Judge: No waiting on NC budget to act on school funding

Published 11:55 pm Monday, October 18, 2021

By Gary D. Robertson
Associated Press

RALEIGH — A North Carolina judge signaled Monday that he’s ready to formally demand legislators carry out a funding recipe to reduce public education inequities, saying he wouldn’t wait on a negotiated budget agreement between the governor and legislature before acting.

Superior Court Judge David Lee told lawyers representing local school boards and children to offer within two weeks a proposed order that demands compliance with a remedial spending plan he endorsed earlier this year. After input by state government attorneys, Lee would act no sooner than Nov. 8.

“I think everyone knows that I’m ready to pull out of the station and see what’s around the next bend, but I’m certainly willing to take a reasonable amount of time,” Lee said in Wake County court.

The plan, which stems from an outside consultant’s report and input from Democratic Gov. Roy Cooper and the State Board of Education, calls for at least $5.6 billion in new education funding by 2028. Cooper’s budget proposal contains $1.7 billion to meet plan spending through mid-2023.

The separate Senate and House two-years budget proposals approved this summer, however, fell well short of that total. While Cooper and legislative leaders are now working to find an agreement that Cooper can sign into law, negotiations have slowed over the past two weeks. The new fiscal year began July 1. He set Monday’s court date last month to consider “judicial remedies” to address inaction.

“I’m not going to beat myself up further about our state adopting a budget somewhere down the way and either addressing or not addressing Leandro,” Lee said, referring to an original plaintiff’s name in a 1994 lawsuit that led to state Supreme Court rulings. “I’ve dealt with that one as long as I think I can reasonably can.”

Republican lawmakers have bristled at arguments that Lee can force the General Assembly to spend certain levels of money, setting up a potential constitutional standoff if they ignore Lee’s order. GOP leaders also have complained that the plan was developed without the legislature’s formal input.

But Lee said Monday that he is obligated to meet the mandate set by the state Supreme Court. The justices found in 2004 that while the state’s children have a fundamental right to the “opportunity to receive a sound basic education,” the state had not lived up to that mandate.

“There is a remedy that is grounded in the … state’s constitutional authority granted to (Lee) to deliver right and justice,” Melanie Dubis, an attorney representing the school boards, told Lee. “This court was instructed to and gave deference to the coequal branches of government for over 17 years,” she added, but now is the time to act.

The remedial plan includes funding improvements to help low-income students and those with disabilities, and to hire more school support personnel and to offer higher pay to teachers, principals and assistant principals. The plan also focuses on improving teacher competency and expanding prekindergarten access.

Lee said a “writ of mandamus,” which can demand that a government official fulfill official duties or correct a wrong, could be the most appropriate order for him to sign.

Other lawyers with Dubis described other tools at the judge’s disposal. Lee’s questions about a Kansas school funding case — in which a judge threatened to shutter schools unless a funding formula was implemented within five months — got the attention of state Senate Republicans, who called Lee an “unhinged judge” and the idea outrageous.

“This is yet another example of why the founders were right to divide power among the branches of government, giving power to create law and spend money with the legislature, not an unaccountable and unelected trial judge,” Senate leader Phil Berger said in a news release.

Lee said in court he has no such interest in closing schools, but merely was collecting information on how other states have acted. He said legislative leaders are permitted under current North Carolina law to participate in cases where the constitutionality of state laws has been challenged — providing their own input in how they’re providing a sound basic education. But that hasn’t happened.