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OPINION

Leandro order is legally, practically and morally correct

Posted on November 17, 2021

OpinionColumns

Rob Schofield

Rob Schofield

It’s about time.

What took so long?

Better late than never.

Those are some of the obvious reactions that caring and thinking people have had in recent days to last week’s order from state Superior Court Judge David Lee directing state legislators to pry open the state’s massive savings account and pony up the first $1.7 billion-plus installment toward bringing the state’s broken public school system into compliance with the state constitution.

As Policy Watch education reporter Greg Childress reported Nov. 10:

“…Lee said the state’s children can no longer wait to receive the sound basic education the state’s Constitution guarantees. The court, he said, has waited 17 years for the General Assembly to meet the constitutional mandate.

“‘The court’s deference is at an end at this point,’ Lee said.”

Lee is right, of course. It’s actually been nearly a quarter century at this point since the state Supreme Court ruled in the landmark Leandro case (currently overseen by Lee) that the state was failing to guarantee all schoolchildren (especially those in poorer, rural districts) the opportunity to receive the sound basic education to which they are constitutionally entitled.

Nearly two full generations of K-12 students have passed through the state’s public schools as lawmakers, governors and judges have dithered and bickered over whether the original 1997 ruling has any practical meaning.

In his order, Lee made clear that it does.

“This case is not about the judge, it is not about the legislature, it is not about the attorneys; it’s about these children and what’s going to be necessary to achieve the Leandro-mandate education in this state,” Lee said.

Lee’s order is premised on a deeply researched and detailed report and action plan that was compiled by the nationally recognized education research firm WestEd at his direction back in 2019. The WestEd report found that in order to meet its constitutional duty:

“…the state will need to strategically improve and transform multiple components of the education system, from ensuring an adequate supply of qualified teachers and principals; to improving curriculum, instruction and assessment; to more effectively addressing the needs of at-risk students and the persistent gaps in achievement among groups of students. A deep ongoing commitment and wise investments are vital to building and maintaining the required capacity at the school, district, regional, and state levels.”

Of course, in a completely just world, the courts would have specifically compelled lawmakers to meet their constitutional obligation decades ago, but they’ve repeatedly wavered in hopes that lawmakers would do the right thing on their own.

Unfortunately, those hopes have been dashed time and again and, despite Gov. Roy Cooper’s clear commitment in recent years to making the WestEd report a reality, Republican legislative leaders have remained firmly in the way.

This trend continued last week when House Speaker Tim Moore issued a statement denying the court’s authority to order any new school funding and churlishly claiming that “Any attempt to circumvent the legislature in this regard would amount to judicial misconduct and will be met with the strongest possible response.”

While it includes an overdue bump to teacher pay and a new supplemental fund for low-wealth districts, a new GOP budget proposal released on Monday night comes nowhere close to fulfilling the requirements of the WestEd plan.

Meanwhile, a right-wing operative even went so far as to issue a provocative and thinly veiled warning about the possibility of impeaching judges who fail to toe the line laid down by GOP legislators.

This is, in word, outrageous.

The principle of “judicial review” — that is, the authority of the judiciary to assess the constitutionality of legislative and executive acts and to order remedies when they violate constitutional provisions — traces back well over two centuries to the U.S. Supreme Court’s iconic ruling in Marbury v. Madison.

While it is relatively unusual for courts to order the outlay of public dollars to cure constitutional violations, even a moment’s reflection reveals why it is obviously lawful.

The North Carolina constitution specifically requires that “The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students.”

What if the legislature simply refused to fund such a system? What if it only agreed to provide one that was limited to white students, or wealthy students, or students in certain counties? Would Republicans deny that the judiciary has the right — indeed, the duty — to order the funding of a full remedy? If so, then it is their position that the constitution has no meaning.

As a practical matter, Judge Lee’s order is indistinguishable from the orders that might be ordered in such scenarios and similarly indistinguishable from other judicial school funding orders that courts have issued in multiple states.

The bottom line: Given the present General Assembly’s long track record of pigheaded lawlessness, this battle is not yet over. Perhaps Moore and Sen. Phil Berger will attempt to channel George Wallace by standing in the door of the state treasurer’s office.

Whatever roadblocks they throw up, however, it seems likely that the duty to enforce the constitution when it comes to protecting the rights North Carolina children will fall to the state Supreme Court.

And as the sorry state of so many crumbling and understaffed schools makes plain on a daily basis, that’s an action that can’t come too soon.

Rob Schofield is director of N.C. Policy Watch, a news and commentary arm of the North Carolina Justice Center.

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