RALEIGH – Wake Superior Court Judge Howdy Manning has an impossible assignment. His is the trial court designated by the North Carolina Supreme Court to handle the Leandro school-equity litigation that began more than a decade ago. It is obvious that he means well and is properly outraged by continued educational mediocrity.
But charged with the task of enforcing state constitutional provisions regarding the public schools, and recent interpretations of the same by the Supreme Court, Manning has not limited himself to striking down unconstitutional systems and practices, or redressing a lack of access to decent schools by ordering that affected children be offered alternatives. Instead, he has chosen to offer specific directives to educators. This is judicial activism of the most blatant sort, albeit with the best of intentions.
A previous Manning ruling, that the state was constitutionally required to provide needy students with preschool education, was struck down by the Supreme Court as excessive. My guess is that if it come down to it, the same thing would happen to Manning’s latest directive, which states that nearly 20 North Carolina high schools “will not be allowed to open in the fall of 2006” if average test scores do not improve significantly. He further ordered – later insisting that his missive was “a warning shot” rather than “an order” – that school systems replace veteran principals at these schools.
It’s not that Manning is wrong in some of the particulars. No doubt to the great frustration of Leandro activists, he has correctly concluded that funding disparities do not explain the continued failure of many of North Carolina’s weakest high schools, located in such distressed communities as, say, Charlotte-Mecklenburg. And leadership is, indeed, a critical part of what makes a school successful.
But to put it bluntly, we cannot have judges ordering principals to be fired and schools to be shut down. These are policy decisions, to be made by professionals under the direction of elected school boards. Can a judge order a school system to adopt phonics? Merit pay? Higher pay for math and science teachers? There are very good reasons to believe that all of these policies would boost school success and student learning. Thus, do children have a constitutional right to see them enacted, via court order if necessary?
Surely not. We are on the verge of a massive abrogation of the separation of powers, and it’s time for North Carolina leaders in the legislative, executive, and judicial branches to recognize it and respond. Policymakers need to get serious about policy changes in education, instead of just trying to purchase support from unions or placating the education establishment. Judges, for their part, need a practical and appropriate mechanism for enforcing the constitution’s educational provisions without stepping into the role of educator-in-chief.
I submit that the best way to enforce them is by ensuring that children trapped in chronically low-performing schools are offered alternative arrangements. These might include magnets or other district-run alternatives, money to cover the local cost of attending school in another district, special dispensation for local parents and educators to bust the current charter-school cap, or scholarship assistance for those seeking private or home-based alternatives.
Unlike directives aimed at school operations, these remedies would respect the privileges and powers of other branches of government while extending constitutional protection to the litigants. After all, under Leandro, children are entitled to an opportunity for a sound, basic education. It is not required that this opportunity be offered in only one way.
Hood is president of the John Locke Foundation.