Republican budget writers in the General Assembly are bristling after the judge in the long-running Leandro school funding case set an arbitrary deadline of Oct. 18 for lawmakers to fund the court-ordered plan.

In a hearing Wednesday, Sept. 8, Superior Court Judge David Lee ordered the legislature to comply or he would explore options to compel lawmakers to do so. Lee criticized House and Senate versions of the new two-year state budget for not fully funding the Leandro remedial plan, which calls for $5.6 billion in spending on public education.

Lee suggested he could hold lawmakers in contempt if they don’t cooperate by the mid-October deadline.

“Again, that’s not to threaten anybody, but it’s to send a clear signal — as clear as I know — that come Oct. 18 if this hasn’t already been addressed, it should be addressed,” Lee said.

“This case has become a mockery of what it once was,” said Sen. Deanna Ballard, R-Watauga, in a statement to Carolina Journal. “As I’ve said before, a court has no more authority to direct the legislature to spend money or enact policy than the legislature does to direct a trial judge how to decide a case.”

“I don’t know how much clearer we can be,” said Pat Ryan, a spokesman for Senate Leader Phil Berger, R-Rockingham. “If Judge Lee wants to help decide how to spend state dollars — a role that has been the exclusive domain of the legislative branch since the state’s founding — then Judge Lee should run for a seat in the House or Senate. That’s where the Constitution directs state budgeting decisions be made, not some county trial judge.”

Sen. Michael Lee, R-New Hanover, called the judge’s remarks on education funding “misguided,” saying lawmakers have increased state funding per student by 39% over the last decade.

“This case is no longer about providing students with a sound, basic education,” Lee said. “This 27-year-old case has evolved to be singularly focused on additional funding, and we all know that money alone does not buy improved student outcomes.”

‘Judicial insurrection’

Lee has gone back and forth on plans to attempt to compel the legislature to fund the remedial plan. At a hearing in April, he said he wouldn’t tell lawmakers how to spend money on public education, saying he wanted the result “to be a cooperative effort with everyone having the same goal in mind.” But in June, Lee signed an order trying to compel the General Assembly to act.

“If the State fails to implement actions described in the Comprehensive Remedial Plan … it will then be the duty of this Court to enter a judgment declaring relief and such other relief as needed to correct the wrong,” Lee’s order stated.

“Any judge that attempts to interfere with the powers delegated to the General Assembly is not just guilty of judicial activism. They are committing an act of judicial insurrection,” said Dr. Terry Stoops, director of the Center for Effective Education at the John Locke Foundation.

“During the hearing, Judge Lee proclaimed that Leandro compliance is more important than honoring one of the foundations of our state government, the separation of powers,” Stoops added. “Apparently, he would rather risk a constitutional crisis between the judicial and legislative branches than respect the constitutionally defined authority of the General Assembly to direct state tax dollars.”

Legislative budget writers are in conference committee negotiations now. They want to hammer out a compromise budget to send to Gov. Roy Cooper. Both versions of the budget passed by the House and Senate fund provisions of the Leandro plan, but they stop well short of bankrolling the entire $5.6 billion.

In the House version, those Leandro provisions include $8.6 million over the next two fiscal years in teacher recruitment bonuses for low-wealth or high-needs schools; $5.2 million for N.C. pre-K; $3.8 million for cooperative and innovative high schools; and $10.5 million for career and technical training credentialing.

“Legislators invited Judge Lee to share his opinions on education policy well over a year ago, and he rejected that offer, but he’s had no problem lobbying for Democrats’ bills from the bench,” said Ballard.

History of the case

The Leandro lawsuit dates to 1994, when five rural school districts sued the state over education funding. The N.C. Supreme Court has ruled twice since — in 1997 and again in 2004 — that the state has a constitutional obligation to provide a “sound, basic education” to all students.

In March, defendants in the case — the state of North Carolina plus the N.C. State Board of Education — submitted a document called the Comprehensive Remedial Plan to Judge Lee. The plan was mandated in consent orders Lee issued in January 2020 and September.

The remedial plan draws from a more than 300-page report from San Francisco-based consultant WestEd. In 2017, the parties agreed to hire an outside consultant to draft recommendations for how the state could meet the Leandro mandate. They selected WestEd, which delivered a report to Lee in July 2019 that recommended the billions of dollars in new spending. It also draws on recommendations from Cooper’s Commission on Access to Sound Basic Education.