Briefs aim to sway judge in long-running N.C. school funding legal dispute
Editor’s note: This developing story was last updated Monday afternoon with reply briefs. Last update: 5:05 p.m.
Plaintiffs and N.C. Justice Department lawyers are urging a judge to order $795 million in new state education spending. Legal briefs filed since Friday confirm agreement from both groups about whittling down the size of a $1.75 billion spending order issued last fall.
Meanwhile, legislative leaders argue the judge should order no additional spending at all. They say the state budget adopted last fall nullifies the original $1.75 billion order in its entirety.
Special Superior Court Judge Michael Robinson set a 5 p.m. Monday deadline for final legal filings. They are tied to the long-running school funding legal dispute known as Leandro.
Parties in the case responded to the state’s assessment on April 4 that nearly $800 million of the $1.75 billion remains unfunded. State officials reached that conclusion after comparing the original Nov. 10 spending order to provisions within the state budget approved on Nov. 18.
Robinson also has scheduled a hearing for Wednesday in the case. One week later, on April 20, he is scheduled to render a decision about how to address the original $1.75 billion order. Parties in the case will then head to the state Supreme Court. The state’s highest court already has agreed to review the case. The Supreme Court rendered earlier Leandro decisions in 1997 and 2004.
Plaintiffs in the case submitted a brief accepting state budget officials’ comparison of the budget and the original spending order. They called on Robinson to order more than $593 million for the N.C. Department of Public Instruction, $168 million for the Department of Health and Human Services, and $32 million for the University of North Carolina System.
“It is undisputed, and indeed the law of the case, that hundreds of thousands of
school children are being denied their fundamental constitutional right to have an
equal opportunity to obtain a sound basic education,” wrote plaintiffs’ attorney Melanie Black Dubis. “That undisputed fact is even more alarming when one considers that the State has more-than-enough resources to fully implement the remedy ordered by this Court but simply refuses to do so.”
A second set of advocates for additional education spending, dubbed the “Penn-Intervenors,” also supported the state’s numbers. The intervenors’ brief and a proposed court order also called for the court to order an identical amount of new spending.
“[O]ther than changing the math, the State Budget has no effect on the November Order,” wrote attorney Christopher Brook. “Under the State Budget, the State has
once again failed to live up to its constitutional duty to provide the students of North Carolina with a sound basic education.”
“The State Budget reflects particularly significant shortcomings for at-risk students,” Brook added. “Most concerning for Penn-Intervenors, it lacks any funding or provides only partial funding for students with disabilities, low-income students, and English learners. Similarly, it provides little to no funding for critical initiatives for low-property-wealth districts that are necessary to meet the needs of their at-risk students, including funding for community schools, grow-your-own teacher programs, and expansion of high-quality prekindergarten programs.”
Justice Department attorneys from N.C. Attorney General Josh Stein’s office submitted a proposed new court order. It would adjust the dollar figures from the original $1.75 billion order down to match the new total of roughly $795 million.
State lawyers cited the review of education-related provisions in the state budget. “As a general matter, the analysis reveals that 63% of the funding required for Year 2 of the [Comprehensive Remedial Plan] was included in the Appropriations Act, leaving approximately $257,418,175 of the CRP unfunded in Year 2,” wrote Senior Deputy Attorney General Amar Majmundar. “Similarly, the Appropriations Act provided roughly 49% of the required funding for Year 3, leaving $537,409,782 unfunded.”
On the other side of the argument, state legislative leaders urged Robinson not to order any new spending. A proposed court order filed Monday would vacate Lee’s Nov. 10 order.
“The Budget Act superseded and nullified the November Order in its entirety,” wrote attorney Matthew Tilley. “Judge Lee made clear that he believed the extraordinary measures imposed by his Order were justified only because, at the time it was entered, no budget had passed. The adoption of the Budget Act before the November Order became effective eliminated that justification.”
Legislators also took aim at the state’s comparison of the budget with the $1.75 billion order. “[T]he Budget Act provides approximately $1.17 billion toward programs called for in the CRP, with $640 million appropriated in FY2021-22 and another $529 million in FY2022-23,” Tilley wrote. “These figures do not account for the unprecedented sums the General Assembly has allocated to K-12 education to fund initiatives beyond those in the CRP.”
