North Carolina

In 1987, the North Carolina Supreme Court, in Britt v. North Carolina State Board of Education, 361 S.E.2d 71, found that disparities in school programs and facilities did not violate the equal protection requirements of the State Constitution. Ten years later, however, the North Carolina Supreme Court held in Leandro v. State that the State Constitution required educational adequacy and that the State Constitution “requires that all children have the opportunity for a sound basic education.” The Supreme Court then remanded plaintiffs’ adequacy claims for trial.

The trial, in Hoke County v. State, 95 CVS 1158, held that performance “at or above grade level” is the minimum performance standard defining a “sound basic education.” North Carolina’s State Board of Education had developed learning standards based on the skills that students will need in order to be informed citizens and to be gainfully employed in contemporary society. The defendant State had argued that performance one level below grade level in elementary and middle school and passing an eighth-grade level examination in high school should be adequate to demonstrate that students were receiving a sound basic education.The court also required funding for pre-kindergarten for all ‘at-risk’ four-year-olds. The Court ordered this remedy because it found that a lack of pre-kindergarten services rendered many of these students unprepared to enter public school.

The North Carolina Supreme Court, on July 30, 2004, agreed with the trial court in large part. It upheld the trial court’s ruling on the sound basic education standards  and found that the State is ultimately responsible “to meet the needs of ‘at-risk’ students” and that the State must provide services to such children “prior to their enrolling in the public schools.” Nevertheless, the court held that the trial court’s order mandating pre-kindergarten classes for all ‘at-risk’ prospective enrollees was not supported by a sufficient record. The type of services that four year old “at risk” children should receive, the court found, rested with the expertise of the legislative and executive branches.

Leandro/Hoke Cases (Continued)

In the aftermath of the economic downturn, the 2009-2010 budget included significant cuts to programs important to compliance with the court’s requirements that the state provide every child with a competent teacher, a competent principal and adequate resources. In particular, it reduced funding for ‘at-risk’ student services by twelve percent in the next two fiscal years and curtailed pre-kindergarten services for ‘at-risk’ children. On May 10, 2011, plaintiffs in Hoke filed a request for a hearing on the state’s reduction of pre-kindergarten services for ‘at-risk’ children.

On July 18, 2011, Wake County Superior Court Judge Howard Manning held that the state of North Carolina cannot enforce the portion of the 2011 Budget Bill that limits admission of ‘at-risk’ four-year-olds to the state’s prekindergarten program. Subsequently, Democratic Governor Beverly Perdue issued Executive Order 100 directing the Department of Health and Human Services to work with North Carolina’s education agencies to comply with the court.  Additionally, an appeals court held that the state must admit any eligible ‘at-risk’ child who applies to its pre-kindergarten program – not just in Hoke County but statewide. In 2013, the North Carolina Supreme Court ruled that the issue was moot since the legislature had substantially amended the statutes the lower courts had found unconstitutional.

Since Hoke, however, the state has abandoned many other remedial commitments to providing an adequate education to students. In response to subsequent complaints by the Hoke plaintiffs, the Superior Court ordered the submission of “a definite plan of action” from the State demonstrating how they intended to correct educational deficiencies.  When the State submitted a plan to respond to the Court’s order, plaintiffs countered that the plan lacked clearly defined actions, timetables for implementation, measurable objectives, an assessment of required resources and a mechanism to obtain those resources.

Signaling a new era in a long-running public school lawsuit, attorneys for the two sides in  July 2017  jointly requested that the court appoint an independent consultant. At about the same time, Governor Roy Cooper signed an executive order creating the Governor’s Commission on Access to Sound Basic Education. Cooper said: “it is far past time for the State to implement comprehensive, inter-disciplinary measures that allocate the resources necessary to ensure that the promise of a sound basic education for children in this State is realized.” Commission members will be appointed by the governor.

In March, 2018, Superior Court Judge David Lee, who has succeeded Judge Manning in presiding over the case, denied a motion of the State Board of Education to be dismissed from the case. Hoke Co. decision of March 31, 2018. The Court firmly rejected the Board’s claim that legislative actions since 2002 had rendered the case moot, holding that at no time have the state’s actions “demonstrated even remote compliance” with the requirements of the Supreme Court’s ruling in Leandro.

