The NC Supreme Court’s inexplicable, historic silence on Leandro

Editor's note: This column was first published December 8th in the News and Observer. It is reprinted with the author's permission.

Here’s one of the oddest things I’ve seen in 50 years of court watching. When our realigned, politicized state Supreme Court came into office a couple of years ago, as The Assembly reports: “It took the new Republican majority only 30 days to grant (an) unusual request” from lawmakers to reconsider a landmark ruling in the Leandro case. The justices rushed to oral argument on February 22, 2024. “But 601 days later, they have yet to issue a decision.” Now it’s over 650 days of silence. I’ve never seen anything like it. No one has. 

To be honest, I’m not anxious to hear from Paul Newby and his court. They’re no friends to the low-income students of North Carolina. They’re no friends to the North Carolina Constitution. They are Republican retainers – first, last and only. But they may be having a tough time deciding what kind of damage to inflict on the public schools.

Leandro v. North Carolina has been with us since 1994. Judge Howard Manning dedicated one of the state’s greatest legal careers to its enforcement. Judge David Lee, his successor, concluded, stunningly, that “the state is now further away from meeting its constitutional obligation to provide every child with the opportunity for a sound basic education than when the Leandro decision” was handed down. “Over a quarter of students in North Carolina attend 843 high poverty schools – (their) equal opportunity is compromised,” Lee said.

Constitutional language can be a nuisance for enemies of Leandro. Our Declaration of Rights ordains: “The people have a right to the privilege of education and it is the duty of the state to guard and maintain (it)”. Art. IX, sec. 2 goes further: “The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools, wherein equal opportunities shall be provided for all students.” It’s that last phrase that’s the stickler – equal opportunities for all. It’s like the last six words of the Pledge of Allegiance – Republicans don’t believe in it.

So, they have refused to comply with Leandro and have delivered one of the most poorly funded public school systems in America. And they didn’t stop there. They have, since 2014, created one of the most generously funded, most discriminatory, and least accountable, private voucher programs ever seen.

At the outset, the “school choice” program was modest and limited to low-income families. Now it offers state dollars no matter how wealthy you are. In 2025, funding was raised, gigantically, to over $600 million. 42% of recipient families make over $115,000 a year; only 30% come from families earning $57,000 or less. Recipients are disproportionately white and were already attending private schools. Voucher dollars go dominantly to Wake, Mecklenburg, Guilford and Forsyth counties – rural schools get a relative pittance. And, as a 2024 ProPublica study proved, the NC voucher program is the best friend “segregation academies” ever had. Our Opportunity Scholarship program is a well-dressed successor to the Pearsall Plan of the 1950s. Same motivation. Greater success. Newby and his band’s odd tardiness seems to encourage the onslaught. The Leandro case is now said to present great and troubling jurisdictional and separation of powers issues. Only the General Assembly can set the funding level for public schools, the theory goes, and if the legislature chooses to violate the state constitution, courts can’t do anything about it. School kids live at the mercy of Phil Berger.

Here’s a traditional remedy NC courts could announce in a New York minute: The NC voucher program has been created by the General Assembly INSTEAD OF meeting its constitutional duty to provide “a general and uniform system of free public schools, wherein equal opportunity shall be provided for all students.” It is therefore unconstitutional and should be enjoined in its entirety.

North Carolina Republicans have no power to disobey our constitutional requirement to provide a system of free public schools – affording equal opportunity to all – no matter how much they hate it. 

Contributing columnist Gene Nichol is a professor of law at the University of North Carolina-Chapel Hill.