In Leandro education case, a question lingers: Who has final say on funds and fixes?

Lawyers for students and parents, school systems, the state’s highest executives, legislative leaders and education policymakers are scheduled to debate a key kernel in that latter battle on Wednesday: Whether the state’s judicial branch — after finding the legislative and executive branches are not upholding the state constitution — can order a specific policy and funding plan to fix deficiencies.

"If the General Assembly does not live up to its obligation to guard and maintain ... what do the other branches have to fall back on? Melanie Dubis, the plaintiff's attorney, asked during Wednesday's hearing.

Lawmakers and the state controller say the court can’t. Families, school systems, the governor, the attorney general and the state education board all say the court can.

"This case is not a contest between those who want to fund education and those who don't," said lawmakers' attorney Matthew Tilley.

Ahead of this week’s oral arguments, parties in the lawsuit have filed a series of briefs arguing over whether the overhaul is required at all.

Filings have also focused on whether certain state Supreme Court justices should even preside over the case because of alleged conflicts of interest — the most recent episode of growing bickering over the partisanship of the state’s highest courts.

The Supreme Court could determine how or when a resolution is ever reached in the lawsuit. Its ruling could determine whether the Leandro Plan is implemented or who would ultimately be allowed to write any other plan that attempted to resolve the case — parties in the case or lawmakers.

Earlier in the case, a superior court judge had asked parties to agree on a plan they later co-wrote, informed largely by hired researchers, and then ordered the plan be implemented. Disagreement over how Judge W. David Lee ordered it be implemented — through a $1.75 billion move of state surplus funds – ultimately sent the matter to the state Supreme Court.

“The court really has two big choices,” said Jane Wettach, former director of Duke University’s Children’s Law Clinic and the school’s William B. McGuire Clinical Professor Emerita of Law. It must decide whether the trial court judge was within his rights to order the Leandro Plan be funded, or decide that he wasn’t, said Wettach, who is among 18 law professors who filed an amicus brief urging the state Supreme Court to uphold the trial court’s order to implement the Leandro Plan.

“If they say [the trial court judge] didn't have the authority or the Superior Court didn't have such authority, well, that kind of ends everything,” she said. The determination that the state isn’t providing an adequate education could still be there. “And that's what's happened in a bunch of states. They've said, ‘Well, yeah, we're saying you're not doing it right, but we don't have any more power than to just make that rhetorical statement.’ And then it just goes back to the legislature and the legislature does whatever the legislature does, and maybe they add money, maybe they don’t.”

If the court decides the trial court judge was right, the executive and judicial branches must follow and implement the plan, Wettach said. “If the other branches of government don't make it happen, then we are in a constitutional crisis,” she said.

The court could also decide the trial court was within its rights to order the Leandro Plan be implemented but wrong in its mechanisms. That would send the matter back to the trial court to find another way.

“I tend to think that's not what the court would do,” Wettach said.

The Leandro lawsuit was filed against the state in 1994 by five low-wealth school boards and families who said they were being denied an adequate education. The state Supreme Court ruled in 2004 that students had been denied the opportunity to access a “sound basic education” — which is promised by the state’s constitution. The court ordered the state to fix that, leaving it up to lawmakers and the governor for the time being.

Since 2004, the case featured mostly status updates until development of the Leandro Plan began in 2018, after Lee said enough time had passed without a fix. The judge before him, Howard Manning, had also asked for parties to submit a plan. Lee approved the Leandro Plan in June 2021.

The state Supreme Court hadn’t necessarily intended for lawmakers and the executive branch to have interminable time to find a solution for the court’s findings, said Bob Orr, a former state Supreme Court justice and author of the 2004 state Supreme Court order in the Leandro case. The judicial branch has the right to order a solution, he said.

Timeline of events in Leandro

Legislative leaders, however, pose a constitutional grievance of their own. State Senate Leader Phil Berger, R-Rockingham, and state House Speaker Tim Moore, R-Cleveland, say the court can’t tell them how to spend money. The state constitution’s appropriations clause gives lawmakers control over how the state’s money is spent, they argue.

Orr disagrees. “There shouldn't be any question that courts can order remedies if the state has violated a constitutional right,” he said. “If the state comes in and condemns your property for a highway, and a court orders that they pay you $250,000 for your property, I don't think anybody would question that the court has that authority. Now, what happens if the Department of Transportation says, ‘Well, we're not going to pay this?’ Then the question is, ‘Well, what can the court do about that?’”