In December 2019, West Ed released a 300 page report describing how the North Carolina state legislature had dramatically cut back on education funding since the 1990s, a time when the state was posting large achievement gains and led the country in reducing the minority-White achievement gap. During this same period, the number of children in the state with extraordinary needs rose by 88 percent, and the report concluded that North Carolina had made little progress in providing each child with the opportunity to receive a “sound basic education” as delineated in Hoke and Leandro.

In January 2020, North Carolina Superior Court Judge David Lee adopted the major recommendations from the West Ed report and issued a Consent Order to the State Defendants. The State Defendants are required to submit a progress report within 60 days detailing how they will begin to immediately implement the recommendations outlined in the consent order. They must also provide a timetable for submission of mid-range actions and comprehensive, remedial, long range actions necessary for full compliance and a cost estimate of the additional resources needed for compliance. The Consent Order requires the state to revise its teacher and principal training, pay, and professional development systems, develop an adequate finance system that meets the needs of all North Carolina students, and implement assessment and accountability systems consistent with the Leandro standard.

The Covid crisis interrupted the parties’ negotiations to develop the action plan required by the consent order,  and at the parties’ request, in September, 2020, the Court approved a further consent order that outlined one-year immediate action steps the State would take in Fiscal Year 2021 (2020-21) to begin to adequately address the constitutional violations. 

In March, 2021, Governor Roy Cooper and the North Carolina State Board of Education, submitted a detailed eight-part Comprehensive Remedial Plan in response to the consent order. This plan outlines the full scope of the actions that the State intends to take between now and 2028 to ensure compliance. These actions include:

  1. A system of teacher development and recruitment that ensures each classroom is staffed

with a high-quality teacher who is supported with early and ongoing professional learning

and provided competitive pay;

     2. A system of principal development and recruitment that ensures each school is led by a high quality principal who is supported with early and ongoing professional learning and provided competitive pay;

     3. A finance system that provides adequate, equitable, and predictable funding to school

districts and, importantly, adequate resources to address the needs of all North Carolina

schools and students, especially at-risk students as defined by the Leandro decisions; 

     4. An assessment and accountability system that reliably assesses multiple measures of student performance against the Leandro standard and provides accountability consistent with the Leandro standard;

     5. An assistance and turnaround function that provides necessary support to low-performing

schools and districts;

     6. A system of early education that provides access to high-quality prekindergarten and other

early childhood learning opportunities to ensure that all students at-risk of educational

failure, regardless of where they live in the State, enter kindergarten on track for school

success; and

      7. An alignment of high school to postsecondary and career expectations, as well as the

provision of early postsecondary and workforce learning opportunities, to ensure student

readiness to all students in the State.

The Plan details the actions the State and State Board of Education are committed to taking and the corresponding goals that they intend to achieve by 2028, with the full educational benefits of these measures realized by 2030. Included in the plan is an Appendix that details the implementation timeline for each action step, as well as the estimated additional State investment necessary for each of the actions described in the Plan.

The plan estimates that $5.6 billion will be necessary to fund these actions. This includes $1.2 billion dollars of funding to help economically disadvantaged students as well as increasing funding for specialized support personnel – such as school psychologists, nurses, counselors, and social workers – by $743 million.  The actual cost of the eight-year plan would likely be much higher because some recommended items — like raising pay for teachers, principals and assistant principals — don’t have a total cost estimate. The Governor’s current proposed budget would also include large raises for existing public-school teachers — 10 percent on average over two years.

In an order issued in June 2021, Judge Lee approved the comprehensive eight-part plan submitted jointly by the plaintiffs and Democratic Governor Roy Cooper, including its estimated $5.6 billion price tag. He stated in that order that [T]he Comprehensive Remedial Plan shall be implemented in full and in accordance with the timelines set forth therein.

After the Republican-controlled legislature failed to appropriate the funds required to implement the plan, however, in November, 2021 Judge Lee ordered the State Budget Director, and other state officials to transfer approximately $1.7  billion from the State’s general fund to the State Department of Public Instruction and other agencies to allow them to implement years 2 and 3 of the Comprehensive Remedial Plan.

In  his order, the judge summarized the 17- year history of the State’s failure to provide students the opportunity for a sound basic education and specifically cited the legislature’s failure to comply with his order, despite the fact that the State currently has reserves of approximately $8 billion and forecasted excess revenues this year $5 billion.

