Leandro is Dead. Long Live Leandro?

Getting your Trinity Audio player ready...

Jackie McLean has witnessed generations of children deprived of books, lab equipment, teachers, and other education essentials.

In 1994, her daughter was entering high school in Hoke County when a group of parents, students, and the local school board filed a lawsuit with four other low-wealth districts to test the state constitution’s promise of a sound, basic education for all children.

That litigation became known over the years as the Leandro case, for lead plaintiff Robb Leandro, then a Hoke County eighth-grader, and his mother. In the court rulings, the same case has been referred to as Hoke I, II, III. And during its labyrinthine path between the trial and appellate courts and back again, it became a symbol of the prolonged battle for educational equity.

More than three decades later, that case ended with a long-awaited state Supreme Court decision on April 2 that provided no relief to those low-wealth districts nor to ardent education advocates such as McLean, who joined the case in the late 1990s.

The 4-3 ruling, written by Chief Justice Paul Newby, focused on the fine points of procedure and jurisdiction, and ordered the suit dismissed “with prejudice”—offering no way for the plaintiffs to fix the flaws. The ruling also sidestepped the case’s two major questions: how to ensure that students in poorer areas get the resources needed for an adequate education, and to what extent the judiciary can compel the legislative branch to appropriate funds to fulfill a constitutional duty.

“We are really heartbroken,” said McLean, a dropout specialist with Hoke County schools. But she’s not about to walk away from the challenges Leandro sought to address. McLean now works with the children and grandchildren of students who were in school when the district first went to court. The kids now, she says, “are in even far more dire straits.”

With their primary vehicle for enforcing the constitution’s education guarantee badly battered, advocates like McLean are debating their alternatives, both legal and political. There’s no consensus, and no other lawsuits teed up. There has been, however, a current of optimism running through their gatherings in the decision’s wake. 

The hopefulness is tied to the fact that the Supreme Court did not strike down earlier court decisions affirming the right to a “sound basic education,” nor did it close off the possibility of future litigation.

There’s also a chance that Senate leader Phil Berger’s recent primary election loss will productively shake up state politics. It’s unlikely Berger’s unnamed successor will be able to wield the control he has built over 15 years as North Carolina’s most powerful politician. Over that period, the state fell behind its peers in both traditional public school funding and student performance, while cutting personal income and corporate taxes and boosting spending on private and charter schools.

November’s general election is expected to be favorable for Democrats, who are historically more inclined to support investment in traditional public schools—though there’s very little chance they will secure a majority in either chamber due to redistricting that strongly favors the Republican majority.

“What we must do now is to shift our focus, perhaps from the courtroom to public advocacy,” McLean said during an April 8 webinar organized by the nonprofit N.C. Justice Center. “We have parent advocates, but we want to increase that pool of parent advocates.”

“We’re going to continue to emphasize that the constitutional right to a sound basic education still remains,” McLean said. “We will not let up.” 

‘The Time to Kill a Snake’

Six days after the Supreme Court’s decision, Yevonne Brannon, chair of the nonprofit Public Schools First NC, gathered supporters in front of the sleek, mid-century legislative building that former Gov. Terry Sanford once said “embodies consensus of the needs and the dreams and the potential of North Carolinians from the Atlantic to the Appalachians.” 

As construction cranes swung overhead and school children touring the state capital sites walked by, Brannon pointed to the General Assembly: “They are the ones we’re holding responsible for funding our public schools.”

“We all know that public schools are underfunded, and the consequences are obvious, and they’re showing everywhere,” Brannon said. “We hear the threats of schools closing, of schools merging, of programs being cut, special education services on the chopping block.”

Meanwhile, Brannon said, “Our state legislators are pouring millions and millions of dollars into private school vouchers, and they have not even passed a budget for our schools.”

Chief Justice Newby, joined by three other Republican justices, ruled that Leandro had impermissibly morphed over time into a “full-scale” challenge of “the entire educational system enacted by the General Assembly.” On that basis, the majority nullified all court rulings in the Leandro case after July 24, 2017.

By then, six urban school districts had joined the lawsuit, the original trial court judge who presided over the litigation for nearly two decades had retired, and the case had morphed from a specific claim about district needs, according to Newby, into a broader statewide policy dispute. That’s also around the time both sides in the lawsuit agreed to seek an independent consultant to lay out a remediation plan—ultimately a $5.6 billion, multi-year roadmap to fix the state’s public education funding inequities.

