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North Carolina high court backs move forcing school spending

A close-up of the ornate detailing on the top of one of the columns on the NC Supreme Court building. A bit of blue sky is visible in the bottom left.
North Carolina Judicial Branch

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A local North Carolina judge had the power to transfer large amounts of taxpayer dollars from government coffers to state agencies to carry out a plan to address longstanding education inequities, the state Supreme Court ruled on Friday.

In another landmark decision from school funding litigation that began three decades ago, the court's Democratic majority declared it was legitimate for Superior Court Judge David Lee last year to order the movement of $1.75 billion from state coffers to agencies to implement an education remedial plan he approved earlier.

Republican legislative leaders argued that only the General Assembly has authority to appropriate money, citing language within the North Carolina Constitution.

But in a 4-3 decision, justices agreed with Lee — who died last month — that previous Supreme Court decisions in the case, along with the constitution's declaration addressing the people’s “right to the privilege of education,” gave him authority to order funds be spent without a specific General Assembly law.

Associate Justice Robin Hudson, writing the 139-page majority opinion, described this an “extraordinary” situation in which the courts can intervene after a 1997 Supreme Court ruling that found there was a constitutionally protected right for children to obtain the “opportunity for a sound basic education.” In 2004, justices declared that the state had failed to live up to that mandate.

As did Lee, Hudson cited the repeated unwillingness of other parts of state government to provide the resources necessary to comply with those rules for ordering the transfer.

“For twenty-five years, the judiciary has deferred to the executive and legislative branches to implement a comprehensive solution to this ongoing constitutional violation,” Hudson wrote. “Today, that deference expires.”

The opinion is a huge victory for the plaintiffs in the litigation first filed in 1994 and their education allies, which include Democratic Gov. Roy Cooper. He was not named a legal party in the case but his office helped develop the remedial plan that Lee ultimately designed.

Another trial judge earlier this year reduced Lee's proposed transfer to $785 million, citing the passage of education funding in the 2021 state budget law. Hudson said Friday the case should be returned to Lee's successor, Judge Mike Robinson, to recalculate the need in light of this year's budget law.

“Once those calculations have been made, we instruct the trial court to order those state officials to transfer those funds to the specified state agencies,” Hudson added.

The eight-year remedial plan that Lee signed off on directed at least $5.6 billion be spent on things like improving teacher recruitment and salaries, hiring more school support personnel, expanding pre-kindergarten and boosting funding to educate students with disabilities.

Legislative leaders haven’t been parties in the litigation until recently and in legal briefs even questioned whether Lee had any basis to impose a remedial plan that covered all 100 counties. Hudson rejected that argument and others from lawmakers.

Associate Justice Phil Berger Jr., who wrote an 88-page dissenting opinion for the court's three Republicans, said it's clear that the power to appropriate funds rests solely with the General Assembly.

"If legislative power over appropriations is absolute, then the judicial branch has no role in this endeavor," wrote Berger, who is the son of Senate leader Phil Berger, a Rockingham County Republican.

Instead, the younger Berger wrote, “the majority today now joins in denying legislative defendants due process, the fundamental fairness owed to any party, and usurps the legislative power by crafting policy and directly appropriating funds.”

The justices ruled barely two months after hearing oral arguments and four days before statewide elections for two associate justice seats, both held by Democrats Sam Ervin IV and Hudson. Ervin is seeking reelection, while Hudson is retiring.

Republicans can obtain a majority if they win at least one of the seats, which potentially could open the door for the Supreme Court to revisit the case.

Both major parties have controlled at one time the General Assembly and the Executive Mansion since the 2004 ruling. But Democrats led by Cooper embraced the remedial plan. Republican legislators have touted state budget laws that keep increasing K-12 spending and education policy improvements.

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