LEANDRO

This page serves as an archive of documents, resources, and articles on Leandro v. State of North Carolina and articles tagged “Leandro” on this website.

Backstory

The Leandro case began in 1994 with a lawsuit centering on the state’s constitutional duty to provide an “opportunity for a sound basic education” to all public school students.

The name Leandro comes from one of the original plaintiffs, Robb Leandro, a former Hoke County high school student. The majority of Leandro’s over 20-year history was overseen by Judge Howard Manning but was reassigned to Judge David Lee in 2016.

The law firm of Parker Poe was asked by five low-wealth county school districts to handle the case. Families from five of those counties were original plaintiffs.

The main claim was that the state was not giving children the same educational opportunities in all districts. A key point was that the formula used for funding public education put low-wealth districts at a financial disadvantage because of the disparity in revenues school districts receive from local property taxes.

Key Milestones

Leandro is over 20 years old and is extremely complex. The following milestones are not representative of the entire case picture.

A decent historical summary by NCbar.org is archived on the WayBack Machine.  The summary is dated, however, as studies have shown that pre-K is not as effective as initially believed.

Also useful is the 2003-04 report on Leandro II made to the NCGA’s Joint Legislative Education Oversite Committee (JLEOC).

1997: A North Carolina Court ruled that the state’s at-risk children have a fundamental right to the “opportunity to receive a sound basic education.” The ensuing trial lasted just over 14 months. One part of the ruling mandated pre-kindergarten for at-risk prospective students.

The Court defined at-risk students as students who met one of the following criteria: Member of a low-income family;  live in a single parent/guardian home; parents do not have advanced educations; are enrolled in free or reduced-cost lunch programs;  limited English proficiency; are a racial and/or ethnic minority.
(Leandro v. State, 346 N.C. 336, 347 (1997) (“Leandro I”). 

2004: The North Carolina Supreme court upheld the previous lower court findings that a constitutional violation had happened; that at-risk children in the state were being denied their right to a “sound basic education.” The court did not agree with the lower court on pre-kindergarten mandates, calling it “premature” at that time. The Supreme Court then sent the case back down to the legislative and executive branches to come up with a solution to the constitutional violation.
(Hoke County Board of Education v. State, 358 N.C. 605, 632, 637 (2004) (“Leandro II”)

2015:  In July Judge Manning announces his retirement but he kept hearing the case until Oct. 7, 2016. At that time,  North Carolina Chief Justice Mark Martin reassigned Leandro to Emergency Superior Court Judge David Lee.

2017: A joint motion to hire an independent evaluator to review the case is made on the 20th anniversary of the case. At the same time, the State Board of Education filed to have themselves removed from the case. The board of education’s motion is later rejected.

2018: In February, Judge David Lee appointed WestEd to study and recommend a plan for the State to remedy the constitutional violation found in the Leandro case.  WestEd was tasked with making a final report to Judge Lee by March 31, 2019.

2019: WestEd’s Leandro report is made public on December 10.  The report was compiled by WestEd, Learning Policy Institute, & Friday Institute for Educational Innovation at North Carolina State University (2019). Sound Basic Education for All: An Action Plan for North Carolina. San Francisco, CA: WestEd.

2020: Judge Lee’s consent order is a set of basic instructions giving the lawyers involved a 60-day window to submit plans on how to implement short-term goals. It was issued on January 21. Following the Consent Decree, Gov. Roy Cooper’s partisan“Sound education commission” recommended more school funding, but wouldn’t say how much. The latest reports by Cooper’s commission are on its website.

On June 15, the joint report to the Court was published: Fiscal Year 2021 Action Plan For North Carolina. Dr. Terry Stoops of the John Locke Foundation wrote an overview of what the plan entails, including around $426M in additional spending, for Carolina Journal on June 18.

In late August, the original judge in the case, Judge Manning, sat down for an interview where he blasted the idea that WestEd’s massive spending plan was going to make any difference.

“I realized money can’t buy you quality…You don’t just raise everybody’s salaries by $10,000 per year and expect to have all the grades go up by 20% because it’s not going to happen,” said Manning in the interview.

Sept. 1, Judge Lee signed the consent order. This puts the WestEd eight-year plan in motion with the foregone conclusion he will sign off on spending totaling $426.9 million. Of that spending, $235 million (55%) would go to just funding teacher raises.

The signing of the order comes around the same time that Education Week ranked North Carolina 15th in the nation in K-12 Achievement.

