Publisher's note: This post, by Bob Luebke, was originally published in Civitas's online edition.
In 2018, intervenors in the long-running Leandro vs. State
case on school funding in North Carolina asked Judge David Lee to make recommendations to remedy the state's failures in providing a "sound basic education."
Lee agreed and ordered WestEd, to issue recommendations as to how the state could best comply with Leandro. He also asked that WestEd focus their recommendations around the requirements for qualified teachers, competent principals and enough resources.
Lee received the recommendations from WestEd
in June of 2019. They remain confidential and few people are aware of their contents. Why the recommendations have not yet been released is a question only Judge Lee can answer.
These developments give many North Carolina conservatives pause. And for good reason. Lurking behind Leandro funding questions are significant constitutional questions about the role of the legislature and the courts. Article IX Section 2 of the North Carolina State Constitution
lays out the state's obligation to create and fund "a general and uniform system of free public schools."
While the creation of a system of uniform and free public schools is a sweeping requirement, the only other conditions discussed are that the schools operate at least nine months out of the year and that equal opportunities be provided for all students.
The Leandro case is the hallmark school finance case in North Carolina. It's a case that has been ongoing for a quarter century. Some relevant background: The North Carolina Supreme ruled in Leandro v. State (1997), that the state constitution's right to an education, "is a right to a sound, basic education." Subsequent cases have sought to further define the state's role in meeting those responsibilities. In Leandro II (2002-2004), the court found that students in certain rural counties had their rights to a sound, basic education violated. The court ordered the state to remedy the violations by providing certified teachers, competent principals, and necessary resources. More recently in 2011 a Superior Court judge held that pre-school funding cuts and other changes in the state budget violated a student's right to a sound, basic education. The court ordered the state to correct the funding deficiencies and assigned a judge to monitor compliance.
Conservatives are understandably wary of judges dictating how the legislature spends taxpayer money. Legal scholars can make compelling arguments that such orders violate the separation of powers clause of the North Carolina State Constitution. Simply understood, the separation of powers clause states the legislature makes laws, the executive branch executes the laws and the courts interpret laws. Only the legislative branch has the power to appropriate money.[i]
Which branch decides questions of school funding is a fundamental question. Historically, such questions have been viewed as political questions and settled by the elected representatives in the legislature. The advent of lawsuits challenging the adequacy of state funding
for public education has brought a spate of cases accusing the state of failing to meet its financial responsibility. The implications are far reaching. Last year about $10 billion was spent on K-12 public education. K-12 education is the largest single item in the state budget. Funding impacts about 1.5 million students and thousands of employees.
What does the public think about these developments? In late October, the Civitas Institute commissioned a poll
of 750 adults for their thoughts on school funding and what they thought the role of the courts should be in deciding such issues (Access the poll crosstabs HERE
and methodology HERE
). The poll went to the field on October 29 and 30. The responses were revealing
School Finance and Success
Much of the current debate about school finance is driven by the notion that we must create an environment that allows children to be successful in school. Specifically, we need to focus on the factors of success. To that end, we asked respondents to select the most important factor in determining whether a child will be successful in public school. Eighty-three percent of respondents chose either "family support" (49 percent) or "quality of teachers" (34 percent). Access to modern technology was third at 5 percent. Surprisingly, per pupil school spending tied for a distant fifth place at 3 percent.
Our poll also asked respondents if they thought North Carolina public schools receive too little, too much or about the right amount of funding "to provide children with a sound, basic education."
Seventy-three percent of respondents said too little, 5 percent said too much, 13 percent said the "right amount." Nine percent of respondents were unsure and offered no response.
Respondents were then asked to tell select a range of how much North Carolina spends to educate each child in the public schools. Surprisingly, only 10 percent of respondents choose the correct range; $9,000-$11,000. Nearly half (49 percent) of all respondents suggested $7,000 or less with a full 30 percent of respondents suggesting North Carolina spends less than $5,000 per child. Fourteen percent of respondents selected $7,000-$9,000; while 6 percent said North Carolina spends more than $11,000 per student. Again, a large percentage of respondents, 20 percent said they were unsure of how much the state spends per student.
A significant majority believed North Carolina spends "too little" on public education, but a majority think the state spends less than it does.
When respondents were told that North Carolina spent $9,478 per student (2018) and then asked if that amount was too little, too much or about the right amount, the percentages in each category shifted.[ii]
The percentage of respondents who believe North Carolina spends too little dropped from 73 percent to 57 percent. The percentage who think North Carolina spends too much increased from 5 percent to 9 percent, while the percentage of those who believe the state spends about the right amount increased dramatically from 13 percent to 21 percent of respondents. Surprisingly, the percentage of respondents who were not sure of their response also increased; from 9 percent to 13 percent.
