by Dr. Robert Luebke
Director of the Center for Effective Education, John Locke Foundation
In a dramatic ruling issued just days before midterm elections, the North Carolina Supreme Court upheld a lower court’s ruling and ordered the transfer of millions of dollars to pay for a school improvement plan designed to ensure North Carolina’s school children receive a sound basic education, guaranteed under the state constitution.
The 4-3 decision was decided along party lines. The decision, authored by retiring Justice Robin Hudson, sent the case back to a trial judge to determine how exactly how much money the state will be required to transfer to comply with the previously approved Comprehensive Remedial Plan (CRP). CRP was designed to ensure the state meets its obligation to provide a sound, basic education. More than likely, the new amount will exceed $785 million, the amount approved by a trial court judge earlier this year.
So, what does today’s decision mean? Many people smarter than I am will be chewing on that question over the next couple of days. Some initial thoughts for conservatives and freedom-loving North Carolinians.
This is a bad decision for a number of reasons. By ordering the transfer of state monies without legislative appropriation, judges are usurping legislative authority and failing to respect separation of powers.
Judges in the majority claim to be securing the right to a sound basic education for children. However, such thinking contains a number of errors. The court mistakenly conflated educational quality with money and expenditures and harbors an unjustified obsession with inputs. No, more spending does not equate to better education. The research on that topic is extensive. Such thinking is not supported by the research but seems to be central to the court’s thinking
To answer the constitutional question, the court should inquire about student performance and outcomes. Yet it doesn’t. It conveniently ignores student performance.
Of course, it was convenient for the court to ignore Judge Manning — the one probably most familiar with the Leandro case. Manning said the educational shortcomings of the counties mentioned in Leandro didn’t result from legislative failures, but from failures of implementation. Once again, the Democrat majority on the court refused to consider such thinking.
By far, the most detailed and compelling criticism of the ruling is the dissent signed by Chief Justice Newby, Justice Barringer, and Justice Berger). The dissent, authored by Justice Phil Berger Jr., begins on page 140 and continues until the end of the 227-page document. The dissent outlines the courts many violations of due process and makes a strong case for the need for the court to respect the doctrine of separation of powers Berger writes:
Today’s decision is based on a process that was grossly deficient. Hearings were not held as required by our decision in Hoke County. The rush to find a statewide violation in the absence of input by the legislature, the collusive nature of this case, the ordering of relief not requested by the parties in their pleadings or permitted by our prior decisions, and the blatant usurpation of legislative power by this Court is violative of any notion of republican government and fundamental fairness. The trial court orders dated November 10, 2021 and April 26, 2022 should be vacated, and this matter should be remanded for a remedial hearing on the Hoke County claims as required by our decision in Hoke County. In addition, because there have never been hearings held or orders entered as to any other county, those matters must be addressed separately as per our decision in Hoke County. ¶ 417 Under no circumstance, however, should this Court take the astonishing step of proclaiming that “inherent authority” permits the judiciary to ordain itself as super-legislators. This action is contrary to our system of government, destructive of separation of powers, and the very definition of tyranny as understood by our Founding Fathers.
Lawyers and nonlawyers alike would benefit from reading his analyses detailing how the decision is flawed.
The case will be remanded to a lower court to help determine the exact amount of money to be transferred to comply with the Comprehensive Remedial Plan. This will be done without the consent or approval of the General Assembly.
State Treasurer Dale Folwell has noted that it is a crime for the controller to transfer any funds without the authorization of the General Assembly. That’s an interesting statement and one that makes you wonder how the decision will be enforced in light such strong sentiments on both sides. These realities guarantee that today’s ruling is not likely to be the last significant development in this long-running case.