by Dr. Terry Stoops
Former Director of the Center for Effective Education, John Locke Foundation
The North Carolina State Constitution declares that the legislative, executive, and judicial branches “shall be forever separate and distinct from each other.” That distinction does not mean that the respective branches need to be engaged in a perpetual war with one another. Occasionally, elected officials can and should transcend political divisions and collaborate on initiatives that strengthen government-supported institutions.
For nearly three decades, Leandro v. State of North Carolina has had the potential to bring together elected officials from the legislative, executive, and judicial branches for the benefit of public education. After all, there is a widely shared conviction that every child should have “an opportunity to receive a sound basic education.” There is less agreement about the measures necessary to do so. These differences are not inconveniences. They are opportunities.
Regrettably, representatives from the executive and judicial branches appear unwilling to engage in a good-faith conversation with the Republican majority in the General Assembly.
On the one hand, the General Assembly is not a named party in the Leandro case, so it is not surprising that they have had tangential involvement in the lawsuit. On the other hand, the legislative branch has direct authority over public school funding and policy. Of the three branches, the state legislature has an outsized role to play in guaranteeing that all children have an opportunity to obtain a sound basic education in public schools.
On three recent occasions, Gov. Roy Cooper and the courts failed to solicit input from members of the General Assembly.
In 2017, the plaintiffs and defendants agreed to allow an independent consultant to advise the judge appointed to oversee Leandro implementation, Judge David Lee, on how to proceed. They selected California-based consultant WestEd to recommend an action plan, and the firm released “Sound Basic Education for All: An Action Plan for North Carolina” in December 2019. The WestEd report formed the basis of a comprehensive remedial plan that Judge Lee expects the General Assembly to implement fully during the current school year.
Lawmakers were not consulted at any stage of the plan’s development or asked to participate in deliberations about it. WestEd researchers wrote that they “coded transcripts from 52 interviews, and focus groups conducted during site visits throughout the state.” But none of the interviews or focus groups described meetings with elected members of the General Assembly. WestEd consultants later claimed that they conferred with Craig Horn, a Union County Republican who chaired the House Education K-12 and House Appropriations on Education committees. But Horn denied that he had an active role in developing the report.
Similarly , Cooper failed to appoint any sitting lawmakers to The Commission on Access to Sound Basic Education, a 19-member group created by Cooper in 2017 to formulate Leandro recommendations in consultation with WestEd. While it’s understandable that the governor did not give his political opponents a seat at the table, it’s surprising that he even snubbed Democratic lawmakers, who could have occupied one or more of the at-large seats established in the original executive order. These decisions (along with the general lack of dissent or meaningful disagreement among participants) suggest that the Cooper administration created the commission simply to formalize his support for the WestEd plan.
Finally, Judge David Lee disregarded an offer extended to him by State Sen. Deanna Ballard to appear before the Senate Education Committee during the 2020 short session. In a February 2020 letter, Ballard asked Lee to share his recommendations on education policy in person. Sen. Ballard explained,
The fact that the Leandro case has been going on without resolution for a quarter-century — representing terms of six different governors, 13 legislatures, and with both major political parties in control at differing times — points to two key realities: 1) There are no easy answers to questions of which education policies deliver the best outcomes, and 2) a courtroom is not the optimal venue in which to resolve the complex policy challenges that have existed since the very first authorization for spending public funds for K-12 education more than 150 years ago.
Sen. Ballard’s invitation was appropriate. Canon 4 of the North Carolina Code of Judicial Conduct allows judges to “appear at a public hearing before an executive or legislative body” and “otherwise consult with an executive or legislative body or official.” A meeting would have gone a long way toward establishing a productive working relationship between the judge and legislative leaders. Predictably, Lee did not respond to the letter publicly and has never appeared before any legislative committee.
At a time when the public craves cooperation and compromise, Leandro enthusiasts zealously embraced judicial activism. Their decision to treat the General Assembly as a pariah will undermine efforts to cultivate legislative or popular acceptance of their plan.