by Dr. Terry Stoops
Former Director of the Center for Effective Education, John Locke Foundation
Few moments better capture the Leandro lobby’s warped priorities than a crowd chanting “cut the check” and “let the money go.”
According to News & Observer reporter Keung Hui, that was the scene during a Leandro-themed carnival on Saturday in Raleigh. The sparsely attended gathering outside of the Legislative Building featured food, balloons, t-shirts, and “music” by the Triangle chapter of “Raging Grannies.”
Every Child NC organized the festivities to call attention to the long-running Leandro school funding case and the upcoming August 31 hearing before the North Carolina Supreme Court. Instead, the event laid bare the rapacious underbelly of the Leandro lobby, which apparently couldn’t even muster chants that mentioned the children and families whose interests they purportedly champion.
The state Supreme Court hearing is the culmination of years of advocacy efforts by more than three dozen special interest groups, progressive organizations, and union-supported enterprises that are members of North Carolina Communities for the Education of Every Child or Every Child NC. As part of its “state-level systemic change strategy,” the Z. Smith Reynolds Foundation awarded a $60,000 grant to the left-wing North Carolina Justice Center in 2020 to establish the Every Child NC coalition. Its activities have included gatherings, documentary screenings, lobbying, and hootenannies.
Even before the creation of Every Child NC, progressives and their media allies committed untold resources to execute a strategy to subvert their primary nemesis: the Republican-led General Assembly. In recent years, they urged the courts to circumvent lawmakers and order state government agencies to extract billions of taxpayer dollars from state coffers. Those funds would finance the Comprehensive Remedial Plan, a preposterous mishmash of high-dollar initiatives outlined by California-based consultant WestEd months before the coronavirus pandemic.
Although Democrats have never been reluctant to use the courts to advance their political agenda, their primary strategy was to reclaim a legislative majority. If voters handed the majority to Democrats in the 2018 or 2020 general elections, they would have approved massive tax increases to fund the Comprehensive Remedial Plan, claiming that the Leandro tax was necessary to fulfill their court-ordered obligations.
Instead, voters opted to retain the Republican majorities in the state House and Senate and thus forced the Leandro lobby to navigate the case through the courts. Unlike their Democratic counterparts, Republicans had little interest in surrendering budgetary authority to Superior Court Judge David Lee.
Judge Lee was appointed in 2016 after the incomparable Judge Howard Manning retired due to health challenges. Lee established a record of near unconditional deference to opportunistic lawyers, advocates, and consultants who had long wanted the courts to compel elected officials to pour taxpayer dollars into public schools in the name of “adequacy.” Earlier this year, North Carolina Supreme Court Chief Justice Paul Newby assigned oversight of the case to Special Superior Court Judge Michael Robinson after Judge Lee reached the mandatory retirement age of 72. Unfortunately, the damage had already been done, and the case was on track to return to the North Carolina Supreme Court.
Democrats have a 4-3 advantage on the state Supreme Court. Justice Sam “Jimmy” Ervin IV has been the most sensible jurist in the majority and thus is the swing vote. In the past, Justice Ervin has affirmed the legislature’s clear authority to collect and distribute tax revenue. In his 43-page opinion in Cooper v. Berger, he declared,
The appropriations clause of the North Carolina State Constitution provides that ‘[n]o money shall be drawn from the State treasury but in consequence of appropriations made by law. In light of this constitutional provision, ‘[t]he power of the purse is the exclusive prerogative of the General Assembly,’ with the origin of the appropriations clause dating back to the time that the original state constitution was ratified in 1776.
Despite his deference to the legislature in Cooper v. Berger, there is no guarantee that Ervin will apply the same logic in the Leandro case. Justice Ervin recently supported the convoluted reasoning of his Democratic colleagues in NAACP v. Moore, which asserted that the courts could negate constitutional amendments approved by a “gerrymandered” legislature. Justice Ervin’s willingness to undermine legislative authority in that case bodes well for the Leandro lobby, which has cut many checks to support his reelection campaign against Republican challenger Trey Allen.
The August 31 oral arguments will offer ample opportunities to read the tea leaves. Otherwise, I suspect that the state Supreme Court will publish their opinions after the November election.
Note: Anyone interested in a deep dive on the subject should review my Leandro v. State of North Carolina Reading List, explore articles on the topic from my colleagues at Carolina Journal, and access outstanding legal analysis from the N.C. Institute for Constitutional Law.