By Chris Brook, attorney, NCCU law professor, and former NC Court of Appeals judge
My name is Chris Brook. I am an attorney at the law firm of Patterson Harkavy, and I teach Constitutional Law at North Carolina Central University School of Law. In the recently decided Leandro education funding case, I represented the Charlotte-Mecklenburg NAACP and at-risk students who have been historically deprived of the sound, basic education that the North Carolina Constitution guarantees to them. I want to talk today a little bit about the run up to Thursday’s decision by our state Supreme Court, the decision itself, and what the decision means for public school students and schools across our state.
First, for the vast majority of the 32 years of the Leandro case, it was not Republican versus Democrat litigation. State Supreme Court justices from both parties agreed that our state Constitution guaranteed school kids a sound, basic public education. Justices from both parties agreed that Republican and Democratic Governors and legislators had to live up to that constitutional obligation. Even Thursday’s Supreme Court decision exhibited bipartisanship—with Justices Anita Earls and Allison Riggs, both of whom are Democrats, and Justice Richard Dietz, who is a Republican, disagreeing with the decision to throw the case out. All of that makes sense: wanting kids to have the resources that they need to thrive in the classroom and beyond should not be a partisan issue.
But this history of bipartisanship has been under attack in recent years. In 2022, the Supreme Court decided that the State had for too long failed to live up to its obligation to provide students with a sound, basic education. It ordered the State to provide public schools with additional resources. But then a newly composed, Republican-controlled Supreme Court voted to re-hear the case in 2023. That decision to re-hear the case was unprecedented and a hammer blow to the rule of law. Prior to 2023, the state Supreme Court had never re-heard a case just because the make-up—let alone the partisan make-up—of the Court had changed.
And that vote to re-hear the case foreshadowed the decision that the Supreme Court handed down on Thursday. Where the 2022 Supreme Court held that they had the power to hear the case before them, today’s Supreme Court decided that they did not. A bare, 4-3 majority of the Court ended the Leandro litigation and—for the moment—dimmed the hopes of schoolchildren and their families across our state.
The decisive vote in the case was cast by Justice Phil Berger, Jr. Justice Berger Jr.—son of Senate Leader Phil Berger—would have gone even further than the other members of the majority—Chief Justice Paul Newby, Justice Tamara Barringer, and Justice Trey Allen—and would have explicitly overturned Leandro IV—the ruling making plain that the Supreme Court can enforce the constitutional guarantee of a sound, basic education. And he went further still. He analogized constitutional arguments for a sound, basic public education to a “snake” that should be “kill[ed]” with a “hoe.” He said lawyers making those arguments were “profiteering attorneys”—despite the fact that many of us—myself included—were working on the case pro bono—free of charge.
The dissenters blew the whistle on these unprecedented opinions. As I mentioned previously, Justices Earls, Dietz, and Riggs all agreed that the Court could and should hear legal challenges to whether the legislature was living up to its constitutional obligation to support our schoolkids and schools. Justice Earls explained why the Supreme Court should have never re-heard its 2022 decision. And she explained that, unless courts are willing to enforce constitutional guarantees, they are only paper promises.
I will close with where Justice Riggs ended her dissenting opinion. As she noted, last week’s opinion is a stain on the reputation of our state Supreme Court. But the biggest loser was not the Court; it was kids in impoverished communities in our state thirsting for the best at their schools. Since Robb Leandro brought this case into court in 1994 as a Hoke County public school student, kids in North Carolina classrooms have only wanted a fair shake, a chance to succeed. But, in the words of Justice Riggs, “[t]he majority’s message to our children [last week] is clear: pull yourself up by your bootstraps, but there is nothing this Court will do if the political branches never met their obligation to put boots on your feet in the first place.”
Let’s be very concrete (and continue with the shoe metaphors): the funding that the state Supreme Court ordered in 2022 would have put so many more of our kids in a position to sprint out of the starting blocks. That plan—the Comprehensive Remedial Plan—agreed to by the parties to the litigation and then signed off on by the courts—would have invested over $5 billion in our public education system over eight years. What would that money have been put towards? Among other things, that money would have helped schools to recruit, develop, and retain quality teachers and principals. That money would have helped provide expanded access to high-quality pre-kindergarten. That money would have provided turn-around assistance for schools facing challenges.
So, yes, we gather here today to mourn for resources and opportunities that students have lost. But we also gather here today to remind everyone that the idea that the State has a responsibility to provide all students a sound, basic education has been (and, I am confident, will be again) uncontroversial. And we gather here today to remind everyone that there remain North Carolinians committed to ensuring every student has a fair chance to succeed.