Legislative leaders intervened in the case in 2021, after seeing the plan. The Supreme Court, under a Democratic majority in 2022, ordered them to comply. “For twenty-five years, the judiciary has deferred to the executive and legislative branches to implement a comprehensive solution to this ongoing constitutional violation,” Justice Robin Hudson wrote for the majority. “Today, that deference expires.”

But, shortly afterward, a new Republican majority on the bench took the highly unusual step of agreeing to the legislative intervenors’ request to rehear the case.

The latest Supreme Court opinion makes North Carolina an outlier among the more than 40 states where there has been “educational adequacy” litigation, said Wendy Lecker, an attorney with the Education Law Center who specializes in this type of case. “I’ve seen cases reversed,” she said, “but I’ve never seen them erase the history of a case.”

Ann McColl, a constitutional law scholar with past involvement in Leandro, as one-time general counsel for the North Carolina Association of Educators, invoked Hogwarts, the school of witchcraft and wizardry in the Harry Potter series, in explaining the court’s decision. “It really does have a bit of that sorcery to it,” she told hundreds of public school champions at a Public School Forum event in early April. 

McColl laid out the potential future paths: “We’re going to reframe what it means to have a constitutional right to education in North Carolina, and we will work together to figure out: Is this something where we go first to the General Assembly, give them their chance to do it right? Or do we first go to the trial court? And if we’re going to go into a trial court, what’s the best way to do that?” 

“I’ve seen cases reversed, but I’ve never seen them erase the history of a case.”

Wendy Lecker, Education Law Center

To begin to answer the last question, lawyers have been poring over the Supreme Court’s 244-page decision, which includes a separate concurrence from Republican Justice Phil Berger Jr. and dissents written by Republican Justice Richard Dietz and Democratic justices Anita Earls and Allison Riggs.

Many are finding optimism in an unlikely place—the concurrence written by Berger Jr., son of the state Senate leader. Berger Sr. sought to intervene in the case only after the trial judge ordered the $5.6 billion statewide remedial plan, contending that the courts were exceeding their authority. While the majority left that issue unanswered, Berger Jr. wanted to see the court directly address the separation of powers question.

“An older attorney once told me that ‘the time to kill a snake is when you’ve got the hoe in your hand,’” Berger Jr. wrote in his solo concurrence.

He also pointed out that the majority opinion did not expressly disavow the Supreme Court’s 2022 ruling in Hoke III. At the time, a Democratic majority on the bench held that not only had the state failed to meet its constitutional duty to a sound basic education, but the court had the authority to order specific remedies and compel state actors, including the General Assembly, to implement them.

“Half measures will only ensure that we will be back here again with profiteering lawyers and constitutional evolutionists who fetishize a government of the judges, by the judges, and for the judges who can legitimately argue that the reasoning of Hoke III remains,” Berger Jr. wrote. “For separation of powers stalwarts, this is a demoralizing head scratcher.”

Some civil rights attorneys who worked on the case take offense to Berger’s language, noting that they took on the case pro bono. But some also agree with the thrust of Berger’s argument.

“People from the outside looking in might be surprised to hear this, but I think that the main point that he is making in his concurrence is exactly correct,” said Zack Kaplan, a former Durham public school teacher who became a civil rights attorney, in part, because of the Leandro case. He clerked for former Hudson when she wrote the 2022 majority opinion. 

“What Justice Berger points out is that even though the 2022 decision is vacated, it still stands as persuasive authority,” Kaplan said.

While few were surprised by the latest ruling, they were astonished by the two-plus years they had to wait. Between the rehearing in February 2024 and the ruling, 770 days passed. Most rulings are released an average of six months after a hearing. 

“It was a serious abdication, I think, of judicial duty for it to take this long for an opinion of this magnitude, of this public importance,” Kaplan said. “In taking so long, the court effectively put its thumb on the scale. It had a chilling effect on any further advocacy.”

Former Justices Offer Ideas

Two former Supreme Court justices who authored earlier decisions in the Leandro case have also suggested potential paths for future litigation.