The judge was quite blunt in saying that “To allow the State to indefinitely delay funding for a Leandro remedy when adequate revenues exist would effectively deny the existence of a constitutional right to a sound basic education and effectively render the Constitution and the Supreme Court’s Leandro decision meaningless.”

Judge Lee insisted that the court’s taking this bold step of directly order an appropriation  was supporting, and not violating, the separation of powers. He stated that the court has “inherent” constitutional powers to do “all things that are reasonably necessary for the proper administration of justice,” including in this situation “the power to fashion an appropriate remedy depending on the right violated and the facts of the particular case.”

At the end of November, the North Carolina Court of Appeals overruled Judge Lee’s order. By a 2-1 vote, the three- judge panel held that although the lower court was correct in saying that the state must fund the plan, it is not within its power to order money be appropriated:

Our issuance of this writ of prohibition does not impact the trial court’s finding that these funds are necessary, and that portion of the judgment remains. ….[t]he State must honor that judgment. But it is now up to the legislative and executive branches, in the discharge of their constitutional duties, to do so. The Separation of Powers Clause prevents the courts from stepping into the shoes of the other branches of government and assuming their constitutional duties. We have pronounced our judgment. If the other branches of government still ignore it, the remedy lies not with the courts, but at the ballot box.”

The plaintiffs and plaintiffs-intervenors promptly appealed this ruling to the North Carolina Supreme Court.

In March, 2022, North Carolina Supreme Court Chief Justice Paul Newby, a registered Republican, suddenly replaced Judge Lee, a registered Democrat, as the presiding trial court judge for the case, without any advance notice. Justice Newby then ordered special Superior Court Judge Michael Robinson, a registered republican, to take over the case. Judge Robinson is required to determine how much of the $1.7 billion that is necessary to fund the comprehensive remedial school improvement plan was included in the current state budget. Judge Robinson must present his findings to the state Supreme Court by April 20, 2022.

Special Superior Court Judge Michael Robinson determined on April 26, 2022 that the budget covered almost $1 billion of the items in the original court order. Yet the state still owed $785 million to two state government departments and the University of North Carolina System. The parties have taken a variety of positions regarding the procedural and substantive actions that the Supreme Court should take at this point. The state has requested that the Court promptly establish a briefing schedule to resolve these issues.

Hart v. State

Finding that an “opportunity scholarship” program enacted by the legislature in 2013 would reduce funding for public education by about $12 million, a civil superior court judge in Wake County, North Carolina issued a preliminary injunction enjoining the state from implementing the scholarship legislation. Hart v. State of North Carolina. Under the challenged program, up to 2,400 students would be eligible for scholarships of up to $4,200 to attend private schools. The private schools receiving these scholarship funds are not required to be accredited, to employ credentialed teachers, to fulfill any curriculum requirements or to demonstrate any level of student achievement. Plaintiffs argued that the program consequently violated Article IX, sec. 6 of the State Constitution.

In July 2015, the North Carolina Supreme Court reversed the trial court’s decision. It interpreted the language of Art. IX, sec. 6 to mean that public funds may be spent on educational initiatives outside of the uniform system of public education. Hart v. State.

Silver et al vs. The Halifax County Board of Commissioners

Unlike most counties in the state that encompass only a single school district, Halifax County, which contains about 6,000 students, is split up into three districts: Halifax County Public Schools, Weldon City Schools, and Roanoke Rapids Graded School District. Students in the county and Weldon districts are overwhelmingly African-American and from poverty backgrounds, while the Roanoke district is predominantly white. Attorneys for the parent plaintiffs have alleged that the method the county uses to distribute sales tax revenues has resulted in the Roanoke Rapids schools receiving about $4.5 million and Weldon schools $2.5 million in added local revenue between 2006 and 2014, while the county district received no country revenues at all.  In addition, property owners in the Weldon and Roanoke Rapids school districts pay a supplemental property tax that generates more than $1 million a year for each district, but the county district is not allowed to do the same.

The state Court of Appeals ruled 2-1 in September 2017  that the Leandro case established that state officials have the constitutional obligation to provide the opportunity for a sound basic education and that, therefore, the Halifax County parents should take their complaints to the governor and legislators rather than county officials. The dissenting judge said counties can be sued since the legislature assigned them responsibility for funding buildings and supplies.

On December 21, 2018, the North Carolina Supreme Court affirmed the decision of the Court of Appeals.

Last updated: October 2017



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