• Superior Court Judge W. David Lee violated the separation of powers by ordering state finance officials to transfer $1.7 billion in taxpayer money from the General Fund without the requisite approval from the legislature or voters
  • The Leandro parties and Judge Lee employed a legal maneuver to overcome a political problem: an inability to elect a legislative majority congenial to the remedial plan
  • Over the last five years, Judge Lee has been extraordinarily deferential to the plaintiffs, defendants, and “experts,” never publicly questioning the contents of the remedial plan

For years, attorneys for the Leandro parties hoped that Superior Court Judge W. David Lee would violate the separation of powers defined by the North Carolina State Constitution and order the state to use any means necessary to begin funding the first two years of an eight-year, multibillion-dollar remedial plan developed by California-based consultant WestEd. Last week, they got their wish.

Judge Lee engineered an end-around the General Assembly by ordering the State Budget Director, State Controller, and State Treasurer to transfer approximately $1.7 billion to the Department of Health and Human Services, Department of Public Instruction, and the University of North Carolina System. The order includes a directive that each agency receiving these funds must allocate them as prescribed in the remedial plan.

The order is part of an enormously foolish, even dangerous, scheme to extract billions of dollars in taxpayer money from the General Fund without the requisite approval from the legislature or voters. It is an anti-democratic powerplay with the potential to mutilate North Carolina’s constitutional order.

Constitutional conflicts

The novel theory advanced by the attorneys and Lee is that the order “is fully consistent with the framers [sic] desire to give the people ultimate control over the state’s expenditures.” Of course, the constitution gives people control over state expenditures through the mechanism of the voting booth, not unelected judges sidestepping the elected members of the General Assembly and raiding the public purse through court dictate. Indeed, the framers would be horrified by a court order that requires state officials to take money from the General Fund without the requisite appropriations law approved by the legislature.

The elected legislature has maintained authority over the state budget since the ratification of the first state constitution in 1776. Article V, Section 7(1) of the North Carolina Constitution specifies that “[n]o money shall be drawn from the State treasury but in consequence of appropriations made by law.” The General Assembly is the lawmaking branch of government, and thus state appropriations must flow from the legislative process. Numerous state court cases have affirmed this arrangement, most recently Richmond County Board of Education v. Cowell in 2018 and Cooper v. Berger in 2020.

On the other hand, the North Carolina Supreme Court declared that the state constitution affords all public school children an “opportunity to receive a sound basic education.” The North Carolina Constitution doesn’t include the phrase “sound basic education.” The phrase comes from the 1997 Leandro Supreme Court decision. The education provisions in the constitution simply require that state lawmakers use taxes to maintain a “general and uniform system of free public schools” affording “equal opportunities” for all students.

Political inconveniences

How did North Carolina go from a “general and uniform system of free public schools” to guaranteeing a “sound basic education” with a laundry list of costly initiatives and employee pay increases? The answer is that progressives’ fantasies could not overcome electoral realities. As Kansas school finance attorney John Robb explained in 2019, “[State] economies can support increased taxes and investment in public education. But many of these states have been controlled by governors and legislatures that are unwilling to do that.” So, Robb and school finance attorneys across the nation use the courts to avoid inconvenient barriers like the will of the electorate.

Leandro may appear to be a constitutional crusade unique to North Carolina. But it is part of a sustained and well-coordinated legal strategy executed skillfully by teams of school finance attorneys in dozens of states. Starting in the early 1980s, these attorneys began challenging statewide finance systems by filing lawsuits on behalf of students and families living in disadvantaged school districts.

While legal strategies varied by jurisdiction, attorneys seized upon vague language in state constitutions to persuade the courts to declare the state’s school finance system unconstitutional. Court-ordered remedies typically demand that lawmakers make amends through funding increases and programmatic changes. Judges then monitored state legislative compliance to ensure compliance with its orders in perpetuity.

In this way, the Leandro parties and Judge Lee employed a legal maneuver to overcome a political problem: an inability to elect a legislative majority congenial to the remedial plan. Leandro advocates may grumble about an uncooperative General Assembly, but the source of their grievance extends beyond the legislature to those who elected them to office — North Carolina voters.

Judicial tyrants

None of this would have been possible without Judge David Lee.

In 2016, then–North Carolina Supreme Court Chief Justice Mark Martin selected retired State Superior Court Judge W. David Lee of Union County to replace long-time Leandro disciplinarian Judge Howard “Howdy” Manning. Shortly after Lee assumed the role, the case started to go south.

Lee permitted a collusive agreement between the plaintiffs and defendants that tapped an independent consultant to advise the court on how to proceed. The parties then used a combination of public and private dollars to hire California-based consultant WestEd, a consulting firm particularly attuned to the desire of politicians, technocrats, and other elites to spend billions more on public schools. The court asked WestEd to outline a plan that purportedly satisfies the “sound basic education” requirement. Earlier this year, the parties and Judge Lee signed off on an eight-year, multibillion-dollar remedial plan that incorporated the WestEd report and recommendations by Gov. Roy Cooper’s Commission on Access to a Sound Basic Education. The General Assembly had no direct role in this process.

Over the last five years, Judge Lee has been extraordinarily deferential to the plaintiffs, defendants, and “experts” from WestEd and the Commission on Access to a Sound Basic Education. He never publicly questioned WestEd’s substandard report or Cooper’s politicized commission. Most importantly, he never demanded empirical evidence that provisions in the remedial plan would help all North Carolina public school students reach grade-level proficiency in reading, math, and science. Judge Lee is not a jurist. He is an enabler.

Where do we go from here?

No one can predict how lawmakers and state education officials will respond. WRAL reporter Laura Leslie wrote an excellent article outlining the various scenarios. Lawmakers could request an injunction, appeal the order, or initiate impeachment proceedings against Judge Lee. Controller Linda Combs and Treasurer Dale Folwell, who Lee ordered to transfer $1.7 billion without legislative approval, may take legal action. Inaction by lawmakers and state finance officers is also a possibility.

Regardless of what happens next, it is important to remember that Judge Lee had the power to avoid this predicament. He could have rejected this blatantly unconstitutional order and emerged as a principled defender of the rule of law. Instead, he used his appointed position to create a full-blown constitutional crisis just to squeeze more money from taxpayers.