The judge in the long-running Leandro school funding case could issue an order as early as three weeks compelling the General Assembly to fully fund a court-ordered plan drawn up by California-based consultants.

The news came during a hearing on Monday, Oct. 18. Superior Court Judge David Lee — the presiding jurist in the Leandro case — had set that date as an arbitrary deadline for when the legislature must fully fund the remedial plan, which calls for $5.6 billion in new spending on public education.

Lee asked attorneys for the plaintiffs to submit a draft order within two weeks. The defendants — the state of North Carolina plus the N.C. State Board of Education — will then have a week to review before the Nov. 8 deadline, at which point the judge could issue the order.

That move comes even as lawmakers are still negotiating a final budget deal with Gov. Roy Cooper that could contain components of the Leandro plan. The versions already passed by the House and Senate over the summer fund parts of the plan, including $8.6 million over the next two fiscal years for teacher recruitment bonuses in low-wealth and high-needs schools.

“It is not a matter of if Judge Lee will issue an order to compel lawmakers to adopt the Leandro remedial plan but when,” said Dr. Terry Stoops, director of the Center for Effective Education at the John Locke Foundation. “Today’s hearing laid the groundwork for court action in early November, regardless of whether lawmakers conclude their negotiations with Governor Cooper and approve a budget by then.”

“It is not proper for an unelected, county-level trial judge to swoop in and tell the governor and the legislature what they must enact into law and fund,” said Sen. Michael Lee, R-New Hanover.

During the hearing, Raleigh attorney Melanie Dubis — who represents the plaintiffs in the case — compared the judge’s power to court actions taken to desegregate schools. She argued that Lee has the right and obligation to issue an order.

“There is a remedy available here. There is a remedy that is grounded in the state constitutional authority granted to the court to deliver right and justice,” Dubis said. “The duty of this court is to attend to the protection of those children from the abridgment and infringement of that right. So the court unquestionably has the authority and in fact the duty to do that. Anyone who argues that the court does not have the authority is arguing that our state constitution is not worth the paper that it’s written on.”

Republican lawmakers say Lee is dramatically overstepping his authority.

“We were reminded today that this case is about the students, and not the adults,” said Senate Education Appropriations Committee chair Sen. Deana Ballard, R-Watauga. “Yet, this case has turned into one adult – an unelected trial judge — trying to wield power he does not have. The Leandro comprehensive remedial plan was written by out-of-state consultants. No one knows who funded the report, and the consultants didn’t include legislative leaders in their drafting process.”

‘Unhinged judge’

At one point during the hearing, Lee expressed keen interest in a case from 2004 when a Kansas judge ordered all public schools closed until the state legislature upped school funding.

“I take it the judge out there just closed all the schools in the state? I bet it didn’t take too long for somebody to act on that, did it? Maybe the weekend?” said Lee.

The press office of Senate leader Phil Berger, R-Rockingham, put out a press release denouncing Lee as “unhinged” for “contemplating” shuttering schools to force the legislature’s hand.

“This is yet another example of why the founders were right to divide power among the branches of government, giving power to create law and spend money with the legislature, not an unaccountable and unelected trial judge,” said Berger. “Judge Lee makes a mockery of our constitutional order with every additional hearing.”

Berger’s press shop put out a statement citing data from the National Education Association showing the state’s per-pupil expenditures on public schools have increased 33% in the past decade, exactly mirroring the national increase. Last year’s increase alone was over 7%, the eighth highest in the country.

Republicans also blasted Lee for claiming during the hearing that the General Assembly “is a party” to the Leandro lawsuit.

“They have been included,” Lee said. “There has never been a question in my mind that they were not included. They have failed, neglected, and refused to participate in any way in this proceeding.” 

Berger fired back.

“That is clearly not true, as the out-of-state consultants excluded the legislature from their closed-door process in developing their multi-billion dollar spending proposal,” according to a statement from Berger’s press office.

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 then — in 1997 and again in 2004 — that the state has a constitutional obligation to provide a “sound, basic education” to all students.

In March, the defendants submitted a document called the Comprehensive Remedial Plan to 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.

“We also support a sound basic education for every child,” said Becki Gray, John Locke Foundation senior vice president of government affairs. “We believe that means school choice, parent engagement, and the money following the child to reform the basic delivery structure of a quality education.”