North Carolina
HISTORICAL BACKGROUND
In 1987, the North Carolina Supreme Court, in Britt v. North Carolina State Board of Education, 361 S.E.2d 71, found that disparities in school programs and facilities did not violate the equal protection requirements of the State Constitution. Ten years later, however, the North Carolina Supreme Court held in Leandro v. State that the State Constitution required educational adequacy and that the State Constitution “requires that all children have the opportunity for a sound basic education.” The Supreme Court then remanded plaintiffs’ adequacy claims for trial.
The trial, in Hoke County v. State, 95 CVS 1158, held that performance “at or above grade level” is the minimum performance standard defining a “sound basic education.” North Carolina’s State Board of Education had developed learning standards based on the skills that students will need in order to be informed citizens and to be gainfully employed in contemporary society. The defendant State had argued that performance one level below grade level in elementary and middle school and passing an eighth-grade level examination in high school should be adequate to demonstrate that students were receiving a sound basic education.The court also required funding for pre-kindergarten for all ‘at-risk’ four-year-olds. The Court ordered this remedy because it found that a lack of pre-kindergarten services rendered many of these students unprepared to enter public school.
The North Carolina Supreme Court, on July 30, 2004, agreed with the trial court in large part. It upheld the trial court’s ruling on the sound basic education standards and found that the State is ultimately responsible “to meet the needs of ‘at-risk’ students” and that the State must provide services to such children “prior to their enrolling in the public schools.” Nevertheless, the court held that the trial court’s order mandating pre-kindergarten classes for all ‘at-risk’ prospective enrollees was not supported by a sufficient record. The type of services that four year old “at risk” children should receive, the court found, rested with the expertise of the legislative and executive branches.
RECENT EVENTS
In the aftermath of the economic downturn, the 2009-2010 budget included significant cuts to programs important to compliance with the court’s requirements that the state provide every child with a competent teacher, a competent principal and adequate resources. In particular, it reduced funding for ‘at-risk’ student services by twelve percent in the next two fiscal years and curtailed pre-kindergarten services for ‘at-risk’ children. On May 10, 2011, plaintiffs in Hoke filed a request for a hearing on the state’s reduction of pre-kindergarten services for ‘at-risk’ children.
On July 18, 2011, Wake County Superior Court Judge Howard Manning held that the state of North Carolina cannot enforce the portion of the 2011 Budget Bill that limits admission of ‘at-risk’ four-year-olds to the state’s prekindergarten program. Subsequently, Democratic Governor Beverly Perdue issued Executive Order 100 directing the Department of Health and Human Services to work with North Carolina’s education agencies to comply with the court. Additionally, an appeals court held that the state must admit any eligible ‘at-risk’ child who applies to its pre-kindergarten program – not just in Hoke County but statewide. In 2013, the North Carolina Supreme Court ruled that the issue was moot since the legislature had substantially amended the statutes the lower courts had found unconstitutional.
Since Hoke, however, the state has abandoned many other remedial commitments to providing an adequate education to students. In response to subsequent complaints by the Hoke plaintiffs, the Superior Court ordered the submission of “a definite plan of action” from the State demonstrating how they intended to correct educational deficiencies. When the State submitted a plan to respond to the Court’s order, plaintiffs countered that the plan lacked clearly defined actions, timetables for implementation, measurable objectives, an assessment of required resources and a mechanism to obtain those resources.
Signaling a new era in a long-running public school lawsuit, attorneys for the two sides in July 2017 jointly requested that the court appoint an independent consultant. At about the same time, Governor Roy Cooper signed an executive order creating the Governor’s Commission on Access to Sound Basic Education. Cooper said: “it is far past time for the State to implement comprehensive, inter-disciplinary measures that allocate the resources necessary to ensure that the promise of a sound basic education for children in this State is realized.” Commission members will be appointed by the governor.
In March, 2018, Superior Court Judge David Lee, who has succeeded Judge Manning in presiding over the case, denied a motion of the State Board of Education to be dismissed from the case. Hoke Co. decision of March 31, 2018. The Court firmly rejected the Board’s claim that legislative actions since 2002 had rendered the case moot, holding that at no time have the state’s actions “demonstrated even remote compliance” with the requirements of the Supreme Court’s ruling in Leandro.
In December 2019, West Ed released a 300 page report describing how the North Carolina state legislature had dramatically cut back on education funding since the 1990s, a time when the state was posting large achievement gains and led the country in reducing the minority-White achievement gap. During this same period, the number of children in the state with extraordinary needs rose by 88 percent, and the report concluded that North Carolina had made little progress in providing each child with the opportunity to receive a “sound basic education” as delineated in Hoke and Leandro.
In January 2020, North Carolina Superior Court Judge David Lee adopted the major recommendations from the West Ed report and issued a Consent Order to the State Defendants. The State Defendants are required to submit a progress report within 60 days detailing how they will begin to immediately implement the recommendations outlined in the consent order. They must also provide a timetable for submission of mid-range actions and comprehensive, remedial, long range actions necessary for full compliance and a cost estimate of the additional resources needed for compliance. The Consent Order requires the state to revise its teacher and principal training, pay, and professional development systems, develop an adequate finance system that meets the needs of all North Carolina students, and implement assessment and accountability systems consistent with the Leandro standard.
