard. It’s hard to argue against the premise that kids who go to school ought actually to have a fair chance at learning enough to set them on a path toward becoming productive citizens.

But the notion that a mere court, even if it’s the state’s highest, could be so presumptuous as to overrule the legislature’s own spending decisions is now being treated as an unforgivable heresy. Even if public schools continue to shortchange multitudes of the state’s young people, that’s apparently not as worrisome as a threat to legislators’ power of the purse.

This grand collision between two of our supposedly co-equal governmental branches, each with its own distinct responsibilities and each obliged to honor the state constitution, prolongs a controversy that has bedeviled North Carolina for almost three decades.

What throws the stakes into even sharper relief is that, with two victories in the Nov. 8 elections, Republicans soon will occupy five of the seven Supreme Court seats. No wonder legislative leaders are optimistic that they’ll be able to have the recent school funding decision overturned or blocked.

If that relitigation of a freshly decided case does occur, it will be a major surprise if the two newcomers, Richard Dietz and Trey Allen, don’t close ranks with the three GOP incumbents who dissented from the majority opinion authored by Democratic Justice Robin Hudson.

That would put Dietz and Allen in comfortable alignment with Chief Justice Paul Newby, a mentor of Allen’s; Justice Phil Berger Jr., whose father wields paramount influence as the state Senate president pro tem; and Justice Tamara Barringer, a member of the senior Phil Berger’s Republican caucus as a senator from 2013 to 2019 before joining the court in 2021.

Like father, like son

Perhaps Newby, Berger Jr., and Barringer arm-wrestled for the privilege of writing the dissent (go to page 140) in the school funding case. But it was Berger who won the assignment – and his defense of legislative authority must be music to his father’s ears.

That defense focuses on the constitution’s directive that all state expenditures must flow from appropriations approved by the General Assembly; there is no specific constitutional language entitling a court to require that funds be spent.

Justice Berger and his Republican colleagues also say the legal process leading up to the Supreme Court’s new ruling was flawed in that a proper finding of statewide educational deficiencies had not been made. Instead, they say, the only properly identified deficiencies occurred in Hoke County, one of the five “low-wealth” counties that figured in the original case.

Further, they say the Supreme Court has sanctioned a school improvement plan agreed to under a judge’s auspices, but without the kind of legislative input that should have been necessary. As they see it, a sympathetic lower court judge was in cahoots with parties to the case seeking to boost school spending, and the Supreme Court green-lighted the scheme.

As Berger wrote in conclusion, “Under no circumstance … should this Court take the astonishing step of proclaiming that ‘inherent authority’ permits the judiciary to ordain itself as super-legislators. This action is contrary to our system of government, destructive of separation of powers, and the very definition of tyranny as understood by our Founding Fathers.”

“Inherent authority” is in fact at the heart of the majority’s analysis. The state constitution declares, “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.”

If the right to education is to be meaningful, it stands to reason that it must meet a standard of quality and effectiveness. And if the prevailing educational system falls short by those measures, the majority opinion concluded, then the courts must exercise their inherent authority to act – even if that intrudes on what is normally legislative turf.

A plan for progress

The quality standard that should be a base mark was set in 1997, in the celebrated Leandro case (named for a Hoke County student now an attorney in his 40s). That’s when the Supreme Court held that every public school student should have to access to a “sound basic” education, defined as one that accomplishes its purpose of equipping students to climb further up the education ladder or successfully to enter the workplace.

In 2004, the court agreed that Hoke’s schools, and by extension other school systems in similar straits, weren’t meeting that standard, especially for students who could be regarded as being at high risk of failure.

What emerged after further years of effort – no thanks to the General Assembly — was a detailed plan to boost the quality of the state’s schools, especially through steps to make sure that every classroom was headed by a well-qualified teacher and that school principals were competent leaders.

A lower-court judge assigned to the case in 2021 approved an eight-year improvement effort, with the cost through 2023 pegged at some $1.75 billion. When legislators included only about half that amount in the next state budget, the judge last fall ordered the rest of the money to be transferred out of the state’s ample surplus revenues.

Legislative chiefs asked the Supreme Court to block the order. The recent majority opinion authored by Justice Hudson upheld the transfer requirement, explaining why the court couldn’t shirk its duty to remedy a constitutional violation that was causing manifest harm to the state’s schoolchildren.

But that was before the election results came in. Even though Democratic candidates on the whole did better than perhaps expected, GOP candidates scored a clean sweep in North Carolina’s six appellate court contests. With the Supreme Court about to tilt heavily to the right, Republicans were practicing their victory dance.

The News & Observer of Raleigh quoted a tweet from Brent Woodcox, a legislative attorney for Sen. Berger, with this prediction: “Not a dime of taxpayer money is ultimately spent on this unprecedented and unconstitutional order before it is blocked and reversed by a newly seated N.C. Supreme Court next year.”

That was then, this is now?

How such a reversal would come about is both unclear and problematic. One could assume an attempt to have the ruling enjoined from taking effect. But if a partisan or ideological flip in the makeup of our appellate courts is allowed to bring wholesale changes in how laws are applied, that can fuel the corrosive sense that the supposedly impartial courts have been politicizedRespect for precedent can be followed out the window, but disrespect does its own kind of harm.

It’s been suggested that the legislature might permit the disputed funds to be transferred, but then cut the annual budget’s education spending by an equivalent amount. Oh, yes, very clever – if the goal were to avoid any substantial hike in education outlays.

Sadly, that might indeed be the goal, since Republican legislators view the public “education establishment” as the culprits for students’ academic woes. That’s to say, if those teachers simply worked harder and smarter, student outcomes would improve accordingly.

But it’s not that simple. North Carolina’s school districts face a crisis even in filling available teacher slots, let alone hiring more folks who have what it takes to propel students to greater achievement. As gauged by comparable figures across the nation, our school systems are seriously underfunded in terms of the personnel and resources needed to drive student success.

An opportunity for every child to get a “sound basic” education sounds like a modest goal, but it has taken a Supreme Court willing to look at the spirit of our foundational documents beyond narrow legalisms to elevate that goal to a mandate. Public education advocates, including the N.C. Council of Churches, who believe that each of us deserves a fair chance to realize his or her full human potential can hope that the high court’s latest ruling somehow withstands the inevitable efforts to strike it down.