Burley Mitchell, a Democrat on the state’s highest court from 1982 to 1999 and its chief justice for the last four, wrote the 1997 Leandro decision declaring that all the children in North Carolina have a right under the state constitution to be provided the “opportunity to obtain a sound basic education.”

“The court’s April 2 decision also made it clear that the right can still be enforced in a proper case brought by affected plaintiffs against all necessary defendants,” Mitchell wrote in an opinion piece for The News & Observer. 

The court, he wrote, suggested the case could be brought as a class action on behalf of all the state’s children rather than a few counties. “If such a class action is brought, I suggest it not be designated a ‘school funding case’ but instead be brought as an ‘educational adequacy case,’” Mitchell added.

Bob Orr, a Republican justice from 1995 to 2004 who left the party in 2021, authored a unanimous 2004 opinion affirming the state violated its constitution regarding at-risk students.

“There was a boatload of evidence in the Hoke County case that if your kid gets into the public school system and they can’t read, they don’t know their letters, they don’t know their numbers, they start behind, and they stay behind,” Orr said. “And that’s how you ended up with dropouts and kids that can’t read.”

Orr thinks it could be possible—although a long shot given the current political makeup of the state Supreme Court—to ask for a rehearing only on the pre-K issue since the majority ruling in that case was 13 years before Newby’s 2017 cutoff. A more likely scenario, Orr said, would be for someone to file a new lawsuit that takes that topic on in a statewide fashion.

“You have to look beyond the individual situation in each school system,” Orr said. “Do you challenge as unconstitutional how they teach reading? You can’t remedy it for one county and leave the other 99 out.”

“An older attorney once told me that ‘the time to kill a snake is when you’ve got the hoe in your hand.’”

Justice Phil Berger Jr.

Some advocates will surely look at the Supreme Court’s unanimous 2021 decision in Deminski v. the State Board of Education, in which a Pitt County parent sued the county and state boards of education, alleging that they were “deliberately indifferent” to a hostile academic environment at her children’s elementary school. She argued that her three children were being denied their constitutionally protected right to a sound basic education because of bullying.

That ruling, authored by Newby, cited the 1997 Leandro ruling guaranteeing a student’s right to a sound basic education: “The right to a sound basic education rings hollow if the structural right exists but in a setting that is so intimidating and threatening to students that they lack a meaningful opportunity to learn.”

Legal experts heralded it as a landmark ruling expanding the scope of Leandro to include a student’s right to safety within the school system. The ruling opens the doors for other cases to be brought based on individual claims of negligence anywhere in the state, not only districtwide cases.

The Leandro Plan

In 2018, trial court Judge David Lee approved a joint request from the state and the plaintiffs to appoint WestEd, an educational consulting firm based in California, to work with local experts and develop “detailed, comprehensive, written recommendations for specific actions” in response to Leandro. 

Key elements of meeting the constitutional mandate, Lee said, were providing “a competent, certified, well-trained teacher” in every classroom, “a well-trained, competent principal” in every school, and “the resources necessary to ensure that all children in public school, including those at risk, have an equal opportunity to obtain a sound basic education.”

In 2019, WestEd delivered a report concluding that North Carolina was “further away from meeting its constitutional obligation to provide every child with the opportunity for a sound basic education than it was when the Supreme Court of North Carolina issued the Leandro decision more than 20 years ago.”

WestEd’s modeling showed that the state would have to spend several billion dollars over eight years to meet the constitutional standard. 

Some of the top priorities it identified were revising the state’s school funding formula so that more money goes toward high-poverty schools, increasing teacher salaries to make them competitive with neighboring states, and providing incentives for principals to work in high-need schools.

Another top priority—expanding North Carolina’s Pre-K program to provide high-quality, full-day, full-year services to all at-risk 4-year-olds—was estimated to cost $571 million a year after a ramp-up period.

WestEd emphasized—and Lee concurred—that the recommendations were not to be treated as a “‘menu’ of options,” but rather “a comprehensive set of fiscal, programmatic, and strategic steps necessary to achieve the outcomes for students required by our State Constitution.”

“The right to a sound basic education rings hollow if the structural right exists but in a setting that is so intimidating and threatening to students that they lack a meaningful opportunity to learn.”

