Publisher's note: This post appears here courtesy of the Carolina Journal, and written by Lindsay Marchello.
Rep. Craig Horn, R-Union, said he wouldn't be surprised if a judge orders the state to spend more on education.
But it would spark a constitutional crisis.
"The constitution of North Carolina is very clear as to who has the authority to appropriate money,"
Horn said. "I don't know that it is constitutional for a court to direct the state to appropriate a specific amount of money."
Not that it hasn't happened.
In Kansas, the courts
pushed for more education funding and eventually got it.
North Carolina could face a similar fate with Leandro
Kansas is embroiled in its own longstanding, complex education funding lawsuit. Four school districts sued the state in 2010 over what they considered insufficient funding for education.
The case has lasted several years, and only recently has the state come into compliance with the court's order to adequately fund education. The Kansas Supreme Court ruled the state was finally spending enough after the Kansas Legislature passed a law in April adding some $90 million more a year to education funding.
But the Kansas Supreme Court is keeping the lawsuit alive to continuously monitor the state and ensure it doesn't back down on funding promises.
In North Carolina, a parallel story is unfolding.
As North Carolina awaits the latest development in the long-running Leandro
case, some have begun to speculate what the court may do next to bring education into compliance with the rulings.
One possible outcome sees presiding Judge David Lee issuing an order calling for the General Assembly to spend more on education funding.
Jeanette Doran, president of the N.C. Institute for Constitutional Law
, said such a court order would violate separation of powers.
Section 6 of the N.C. Constitution
says that "the legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other."
The legislative branch makes laws and appropriates money, while the executive branch enforces the law. The judicial branch interprets laws to ensure constitutionality.
"It would be judicial overreach for a judge to order the General Assembly to spend a certain amount,"
Doran said. "The General Assembly is in charge of appropriations."
Horn said North Carolina has made progress in education, but there's still work to be done.
He also said lawmakers could sue over the constitutional issue, but he thinks the General Assembly is tired of litigation.
Nevertheless, if lawmakers don't sue, someone else will, Doran said.
dates to 1994, when five rural school districts sued the state, arguing they couldn't raise enough tax revenue locally to provide an education for their students on par with schools in wealthier districts. In 1997, the state Supreme Court held that every North Carolina child has a right to "a sound, basic education" under the state constitution. In 2004, the court ruled the state failed to live up to the previous ruling.
Decades later, the matter remains unresolved.
To break the logjam, the parties in the case agreed to commission an independent third-party to develop recommendations for state compliance with the Leandro
standards. WestEd, a California-based education consulting company, got the job.
On June 17, WestEd turned its report over to Lee. For now, the report is confidential as Lee reviews its contents for his anticipated court order. What the court order will entail is still a mystery, but a look at how a similar saga played out in Kansas may offer some clues.
Like North Carolina, WestEd played a role in Kansas' education funding dispute. The Kansas legislature hired WestEd to produce a report estimating "the minimum spending required to reduce a given outcome within a given educational environment."
WestEd's Kansas report
proposed funding scenarios ranging from $450 million to $2 billion a year. Kansas lawmakers were divided when the report dropped.
"There will be major losers at the end of this,"
Kansas Senate President Susan Wagle, a Republican, told KCUR
, "and that will be either the Kansas taxpayers or other state services whose funding stream will be cut."
Court orders involving money will take dollars from other programs and policy priorities, said Andy Taylor, a political professor at N.C. State University.
"The amount of money available is finite. If the courts are grabbing parts of it and telling the government where to spend it, that means, in theory at least, that other parts of the budget are going to lose out,"
Doran said she thinks Lee would consider the separation of powers issue when crafting his court order.
Yet until the WestEd report is unsealed and Lee issues his ruling, all political analysts can do is speculate. What is certain is that Lee will issue a court order. If it calls for the General Assembly to raise education funding to a set amount, then some will cry foul.
Chris Cooper, a political science professor at Western Carolina University, isn't one of those people.
"If this were to happen, there would absolutely be people who think this is judicial overreach and legislating from the bench, but I don't see it as a separation of powers violation,"
Cooper said. "I think it would be a political question as to how much is too much."
Many political disputes in North Carolina aren't really about policy differences, but rather disagreements over who's behind the wheel, Cooper said.
"Who controls the levers of power is one of the most salient issues of politics in North Carolina,"
Throughout history, courts have ordered the legislature to act, Taylor said.
"There have been activist courts that have engaged in this kind of policy making at the state level for a long time,"
Taylor said. "This happens a lot. A lot of people who are conscious of separation of powers issues sometimes are uncomfortable with it."
Taylor said judicial activism has happened frequently in public education matters regarding funding and school assignments. While the courts tend not to specify from where the money comes, calling for set amounts is, effectively, legislating from the bench, Taylor said.
"Courts across the country have intervened in this way, not only ruling that some kind of policy is wrong and illegal, but then compelling policy makers to do something about it, and do something specific about it,"