North Carolina's justices have agreed to accelerate the process to determine whether a trial judge had authority to order $1.75 billion in taxpayer money be spent to address inequities in the public schools.
The state Supreme Court granted a request backed by attorneys for the state, local school boards and guardians of current students to hear the matter in the coming months, rather than wait first for a ruling from the intermediate-level Court of Appeals.
The order is the latest in school funding litigation that began nearly 30 years ago — known as “Leandro,” an original plaintiff's name — and is now heading to a constitutional showdown between the three government branches.
The Supreme Court, in an order released Monday, did not give deadlines on when they would accept briefs or hear oral arguments. It told Superior Court Judge David Lee to first examine the two-year state budget approved by the legislature the week after his Nov. 10 order directing state officials to move the funds from state coffers to two education agencies and the health department.
Within 30 days, the justices wrote, Lee can change his previous order in light of education budget spending. The Supreme Court will then decide procedures for briefs and an oral arguments date, according to its decision, which mentioned no opposition by individual justices.
With Monday’s order, it’s highly likely the current version of the Supreme Court — with four Democrats and three Republicans — will rule on Lee’s decisions. Two of the seven seats currently held by Democrats are on this fall’s ballot.
The $1.75 billion, which was supposed to fund a remedial spending plan through mid-2023 that Lee approved and Democratic Gov. Roy Cooper’s administration supported, never got moved.
A Court of Appeals panel on Nov. 30 blocked Lee's directive, stating the job of appropriating money is expressly left in the state constitution to the General Assembly. That's the viewpoint of Republican legislative leaders who were not involved in the litigation until recently.
The lawsuit plaintiffs — the school boards and students among them — had urged the justices in legal briefs to take the matter as soon as possible.
They said the constitutionally-protected right to obtain the “opportunity for a sound basic education” — which the Supreme Court affirmed in 1997 and 2004 — was being frittered away while another generation of at-risk kids lacked resources to succeed. The remedial plan was based on an outside consultant’s report.
"There are few, if any, cases that so directly affect the foundations of our civic life, liberty and welfare, and it is difficult to imagine a more apt case for bypass review," Melanie Dubis, one of the plaintiffs' lawyers, wrote to the justices last month. “Without immediate review by this court, substantial harm to children will continue unabated.”
Although the state is a lawsuit defendant, the state Department of Justice also requested the fast-track review.
Lawyers for House Speaker Tim Moore and Senate leader Phil Berger had asked the Supreme Court not to accelerate the case, saying in part that the state budget law's passage rendered Lee's order moot.
For example, their brief read, the budget law spent all but $128 million of the state's expected through mid-2023, when Lee had cited several billion dollars in unspent money as a justification for ordering spending. And local school board also are sitting on unspent state and federal COVID-19 relief funds.
“School districts thus have sufficient resources ... to deal with children’s immediate educational needs while this appeal proceeds,” wrote Matthew Tilley, the legislators' attorney.
Cooper and fellow Democrats have said the budget falls short in complying with the remedial plan, which addresses, in part, teacher recruitment and salaries, pre-kindergarten expansion and more spending in low-wealth counties.
In his November order, Lee defended his ability to order the spending by citing portions of the constitution addressing the right to education as amounting to “an ongoing constitutional appropriation of funds.”