Chief Justice Paul Newby, writing in a 2021 decision

Despite Lee’s 2021 order that the state follow the plan, and the Supreme Court’s affirmation in 2022, bills to implement the plan in full never got traction. Over the years, the General Assembly made some changes in response to the litigation. Lawmakers created new funding allotments for low-wealth and small districts, and appropriated funds for an Advanced Teaching Roles program aimed at improving mentoring. But in the court’s view, their appropriations were insufficient.

Teacher pay continues to lag other states in the South. Base pay for beginning teachers is $6,000 higher in South Carolina, $5,250 higher in Virginia, and $3,500 higher in Tennessee. Even Mississippi, with a much higher poverty rate, pays more. And North Carolina offers less generous state health and retirement benefits. 

North Carolina’s salary schedule calls for small raises every year up to year 15, when a teacher is paid $53,880, then no further raises for a decade. Most districts offer a local pay supplement, but it’s usually less than $10,000. Poorer districts have a hard time offering competitive pay, despite relatively high tax rates. Ten districts pay, on average, less than $2,000. One pays no local supplement at all.

In the wake of this month’s Leandro decision, some advocates argue that the best way forward is to pressure lawmakers to adopt the remediation recommendations from six years ago. They worry that anything else will fall short of meeting the constitutional standard.

“The researchers used cost modeling to determine what sort of resource level it actually takes to ensure that students from every district in the state have the opportunity to meet state standards,” Kris Nordstrom, a senior policy analyst at the nonprofit N.C. Justice Center, said during a recent webinar. He doubts that any other proposal would include that type of analysis.

Nordstrom contrasted the court-ordered plan with Superintendent of Public Instruction Mo Green’s five-year plan, called Achieving Academic Excellence, which calls for increasing per-pupil spending by 10% over 2023 levels by 2030. North Carolina’s per-pupil spending level is lower than every state except Idaho, according to the most recent ranking by the Education Law Center. Matching the national average would cost roughly $8 billion more a year.

“That is a very dire indication of how little we are spending in North Carolina,” Nordstrom said, “but it’s also an indication that we can afford to do a lot more.” 

A Blue Ribbon Commission

In the most recent court opinion, Newby gestured toward a recently announced Blue Ribbon Commission for Public Education as a place better suited than the courts for hashing out a plan for the education system.

The commission’s 28 members have been jointly appointed by Democratic Gov. Josh Stein and the Republican leaders of the state House and Senate. They include 10 legislators, representing both major political parties and including all three chairs of the House K-12 Education Committee and two of the three chairs of the Senate’s Education/Higher Education Committee. Sen. Michael Lee, the other education co-chair, has announced he will seek to replace Berger as Senate leader.

Also named to seats are Green, who is a Democrat; State Board of Education chair Eric Davis, also a Democrat; Bill Harrison, the chair of the Public School Forum; and several business leaders.

The topics the group “may examine,” according to a March executive order, overlap with recommendations and studies that were part of the Leandro litigation: teacher training and student advancement, administrative operations, educational leadership, and accountability.

Their report is expected in February, said Don Martin, one of the commission’s co-chairs. Martin, a Republican who also chairs the Forsyth County Board of Commissioners, previously served as superintendent of Winston-Salem/Forsyth County Schools during a period in which the district was one of the Leandro plaintiffs.

He said he does not see the commission as supplanting the studies and remediation planning during the litigation, but thinks it will be a forum for prioritization. He expects the commission to spend time identifying items that can get political traction, have a clear method for measuring impact, and perhaps can be phased in over time.

“This is not the easiest economic time to be getting into everything,” Martin said. Lawmakers in the legislature’s two chambers are currently at an impasse over the budget, with House Republicans seeking to slow down planned tax cuts in part to pay for more generous raises for teachers than the Senate’s leaders support. 

If the reductions in the personal income and corporate tax rates proceed as planned, North Carolina will have a shortfall of $2.8 billion in fiscal year 2028, according to the latest projection from nonpartisan budget analysts.

“We haven’t had much compromise evident in our General Assembly lately, and the question is, ‘Is there a way to begin to get that?’” Martin said. “I think you can clearly argue that to this point, Leandro never quite got that to happen.”

“That is a very dire indication of how little we are spending in North Carolina, but it’s also an indication that we can afford to do a lot more.” 

Kris Nordstrom, N.C. Justice Center

Sen. Jay Chaudhuri, one of the Democrats on the commission, agrees the effort is worth a try. It’s “positioned to build coalitions,” he said. 

