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Legal experts break down this week's NC Supreme Court hearing on Leandro

image of the North Carolina Supreme Court
Jess Clark
The North Carolina Supreme Court will likely have an opinion on the Leandro hearing by the end of the year.

North Carolina Supreme Court heard arguments in a landmark education case on Wednesday. For 28 years, the Leandro case has been a central argument over what constitutes equitable public school funding. And now, it’s also about the separation of powers.

The Supreme Court will weigh whether a court can order the state to fund a multi-billion dollar plan to improve public schools, when the legislature hasn't funded it in a budget. The plan is a settlement between five school districts and the state, represented by Democratic Attorney General Josh Stein's office.

The schools — including Hoke County Schools — first sued in 1994 charging they couldn't meet the rights of children guaranteed in the state constitution due to under-funding. Republican legislative leaders have now intervened to ask the Supreme Court to stop a transfer of funds from the state's budget surplus to pay for the settlement.

WUNC education reporter Liz Schlemmer spoke to two legal experts who have followed the Leandro case since it started in 1994. Bob Orr is a former state Supreme Court justice who authored an opinion in the case years ago. Jack Boger is a retired law professor at UNC-Chapel Hill who specializes in education and constitutional law.

The following conversation has been edited for length and clarity.

You're old law school classmates, and you both watched the hearing today. I understand that you have some differing opinions on it. So what stood out to you in court? Let's start with you, Bob.

Bob Orr: "Well, there's an extraordinarily important procedural question that the court spent a lot of time inquiring about. And that is whether there was an actual order in the record by the trial court determining that there is a statewide failure of the public education system to meet the Leandro constitutional standards. And before you get to all the other substantive issues, the court's got to resolve that one."

Jack Boger: "The legislative intervenors wanted to tell the court you can't really get to the bottom line question of whether the judiciary can order a financial remedy. There weren't hearings in any county other than Hoke County. Not all the justices took that point of view, but a number of the more conservative ones were pressing that hard."

Was there anything that stood out to you in terms of the questions that justices asked?

Jack Boger: "Well, Justice Morgan, in particular, asked the question of legislative intervenors, "Is there any lesser remedy than spending $7.1 billion dollars? Could the court have ordered some narrow remedy?"

These decisions often come down to the partisan makeup of a court. The State Supreme Court is currently made up of four Democrats and three Republicans. Will that matter for the outcome?

Bob Orr: "Well, hopefully not, I would note that when I wrote [the Supreme Court's opinion in] Leandro II which both sides, one way or another have relied on, there were six Republicans on the court and only one Democrat. So at least historically, it has not been a partisan issue.

"Unfortunately, the battle about whether you can force the legislature to spend the money does turn more on a partisan issue than I think anybody's comfortable with, so that will play a part, unfortunately."

Jack Boger: "Unfortunately, like Justice Orr said, I would wish that partisanship wasn't so clear. But on these matters, it might be."

Bob Orr: "Well, I would say that the legislative leaders' attorneys strongly emphasized that it wasn't a question of is there a constitutional right to a sound basic education, or that we're somehow wanting to deprive them? It really boils down to some really fairly technical legal arguments that impact the direction that the court is going to go."

Jack Boger: "I agree with that. I was struck, though, that there was nothing in the 200 pages of briefing that I saw from the legislative intervenors or in the argument today in the court that said, 'We have another way to meet the evident needs that had been so strongly demonstrated by parties and found by the judge.'

"There was less concern, it seemed to me with, 'How are we going to meet the desperate educational needs of children who [are] not doing well' and more with 'what is our [the legislature's] prerogative and what's the prerogative of the judicial branch and keeping those separate?'"

Liz Schlemmer is WUNC's Education Reporter, covering preschool through higher education. Email: lschlemmer@wunc.org