“North Carolina is also one of the most equitable states in the nation, earning a B for the “degree to which education funding is equitably distributed across the districts within a state,” writes John Locke Foundation’s Dr. Terry Stoops of the Education Week.

The day before Lee signed the order, lawmakers were made aware of his intent and issued a statement.

“Judge Manning had it exactly right when he blasted the focus on money instead of quality. Republicans have increased education funding by $1,748 per student, but that doesn’t matter if children aren’t being taught properly,” said Sen. Deanna Ballard (R-Watauga)

Ballard, who is a co-chair of the Senate Education Committee, continued “It’s so disappointing that the new Leandro judge, David Lee, wouldn’t even speak to legislators about this issue before issuing a consent order.”

In December, Judge Lee granted the request for an extension to the N.C. State Board of Education and Gov. Roy Cooper’s office for the eight-year plan that was supposed to be presented to the court. The new date set for this plan to be presented is Feb. 15, 2021.

2021: Cooper’s office and the Board of Education did not meet the Feb. 15 deadline. Judge Lee issued another extension of Mar. 8.  Assuming the governor and state board gets their act together for the Mar. 8 date and the plan is accepted by the Judge, the legislature will then have to fold it into their upcoming biennium budget and Cooper will have to refrain from vetoing it as he has for the last two presented to him. 

A comprehensive remedial plan and appendix of implementation costs is submitted to the North Carolina Superior Court on Mar. 15. The 300-page report compiled by WestEd is very general and outlines around $8.29 billion in new state-level spending on schools over an eight-year period.  WestEd expects the federal government to pony up another $3.87 billion per year.

In short, WestEd’s report seems to think the problems will be fixed in eight years by forcing lawmakers to throw yet more money at the issues instead of actual, real instruction-related solutions. 

It appears Judge Lee disagrees a bit with the spending part, and he’s right to hesitate given the bureaucratic gravy train that would be created by some of WestEd’s recommendations. On April 13, Judge Lee held a hearing at which he said he was not going to dictate to lawmakers how to spend the state’s education dollars.  EducationNC reported that Lee said, “I want this to be a cooperative effort with everyone having the same goal in mind.”  

Of note in the laundry list of spending is $400,000 a year for a state “Office of Equity Affairs.” Interestingly, for the first time, the governor’s proposed budget also includes $800,000 for such an office.  Wake County created an Office of Equity Affairs which has not improved student or teacher outcomes but instead runs amok with social justice tropes, set up a Black Lives Matter website, and never-ending white privilege training for staff.

Judge Lee won’t sign any orders until after the State Board of Education gives some feedback and recommendations. Unless they hold a called meeting, the board doesn’t meet again until May 12.

On June 7, Judge Lee signed an order requiring the comprehensive remedial plan to be implemented “in full.”  Here are the provisions, including future deadlines for hearings and status updates:

Oct. 31: Plaintiffs are pushing Judge Lee to compel the legislature to transfer $1.7B as part WestEd’s Leandro plan.  WRAL first reported the story, including a copy of what looks like a leaked copy of the order as evidenced by the document having no date, no signature and no court-related processing stamps.

Nov. 3: The WestEd Leandro proposal is looking more and more like a “sue and settle” given that Wested was paid around $2.05 million to produce their report and that the Cooper administration (a defendant in the case) and his allies were the ones who paid the bill.

WRAL reported the breakdown of the main payees totaling over $1.5 million:

  • Cooper’s NC Department of Health and Human Services – $604,699
  • Cooper’s Department of Administration – $200,000
  • Goodnight Educational Foundation – $250,000
  • Z. Smith Reynolds Foundation – $200,000
  • Spencer Foundation – $118,406
  • Belk Foundation – $100,000
  • A.J. Fletcher Foundation – $50,000

WRAL notes A.J. Fletcher was founded by Jim Goodmon, the founder of Capitol Broadcasting company which in turn owns WRAL. Also that “Capitol Broadcasting leadership sits on the foundation board.” So in effect, WRAL is reporting on their own involvement in this Leandro “sue and settle” situation.

Over another half-million more was spent and Bill Gates is also in on the act, according to the WRAL report:

“The Friday Institute for Educational Innovation at North Carolina State University and the Learning Policy Institute worked with WestEd on the project, and additional money was raised for them. The Gates Foundation kicked in $249,932 for the Friday Institute, and the Spencer Foundation put in another $282,173 for Learning Policy, according to the Governor’s Office.”

