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- Yesterday was the Leandro case’s fourth time in front of the North Carolina Supreme Court. This time the questions are whether there has been a statewide violation of rights and whether the court can compel the transfer of money.
- North Carolina’s highest court heard oral arguments in a case that could send $785 million to state agencies and onto public school students across the state.
North Carolina’s highest court heard oral arguments in a case that could send $785 million to state agencies and onto public school students across the state.
The Leandro case, which was first filed in 1994, involves the right to access a sound, basic education — a right that the North Carolina Supreme Court held during its first review of the case emanates from our state’s constitution. The case has now been heard at all three levels of the state’s judicial system and is before the Supreme Court for the fourth time. This time, the Court is deciding two questions:
- Whether any judge in this case has found a statewide violation of students’ constitutional right to access a sound, basic education; and
- Whether the courts can compel the transfer of $785 million to state agencies as remedy for any violation.
The court has not yet set a date for rendering its decision.
Alignment of the parties
The justices asked several questions about the position of the state as a party, and specifically whether the state’s posture changed around 2018. Understanding the alignment of the parties is important to follow the justices’ questioning.
Leandro was originally filed by five school districts and parents within those districts. These are the original plaintiffs. At that time, the plaintiffs named the State of North Carolina and the State Board of Education as defendants. They’re referred to as the “state defendants.”
In litigation prior to 2018, the state defendants’ arguments were in opposition to the plaintiffs. That’s traditionally how court cases go. After Gov. Roy Cooper took office, he convened a Commission on Access to Sound Basic Education to examine how the state could uphold its constitutional duty.
In 2018, the state defendants began talking to plaintiffs about a remedial plan to address a statewide violation of the constitutional right to access a sound basic education.
That’s what led to the WestEd Report and, ultimately, the Comprehensive Remedial Plan – or Leandro Plan. That plan was the subject of a Nov. 10 order by Superior Court Judge David Lee. And it was Lee’s order that initially set the stage for the current appeal before the Supreme Court.
After Lee’s order, Senate President Pro Tem Phil Berger and House Speaker Tim Moore intervened in the case. They’re referred to as the “legislative defendants.”
In the briefs filed with the court prior to oral arguments, the plaintiffs and state defendants argue that there is a statewide violation of providing a sound basic education to students and that the courts can direct the transfer of funds as a remedy since other remedies were exhausted.
Justice Anita Earls asked during Wednesday’s hearing about the state’s admission of a statewide violation. Matthew Tilley, attorney for the legislative defendants, said the “state” in that respect is the executive branch and executive branch agencies, such as the State Board of Education. He believes that is a problematic issue in the case.
“The executive branch is necessarily going to be tempted to use admissions in a court case to get orders that would provide agencies things that they can’t get through the legislative process,” he said.
Senior Deputy Attorney General Amar Majmundar, representing the State of North Carolina, said that wasn’t the case. He said the state defendants began working with the plaintiffs because a violation was found and the state wanted to fix that.
“I would say that the state is obligated under the constitution to provide a sound basic education to every child,” he said. “The fact that that constitutional obligation now aligns with what plaintiffs want – what all these kids want – is serendipitous. But it exists independently of the other parties.”
Does the record show an order finding statewide violation?
Chief Justice Paul Newby pressed attorneys for the plaintiffs and state defendants on whether there is an order by any trial judge showing findings of fact and conclusions of law regarding a statewide violation. Attorneys and justices spent most of Wednesdays’s two-hour session discussing this.
“Nobody is contesting that every child is entitled to a sound basic education,” Newby said. “But we are a Court of law and we have to follow certain procedures.”
Those procedures, Newby said, include having a record similar to the one created prior to the court’s decision the second time the Leandro case was before the Supreme Court (Leandro II). Newby held up a one-inch stack of papers that was the order from the trial court in that instance saying there were considerable findings of fact and conclusions of law for the Supreme Court to review on appeal.
Newby went on to note that the Leandro II decision states, in a footnote, that its decision was based on evidence from one county – Hoke County – and that the ruling was thus limited to that one county.
Melanie Dubis, who has represented the plaintiffs for the 28 year history of the case, argued that the Leandro II case was limited to Hoke because Hoke was designated as a representative district. She said the Leandro II Court used language recognizing a statewide violation and told the lower court, on remand, that it could conduct further trials “as necessary.”
“Where the language, ‘as necessary,’ is in a remand from a higher tribunal to a lower tribunal, that means it’s discretionary,” Dubis said, citing case law for that proposition.
She argued that Superior Court Judge Howard Manning, the trial judge at the time, focused on a statewide violation from that point onward.
Counsel for both the plaintiffs and the state ran into issues because of, as they put it, Manning’s “cavelier” and “unconventional” approach.
At one point, when Newby asked Majmundar to show him where in the record there was an order finding a statewide violation, Newby took issue with Majmundar pointing him to a notice of hearing.
“It’s not just a notice of hearing, your honor, it is also an order,” Majmundar said. “And that was the somewhat cavalier way that Judge Manning created orders.”
Newby later pressed Dubis for an order finding a statewide violation and interrupted her when he realized one of her citations to the record was a letter between Manning and Erskine Bowles.
“Judge Manning’s procedure was, how should we say, unconventional,” Dubis said, adding that he would sometimes make letters and memoranda he wrote a part of the record as evidence in the case.
“On the basis of evidence, he would make findings,” Dubis said. “And in those findings, he repeatedly found that the State of North Carolina was continuing to fail to provide the children the opportunity to a sound basic education.”
Can the court order the transfer of state money without General Assembly action?
Both Tilley and the attorney for State Controller Nels Roseland argued that even if there was a statewide violation, Lee’s order compelling the transfer of funds to state agencies was judicial overreach.
Roseland’s attorney Robert Hunter said the court can issue a judgment, but after that – “having to pay the judgment is a different thing.” Hunter cited three cases – Smith v. North Carolina, Cooper v. Berger, and a case involving the Richmond County Board of Education.
Both Dubis and Majmundar argued it was within the court’s authority to do so when the legislature fails to follow a court order and there are no other less restrictive alternatives.
“This is a unique right,” Dubis said. “The right is the opportunity to a sound basic education, and as a co-equal branch of state, the court has a duty to guard and maintain that right.”
Dubis said the cases cited by Tilley and Hunter are distinguishable from Leandro. For one thing, she said, Lee’s order was not an appropriation but rather a transfer of funds. For another, the Leandro courts have already exhausted other alternatives that previous cases addressing this issue found to be more appropriate.
“The legislature cannot carry out its constitutional duties in an unconstitutional way,” she said, “which is what it’s done for the last 20 years.”
So, what now?
All stakeholders, including students and families across the state, are back in waiting mode as there is no known timeline for a decision by the seven-justice court (which is comprised of four Democrats and three Republicans).
It also remains to be seen how any of the parties react to a decision.
Outside the courthouse, a group of advocates, including from Every Child NC and Pastors for North Carolina Children, held a press conference and prayer vigil for education. There, leaders suggested to the group what they could do in the meantime — Protest. Pray. Vote.