The Covid crisis interrupted the parties’ negotiations to develop the action plan required by the consent order, and at the parties’ request, in September, 2020, the Court approved a further consent order that outlined one-year immediate action steps the State would take in Fiscal Year 2021 (2020-21) to begin to adequately address the constitutional violations.
In March, 2021, Governor Roy Cooper and the North Carolina State Board of Education, submitted a detailed eight-part Comprehensive Remedial Plan in response to the consent order. This plan outlines the full scope of the actions that the State intends to take between now and 2028 to ensure compliance. These actions include:
- A system of teacher development and recruitment that ensures each classroom is staffed
with a high-quality teacher who is supported with early and ongoing professional learning
and provided competitive pay;
2. A system of principal development and recruitment that ensures each school is led by a high quality principal who is supported with early and ongoing professional learning and provided competitive pay;
3. A finance system that provides adequate, equitable, and predictable funding to school
districts and, importantly, adequate resources to address the needs of all North Carolina
schools and students, especially at-risk students as defined by the Leandro decisions;
4. An assessment and accountability system that reliably assesses multiple measures of student performance against the Leandro standard and provides accountability consistent with the Leandro standard;
5. An assistance and turnaround function that provides necessary support to low-performing
schools and districts;
6. A system of early education that provides access to high-quality prekindergarten and other
early childhood learning opportunities to ensure that all students at-risk of educational
failure, regardless of where they live in the State, enter kindergarten on track for school
success; and
7. An alignment of high school to postsecondary and career expectations, as well as the
provision of early postsecondary and workforce learning opportunities, to ensure student
readiness to all students in the State.
The Plan details the actions the State and State Board of Education are committed to taking and the corresponding goals that they intend to achieve by 2028, with the full educational benefits of these measures realized by 2030. Included in the plan is an Appendix that details the implementation timeline for each action step, as well as the estimated additional State investment necessary for each of the actions described in the Plan.
The plan estimates that $5.6 billion will be necessary to fund these actions. This includes $1.2 billion dollars of funding to help economically disadvantaged students as well as increasing funding for specialized support personnel – such as school psychologists, nurses, counselors, and social workers – by $743 million. The actual cost of the eight-year plan would likely be much higher because some recommended items — like raising pay for teachers, principals and assistant principals — don’t have a total cost estimate. The Governor’s current proposed budget would also include large raises for existing public-school teachers — 10 percent on average over two years.
In an order issued in June 2021, Judge Lee approved the comprehensive eight-part plan submitted jointly by the plaintiffs and Democratic Governor Roy Cooper, including its estimated $5.6 billion price tag. He stated in that order that [T]he Comprehensive Remedial Plan shall be implemented in full and in accordance with the timelines set forth therein.
After the Republican-controlled legislature failed to appropriate the funds required to implement the plan, however, in November, 2021 Judge Lee ordered the State Budget Director, and other state officials to transfer approximately $1.7 billion from the State’s general fund to the State Department of Public Instruction and other agencies to allow them to implement years 2 and 3 of the Comprehensive Remedial Plan.
In his order, the judge summarized the 17- year history of the State’s failure to provide students the opportunity for a sound basic education and specifically cited the legislature’s failure to comply with his order, despite the fact that the State currently has reserves of approximately $8 billion and forecasted excess revenues this year $5 billion.
The judge was quite blunt in saying that “To allow the State to indefinitely delay funding for a Leandro remedy when adequate revenues exist would effectively deny the existence of a constitutional right to a sound basic education and effectively render the Constitution and the Supreme Court’s Leandro decision meaningless.”
Judge Lee insisted that the court’s taking this bold step of directly order an appropriation was supporting, and not violating, the separation of powers. He stated that the court has “inherent” constitutional powers to do “all things that are reasonably necessary for the proper administration of justice,” including in this situation “the power to fashion an appropriate remedy depending on the right violated and the facts of the particular case.”
At the end of November, the North Carolina Court of Appeals overruled Judge Lee’s order. By a 2-1 vote, the three- judge panel held that although the lower court was correct in saying that the state must fund the plan, it is not within its power to order money be appropriated.
In a stunning 227-page decision, the North Carolina Supreme Court in November 2022, reversed the Court of Appeals decision and ordered the state controller and other state officials to transfer approximately $800 million from state budget reserves to the state educational budgets to fund years 2 and 3 of the comprehensive compliance.
In its 4-3 decision, the state supreme court refused to permit further delay in fully vindicating the state students’ constitutional right. It remanded the case to the trial court to recalculate the exact amount of funds required for the transfer and ordered that the trial court to retain jurisdiction to ensure that the plan is fully implemented in the years to come.
The court stated the significance of the case in potent language:
In 2004, we affirmed the trial court’s determination “that the State had failed in its constitutional duty to provide certain students with the opportunity to attain a sound basic education,” and that “the State must act to correct those deficiencies.”… At that still-early stage of the litigation, this Court deferred to the legislative and executive branches to craft and implement a remedy to this failure.
