by Dr. Terry Stoops
Director of the Center for Effective Education, John Locke Foundation
The Leandro v. State of North Carolina lawsuit has had its share of strange twists and turns over the life of its 27 years of existence. While I’m tempted to declare the release of a Leandro-inspired folk song and music video as the most unusual and unexpected occurrence, Judge David Lee’s proclamation that an unnamed defendant is actually a party to the case is the clear winner.
Leandro is a school finance adequacy case about the state constitutional requirement that all children have “the opportunity to receive a sound, basic education.” Judge Lee, a retired superior court judge appointed to oversee the state’s compliance, ordered the North Carolina General Assembly to begin funding the first two years of an eight-year, multi-billion-dollar remedial plan developed by California-based consultant WestEd. Republican lawmakers demurred. They pointed out that the elected members of the General Assembly had no role in developing the plan and have maintained authority over the state budget since the ratification of the first state constitution in 1776.
The problem for Judge Lee and the plaintiffs and defendants is that the General Assembly has never been a named party in the Leandro case. The plaintiffs are a handful of North Carolina school boards and parents with children attending schools in those districts. The defendants are the state of North Carolina as represented by the attorney general’s office and the State Board of Education. So how does Judge Lee plan to compel an entity with no direct connection to the case to comply? He is playing pretend.
Shockingly, Judge Lee declared that the members of the General Assembly had been a party to the case all along. “They have been included. There has never been a question in my mind that they were not included. They have failed, neglected, and refused to participate in any way in this proceeding,” Lee proclaimed at the Oct. 18 hearing.
State Senate leader Phil Berger countered, “That is clearly not true, as the out-of-state consultants excluded the legislature from their closed-door process in developing their multi-billion-dollar spending proposal.” Indeed, if Lee truly believed that the members of the General Assembly had been included since the beginning, he would have had the responsibility to say so long before the development of the remedial plan.
Judge Lee’s novel legal theory is that the General Assembly is a party whenever the state of North Carolina is listed as a defendant. He cited a 2017 law that outlines standing of legislative officers in certain lawsuits. It reads, in part, “The Speaker of the House of Representatives and the President Pro Tempore of the Senate … shall jointly have standing to intervene on behalf of the General Assembly as a party in any judicial proceeding challenging a North Carolina statute or provision of the North Carolina Constitution.” A fair reading of the statute suggests that the General Assembly leadership has the option of intervening as defendants. There is nothing in the law that indicates that they are automatically defendants in such cases.
Judge Lee has overseen Leandro since 2016 and presumably knew of the passage of the law referenced above. Yet this is the first time he mentioned the law in a court proceeding. It is also inconsistent with his previous remarks about the court’s desire to collaborate with the General Assembly. In April 2021, for example, he stated the need for “a cooperative effort with everyone having the same goal in mind” and asked the parties if “something that can be done to better liaison with or educate the General Assembly.”
Why would outreach and education be necessary if the legislature was a party to the lawsuit all along? Did Judge Lee or the parties attempt to reach out to legislative leaders to discuss their ostensible role in the Leandro case at any time during the spring or summer of 2021?
We do not have answers to those questions. What we do know is that six months after the April hearing, Judge Lee is ready to go to war with legislative leadership. In early November, he likely will impose measures designed to penalize the General Assembly for failing to approve a budget that does not include all components of the court-approved remedial plan. Attorneys for the plaintiffs enthusiastically outlined the options at the Oct. 18 hearing.
Strangely, Judge Lee is ready to act regardless of the status of the state budget. He does not appear to care that budget negotiations are unlikely to conclude in early November. “I’m not going to beat myself up further about our state adopting a budget. … I’ve dealt with that … as long as I think I reasonably can,” he announced. It is indicative of his irrational refusal to defer to the legislative branch in budgetary matters.
Lawmakers should rebuke Judge Lee’s irresponsible ultimatum and reject the Leandro remedial plan.