In the face of sustained legislative neglect, it's up to the courts to rescue North Carolina's public schools
Published November 26, 2021
By Steve Ford
In the rough and tumble realm of politics, it can be a hard call as to whether someone is standing firm on worthwhile principle or simply obstructing out of plain old bullheadedness – perhaps because it plays well among some voters.
So let’s consider the example of North Carolina’s legislative leadership and its prickly response to a judge’s order in the epic Leandro school funding case.
These legislators – and yes, they’re all Republicans – want the world to know that no mere judge (a Democrat at that) is going to tell them how they should allocate state money. Perhaps they’re channeling the obstinate little girl in the Mrs. Piggle-Wiggle books: “I’ll do it because I want to but not because you tell me to!” Although, when it comes to putting up another $1.7 billion for public education over the next two years as directed, there’s no sign that they want to.
Superior Court Judge David Lee, assigned by the state Supreme Court to oversee the Leandro case during recent years, patiently has worked to bring about compliance with the high court’s requirement that every public school student in the state have an equal shot at getting a “sound basic education.”
That requirement is embedded as a matter of right under the state constitution, the Supreme Court has declared. Yet despite some progress, too many school systems still lack the resources needed to meet the prescribed quality standard.
In general, those are systems beset by economic malaise or outright poverty – in their rural or small-town communities, among the families they serve – and thus especially challenged to provide the kind of education that gives young people a fighting chance successfully to make their way in the world.
With the Leandro plaintiffs keeping up the pressure, at Lee’s direction consultants were hired who devised a plan for bringing the state’s schools up to constitutional snuff. The plan was agreed to by parties on both sides of the lawsuit and approved by the judge. It calls for some $5.6 billion in new education funding through 2028 to make a range of school-strengthening improvements, including accelerated pay raises for teachers and expanded pre-K programs.
The first chunk of that money would be $1.7 billion to cover two years. Lee warned legislators that if they didn’t provide it, he’d order the state’s money managers to make it available anyway. They didn’t, and on Nov. 10 he did.
Heels dug in
All the while this confrontation was building, the posture favored by Senate President Pro Tem Phil Berger and House Speaker Tim Moore could be described as sustained recalcitrance. Lee’s authority was belittled – Moore called him a “rogue judge” — and the court-sanctioned school improvement plan was scorned as just another way for Democrats to advance their public school agenda in defiance of the legislature’s Republican majority.
The gist of the critics’ argument, made with the nuanced diplomacy of a guard dog who thinks someone is invading his yard, is that decisions about public appropriations are the exclusive prerogative of the General Assembly. And indeed, the state constitution specifies that “No money shall be drawn from the State treasury but in consequence of appropriations made by law…”
Lee’s order tackles the issue head-on. If that clause were to prevent the courts from requiring more public education expenditures, he asserted, one part of the constitution would be keeping another part from being enforced.
“ ‘It is axiomatic that the terms or requirements of a constitution cannot be in violation of the same constitution – a constitution cannot violate itself,’ ” the judge wrote, quoting from the Supreme Court’s original Leandro ruling in 1997. “As a result, the appropriations clause cannot be read to override the people’s right to a sound basic education.”
Lee carefully explains – as if lawyers such as Berger and Moore should need such an explanation – how the judicial branch of government is responsible for acting as the final arbiter when constitutional rights are in question.
Legislators, however, paint the judge as someone who, by trying to mandate expenditures, is careening out of his rightful lane and abusing the proper separation of powers among governmental branches.
What they seem to ignore is this: When one of the coordinate branches, whether legislative or executive, fails in its duty to comply with the constitution, can it do so without consequence? Without remedy for the aggrieved parties – those many thousands of school children who must make do with poorly funded schools? Can obstinate legislators, who already have consigned earlier legions of students to school mediocrity, not be held to account? Are these legislators bigger than the state constitution itself?
The legislature, facing accumulated evidence of school shortcomings and having failed to show that it was working in good faith to meet the Leandrorequirements, could have decided the time had come to play ball.
It could have folded the recommended $1.7 billion in additional spending into the new state budget that recently became law. With the state enjoying a budget surplus in the range of $6 billion, it’s not as if they’d have needed to fish around under the couch cushions. Unfortunately, lawmakers took no such action.
Indeed, the folks who run the legislature don’t seem to place much stock in quaint notions of accountability and compromise. A fresh case in point: The newly reconfigured voting district maps that appear to take the dark arts of gerrymandering to yet another insidious level.
Under those maps, U.S. House districts are projected to break no worse than 10-4 in Republicans’ favor, despite a recent pattern of overall votes cast in those races splitting more or less evenly between the two major parties.
North Carolina’s three largest urban counties – Wake, Mecklenburg and Guilford – have been carved into multiple districts so as to diminish the impact of Democratic voters. Reshaped legislative districts could cut the ranks of Black people in the state House and Senate. With legal challenges already filed, we’re due for yet another round in North Carolina’s redistricting battles – battles that have seen the courts fault Republican map-drawers for racial and partisan discrimination aiming to seal their hold on power.
Politics as the game is played in North Carolina will never be mistaken for anything less than a contact sport. But for the well-being of the state’s residents who count on their elected leaders to make decisions in the overall public interest, not on the basis of narrow self-advantage, the game must be conducted in accord with rules meant to ensure orderliness and fairness.
Orderliness is impossible when the legislative branch of government, swollen with inflated self-importance, acts to blow off an order from a judge carrying out his assigned duties under the purview of the state’s highest court.
Fairness is impossible when legislators essentially cook the books on elections with maps that devalue voters who might threaten them in their privileged perches by favoring candidates with different priorities.
The national Republican Party these days seems far gone down the road toward using any cynical tactic that riles up its truth-immune voter base. That puts many party figures at odds with standards and values the N.C. Council of Churches and its allies long have championed in the interests of justice and opportunity.
Without public schools that meet the kind of quality standards established via the Leandro case, justice and opportunity for many will remain out of reach. It remains the great responsibility of our courts to ensure that those standards are upheld – even if prideful legislators don’t want to cooperate.
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.