Tilley objected to the comparison itself. “[E]valuating the Budget Act by holding it up against the November Order is like running a race from the wrong starting line,” he wrote. “The touchstone against which the Budget Act must be compared is not the November Order, but rather the constitutional requirement to provide a sound basic education.”
Lawmakers argued that decisions about education funding belong to the legislative branch. “As the Supreme Court has recognized, there is no single path to this worthy destination, nor is there a magical sum of money that is, by definition, constitutionally ‘enough,’” Tilley wrote. “There is, however, a constitutionally mandated process for resolving such disagreements and determining a path forward. It is the legislative process.”
“Only that process provides an opportunity for the people to be heard and to decide — through their elected representatives — how to spend the State’s money and provide the State’s children with a Leandro-compliant education,” he added. “The State Constitution does not permit the judiciary to take that power from the people and reassign it to the courts — or worse, a small group of unelected lawyers.”
In a reply brief issued Monday, legislators raise concerns about “the threat this case poses to the separation of powers.”
“The Executive agencies, whose leadership is appointed by the Governor and whom DOJ represents, stand to receive significant funding under the November Order (in an up-front, lump sum, without the usual controls imposed by the Budget Act),” Tilley wrote. “By conceding various points in this litigation, the Executive can make an ‘end-run’ around the budget process and secure funding for its desired policy initiatives without having to obtain legislative appropriations.”
Plaintiffs argue that legislative leaders “are attempting to circumvent twenty-seven years of the law of this case and relitigate issues pending before the Supreme Court.” The intervenors echo the plaintiffs’ concerns, and Stein’s Justice Department lawyers also urge Robinson to reject legislators’ arguments.
State Controller Linda Combs played no role in the debate over dollars. But a brief from Combs reminded Robinson that the controller’s office objects to any court order that forces her to transfer money from the state treasury without legislative approval.
“The enactment and certification of the State Budget allows the Controller to expend funds that have been appropriated for specified uses in the budget, but does not allow the Controller to use or transfer any funds that have not been appropriated,” according to the brief from Robert Hunter, Combs’ attorney. Hunter is a former N.C. Supreme Court justice.
“Consistent with the well-established law of this state, while this Court may enter a money judgment against the State of North Carolina and/or its agencies, the Court lacks the authority to command the Controller to transfer unappropriated funds to another state agency to satisfy the judgment of the Court,” Hunter wrote.
To the extent that the state budget funds items included in the $1.75 billion order, Combs “may transfer those funds to the agencies identified in this Court’s Order … using the regular accounting process prescribed by our general statutes,” Hunter wrote. “However, where the relief prescribed by the November 10th Order requires the Controller to transfer unappropriated funds to the specified agencies, the Order contravenes the Separation of Powers Clause of the North Carolina Constitution and is, therefore, unenforceable.”
The case reached Robinson largely because of Combs. The Nov. 10 order had been issued by Judge David Lee, a semiretired Union County judge who had overseen the Leandro dispute since 2016.
Lee ordered Combs and other state officials to transfer more than $1.75 billion from the state treasury. The money would address items in the second and third years of a multibillion-dollar education program dubbed the Comprehensive Remedial Plan. Leandro plaintiffs and state government lawyers agreed to the plan. It was designed to help resolve a legal dispute dating back to 1994.
State lawmakers played no role in developing the plan. They had appropriated no money to fund it. So Combs went to the N.C. Court of Appeals with a request to block Lee’s order. The Appeals Court agreed with Combs. Appellate judges ruled that Lee had no authority to force her to take part in transferring money without authorization from the legislature.
Funding proponents appealed to the state Supreme Court, which agreed to hear the case. But first justices wanted to know whether the state budget would have any impact on the $1.75 billion order.
On the same day that the full Supreme Court called for a 30-day review of the original Nov. 10 order, Chief Justice Paul Newby replaced Lee with Robinson.
Robinson has held one online meeting with attorneys in the Leandro case. Wednesday will mark his first in-person hearing on the issue.