The state constitution’s promise of a sound basic education isn’t the same thing as an appropriation of funds, the lawmakers said in their most recent filing. “This court … has consistently read the appropriations clause’s requirement for an ‘appropriation made by law’ as requiring legislative approval,” their lawyers wrote.

The General Assembly leaders intervened in the case late last year, refusing to fund the plan or pass recommended policy changes. Beyond who does and doesn’t have the authority to make changes, lawmakers say they just don’t like the plan.

Whatever happens, Wettach said the three branches of government have to keep one another in check to uphold the state’s constitutional democracy.

Lawmakers can appeal a trial court decision without issue, and it’s their right to do so, Wettach said. But if lawmakers defied a Supreme Court order they didn’t like, Wettach said, it would create a constitutional crisis, rendering the judicial branch powerless.

“We've given it to the court system to interpret the constitution. So if they [the lawmakers] don't do what the court says they're obligated to do under the constitution, then then the whole system really collapses,” Wettach said.

On Thursday, Moore, the House speaker, said he’s skeptical the state Supreme Court will make the right decision. “It’s almost like they need to get rid of their black robes and put on blue robes,” he told reporters.

Two filings this summer sought two Supreme Court justices’ recusal from the case. First, Berger and Moore asked Justice Anita Earls to recuse herself from the case because Earls participated in two filings on behalf of plaintiff-intervenors in the case — Charlotte-Mecklenberg Schools parents and students — in 2005 and 2013. Two days later, the plaintiffs’ motioned for Justice Phil Berger Jr. to recuse himself because he is the son of the Senate leader.

Both of the justices declined to recuse themselves earlier this month. Berger didn’t cite a reason in his one-paragraph denial. Earls premised her eight-page denial on the fact that Charlotte-Mecklenberg Schools’ claims were later severed from the case.

Lawmakers responded to Earls’ order last week by asking that the Charlotte-Mecklenberg Schools parents and students be removed as a party in the case. Lawyers for the parents and students have been active in the case and the appeal before the state Supreme Court, and their most recent arguments have been in line with the plaintiffs and the state.

The complexion of the court could change this November, when two of the court’s Democratic justices are up for election. One, Robin Hudson, has chosen not to run again. If Sam Ervin IV is not reelected, his term will expire Dec. 31, alongside Hudson’s.

Where the case could get particularly confusing, Orr said, is if justices take up issues raised about the history of the case.

For Orr, the case lacks some clarity. He’s interested in a different argument made by lawmakers: That the 2004 order — which Orr wrote — applies only to Hoke County’s at-risk students. Hoke County is where the superior court trial took place, and it was the main focus of proceedings. The Supreme Court’s 2004 order came from appeals of the superior court’s rulings.

Orr said the scope and influence of the 2004 ruling were, in a way, up to the trial court. The trial court could decide if it needed to hold more trials considering more school systems, Orr said. Or the trial court could decide if Hoke County was a representative low-wealth county, whose predicament was adjudicated on behalf of others.

While the trial court operated under the assumption among parties that Hoke County was a representative of low-wealth counties, Orr said the trial court never issued an order declaring that.

Lawyers for the state argue the case has long operated under the belief that the 2004 decision was about more than Hoke County. They note the trial reviewed evidence from numerous other counties. The state is obligated to provide a uniform system of education, so solutions cannot be limited in scope, either. Further, they contend, lawmakers have had years to raise a concern about the scope of the 2004 ruling, and it’s too late to take up the issue now.

“Should the court accept legislative intervenors’ arguments, many years of proceedings in this case will be undone,” the state’s lawyers wrote. Constitutional violations would continue without a plan to fix them, they said. “Undoing the trial court’s orders would cause the state to spend untold additional taxpayer funds on this litigation, but with less certainty of eventual finality,” they wrote.

How are North Carolina schools funded?

Setting back the case is a major concern among advocates for the Leandro Plan. In a forum Thursday hosted by the North Carolina Justice Center — which lobbies for the plan — former Leandro plaintiff Angus Thompson repeatedly said there’s no clear alternative to the Leandro Plan.

“We have a plan,” he said. “The other side, they don’t have a plan.”

Orr is also hung up on who is considered “the state” among defendants. Berger and Moore argue they aren’t; other state officials argue they are. Trial court judges have argued lawmakers have always fallen under the “state of North Carolina” umbrella.

“This is kind of an unorthodox procedural case,“ Orr said. “I mean, I really think it is, in some respects, a messy ball of wax trying to figure it out.”