By Catharin Shepard • Staff writer • The North Carolina State Supreme Court ruled Friday that a judge did have the authority to order the state to transfer hundreds of millions of dollars to fund a remedial education plan meant to bring public schools into compliance with the Leandro court decision.

The justices ruled 4-3 to uphold a lower court’s finding that the late Superior Court Judge David Lee, who died in October, had the authority to order the use of state taxpayer money to pay for the action plan.

Education consultant group WestEd created the remedial plan in 2019 with the input of parents, teachers, principals and superintendents from across the state, at the direction of Gov. Roy Cooper’s Commission on Access to Sound Basic Education. The comprehensive remedial plan WestEd created set out a seven-year-old series of funding that proposed to address specific issues within the state’s public school system. The plan included everything from expanding the North Carolina Teaching Fellows program to updating certain teacher and principal standards and licensure requirements, and aligning school tests and accountability systems.

In June 2021, Lee ordered $1.75 billion in state money go toward funding the remedial plan. Such actions were “necessary to remedy continuing constitutional violations and to provide the opportunity for a sound basic education to all public school children in North Carolina,” Lee wrote in the order. Earlier this year Lee’s appointed successor Judge Michael Robinson reduced that amount to $780 million.

A number of Republican leaders in the North Carolina General Assembly argued that a judge did not have the authority to appropriate money, saying that only the General Assembly itself can do that. The matter went back to court.

The decision filed November 4 is part of the case currently known as Hoke County Board of Education et al.; Charlotte-Mecklenburg Board of Education; and Rafael Penn et al. versus State of North Carolina; N.C. State Board of Education; Charlotte-Mecklenburg Board of Education; and N.C. State Senate President Pro Tempore Philip Berger and Speaker of the N.C. House Timothy Moore. The State Supreme Court heard the case August 31.

Associate Justice Robin Hudson wrote the 139-page majority opinion. In the document, Hudson wrote that the court had originally deferred to the legislative and executive branches of state government to create and implement a way to address the state’s “deficiencies” in providing a sound, basic education for all children.

“However, we also expressly noted that – ‘when the State fails to live up to its constitutional duties, a court is empowered to order the deficiency remedied, and if the offending branch of government or its agents either fail to do so or have consistently shown an inability to do so, a court is empowered to provide relief by imposing a specific remedy and instructing the recalcitrant state actors to implement it,’” Hudson cited in the opinion.

The court found in the Leandro II case of 2004 that the state “had failed in its constitutional duty” to provide a sound, basic education.

“In the eighteen years since, despite some steps forward and back, the foundational basis for the ruling of Leandro II has remained unchanged: today, as in 2004, far too many North Carolina schoolchildren, especially those historically marginalized, are not afforded their constitutional right to the opportunity to a sound basic education. As foreshadowed in Leandro II, the State has proven – for an entire generation – either unable or unwilling to fulfill its constitutional duty,” Hudson wrote. “Now, this Court must determine whether that duty is a binding obligation or an unenforceable suggestion. We hold the former: the State may not indefinitely violate the constitutional rights of North Carolina schoolchildren without consequence. Our Constitution is the supreme law of the land; it is not optional. In exercising its powers under the Appropriations Clause, the General Assembly must also comply with its duties under the Education Provisions.”

The court reinstated the November 2021 order directing state officials to transfer money to pay for the second and third year of the multi-year WestEd plan. The order additionally directed the lower trial court to recalculate how much money would be an “appropriate” distribution, taking into account the state’s 2022 budget.

Associate Justice Phil Berger Jr. wrote the dissenting opinion. Berger argued that due to changes in policy and education statutes over the years, “the original Leandro claims and resulting decisions have become stale.”

“In November 2021, the new judge entered an order stripping the General Assembly of its constitutional authority, setting educational policy, and judicially appropriating taxpayer monies to fund his chosen policy. Only then did the legislative defendant receive the opportunity to intervene as they sought appellate review of this judicial invasion into their constitutional powers,” Berger wrote. “Because of the collusive nature of this litigation, the majority today now joins in denying legislative defendants due process, the fundamental fairness owed to any party, and usurps the legislative power by crafting policy and directly appropriating funds.”

Hoke County Schools Superintendent Dr. Debra Dowless said the ruling is “a real win for public education in North Carolina.” 

“For Hoke County, as well as for other economically challenged districts across the state, it means that we will be able to provide more resources and opportunities for our students and staff to be successful,” she said.

Tamika Walker Kelly, president of the North Carolina Association of Educators, praised the court’s decision.

“Today’s ruling reaffirming that the General Assembly must fund the Leandro education plan is a victory for everyone who believes all students, regardless of their background, deserve to receive a fully funded education that prepares them for the future,” she said in a statement.

Hoke County was one of the original plaintiffs in the 1994 Leandro case, which is named for the Leandro family of Raeford.