The State’s Looming Constitutional Crisis

There’s little that Burley Mitchell hasn’t seen in a legal career that saw him rise from a young prosecutor to chief justice of the North Carolina Supreme Court. But on Monday, he’s afraid he’ll finally see something new—and troubling.

That’s when a Wake County judge is expected to take action on a landmark schools case that could put the court on a collision course with the governor and General Assembly, and perhaps spark a constitutional crisis.

Channeling a country singer, Superior Court Judge David Lee said last month that he’s giving the state “one more last chance” to resolve the 27-year-old Leandro case. In 1997, the state Supreme Court first ruled that the state must ensure every North Carolina student a “sound basic education.”

Lee approved a consent order in June designed to bring the state into compliance with a series of case rulings. The latest price tag: at least $5.6 billion over eight years. The state currently spends just over $10 billion a year on K-12 education, a total that doesn’t include substantial funding from the local level.

The case has already spanned the terms of five governors and eight chief justices. Last month, in Wake County Superior Court, Lee sounded ready to act as he gave the state what he called a final chance.

“That’s not to threaten anybody,” he said, “but that’s to send a clear signal … that come October 18, if this hasn’t already been addressed as it should be … I will certainly be prepared to address it that day.”

The General Assembly, which controls the state’s purse strings, was not party to the court’s consent order. It seems unlikely to comply with anything Lee hands down.

“I don’t want to be flippant, but in essence he wastes a piece of paper,” Republican Senate Leader Phil Berger told The Assembly. “Knowing how verbose these things sometimes get, he wastes a ream of paper. … He has certainly made noise that makes it sound like he’s willing to go beyond what constitutional authority he has.”

Berger argues that North Carolina’s per-pupil spending, though still below that of many states, has kept pace with the average growth across the country. “The idea that, just by spending more money, you’re improving the outcomes for kids is demonstrably false,” he said.

Those involved in the case—the governor’s office, the State Board of Education, and of course the plaintiffs—all disagree. They’ve agreed to the $5.6 billion action plan created in part by WestEd, a national consulting firm that conducted a large-scale statewide study at the court’s request.

Political disagreements are normal; what bothers Mitchell, who authored the original Leandro decision in 1997, is the potential constitutional clash.

“It’s the first time in my lifetime in which the legislature, or certain members of the legislature, would have defied the orders of the court,” Mitchell told The Assembly. “So it’s new ground. And, God knows, I hope it doesn’t come to that.”

It’s been a long road to this moment. In 1996, Kathleen Leandro was 49 years old, living in Hoke county. “It just breaks my heart to see our kids struggling like this because of where they live,” she told The News & Observer at the time.

“Maybe I won’t see it in my lifetime, but I hope one day the state will be able to deliver an education to every child that is both equitable and adequate.”

She’s now 74. Kathleen and her son Robert Leandro are the namesakes for the case filed on behalf of five low-income school systems in the state and multiple individual plaintiffs like the Leandros.

The case hinged on a simple premise: The North Carolina constitution guarantees children access to a sound, basic public education, but funding disparities among communities were preventing certain school systems from meeting that bar.

At the time, around 40 other states had seen legal challenges to their school funding systems, with plaintiffs prevailing in about half of those cases. In North Carolina, local governments carry much of the burden of school funding, placing low-wealth districts at a significant disadvantage.

The state’s funding formula tries to correct for that by giving more funding to low-wealth districts, but most experts agree it’s not enough, particularly because those areas’ students already have greater needs: They’re more likely to require expensive special education services or enter school behind grade-level. The current distribution of education funding in the state is still considered inequitable.

In the lawsuit, families described sending their kids to school with leaking roofs, broken air conditioners, outdated books, and a lack of technology.

These disparities still exist. To rectify these imbalances, the state would have to more fully dedicate itself to fairly and fully funding lower-income areas, improving teacher and principal quality and expanding early childhood education, according to WestEd’s action plan and calls from judges and education leaders for decades.

