Publisher's note: This post, by Bob Luebke, was originally published in Civitas's online edition.
Another chapter may soon be added to North Carolina's long-running school finance case known as Leandro v. State
In July 2017, several plaintiffs and the Charlotte Mecklenburg School District asked, Superior Court Judge David Lee, for an order to develop recommendations for the state to comply with the three major requirements of the Leandro case which outlined the state responsibilities in providing a sound, basic education to all children. In early 2017, Lee had taken over the case from Judge Howard Manning who had presided over it for over two decades. Lee agreed with the intervenors and on Feb. 1, 2018 he appointed WestEd, an educational consulting firm to oversee the study and develop recommendations to remedy the state's continuing violations of Leandro.
The WestEd recommendations have been on Judge Lee's desk since June and he has not released them. Why the recommendations have not been released has fueled a lot of speculation. Did the judge want the recommendations reworked? Did he find them unacceptable? Was he waiting for the legislature to adjourn? Only Judge Lee knows.
Since recommendations concern state responsibilities regarding teachers, staffing and funding, the financial impact of the recommendations could be far-ranging, especially if the state is ordered to increase the number of teachers, staffing and resources. North Carolina currently spends about $9.5 billion dollars on K-12 public education, which is by far the single largest item in the state budget.
Will Judge Lee require North Carolina to boost per pupil spending to meet the legal requirements of the Leandro decision? Although there have been exceptions, state courts in general have been hesitant to order specific funding increases. Instead, courts have asked states to adopt standards, goals and outcomes. Since such requirements usually involve a certain level of spending and staffing, such orders are equivalent to ordering spending increases.
If the court orders the legislature to increase spending on public education, many legal scholars believe such an order would violate the separation of powers as articulated in the North Carolina State Constitution. The state constitution clearly states, the legislature shall appropriate money, while the judicial branch shall interpret the law. Such orders constitute a form of judicial activism that conservatives find repugnant
Leandro has been in the courts for a quarter century. It's an unusual and far-reaching case that has attempted to answer what it means for the state to provide a sound, basic education to all children? Two and a half decades is a long time for a case to be in the courts. Even if you are sympathetic to the court's position, it's fair to ask: is this the best way to develop education policy?
No one knows when Judge Lee will release the recommendations. When he does however, you can be sure looming behind any discussion will be significant constitutional questions.