Judge gives Cooper, General Assembly until Oct. 18 to fund $5.6B education equity plan
Posted September 7, 2021 10:35 p.m. EDT
Updated September 9, 2021 2:25 p.m. EDT
Raleigh, N.C. — A Superior Court judge is giving the North Carolina General Assembly and Gov. Roy Cooper until mid-October to fund the court-ordered plan to provide a “sound, basic education” for all of the state’s students — or he’ll explore what he has in his powers to force them to do it.
Judge W. David Lee, referencing his favorite country musician, said he was giving the legislative and executive branches “one more last chance” to fully resolve the lack of funding for the plan.
The plan stems from a decades-old court ruling that the state was not following through with its state Constitutional obligation to provide a “sound, based education” for all North Carolina students, because lower-wealth counties were unable to provide everything they needed through their own local tax base.
He’ll hold a hearing Oct. 18 on the funding progress for the so-called Leandro plan.
“Again that’s not to threaten anybody but it’s to send a clear signal, as clear as I know how, that come Oct 18, if this hasn’t already been addressed it should be addressed,” Lee told attorneys for five lower-wealth school districts and the state during a hearing Wednesday in Wake County. Per North Carolina Supreme Court ruling, judges have the authority to act when one or more of the three branches of government is failing to comply with a court order.
“I promise you all that this is my intent at this moment, unless this plan is fully funded,” Lee said.
On Thursday, Sen. Pro Tem. Phil Berger, R-Rockingham, told WRAL News he wasn’t sure Lee could force the General Assembly’s hand.
“I just don’t think it would be a surprise to anybody that we have some serious questions about the legitimacy of any – of certain possible things that Judge Lee might do,” he said. “So we’ll just have to wait and see.”
Berger and other lawmakers have criticized the court for not consulting with lawmakers before approving a plan that would require their participation as the authority over the state budget.
On Wednesday, Lee asked attorneys whether another plan, other than the one that he’s now ordered the state implement, have been proposed. Attorneys recalled only a 2006 letter from then-Democratic Gov. Mike Easley — though they debated the intent behind it — that addressed some possible remedies but was not comprehensive.
A nearly 30-year-old lawsuit against the state
The Leandro long-term action plan is a part of the drawn-out lawsuit known colloquially as the Leandro case, a reference to the original student plaintiff. The case dates back to when five low-wealth school districts sued the state in the 1990s, contending the state didn’t adequately fund them to provide quality education access and that they didn’t have the tax base to do it themselves.
The state Supreme Court later found in favor of the plaintiffs in 1997. In 2002, Wake County Superior Court Judge Howard Manning ruled the state had violated students’ rights to a “sound, basic education” and ordered the state to remedy that.
A few years ago, the state hired WestEd as an education consultant to come up with a plan to do that. The consultant report was a major influence in the long-term action plan, along with a task force established by Gov. Roy Cooper.
The new spending outlined in the long-term plan plan is largely for lower-wealth school districts; for spending more money on students with disabilities and students learning English; for providing more support staff, such as counselors, nurses and psychologists; and for expanding pre-kindergarten and early childhood education across the state.
The $5.6 billion total averages out to less than $800 million in new funding per year. State education spending totals about $9.75 billion annually.
It will likely cost more, however, once the state studies competitive salaries for teachers and administrators and recommends pay increases based on the studies.
‘They’ve been going through an unconstitutional system’
Lee has previously resisted forcing the North Carolina General Assembly, which is the primary funding source for the state’s schools, to pay for the entirety of the plan.
But on Wednesday, Lee said he thought mid-October would be plenty of time to resolve the state’s budget debate. The state hasn’t enacted a budget bill since 2019.
Lee approved the “comprehensive remedial plan” in the case earlier this year after a 300-page consultant report in 2019 outlined in detail how the state can provide more equitable resources to schools and provide more educational opportunities for student’s ensuring a “sound, basic education” as outlined in the state Constitution. That consultant report included costs estimates under varying scenarios of implementation.
The plan will cost at least $5.6 billion over the course of the next eight years and lead to some permanent budget increases.
On Wednesday, attorneys for the plaintiffs in the Leandro case talked about how long the case had drawn on, despite rulings in favor of the plaintiff’s claims of being underfunded.
In response to progress reports from the state on implementing the plan, both the lower-wealth school districts and the “Penn Intervenors” asked Lee to use his authority to hold the state accountable for not yet funding the court-approved and ordered plan.
Since the North Carolina Supreme Court upheld the ruling that the schools were unconstitutionally underfunded, in 2004, attorney David Hinojosa said a full generation of students has come and gone through the North Carolina Public School System.
“And they’ve been going through an unconstitutional system,” he said.
About 170,000 dropped out of high school during that time, he said.
Melanie Dubis, an attorney for the school districts, said attorneys have been showing up to court for years to discuss how to address the findings in favor of the plaintiffs, and “at every turn the court said, ‘We’ll defer to the executive and legislative branches.”
Now, the state has a comprehensive remedial plan and no other plan comprehensive plan has been formally submitted to the court.
“This court has given the state every opportunity to come forward with a remedy,” Dubis said.
Many child and education advocates have been pushing for lawmakers to fund the plan. Democratic lawmakers filed a bill this spring to do just that, but It never progressed through committee.
“What North Carolina needs is to full re-invest in public education, full stop,” Sarah Montgomery, a senior policy advocate for NC Justice Center, told WRAL News. Montgomery and others contend the state has the money to do so.
Democratic Gov. Roy Cooper included nearly $2 billion for plan compliance in the next two years as a part of his budget proposal.
House and Senate proposals offer some spending but considerably less than what the plan calls for. Leadership has called Democratic spending plans “rollercoaster-style” spending and balked at permanently raising the education budget as quickly as the plan calls for, without the guarantee of revenue for that spending years down the road.
The state has about $8 billion in unspent money leftover from the last two years that a budget hasn’t been passed. In the state’s progress report submitted to Lee last month, officials noted that the state’s projected revenue for this year is a record-high of $29.7 billion in recurring revenue, almost $5 billion more than the current base budget.
The Leandro plan calls for $690.7 million this fiscal year and $1.06 billion in the next fiscal year.
The Senate has proposed major tax cuts that would reduce state revenues by $690 million this fiscal year and $1.9 billion in the next fiscal year, while eventually phasing out the state’s corporate income tax.
The Senate budget would appropriate $191.6 million toward Leandro plan compliance this year and $213.7 million for the next fiscal year.
The House proposed budget contains significantly more funding: $370 million this year and $382.1 million next year.
Cooper’s budget called for $725.6 million this year and $1.15 billion next year.
Amar Majmundar, an attorney for the North Carolina Department of Justice and the state defendants, urged Lee to recall the budgetary process in North Carolina and to “minimize encroachment” on other branches of government.
Majmundar said he was an “optimist” and compared the effort to fund Leandro to the final mile of a long run.
“We’re hopeful that we’ll come up with a budget that satisfies what we need to implement the CRP,” he said. He also warned against any executive orders to fund the plan, saying they would “almost certainly” end up in court.
Lee agreed to defer again to letting the budgetary process continue, rather than grant plaintiffs request to order the General Assembly to pay for the plan.
“I don’t want to give up on our public officials,” Lee said. “I’m very close to it, I’ll tell you that.”
CORRECTION: An earlier version of this story misspelled Melanie Dubis's name.