Angela Richardson grew up in the Halifax County school system, one of the original five districts involved in the Leandro lawsuit. The county’s median household income is $35,000, and about half of the families in the district qualify for food stamps and SNAP benefits. benefits.

Richardson is nearly 60. She spent her earliest years in school attending a segregated one for Native American students as a member of the Haliwa-Saponi tribe. A station wagon would drive lunches to her school from the larger county ones, but the driver was unreliable, often leaving children with rumbling bellies. She later went to one of the county’s predominantly Black schools.

After going to college nearby, she’s spent over 30 years teaching in Halifax County schools and has found one thing consistent through all the years: The more things change, the more they stay the same.

While students are no longer segregated by law, they often remain so in effect. The Native American school Richardson attended as a child, she notes, is now a charter school that’s specifically geared toward Native students.

Whereas kids used to miss school to help their parents work in the fields, they now miss school because a parent can’t get up in the morning to help get them ready, or drive them.

A few issues are unique to her adult eyes. She has become experienced at noticing the hallmarks of children who suffered from fetal alcohol syndrome versus those whose mother used drugs during pregnancy.

“Fetal alcohol syndrome children are more calm than those whose parents might have been on drugs,” she said.

While Halifax County Schools have more by way of technology, teacher turnover has gotten worse. Surrounding counties are more affluent, and often successfully lure away teachers after just a few years. Cohorts of twenty-something educators from Teach for America cycle through, and rarely put down roots in the area, she says.

“Whether it’s better or worse—I can’t say either way,” said Richardson.

Kids are still posting low test scores, much lower than those of their peers in neighboring areas. They come in behind for kindergarten, and teachers spend their year trying to catch them up. If only, Richardson said, they had the money for early interventions, small class sizes, or more summer enrichment. Then her students might have a fighting chance.

“I’m trying to give a vision to our students that there’s something more outside our county, and show them a path, though they might think things are limited,” said Richardson.

Rodney Pierce, a teacher in the Nash County Public Schools district, also grew up in Halifax County. His view of the past decades is similar. He remembers learning in freezing trailers with his jacket and gloves on, shivering through math class. As a teacher, switching districts meant getting offered more money and stability in Nash County.

“It’s an easier place to work,” he said of Nash.

Halifax County has a high teacher turnover rate—a rate that Pierce, who was previously named teacher of the year by the North Carolina Council for the Social Studies, sadly counts himself part of. He left Halifax just two years ago.

“Perhaps if we had the funding, we could create positions to keep people like Mr. Pierce and compensate him for what he’s worth, and his colleagues,” said Pierce, speaking in the third person.

Tony Jackson served as superintendent of Vance County Schools until this past summer—a school district that also served as an original plaintiff in the Leandro case—and also he lamented the difficulties of recruiting and retaining staff to the rural community. The county sits near Raleigh, Chapel Hill, and Durham, areas that are often more attractive to teachers and can afford to offer staff higher local supplements to increase their salaries.

“We can’t compete on the financial side with our neighbors,” said Jackson.

In 2004, the North Carolina Supreme Court, when ruling on the case, ordered the state to remedy disparities by providing “That every classroom be staffed with a competent, certified, well-trained teacher.”

“While we try to let the legal things take its course, we still have generations of kids who have to be educated in a system that is demonstrably under-resourced, in a community that is sometimes isolated, and in a place where opportunity is stalled because of just location,” said Jackson.

Monday’s expected announcement will come from a judge relatively new to the case: David Lee, who was assigned to Leandro in 2016. His predecessor, Judge Howard Manning, had overseen the case since its early days in 1997. Lee’s action will come as the GOP-controlled General Assembly negotiates the state budget with Democratic Gov. Roy Cooper.

Cooper has proposed nearly $1.6 billion over the next two years to begin meeting the requirements of Leandro, as laid out in a plan presented by the state and agreed to by the plaintiffs and the court. The money would, among other things, improve teacher support, strengthen early childhood programs, and give more money to schools in poor counties.

