Editorial: N.C. high court must stand with school children and uphold the state Constitution

Monday, Sept. 1, 2022 -- The future of North Carolina's children and foundations of the state's most basic Constitutional principles reside in a single case now in the hands the state's seven Supreme Court justices. Democracy in North Carolina hangs in the balance. That is no hyperbole.

Posted 10:15 a.m. Sep 1, 2022 — Updated 4:53 p.m. Sep 1, 2022

CBC Editorial: Thursday, Sept. 1, 2022; editorial # 8786

The following is the opinion of Capitol Broadcasting Company

The future of North Carolina’s children and foundations of the state’s most basic Constitutional principles reside in a single case now in the hands the state's seven Supreme Court justices. Democracy in North Carolina hangs in the balance. That is no hyperbole.

Lawyers arguing on behalf of children, parents and school boards who have been denied their constitutional right to access to a quality education – as well as the lawyers for the state and State Board of Education who have been sued and found liable for violating that promise – spoke vividly about the still unresolved 28-year battle to get all kids access to a quality education.

With equal urgency, they offered dire warnings of an unchecked General Assembly with courts unable to hold the legislative branch accountable for failure to uphold the state Constitution.

Today there are more than 400,000 students “at risk” of not making it to the next grade level or failing to graduate high school. “What evidence is there that every classroom in North Carolina has a competent certified, well-trained teacher in it. … There are over 11,000 vacant teaching and staff positions in the public schools,” Melanie Dubis, a lawyer for the plaintiffs told the state Supreme Court on Wednesday.

“Those (executive and legislative) branches (of state government) failed the children,” Dubis said. “Now the future of the children of North Carolina is in this court’s hands. And we submit that the remedy for those children is not 400,000 individual lawsuits to vindicate their individual constitutional rights. The remedy is upholding Judge Lee’s Nov. 10 order.”

Amar Majmundar, an attorney for the state representing the State Board of Education, said legislative leaders who only intervened in the 28-year-old case a few months ago contend the courts “are not empowered to enforce the Constitution,” legislators are “state actors superior to the fundamental rights of our children” and “their authority pre-empts the plain text of the Constitution.”

“One branch of government can nullify the other two simply by controlling the money. That the branch with the purse has all the power – no matter what the Constitution might say,” Majmundar said. “The consequences of that are breathtaking. That unbridled power was not envisioned by the framers, who instead, imposed upon each branch the rule of law. Not the law of power.”

Matthew Tilley, the lawyer representing legislative leaders state Senate President Pro Tempore Phil Berger and House Speaker Tim Moore, presented an almost other-worldly view. The failure to deliver on the state’s Constitutional promise of a right to a quality education applied only to Hoke County – the original plaintiff when the case was filed back in 1994. It is a contention contrary to state courts repeated rulings – including findings by the state Supreme Court in 1997 and again in 2004.

He even conjured up the notion – without any evidence -- that state executive departments might use the courts to get money the legislature wouldn’t appropriate – and the state Supreme Court must block it. “The executive branch is necessarily going to be tempted to use admissions in a court case to get orders that would provide agencies things that they can't get in the legislative process. It's a way to circumvent the process.”

Tilley’s contention found support, it appeared, from state Chief Justice Paul Newby and justices Phil Berger Jr. (the Senate leader’s son) and Tamara Barringer, who was a Republican state senator before being elected to the court in 2020. “Point to where a trial court said as a matter of law there was a statewide violation,” Justice Berger asked Majmundar, the state lawyer representing the State Board of Education.

Tilley went so far as to contend the courts had never found the state in violation of the state Constitution. “Before a court can fashion and impose a remedy, it must first find a violation. That hasn’t happened,” he said in his closing remarks.

He contended that the consensus Comprehensive Remedial Plan, developed by the defendants in the Leandro lawsuit, agreed to by the plaintiffs and ordered by two trial court judges, was an effort that “goes well beyond K through 12 education. It reworks the education system. It reworks even our accountability standards.”

And, he said that the order being contested in the high court was an appropriation by the Judiciary.”

The order directs state funds that have already been appropriated by the legislature, toward a series of objectives in the plan – for example hiring more teachers, school administrators and counselors; providing better education professional training.

The state Supreme Court is left with a stark choice --- and one that will determine the destiny of North Carolina’s school children and the delicate constitutional checks and balances in in state government.

It can affirm the orders to implement the Comprehensive Remedial Plan – and truly stand up for the school children and the right granted in state Constitution’s to access to a quality education. Failing to stand up will darken the future of hundreds of thousands of the state’s children.

It can assert its position as a co-equal branch of government and do it’s duty to review legislative actions and determine if they are constitutional. Taking a pass will weaken the state’s courts and open the gates of excess in the General Assembly where there will be practically no check on their actions.