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North Carolina justices weigh who has school spending authority

Angus Thompson -- an original Leandro plaintiff -- speaks in downtown Raleigh.
Josh Sullivan
Angus Thompson of Lumberton, an original plaintiff in the 1994 lawsuit with his daughter, spoke to the audience on Aug. 31, 2022. He is pictured here at an education rally in Raleigh two days earlier on Aug. 29.

North Carolina’s highest court returned Wednesday to an education funding case originating almost 30 years ago, hearing arguments over whether a judge had unilateral power to allocate hundreds of millions in taxpayer dollars to address unresolved student inequities.

Attorneys for students, their parents and state government's executive branch contend it was proper for Superior Court Judge David Lee last fall to order that $1.75 billion be moved from state coffers to three agencies to carry out portions of an eight-year remedial plan. Lee endorsed the plan months earlier.

Lee said that he had the authority to transfer taxpayer funds in part because the state had failed repeatedly to comply with major court rulings in the “Leandro” litigation, named for a plaintiff in the original 1994 lawsuit. In landmark rulings in the Leandro case in 1997 and 2004, the state Supreme Court declared there was a constitutionally protected right for children to obtain the “opportunity for a sound basic education” and that the state had not lived up to that mandate.

Melanie Dubis, who has represented Leandro lawsuit plaintiffs for over 25 years, told the justices that Lee and a predecessor judge who monitored the case for years had shown great deference to the legislature and executive branches to comply. Meanwhile, she said, hundreds of thousands of schoolchildren still lack proficiency in basic skills, and thousands of teacher and staff positions statewide were vacant entering this school year.

“Those branches failed the children,” Dubis said during oral arguments. “Now, the future of the children of North Carolina is in this court’s hands.”

Portions of Lee's order were blocked by the Court of Appeals and then modified in the spring by another judge — lowering the necessary amount to $785 million. But Republican legislative leaders argued Lee got it wrong because the state constitution clearly says the authority to appropriate funds rests solely with the legislature.

“The drafters of the constitution intended the General Assembly to have the exclusive power of the purse ... in order to ensure that the people, with their elected representatives, had full and exclusive control of the state’s expenditures,” said Matthew Tilley, an outside lawyer representing House Speaker Tim Moore and Senate leader Phil Berger. Dubis said Lee's transfer doesn't fit the definition of an appropriation.

As with other cases, the justices at the close of the 100 minutes of arguments didn’t say when they’d rule. But with at least one Democratic justice retiring and another on the November ballot, a court in which Democrats currently hold a 4-3 majority is likely to rule by year’s end. The majority has already issued consequential rulings this year favoring Democrats and their allies on redistricting and voter ID.

Both major parties have controlled at one time the General Assembly and the Executive Mansion since the 2004 ruling. But Democrats led by Gov. Roy Cooper have embraced the remedial plan, developed by his office and the State Board of Education and based upon an outside consultant's report. Republican legislators weren't parties in the litigation until recently and have touted state budget laws that keep increasing K-12 spending and education policy improvements.

All seven justices asked questions. Chief Justice Paul Newby, a Republican, repeatedly questioned Dubis and a state attorney over whether Lee had any basis to impose a statewide remedy because the 2004 Supreme Court ruling was expressly limited to the schools in rural Hoke County — whose school board is a plaintiff. Dubis said Lee or his predecessor received statewide education data as evidence over the years. She cited eight times between 2005 and 2020 when the judges declared there had been such a statewide violation.

Leading to Wednesday, the case attracted numerous friend-of-the-court briefs, including one from a collection of 145 social, religious and civil rights organizations and another from nearly 60 business leaders in the state. Both group urged the justices to uphold Lee’s actions. Business leaders putting their name to a brief include retired Bank of America CEO Hugh McColl Jr. and former White House Chief of Staff Erskine Bowles, a venture capital firm founder.

Across the street from Supreme Court building during oral arguments, about 100 education activists and ministers gathered to pray and urge the justices to uphold Lee’s authority to order new spending.

“If there’s an injury, there has to be a remedy,” Angus Thompson of Lumberton, an original plaintiff in the 1994 lawsuit with his daughter, told the audience. “Until we get what we deserve — the remedy — 'til somebody pays up, we’re gonna protest, we’re gonna pray and we’re gonna vote.”

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