There’s a showdown looming in Raleigh, and for once it’s not between the N.C. General Assembly and Gov. Roy Cooper. Instead, it’s between the General Assembly and a Wake County trial judge.
Senior Resident Superior Court Judge David Lee five years ago inherited the job of overseeing the Leandro litigation, which the Vance County Schools and a few other rural school districts filed in 1994 to challenge the state’s system for funding K-12 schools.
These days, he’s prodding legislators to adopt and fund a complex plan for overcoming the material and instructional shortfalls that exist in rural and inner-city school districts.
Cutting a very long story short, the state’s funding scheme, based on per-pupil allocations of money supplemented by local tax revenue, has harmed children who live in small, rural school districts like Vance County’s where there isn’t much of a tax base to help support the local K-12 system. That puts them at a disadvantage relative to kids in the state’s major cities.
But even in the cities, the state’s funding scheme also hasn’t adequately accounted for the fact that children from poorer families often start their schooling behind the eight ball and need a lot of extra help to catch up.
Those, by the way, are facts, at least in the eyes of the N.C. Supreme Court and other tribunals that have heard the case in the 27 years since its filing.
The state Supreme Court’s signature ruling on it held that “an inordinate number” of children were failing to receive the sort of education North Carolina’s constitution entitles them to as a matter of right.
Lee’s job is to figure out how to enforce that decision, and here is where he’s running into obstructionism from the General Assembly.
Being a dispute about finances, the solution necessarily has to address money, and legislators contend they and they alone have the right to decide whether the schools are adequately funded.
As far as the legislature’s leaders are concerned, they’ve given the state’s K-12 schools everything they need. And they further maintain that the courts have no power to second-guess them.
“A court has no more authority to direct the legislature to spend money or enact policy than the legislature does to direct a trial judge how to decide a case,” said state Sen. Deanna Ballard, R-Watauga, offering but one example of their thinking.
The trouble with that sentiment is that if it prevails, it would render unenforceable the state constitution’s command that the General Assembly “provide by taxation and otherwise a general and uniform system of free public schools … wherein equal opportunities shall be provided for all students.”
Education rights — and many others as well — would exist solely at the whim of whoever wins elections.
And that’s presuming we have elections at all. The U.S. Supreme Court in 2019 said the U.S. Constitution’s guarantee of a “republican form of government” in each state — by which the Founders meant a representative form — is unenforceable through the federal courts. If North Carolina wants to install a hereditary monarchy with state Senate President Pro Tem Phil Berger at its head as King Philip I, there’s nothing a federal judge could do to stop it, no matter the Founders’ expressed intent.
But if the General Assembly can make itself the sole arbiter of what the state constitution means, then we’d already have a legislative dictatorship, even though the state’s governing charter says legislators “shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it” as a co-equal branch of the government.
The tools Lee has at hand to bring legislators to heel are few, and crude, namely his authority to declare them individually or collectively in contempt of court.
At a hearing last week, he signaled that he’s begun thinking about doing that. He’s hoping it doesn’t come to that. So do we, but the record gives us little reason to feel optimistic.