Nov. 11: In advance of the 2 p.m. hearing today, Former Leandro Judge Manning issued a blistering memo to state education officials, the governor, and the legislature.

Carolina Journal broke the story, including Manning underscoring the constitutional authority of the branches of government in North Carolina. Key quote:

“At the present time there is a media-induced frenzy about the Leandro judge proposing to enter an order requiring the General Assembly to appropriate over $1 billion for the educational establishment,” Manning wrote. “As the press is licking its lips for 15 minutes on the 6:00 news, I will refer all to the following decisions from our Supreme Court and other decisions relating specifically to the power of the Judicial Branch.”

In the closing paragraphs, Manning also echoes his position he made clear last year, which is that it’s not the amount of money that is the issue, it’s how it is being spent and that spending isn’t reaching the students:

“Leandro requires that the children, not the educational establishment, have the Constitutional right to the equal opportunity to obtain a sound, basic education. This has not and is not happening now as the little children are not being taught to read and write because of a failure in classroom instruction as required by Leandro.

This is not happening now.

Our children that cannot read by the third grade are by and large doomed not to succeed by the time they get to high school. As shown by the record in this case, that is a failure of classroom instruction.”

Link to the memo via Carolina Journal. 

Manning mentions “sound, basic education” in his memo. This line has been misconstrued as being part of the N.C. State Constitution, when in fact it is from the 1997 N.C. Court ruling that said students should have the “opportunity to receive a sound basic education.” 

The “sound, basic education” line has been used as a mantra throughout the rest of the Leandro case history and by organizations like the NC Association of Educators when they’ve sued over Opportunity Scholarships, however, it should be noted that nowhere in the NC Constitution does that phrase appear.

Read it for yourself:  The NC State Constitution, Article Nine – Education

As expected, Judge Lee issued his order directing a transfer of $1.7 billion within 30 days.  Here is the relevant part of the order:

leandro lee order

Senate Leader Phil Berger (R-Eden) and House Speaker Tim Moore (R-Kings Mountain) issued a joint statement:

“This case has devolved into an attempt by politically allied lawyers and the Governor to enact the Governor’s preferred budget plan via court order, cutting out the legislature from its proper and constitutional role.

“If Judge Lee’s orders are followed, the legislature’s core duty is usurped by unelected county-level trial judge and an out-of-state consultancy funded by the Governor and his political allies.

“Thankfully, executive branch officials swear an oath to the Constitution, not to an unelected county-level trial judge. A judge does not have the legal or constitutional authority to order a withdrawal from the state’s General Fund [see below].

“The only rebuttal to this clear precedent is an absurd theory developed by Attorney General Josh Stein, which argues that the Constitution, in 1868, ordered a specific funding level for the education budget in the year 2021, and that only an out-of-state consultancy called WestEd can divine the precise funding level the 1868 Constitution ordered.

“It’s a circus.”

The Constitution confirms budgeting is the legislature’s exclusive prerogative: “No money shall be drawn from the State treasury but in consequence of appropriations made by law.” (Article V, Section 7.)

The North Carolina Court of Appeals confirms budgeting is the legislature’s exclusive prerogative: “Appropriating money from the State treasury is a power vested exclusively in the legislative branch and no money shall be drawn from the State treasury but in consequence of appropriations made by law. Because the State constitution vests the authority to appropriate money solely in the legislative branch, the Separation of Powers Clause prohibits the judiciary from taking public monies without statutory authorization.” (Richmond Cty. Bd. of Educ. v. Cowell.)

The North Carolina Supreme Court confirms budgeting is the legislature’s exclusive prerogative: “The 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.” (Cooper v. Berger.)

Based on the support brief filed by NC Attorney General Josh Stein, he apparently thinks the state can go around the legislature despite the NC Constitution giving power of the purse to lawmakers.

Since taking office in 2016, Stein has been prolific, to say the least, in the amount of news releases his office puts out. Oddly, there is no release on the NC Dept. of Justice newsroom website for this support memo or statement.

The only related statement from Stein came from his personal Twitter account, which included the phrase “sound, basic education,” which is oft misquoted as being in the N.C. State Constitution.

Governor Roy Cooper issued a statement on Twitter, also using the “sound, basic education” line. 

Nov. 24: Linda Combs of the Office of the State Controller filed a motion with the North Carolina Court of Appeals to issue a writ of prohibition, temporary stay, and writ of supersedeas.  