In the eighteen years since, despite some steps forward and back, the foundational basis for the ruling of Leandro … has remained unchanged: today, as in 2004, far too many North Carolina schoolchildren … are not afforded their constitutional right to the opportunity to a sound basic education. …
Now, this Court must determine whether [the state’s constitutional] duty is a binding obligation or an unenforceable suggestion. We hold the former: the State may not indefinitely violate the constitutional rights of North Carolina schoolchildren without consequence. Our Constitution is the supreme law of the land; it is not optional. In exercising its powers under the Appropriations Clause, the General Assembly must also comply with its duties under the Education Provisions.
Rejecting the legislature’s separation of powers objections, the court held:
[W]hen inaction by those exercising legislative authority threatens fiscally to undermine the integrity of the judiciary, a court may invoke its inherent power to do what is reasonably necessary for the orderly and efficient administration of justice.”… Although “Article V prohibits the judiciary from taking public monies without statutory authorization [,]” when the exercise of remedial power “necessarily includes safeguarding the constitutional rights of the parties [,] … the court has the inherent authority to direct local authorities to perform that duty. …
For our Constitution to retain its integrity and legitimacy, the fundamental rights enshrined therein must be “guarded and maintained.” When other branches indefinitely abdicate this constitutional obligation, the judiciary must fill the void.
On March 17, 2023, the North Carolina Supreme Court issued a complex procedural ruling that has the effect of blocking the trial judge from conducting further proceedings to enforce the Court’s November 22, 2022 decision: Hoke Co. Bd of Educ v. State. Two Republican-endorsed Justices took office in January, taking the place of two of the Justices who had been in the majority that issued the decision upholding the lower court’s order to the Comptroller to transfer funds necessary to enforce the Court’s compliance order.
The latest order was upheld by a 5-2 majority vote. The two remaining Justices from the Court that had issued the November order issued a scathing dissent, stating that, “If our Court cannot or will not enforce state constitutional rights, those rights do not exist, the constitution is not worth the paper it is written on, and our oath as judicial officers to uphold the constitution is a meaningless charade.”
On October 2023, the North Carolina Supreme Court granted a petition for a discretionary review of whether the court had subject matter jurisdiction of the Leandro case. This review could result in vacating the entire case. The petition was filed by the Republican legislative leaders. The justices’ vote on the order was split along party lines, with five Republicans voting in favor and two Democrats voting against it.
In response, the two dissenting Justices wrote a strongly worded opinion stating, among other things, that:
If parties can reopen a case by casting their disagreement in the language of “jurisdiction,” then our courts will be nothing but revolving doors and our decisions nothing but paper tigers. ….In substance, “[n]othing has changed” since Leandro IV: The “legal issues are the same; the evidence is the same; and the controlling law is the same.”
No court date has been set for the Court to review the case.
Hart v. State
Finding that an “opportunity scholarship” program enacted by the legislature in 2013 would reduce funding for public education by about $12 million, a civil superior court judge in Wake County, North Carolina issued a preliminary injunction enjoining the state from implementing the scholarship legislation. Hart v. State of North Carolina. Under the challenged program, up to 2,400 students would be eligible for scholarships of up to $4,200 to attend private schools. The private schools receiving these scholarship funds are not required to be accredited, to employ credentialed teachers, to fulfill any curriculum requirements or to demonstrate any level of student achievement. Plaintiffs argued that the program consequently violated Article IX, sec. 6 of the State Constitution.
In July 2015, the North Carolina Supreme Court reversed the trial court’s decision. It interpreted the language of Art. IX, sec. 6 to mean that public funds may be spent on educational initiatives outside of the uniform system of public education. Hart v. State.
Silver et al vs. The Halifax County Board of Commissioners
Unlike most counties in the state that encompass only a single school district, Halifax County, which contains about 6,000 students, is split up into three districts: Halifax County Public Schools, Weldon City Schools, and Roanoke Rapids Graded School District. Students in the county and Weldon districts are overwhelmingly African-American and from poverty backgrounds, while the Roanoke district is predominantly white. Attorneys for the parent plaintiffs have alleged that the method the county uses to distribute sales tax revenues has resulted in the Roanoke Rapids schools receiving about $4.5 million and Weldon schools $2.5 million in added local revenue between 2006 and 2014, while the county district received no country revenues at all. In addition, property owners in the Weldon and Roanoke Rapids school districts pay a supplemental property tax that generates more than $1 million a year for each district, but the county district is not allowed to do the same.
The state Court of Appeals ruled 2-1 in September 2017 that the Leandro case established that state officials have the constitutional obligation to provide the opportunity for a sound basic education and that, therefore, the Halifax County parents should take their complaints to the governor and legislators rather than county officials. The dissenting judge said counties can be sued since the legislature assigned them responsibility for funding buildings and supplies.
On December 21, 2018, the North Carolina Supreme Court affirmed the decision of the Court of Appeals.