Sixteen months ago, North Carolina’s highest court ordered the state legislature to spend $800 million to improve K-12 education — a landmark ruling that seemed to end a decades-long legal battle over adequate funding for schools.

The opinion, delivered 28 years after the suit was filed, was supposed to fund efforts in some of the state’s poorest districts for teacher and principal training, more books and supplies and expanded pre-K.

But those remedies are now in jeopardy as the Supreme Court, with a fresh political makeover, once again considers the case. 

When a trial court ordered the state to spend surplus funds on the remedies, Republican leaders who control the legislature appealed. They argue that the court never had the authority to issue “a sweeping statewide order” based on the claims of the original plaintiffs: five poor, rural districts. 

To the districts and equity advocates, however, the move smacks of a political power play. Under the former Democratic majority on the court, the ruling was tight — a 4-3 vote for the districts. Following the November 2022 election, the court flipped to a 5-2 majority in the Republicans’ favor.

If the court overturns the opinion, today’s students would be the “third generation of children since this lawsuit was filed to pass through our state school system without the benefit of relief,” Melanie Dubis, lead attorney for the districts, said during oral arguments in late February. The state, she said, has the “constitutional duty to provide the children the opportunity for a sound basic education.”

Matthew Tilley, the attorney who argued the case for House Speaker Tim Moore and Senate President Pro Tem Phil Berger, said it is his firm’s “policy not to comment on ongoing client cases.”

It could be months before the court issues an opinion on the case. That leaves districts in the state, which ranks nationally in per-student funding, in limbo. But experts suggest the case has implications beyond the education budget. In a state where lawmakers seek over Democratic Gov. Roy Cooper, and last year overrode 19 of his vetoes, the court’s decision to rehear the case raises questions about whether the legislature is exceeding its authority.

“This case is about having power over the courts,” said , a lawyer who co-founded The Innovation Project, a school leadership network. “The balance of power that helps government function properly is … at stake.”

‘Righting that wrong’

With the 70th anniversary of the U.S. Supreme Court’s decision ending school segregation this spring, other observers see the conservative court’s decision to reopen Hoke County Board of Education v. North Carolina — also known as the “Leandro” case — as a setback for efforts to address segregation’s legacy. 

“It’s important for us as a country to be righting that wrong and to ensure that we invest in schools and districts having high concentrations of students of color,” said Ary Amerikaner, co-founder of , a nonprofit promoting integration. “Underfunding of public schools in certain districts and states is deeply connected to racial segregation and racial inequities. That is certainly no different in North Carolina.” 

The statewide between poor and non-poor districts has grown wider in recent years, according to a 2020 report from Public School Forum, a research and advocacy group. School systems without a strong tax base, like the five original plaintiffs, predominantly serve minority students — those who were more likely to because of the pandemic and need extra help. Meanwhile, districts have turned to for-profit companies to provide and long-term substitutes to fill vacancies as they await the additional funding the was supposed to provide.

To Anthony Jackson, superintendent of the Chatham County Schools, west of Raleigh, the plan would address some of the growing district’s greatest needs, including more funding for competitive salaries and additional pre-K slots for 4-year-olds on waiting lists.

“It would mean resources to recruit, retain and reward the best teachers and get them in front of our kids,” he said. “It would mean a strong leader standing at the schoolhouse door in every one of our schools.”

Jackson previously served six years as superintendent of Vance County schools, one of the original plaintiff districts. Located next to the Wake County district, the state’s largest, Vance struggles to fill classrooms with qualified staff, Jackson said.

Under the plan, Vance would receive an extra $16 million by 2028, a that could pay for 35 more teaching assistants, 47 more nurses and mental health professionals, and 46 more spaces for pre-kindergartners, according to Every Child NC, an advocacy group that calculated the impact on each district. 

According to the most recent from an early-childhood education research and advocacy group, the state serves 19% of its 4-year-olds in public pre-K, but no 3-year-olds.

“We’ve got to support parents from the day they have that child. Kids go home for five years and then we expect them all to show up at the schoolhouse door at the same place,” Jackson said. Noting the state’s passage last year of a universal that provides up to $7,500 per student for private school tuition and other educational expenses, he added that if the state can find resources for school choice, “I’m sure we could find resources for universal pre-K.”