The motion basically says that the controller herself nor Comb’s office has ever been served with any order regarded to Leandro throughout the case’s long history and that the controller’s office has no jurisdiction in the matter.

“Petitioner has not been made aware of any enactment by the General Assembly which would authorize her to legally distribute funds from the Treasury to comply with the Court’s order in any amount,” the motion reads. 

The motion raises three questions:

Leandro Controller Motion 11-24-21

The State Controller’s Office, the Office of Budget and Management, and the N.C Treasurer are the three offices named by Judge Lee’s order to transfer the $1.7 billion.

Nov. 29: N.C. State Treasurer Dale Folwell issues a statement on his department being named in Judge Lee’s Leandro order: 

“Our legal team has reviewed Judge Lee’s order, and because of the Attorney General’s conflict, we have requested and received authorization to pursue outside counsel for this matter.

In the meantime, we have asked the Attorney General’s office to pursue an extension of time to the order’s 30-day period. The Attorney General’s office has responded that they are researching the appropriate mechanism and options to do so.”

A request for comment was sent to all three agencies named in Lee’s transfer order the day after its issuance.  The Office of the Controller said they were reviewing the order and had no official comment. The Office of the State Treasurer gave a response similar to that of the controller. The Office of Budget and Management has not responded as of Nov. 29.

Nov. 30: Attorney General Josh Stein files a motion in support of the controller’s request for a stay. 

“The State is mindful of the unique circumstances and novel issues that this case presents,” the conclusion section of the NCDOJ motion reads. “In light of the gravity of the issues in this case and the need for appropriate appellate review of the merits, the State believes that the issuance of a Writ of Supersedeas and a temporary stay is appropriate.”

The same day, the plaintiffs in the Leandro case also filed a motion claiming the three agencies named by Lee have the authority to make the transfer and asking that the controller’s request for a stay be denied.

Nov. 30: The N.C. Court of Appeals blocks the transfer order mainly on the basis that the trial judge (Lee) did not have the authority to go around the legislature by ordering three other agencies to transfer the $1.7 billion.

The ruling has two main points, both dealing in some manner with the authority to appropriate funds per the N.C. constitution, but the main summary point reads, “Simply put, the trial court’s conclusion that it may order petitioner to pay unappropriated funds from the State Treasury is constitutionally impermissible and beyond the power of the trial court.”

There’s also a small catch in the ruling, which leaves a part of Lee’s order in place:

“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.”

(Read the full ruling.)

The three-member panel consisted of Judges Jefferson Griffin, Chris Dillon, and John Arrowood. Griffin and Dillon were in the majority while Arrowood dissented.

Senate Leader Phil Berger issued a statement that in part says, “The people of North Carolina through their elected legislators, not an unelected county-level trial judge, decide how to spend tax dollars. Rather than accepting responsibility for lagging achievement and outright failure, the Leandro parties insist that the pathway to student improvement is always the simple application of more money.

Berger continued, “Judge Lee, education special interests, and the Cooper Administration hatched this unconstitutional scheme to funnel $1.7 billion in extra money to a failed education bureaucracy; this Court has rightly called them on it. The legislature will continue to follow the Constitution and advance policies that enhance

Read Berger’s full statement.

It’s also worth noting Gov. Cooper tried to side-step the entire ruling during budget negotiations through an unsuccessful attempt to insert the Leandro remedial plan into the budget.

Dec. 8: Legislative leaders file a notice of appeal and a legislative intervenors notice of intervention.

The General Assembly has asserted that Judge Lee does not have the authority or power to order such a transfer because the power of appropriation of state funds resides with the legislature per the state constitution.

In their filings, House Speaker Tim Moore and Senate Leader Phil Berger state “The Court’s Order seeks to direct State officials to pay money from the State treasury in a manner contrary to appropriations made in the State Budget. In doing so, the Order contravenes the doctrine of Separation of Powers reflected in Article I, Section 6 of the State Constitution.”

Dec. 15: Plaintiffs respond to the Dec. 8 filings by lawmakers, filing their own appeal and intervenors notice.

In a nutshell, the plaintiffs are asking the N.C. Supreme Court to decide whether or not a trial judge’s transfer order of $1.75 billion from the state’s coffers to education agencies is lawful.

