Editor’s Note: Ann McColl is an attorney and state constitutional scholar, who has worked in the field of education law and policy since graduating from the UNC Law School in 1991. She has written for EdNC about Leandro since our founding. Here is her “everything you need to know about Leandro” article. Here is her news article providing legal analysis of the most recent Leandro decision. We invited her to share these thoughts with our readers given her expertise.
In the mere days since the N.C. Supreme Court released its vastly overdue opinion, it is easy to focus on what I don’t know. So much more to analyze in the over one-hundred-page ruling. So much more to unfold as the citizenry and its elected officials absorb the opinion — an opinion that brings an end to a lawsuit that persisted for over thirty years and was so close to providing a statewide remedy for constitutional violations.
But this is what I do know about Leandro V, the fifth and final ruling.
To end this case on a perceived procedural flaw causes its own grief. The Supreme Court decided this decades-long case based on an issue of the trial court’s authority to address the claims. This alone is incredulous: a lawsuit that has bounced back and forth numerous times between the trial court and highest court is now found to be outside of the trial court’s jurisdiction. Really? In Leandro V, this court did not confront the big issues — the statewide remedy to constitutional violations of the right to education or the role of the judiciary to enforce the constitution, even when it relates to the actions of the General Assembly. It is staggering to see the court use a procedural question to end the entire case.
I want to acknowledge and thank the efforts of so many people over the course of this litigation that commenced in 1994. Beginning with the plaintiff lawyers who filed this case on behalf of poor school districts and their students, there is the brilliant Robert (Bob) Spearman who led the charge in the early years, and Melanie Dubis who picked up the case and carried it forward with skill and passion. Gerry Hancock was instrumental in making the lawsuit happen. Larry Armstrong, a local school board attorney, was a dedicated part of the team.
And what about the trial court judges? It is interesting — if not disrespectful — that in this court opinion, they remain nameless. And yet, their dedication began with the extraordinary efforts of Superior Court Judge Howard E. Manning, Jr., who devoted himself for years to this case with unwavering attention to the needs of students. The other trial court judges that served in the case, beginning in 2016, are Judge W. David Lee, Judge Michael Robinson, and Judge Floyd Ammons, Jr. They skillfully managed the litigation at the key stage of a statewide remedy for constitutional violations. I am grateful for the judicial decorum and clarity they brought to this complex and critical litigation.
I think about all the individuals and groups that put their faith in the court system to return a verdict that moved forward the rights of children to receive their constitutionally guaranteed opportunity to a sound basic education. So many people believed it possible for the court to order the funding necessary for all children to attend schools with the resources that they needed. In Leandro IV, that is exactly what the court did, making this decision that much harder. There are too many to mention by name but certainly includes those who showed up with amici briefs to the Supreme Court arguments (some for multiple rulings) and those who labored to inform the public of this important right. I thank them and recognize the grief and anger they must feel.
What else?
We have learned a civic lesson. What happened between Leandro IV in 2022 — which affirmed the procedural and substantive elements of the lawsuit and ordered the trial court judge to consider the state budget in directing the executive branch to release funding to implement a comprehensive remedial plan — and Leandro V in 2026 which not only disregarded this precedence but deemed it “void ab initio, meaning it is ‘a nullity anywhere, at any time, for any purpose’”?
There is only one answer: the election of Supreme Court justices. We know that when we elect legislators or our governor that they will make the policy choices that reflect their position. That’s why we vote for them. We don’t expect this from the judiciary. Yet there simply is no other answer. This raises deep questions around the role of the judiciary and their separation from politics. Until this is sorted out, citizens should go to the polls to elect those that represent their point of view on education. This 4-3 ruling is a voters’ guide.
My next point is more complicated, and I imagine some that agree with me on education policy will disagree with me on my take on the lawsuit. The lawsuit morphed in different ways, including at the behest of Judge Manning when he pressed on the issues of prekindergarten access for at-risk children and sluggish high school academic performance. It took on a different flavor when the Governor’s Office was ready to work with plaintiffs in 2017, leading to a plan for a statewide remedy to constitutional violations. We are used to generative processes in other aspects of making decisions, including state level policy and legislation. It is not as easy a fit in litigation where process is an essential guardrail in the justice system. Justice Deitz expressed concerns about representation of students outside of the plaintiff school districts in fashioning the constitutional remedy. I understand.
This death to one lawsuit may lead to the birth of other lawsuits. Possibly many. There has been a long deference to the court system and the plaintiff lawyers involved in Leandro that has caused lawyers to hold back. Now that Leandro is over, I believe we can expect nimble lawsuits that will maneuver around the procedural issues raised in Leandro V. These lawsuits might take the approach Justice Deitz suggested of a “special, streamlined class action.” Or maybe an individual student will submit a claim. Despite what Leandro V seems to indicate, specific incidents can give rise to a comprehensive remedial strategy. And Justice Berger is right to anticipate that the reasoning of Leandro IV might be used in the right situation. He argued in his concurrence that the court should have “disavowed” Leandro IV. It did not, so its reasoning can still be persuasive in legal arguments. In addition, Leandro I, II, and III remain intact and lawyers seeking to help children will no doubt comb through these opinions to define the opportunities and best avenues for constitutional rights litigation.
When a lawsuit comes to an end, policy also can pick up the issues. I hope that nonprofit organizations will lead conversations on how to further frame the constitutional right to education — to not only take what came to the court as the West Ed report but to consider current needs. For example, since the trial court approved the comprehensive remedial plan, we have experienced a pandemic that has escalated a mental health crisis and a significant increase in absenteeism. Floods devasted western North Carolina. Communities are facing school closures. There is much to be done to elevate all the issues that are related to each and every child receiving the opportunity to obtain a sound, basic education.
Finally, what I know is that we’ve seen these patterns before of using procedure to thwart the substantive issues. It leads to a narrative that blames the plaintiff lawyers as they seek justice for their clients: too bad you didn’t figure out all the ins and outs of getting the procedure correct. To lawyers, citizens, and policy experts who care about other constitutional rights — especially those that can be affected by the General Assembly — beware. You might expect to see the same approach used regarding voting rights or other constitutional principles you hold dear.
OK, that wasn’t finally. Here’s my final.
We know about the long arc toward justice. Be agile. Be civil. Be determined.
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