We then asked respondents who said North Carolina spends too little or about the right amount on public schools, if they would be willing to pay additional state taxes in order to provide more money to the public schools. Over half of respondents (55 percent) said they would; 28 percent said they would not, and 17 percent of respondents said they were unsure.
Of respondents who said they were willing to pay more in additional taxes, we then asked; how much they would be willing to pay? Approximately half of the respondents (52 percent) said they would be willing to pay $100 in additional taxes annually. Another 20 percent of respondents said they would agree to pay an additional $200 in taxes. After those two categories, support declines; 4 percent are willing to pay $300; 5 percent for $400 in additional taxes. Ten percent of respondents said they would be willing to pay more than $400.
The role of the Courts and Judges
We also asked respondents for their views on long-running court cases, the role of the courts and judges.
An overwhelming majority of respondents seem to view the role of judges as conservative, "to follow the rule of law "(57 percent) and "to hold officials accountable" (9 percent). A far smaller percentage of respondents held a more liberal or activist view of judges, "to fight social injustices" (12 percent) and "make sure the law is consistent with widely held beliefs" (14 percent).
Our poll also asked questions about the length of time cases take to work their way through the legal system. Sixty-one percent of respondents expressed concern about the time it takes to hear cases. Twenty-seven percent of respondents said cases shouldn't remain for more than a year. Approximately a third of respondents (34 percent) said judges should place a limit on time devoted to a case. About a third of respondents were sympathetic to the argument that judges should have more time to hear cases. Specifically, 15 percent of respondents said additional time should be allowed if it's an important issue; while 18 percent said, "any case should remain open with a valid reason."
About spending and a judge's role in such decisions, responses are more nuanced. Respondents seemed to clearly want more spending for the public schools (although less so once they know how much is spent), yet they prefer that such decisions be settled by their elected representatives. When asked if the courts should have the power to order state legislators to increase spending on government services - even if it leads to a tax increase, 45 percent of respondents said no, 27 percent said yes, and another 27 percent were unsure.
Additionally, respondents were also asked, if more money was to be spent on the schools, what would be the correct way to bring that about? Seventy-three percent of respondents said elect members that want to increase state funding. Thirty-eight percent chose "elect a governor that proposes budgets that increase state funding,"
while 35 percent of respondents said, "elect members that want to increase state funding."
Only 11 percent of respondents chose "elect /appoint justices that require the legislature to spend more."
Judges and Charter Schools
Since public-school finances impact charter schools and their operation, we also asked respondents their views on charter schools and whether judges should have the power to create rules beyond those approved by state government. We prefaced this discussion with respondents' views on charter schools. We asked respondents whether they support the creation of additional charter schools. Sixty-one percent of respondents said they support charter schools; 19 percent oppose adding more charters, while 20 percent of respondents are undecided.
We then asked respondents if they think charters have a positive or negative impact on North Carolina's educational environment; 59 percent of respondents called charters "a positive addition"
while 29 percent of respondents said charters "negatively impact public schools."
Lastly, the poll asked about ways to address the current friction between charter and public schools. Specifically, we asked if judges in state courts should have the power to create rules for charter schools beyond those passed by the state legislature. Over half of respondents (52 percent) said no; 26 percent said judges should have such powers and 22 percent of respondents were unsure.
Poll results: What do they tell us about school funding in North Carolina?
Much of the current debate on school funding is driven by a perception that North Carolina schools are underfunded. Regrettably, responses to questions about school spending in North Carolina reveal little knowledge about actual education spending. Despite those realities, it appears much of the public still wants to increase spending for the public schools. What should not go unnoticed, however, is the lack of support for judges ordering the legislature to spend more on public schools. Respondents rather have a preference to resolve the current controversies through our elected officials in the legislative or executive branches, many of whom have already taken public positions and campaigned on such issues. While school funding will always be an important issue, we must remember that our constitution has in place a system of government to respond to changes in public sentiment. When we ignore the limits placed on each branch of government, we not only raise significant constitutional questions but also deprive North Carolinians a voice in important public debates.
See: North Carolina State Constitution, Article II Legislative
Statistical Profile, Public Schools of North Carolina, Table 22. Available online at: http://apps.schools.nc.gov/ords/f?p=145:32:::NO:::