The plaintiff’s lawyer says in their filings that, “Right now, thousands of at-risk children are being denied the opportunity to avail themselves of their fundamental constitutional right to a sound basic education. Immediate and final adjudication by this Court is necessary to prevent further and irreparable harm to these children.”

As previously noted, the N.C. Court of Appeals panel ruled 2-1 in favor of State Controller Linda Combs, who asked for a halt to the order citing the lack of authority of her office to make such a transfer and her office never having been involved in the lawsuit previously. In its Nov. 30 ruling, the Court of Appeals panel affirmed Combs’ request, stating that Lee’s order overstepped his legal authority and ordered the transfer to be blocked.

The N.C. Supreme Court’s current makeup is four Democrats to three Republicans. Should the high court overturn the Court of Appeals ruling blocking the transfer, it would arguably represent a violation of the state’s constitution by the one body sworn to uphold it.

Dec. 28: Attorneys for both the N.C. State Controller and General Assembly lawmakers submit filings to the N.C. Supreme Court asking Plaintiff intervenor motions be dismissed. Read this article at Carolina Journal which summarizes these recent events. The article includes links to the filings.

2022 

Jan. 18: Plaintiffs file a motion with the N.C. Supreme Court that asked the court to deny the dismissal motion by legislative defendants and that the court reject the appellate court’s ruling that Judge Lee overstepped his authority, allowing for the $1.7 billion transfer order to proceed.

At the same time, N.C. Attorney General Josh Stein’s office has filed a “bypass” petition, meaning he would like the state supreme court to take up the Leandro case directly and bypass the state court of appeals. 

Feb. 14: N.C. State Attorney General Josh Stein filed a request with the N.C. Supreme Court asking them to examine the case. As Attorney General, Stein’s office is supposed to be defending the state in the matter, but his past activity, including this new filing, appears to be more on the side of plaintiff activism. 

Feb. 24: Plaintiffs filed a motion in support of Stein’s request to the N.C. Supreme Court. 

Feb. 28: Plaintiff-intervenors file in support of the Supreme Court taking the case.
Plaintiff-intervenors are groups and individuals who join a case on the side of the plaintiffs.  Legal representation for NC House Speaker Tim Moore and Senate President Pro Tempore Phil Berger submitted a filing in opposition to the state supreme court taking up the case.

Mar. 3: Attorney Chris Brook, of Chapel Hill law firm Patterson Harkavy, LLP, filed a notice of appearance in the case, basically this is announcing he will be their Penn Intervenors representation going forward. The Penn Intervenors are the Charlotte-Mecklenburg Branch of NC NAACP, Rafael Penn, Clifton Jones, Donna Jenkins Dawson, and Tyler Anthony Hough-Jenkins.

Interesting to note, Brook was appointed to the N.C. Court of Appeals by Gov. Roy Cooper in 2019 and stayed there until he ran unsuccessfully for the seat in 2020. He was beaten in the Nov. election by Republican Jefferson Griffin. Prior to being appointed by Cooper to the Court of Appeals, Brook was Legal Director at the NC ACLU (2012-2019), a staff attorney for Justice Anita Earl’s former employer, the Southern Coalition for Social Justice (2008-2012), and was an attorney at Cranfill, Sumner, and Hartzog (2005-2008).

Mar. 18: NC Supreme Court issued an order granting requests of the plaintiffs and N.C. Attorney General Josh Stein to take up the case, but the high court wants to see if the state budget has an impact on the price tag, so it is being sent back to a Superior Court (in Wake County) for “no more than thirty days.”  It’s important to remember that Lee’s ruling ordered the state budget director, controller, and treasurer to transfer funds from the state’s coffers, but the statutory power of appropriations lies with the General Assembly.

The possible (and probable) end result is the Supreme Court takes the case away from the Court of Appeals where it currently sits.  Why would the N.C. Supreme Court make such a move? Maybe favorable ruling math? The Court of Appeals has a structure of 10 Republicans to five Democrats whereas Democrats are a four to three majority on the Supreme Court. If the Supreme Court can go around the legislature on its map-drawing authority, why not also do an end-run around the legislature’s legal authority of appropriations?

Mar. 21: Carolina Journal breaks the news that North Carolina Supreme Court Justice Paul Newby has reassigned the Leandro case to Michael L. Robinson, one of the Special judges of the Superior Court of North Carolina. Read Newby’s order here.

Robinson was appointed in 2016 by former Gov. Pat McCrory as a special superior court judge assigned to the North Carolina Business Court. In March of 2021, Gov. Roy Cooper re-appointed him.

