by Dr. Terry Stoops
Director of the Center for Effective Education, John Locke Foundation
It is reassuring to know that the plain meaning of the state constitution still matters to members of the judiciary.
Last month, retired trial court Judge W. David Lee of Union County ordered the State Budget Director, State Controller, and State Treasurer to withdraw approximately $1.7 billion from the General Fund without the necessary approval from the General Assembly. These funds were to be used to finance the first two years of an eight-year, multibillion-dollar spending spree concocted by California-based consultant WestEd and approved by Judge Lee and attorneys for the plaintiffs and defendants earlier this year.
State Controller Linda Combs asked the North Carolina Court of Appeals to block Judge Lee’s blatantly unconstitutional order. Earlier this week, a three-judge panel of the North Carolina Court of Appeals voted 2-1 to grant her request. Appellate Judges Chris Dillon and Jefferson Griffin voted to grant that request. Judge John Arrowood dissented on procedural grounds.
Judges Dillon and Griffin offered two primary objections to Judge Lee’s order. First, the order included an interpretation of one section of the North Carolina State Constitution (Article I) that was logically inconsistent with another section (Article IX). Second, they noted that the order violates the separation of powers between the judicial and legislative branches. Judges Dillon and Griffin correctly warned that ignoring the General Assembly’s constitutionally endowed jurisdiction over budgetary matters would “threaten to wreck the carefully crafted checks and balances that are the genius of our system of government.”
Every Child NC, a statewide coalition of left-wing advocacy groups that had celebrated Judge Lee’s order, panned the appellate court decision. In a Twitter post, an unidentified representative from the activist group wrote, “It’s disappointing that two judges think spending rules are more important than our children’s right to attend decent schools, but we know the fight’s far from over.” Those “spending rules” mentioned in the post are codified in the North Carolina Constitution and have been since 1776. As judges Dillon and Griffin note, our system of government could not run without them.
In fact, the “spending rules” talking point is an excellent example of the Leandro lobby’s obnoxious contempt for the state constitution. Their published articles that broach the subject either ignore or downplay the appropriations clause, which specifies that “No money shall be drawn from the State treasury but in consequence of appropriations made by law.” Instead, they argue that the judicial branch has the power to impose any penalty on any branch that impedes the court’s self-defined efforts to provide all public school children an opportunity to receive a sounds basic education.
Howard “Howdy” Manning, the dauntless judge who oversaw the Leandro case from 1997 to 2016, strongly disagrees. In a memorandum published last month, Manning outlined the North Carolina case law that places definitive limits on the judicial branch’s power to dictate how the executive and legislative branches appropriate money. More importantly, Judge Manning recognizes the limits of pouring more money into a system that appears incapable of managing its existing resources productively. He declared,
Reduced to essentials, in my opinion the children are not being provided the opportunity because after all the millions spent, 90% of school costs are for adult salaries and benefits, and the data shows as it did years ago and up to now the education establishment has not produced results.
The Leandro remedial plan was designed by the education establishment for the benefit of the education establishment and not for the children whose constitutional right to a sound basic education continues to be denied thanks to incompetent adults within the education establishment.
Moreover, the Every Child NC tweet lays bare the false choice that underlies their effort. It is not an either/or proposition. It requires minimal effort to obey “spending rules” defined in the North Carolina Constitution and uphold “children’s right to attend decent schools” consistent with the Leandro mandate. All that is required is cooperation between the Leandro attorneys, Judge Lee, and the General Assembly.
The problem is that the Leandro attorneys and Judge Lee have kept the legislature, specifically its Republican leadership, at arm’s length at every opportunity. The most notable instance came in early 2020 when Judge Lee ignored Sen. Deanna Ballard’s invitation to discuss the matter with the Senate Education Committee.
I believe that Judge Lee could have avoided much of the turmoil in the Leandro case by simply accepting Ballard’s invitation and initiating a good-faith conversation between lawmakers and the court. Alternatively, Judge Lee could have preserved the Manning model, that is, an unfaltering focus on the needs of North Carolina’s children and accountability for adults who fall short of addressing those needs.