“I think we can convene the commission and make some recommendations that hopefully will be implemented by the General Assembly, all while there are those of us that kind of acknowledge the painful moment of the Supreme Court’s decision,” Chaudhuri said. “I don’t view it as an either or.”

But for Chris Brook, a civil rights attorney who formerly served as a Court of Appeals judge, Newby’s suggestion that a new commission study the state’s education system immediately brought to mind a contrast with another constitutional right: the right to bear arms. 

“If somebody infringed upon that right and then the judge said, ‘Oh, well, we’re studying how that right is being infringed right now,’ do you think that Chief Justice Newby would find that satisfactory?” Brook said. “Of course, he wouldn’t be satisfied with that, because constitutional rights are not to be studied, they’re to be guaranteed.” 

Some conservatives are also eying the commission warily.

“I don’t mean to be jaded about this, but I think in Governor Cooper’s first term, he had a blue ribbon commission on Leandro,” said Bob Luebke, director of the John Locke Foundation’s Center for Effective Education. He interpreted the new commission as a way for Democrats to put some of the issues raised during Leandro litigation back in the public eye.

After Luebke read the governor’s executive order, he checked the websites of House Speaker Destin Hall and Senate leader Berger for signs of support. Finding none, he said, he concluded that “they were distancing themselves” from it.

Meanwhile, in Hoke County

In Hoke County, now a growing bedroom community to the Fort Bragg Army base, nearly one-fifth of the children under 18 live in poverty.

Five of the public school district’s 14 schools have been labeled low-performing, and there are only two national board-certified teachers in the whole district, according to the most recently available state data.

“We still have rural poverty issues in our county that are affecting our children,” said McLean, the dropout specialist. “And clearly, lack of educational funding and the ability to fully serve our students to the capacity that they’re entitled to, according to the constitution.”

“We don’t have the money,” she said. “We don’t have the teachers, and even when we do get the teachers, they don’t stay.” The district has one of the highest attrition rates in the state. One social worker serves 2,100 children in the district, McLean said. 

Superintendent Kenneth Spells said in a press release that the court’s decision was “deeply disappointing.” “In Hoke County Schools, we remain committed to doing everything within our power to support our students, our educators, and our families. However, meaningful progress requires sustained investment in our schools, including competitive teacher pay, increased support personnel, and resources that directly impact student learning.”

There was no mention of the Leandro case at the Hoke County school board’s April 14 meeting. The focus was on the nuts and bolts of providing services within the prescribed budget.

The board got an update on its early literacy program and a construction project, and considered hiring a contractor to manage its substitute teachers.

Erica Fortenberry, the district’s assistant superintendent of human resources, looked ahead to a job fair planned for the following weekend. The district has 77 vacancies to fill for the 2026-27 school year, she said. More than a quarter of those positions would work with kids who have disabilities.

The district plans to offer a sign-on bonus of $5,500 for teachers who focus their work on students with disabilities and “have a clear license for three years,” she said. Psychologists working with students with disabilities will get a sign-on bonus of $3,500. New staff will also get $500 for relocating. And the district is offering a higher local supplement, an increase of 7 to 9%, depending on the position.

Fortenberry encouraged board members to post about the job fair on social media: “We would like to start the school year with all of our classrooms with a certified teacher.”

The board also unanimously approved a resolution to the General Assembly encouraging it to pass a budget. The resolution noted that Hoke County Schools gets roughly 85% of its funding from state appropriations, and the lack of a budget and frozen pay scales, coupled with a rise in premiums for everyone on the State Health Plan, had resulted in a net pay decrease for many.

Board chair Ruben Castellon recognized the work of Kesha Campbell, a pre-kindergarten teacher at Hawk Eye Elementary School, selected as the month’s “Chair’s Pick.”

“Miss Campbell was nominated by a colleague who recognized the powerful impact she has on her students by encouraging them daily to do their best,” Castellon said. 

She hasn’t missed a single day of school this year, “demonstrating her strong commitment and dedication to her students,” Castellon said. “Despite working in second jobs, she continues to show up each day, ready to support and inspire young learners.”

He handed Campbell a $250 check. “I’ve already paid the taxes, so you can spend it however you want to,” Castellon said. “Thank you very much for your service.”