Mar. 25: Read Judge Robinson’s supplemental briefing order. The order seems to be looking specifically at how much of WestEd’s Comprehensive Remedial Plan’s funding has already been fulfilled through state budgets.

This order is asking for “The effect of the appropriations in the 2021 Appropriations Act on the ability of the Court to order the Legislature to transfer funds to the Department of Health and Human Services, Department of Public Instruction, and the University of North Carolina System.” 

The order also wants to know “The amount of funds remaining in the General Fund currently both in gross and net of appropriations in the 2021 Appropriations Act.”

One possible outcome of making these comparisons is that Robinson could find most of the WestEd plan’s funding has already been fulfilled by the General Assembly. That could result in a revision of the amount of funding he might order. 

One of Attorney General Josh Stein’s lawyers who is handling the case for the state gave an estimate friendly to the plaintiffs, saying that the state budget might have addressed “30-35% “of Lee’s funding order. Lawmakers, however, say as much as $900 million of the $1.7 billion has already been covered through appropriations.

This supplemental briefing order also seems to underscore that Lee’s order directing three agencies other than the legislature to transfer the funds is not a valid avenue. 

One of those entities, the State Controller’s office officially objected to Lee’s order. Linda Combs, the head of the State Controller’s office, filed objections, arguing her office has never been involved in the Leandro case and that Lee’s $1.7B Nov. 10 order would cause her to be in violation of state law. Importantly, lawyers for the controller’s office argued they couldn’t authorize the transfer unless they had a legislative appropriation.

April 8: The Penn Intervenors file their proposal backing the idea lawmakers should fund the entire $1.75 billion. The same day, Stein on behalf of the state filed the State Board of Education’s April implementation progress update document. 

Also filed that day was an affidavit from Mark Trogdon, the head of fiscal research at the General Assembly. His affidavit details the budget process and how the legislature calculated how much of the Leandro plan is already funded in the current budget.

April 11: This is the deadline date set by Judge Robinson for requested responses and briefs: Plaintiff filing, State filing.  The next hearing date is set for 9 a.m. on April 13 and outlets like ABC11 and WRAL will likely both be live streaming it. 

April 13: Judge Robinson held a four-hour hearing which mainly focused on the dollar figures put forth by the various plaintiffs and the defendants in the case. WRAL televised the hearing.

The state’s savings reserves were a much-debated part of the hearing. When asked if the state’s savings reserves were constitutionally mandated like areas of the state budget are, Matthew Tilley, the lawyer for lawmakers, said no. 

Robinson specifically asked the lead attorney for the plaintiffs Melanie Black Dubis about WestEd’s Comprehensive Remedial Plan and what role lawmakers were given in developing that plan. Dubis’ lack of a tangible answer was notable.

Robinson will have to offer a decision to the N.C. Supreme Court about the state budget’s impact on his predecessor Judge Lee’s funding order by the high court’s April 20 deadline. During the hearing, Robinson said, “The court intends to meet that deadline.”

April 14: A new filing by the Penn Intervenors would drop $25 million off of the $1.75B funding transfer order issued by former Leandro Judge Lee. The $25 million reduction appears to acknowledge the budget signed into law by Gov. Roy Cooper covers Lee’s funding order in the areas of “child care subsidy improvements” and an “early childhood workforce data system.” With lawmakers arguing the state budget covered most of the order already, the $25 million reduction would still leave an outstanding $770 million.

April 15: The attorney for lawmakers filed a brief addressing the Penn Intervenor’s $25 million reduction, but that there are millions more in the state budget sets aside for items listed in the WestEd Comprehensive Remedial Plan. The filing also maintains that “the Court is without power to order the transfer of any unreserved, unappropriated revenue from the General Fund to any State agency, State reserve, or other source.”

April 19: Judge Robinson files a request for an extension on the April 20 deadline set by the N.C. Supreme Court. In his request, Robinson asks for seven more days to review all of the submitted materials, pushing the deadline out to April 27. 

April 26:  After reviewing all of the budget data, Judge Robinson issues a 26-page “order following remand.”  To summarize the order, Robinson found the most recently passed budget did impact the price tag on the WestEd Remedial Plan and has reduced the amount to be funded to around $785 million. Additionally, Robinson seems to be attempting to avert the constitutional crisis instigated in the funding order issued by his predecessor Judge Lee by not ordering three state officials to transfer the funds per Lee’s ruling.