The House and Senate budgets each have a relative fraction of that amount. A budget passed by the Senate, for example, includes about $405 million for the two years. The House’s proposed budget called for about $752 million over two years.

Both chambers have since sent the governor a compromise budget that is the basis for ongoing negotiations, a closed-door process on which the state’s political landscape is anxiously awaiting a resolution.

Leandro funding is a key area of negotiation, but recent reports indicate that it is only one of several key issues, along with Medicaid expansion and tax cuts. With a $6.5 billion state budget surplus, there is plenty of room for compromise.

Should the budget process not yield full funding of the court’s consent order, the next steps remain murky. The Governor and the State Board of Education represented the state during the creation of the consent order. Not the General Assembly.

Last December, the state Supreme Court took up Cooper v. Berger, a case involving the authority to appropriate federal block grant money. The court sided with lawmakers.

“[The] Constitution,” it said, “provides that the appropriation authority lies with the General Assembly rather than with the Governor.”

At least one governor has invoked emergency powers to go around the legislature.

In 2002, Democratic Gov. Mike Easley, facing the start of the school year with no state budget, ordered the state to spend $54 million to reduce class sizes and expand his signature pre-kindergarten program, More at Four. In 2005, he ordered the budget office to free up $75 million for low-wealth public school districts, at-risk students, and other educational needs.

In each instance he cited the ongoing Leandro case. “The school funding lawsuit, known as Leandro,” Easley wrote in a 2002 executive order, “has now reached a crisis point.”

Franklin Freeman, a senior policy aide to Easley who is now a partner with McGuireWoods’ government affairs practice, told The Assembly that the governor “took pretty bold action.” But as administrator of the budget, he added, a governor can, in an emergency, “come up with the money from whatever source.”

Some say that should happen now.

Cooper’s office declined to comment. But Rick Glazier, executive director of the North Carolina Justice Center and a former Democratic lawmaker, said the buck could fall to the governor.

“If the court orders the state to comply, the executive who has to assure compliance is the governor,” he said. “I believe the governor … would never let the state stand in defiance of a court order that’s designed to protect 1.5 million children.”

Last month, Judge Lee cited the Supreme Court’s unanimous 2004 ruling in the second Leandro case to reach the court.

“Certainly when the State fails to live up to its constitutional duties, the Court is empowered to order the deficiency remedied,” it read. “And if the offending branch of government or its agents either fail to do so or have consistently shown an inability to do so, the Court is empowered to provide relief, imposing a specific remedy, and instructing the recalcitrant state actors to implement.”

That opinion was written by Republican Justice Bob Orr. Today, faced with a potential constitutional conflict, Orr said it would be better if the legislature were involved, even though it was not party to the consent agreement.

“They all need to get a room and say, ‘Look, how do we get [this] resolved?’” Orr told The Assembly. “Make [the legislature] feel that they’re an integral part in resolving this.”

So what happens if Judge Lee orders the state to pay? The legislature likely won’t be willing. Whether the governor would take unilateral action is unclear.

“If we were to say [Lee] has no power to enforce the judgment, we render the constitution a nullity,” Glazier said. “And that can’t be.”

Berger sees a different constitutional problem.

“We would have a constitutional crisis if the judge issues an order that’s beyond the constitution and folks think that’s something we’d be obligated to obey,” Berger told The Assembly. “For the judge to issue an order that presumes he has the authority to appropriate money is something that … indicates to me that there is a deficiency of constitutional understanding.”

All of which gives Burley Mitchell heartburn.

“We said in Leandro that it should be left to [the legislative and executive branches]. But if they refused to comply with court orders, the court could issue a mandate—an injunction, maybe even contempt proceedings. But the court, in announcing how things should go, has reached the end of its authority.

“Our whole system is based on the premise of the branches respecting each other. And when that breaks down, you have chaos,” continued Mitchell. “If [Lee] issues orders and the legislature refuses to comply … that’s sort of the end of the road. But it also changes our system of government dramatically.”