May 20: Attorneys for the N.C. Department of Justice files a request that the state supreme court pick up the pace of its review of the materials submitted on April 26.  The filing includes a schedule with all written briefs to be completed by Aug. 12.

June 1: Order filed by Assoc. Justice Sam Ervin says oral arguments will begin on August 29 with briefs due by July 1 and final briefs due by August 12.

July 5: An attorney in Stein’s Dept. of Justice filed a motion asking the state supreme court to uphold the previous funding order that would force three state government entities to fork over $785 million.  Key sections from the conclusion of the filing:

“In sum, the trial court erred in its 26 April 2022 Order to the extent that it amended the direction to certain state officials to transfer funds to certain state agencies. That direction should be reinstated.”

[…]

“For the foregoing reasons, the State asks this Court to affirm the trial court’s 26 April 2022 Order except to the extent that order overruled the trial court’s 10 November 2021 Order directing the State Treasurer, State Controller, and OSBM to transfer to state agencies the state funds necessary to implement to Comprehensive Remedial Plan. Alternatively, the State respectfully requests this Court’s guidance on how the State can implement years two and three of the Comprehensive Remedial Plan and achieve compliance with this Court’s rulings in Leandro I and II.”

Lawyers for state legislators also filed their own brief, outlining that the Leandro funding has been satisfied. Key points in the lawmaker’s filing include that the trial court failed to consider the billions of dollars made available to districts through COVID-Relief Funds and also highlighted that the trial court’s findings that money allocated to the Savings Reserve are unnecessary and erroneous. The legislative-intervenors brief makes the case that the trial court properly amended the funding order to comply with the state’s appropriations clause.

The legislative-intervenor’s conclusion notes that “Disagreements among the elected officials and branches of State government over how to educate the State’s children are nothing new. They are fueled not just by political divisions, but sincere differences of opinion about what is best for the State’s children and how to improve its educational system. Yet, as this Court has recognized, there is no single path to this worthy destination, nor is there a magical sum of money that is, by definition, constitutionally “enough.” There is, however, a constitutionally-mandated process for resolving such disagreements and determining a path forward. It is the legislative process.”

The conclusion goes on to say that “Only that process provides an opportunity for the people to be heard and to decide—through their elected representatives—how to spend the State’s money and provide the State’s children with a Leandro-compliant education. The State Constitution does not permit the judiciary to take that power from the people and reassign it to the courts—or worse, a small group of unelected lawyers.”

July 13: Lawyers for the intervenor-defendants (House Speaker Tim Moore and Senate Leader Phil Berger) file a motion for Justice Anita Earls to recuse herself as she had participated in the case on behalf of plaintiffs on two separate occasions. 

July 15: Plaintiffs submit a motion for the recusal of Associate Justice Phil Berger, Jr.
The motion argues that because Associate Justice Berger’s father is an intervenor in the case, he should recuse himself. 
“Intervenor Berger falls within the third degree of relationship to Justice Berger as it is defined under Canon 3(C)(1) and the civil law system,” the motion reads. “Indeed, a parent-child relationship, such as that between Intervenor Berger and Justice Berger, constitutes a first degree of relationship.”

July 27: A collection of around 50 individuals, mainly North Carolina business officials along with former Democratic politicos and politicians, have signed onto a brief pushing Leandro money. Of note in the list of names is Cooper’s former senior adviser Ken Eudy, Capitol Broadcasting Company’s Jim Goodmon, SAS Institute’s Jim and Ann Goodnight, and Orage Qarles III, the former president and publisher of the News and Observer.

The brief submitted to N.C. the State Supreme Court calls for the court to force the departments previously named in Judge Lee’s order “to transfer funds to support implementation of the remaining phases of the Comprehensive Remedial Plan.”

Aug. 2: An attorney for the NC Chamber of Commerce sent a letter to the clerk at the state Supreme Court asking a name be removed from the support brief filed by dozens of business leaders in the state. The letter says that the person did not authorize the addition of their name. Full story at North State Journal.

Aug 3.: John Locke Foundation & NC Institute for Constitutional Law file an amicus curiae urging the N.C. Supreme Court to reject the Leandro transfer order as unconstitutional.

Aug. 19: Both Associate Justices Anita Earls and Phil Berger, Jr. issue orders that they will not be recusing themselves in the case. Oral arguments begin Aug. 31. 

Aug. 23: Legislative intervenor-defendants file a motion to have the Interventor-plaintiffs (Penn Intervenors) portion of the appeal dismissed.

House Speaker Tim Moore issued a statement in which he said, “Justice Earls and the Plaintiff-Intervenors simply cannot have it both ways. The bottom line is that either her former clients should be dismissed from this case, or Justice Earls should recuse herself. Anything less is an affront to our judicial system.

In a nutshell, the motion to dismiss basically says the plaintiff’s claims are not relevant to the current appeal and that Earls handed that to the defendants in her order stating she was refusing to recuse herself.

Aug. 26: Attorneys for the plaintiffs submit a response to the court urging it not to grant the lawmakers’ request to dismiss.

Aug. 30: Assoc. Justice Ervin, waiting for the majority, denies lawmakers’ motion to dismiss the Penn-Intervenors from the case. Chief Justice Newby, along with Assoc. Justices Barringer and Berger dissent.

Oct. 4: Former Leandro Judge David Lee passed away from complications due to cancer.

Nov. 30: Business Court Judge Michael Robinson writes a letter to Chief Justice Paul Newby asking the case, if it continues, be reassigned to someone else. The letter was entered into the docket on Dec. 29, 2022.

Dec. 12 & 19: Two filings in the case hit the court system in late December. One of the filings was an affidavit from the Office of State Budget and Management (OSBM) which was tasked by the N.C. Supreme Court in its ruling to determine how much funding still needs to happen. Here’s the key line from the affidavit submitted by Chief Deputy Director of the State Budget Anca Elena Grozav:

“The analysis reveals that 63% of the Year Two Action Items of the Comprehensive Remedial Plan, and 60% of the Year Three Items of the Comprehensive Remedial Plan have been funded. This means that approximately $257,679,390 of Year Two Action Items remain unfunded, while $420,121,777 of Year Three Action Items remain unfunded.”

To summarize, the dollar figure Grosav has come up with is a total of $677.8 million.

The other filing was a report to the business court outlining the timeframe for action and it was submitted on Dec. 12; before OSBM’s affidavit was filed on Dec. 19. The report is short and says all parties have agreed on a proposed schedule stating they have until Jan. 20 to respond to the OSBM affidavit. Additionally, there is a section dedicated to the opposition to the schedule by the state controller and the controller thinks there needs to be “additional procedures” in place before any transfer happens.  Remember, the controller has objected to being brought into the mix as that office has had no part in the case whatsoever until the transfer order was issued. The controller and the attorney representing them have also argued they have no power to make such a transfer.

Dec. 29: Chief Justice Judge Newby reassigns the case per the Nov. request made by Business Court Judge Michael Robinson. Newby assigns the case to the “Honorable James F. Ammons, Jr., one of the Senior Resident judges of the Superior Court of North Carolina.” James Floyd Ammons currently is a judge in Judicial District 12C of the 3rd Superior Court Division. He was elected to that spot in 2018 as an independent and his current term will end on Dec. 31, 2026.

2023

Feb. 8: State Controller Nels Roseland and Legislative Intervenors file motions asking for unaddressed issues in the case to be heard. Roseland’s brief asks for the funding transfer order to be reinstated.  

Feb. 21: All plaintiff parties, including the NC Dept. of Justice, filed motions objecting to the Feb. 8 motions.  View the main plaintiff’s motion.

Mar. 3: The N.C. Supreme Court issues a decision granting Controller Roseland’s motion but dismissing the legislative Interventor’s motion. When looking up the case filings on the NC Courts website, use the following terminology: 425A21 – Hoke County Board of Education, et al. v State of North Carolina, et al.

Mar. 10: Judge Ammons holds a hearing in Raleigh. The hearing lasted quite some time and attorneys for state lawmakers in the case was tasked with giving their estimate to Ammons by Mar. 15. A second hearing is set for Mar. 17.
Regarding the dollar figure, the former judge had set the dollar figure at $667.8 million and that is the figure Ammons is working with right now. For context, the biennial state budget already spends over $10 billion on education. Lawmakers want the figure cut to $376.5 million.

 

About WestEd (Leandro Report author)

WestEd is a multi-million dollar non-profit that does education research for state and federal government.

The organization also has been hired by numerous think tanks and other education non-profits and has received over $17.6 million just from the Bill and Melinda Gates Foundation alone.

WestEd has been called into North Carolina several times in the past, including during the 2015 fight over Common Core. (More about WestEd in NC)

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