But others say the plan does not directly address student achievement.

“Will the teachers get paid adequately? Will people be able to go to schools without mold? Those are things that are important, but they’re not about performance,” said Marcus Brandon, executive director of NorthCarolinaCAN, a nonprofit that advocates for school choice. A former Democratic state representative, he said he supports the Leandro plan in principle, but still thinks the court has the authority to throw it out.

During February’s oral arguments, Tilley, who represents legislative leaders, argued that the remedial plan “dictates virtually every aspect of education policy and funding” and that the court’s ruling removed “those decisions … from the democratic process.” He stressed that an earlier court order in 2004 limited the relief to just one county, Hoke, and said the court should not have found a statewide violation.

In her response, Dubis accused the lawmakers of “gamesmanship” and said it’s illogical to apply the solutions only to Hoke, but not to other districts with, for example, similar teacher vacancies.

“It is a system that works on a statewide basis,” she said.

The outcome of the long-running case also rests on a second, but no less significant, matter.

Just months after the 2022 opinion, the new conservative court undercut the decision by ruling, in what McColl called “shadow litigation,” that the state controller can’t transfer surplus funds to pay for the relief. That means that even if the school districts win, it’s likely that funding for the plan would be further delayed.

“That’s what makes this so odd,” McColl said. “Without the ability to enforce a money remedy, these cases just don’t serve a lot of purpose.”

Like McColl, Derek Black, a University of South Carolina law professor and a member of the Brown’s Promise advisory board, has followed the Leandro case for years. He was among the legal scholars who submitted a January amicus brief, arguing that, unlike state legislatures, which often repeal prior laws when the party in power changes, courts are obligated to uphold prior judicial decisions even when they disagree.

The brief noted that over the course of the litigation, both Democratic and Republican justices authored unanimous decisions in the case. 

“If overturned, it would be a huge shock to the rule of law,” Black told ����Ӱ��. “To allow do-overs would mean that litigation would never end and that no judicial decision would ever be binding. I hope and believe that this court understands that.”

In a 4-3 ruling handed down Nov. 4, the North Carolina Supreme Court took the matter out of the legislature’s hands after almost 30 years of litigation and ordered officials to transfer the funds directly from the state treasury to agencies overseeing education and teacher preparation.  

“Far too many North Carolina schoolchildren, especially those historically marginalized, are not afforded their constitutional right to the opportunity to a sound basic education,” Associate Justice Robin Hudson wrote in the majority opinion in Hoke County Board of Education v. North Carolina. The state, she said, “has proven — for an entire generation — either unable or unwilling to fulfill its constitutional duty.”

Part of a wave of lawsuits from the 1990s that challenged inequitable school funding systems, the case — first known as Leandro v. North Carolina — shed light on the lack of educational opportunities in five rural counties, where underqualified teachers, scarce supplies and outdated textbooks were the norm. The plaintiff districts argued that the state was responsible for making up the funding gap between poor and wealthy districts.

The case languished in the courts even as the state amassed a budget surplus following the Great Recession. Derek Black, a law professor at the University of South Carolina, said the ruling sends a signal to other states that legislators can’t ignore the law.

“The games that legislatures play are … wars on the right to education, wars on the constitution,” said Black, who attended “marathon” hearings on the case when he was in law school at the University of North Carolina. “When the judiciary speaks, there is not some other option.”

Republicans, who dominate the legislature, are already pushing back, and with the GOP gaining a 5-2 majority on the Supreme Court in last week’s election, some are floating the possibility of a reversal. 

“Prediction: Not a dime of taxpayer money is ultimately spent on this unprecedented and unconstitutional order before it is blocked and reversed by a newly seated N.C. Supreme Court next year,” Brent Woodcox, a Republican senior policy counsel for the North Carolina legislature. 

In his dissent in the case, Associate Justice Phil Berger Jr. set the stage for a backlash. He wrote that the ruling “strips” the legislature of its authority over education policy and funding and amounts to “pernicious extension of judicial power.”

But in the majority opinion, Hudson sought to limit the ruling’s scope, writing that it applies “in exactly one circumstance” — this case — and wouldn’t have been necessary if “recalcitrant state actors” had addressed the funding inequities. 

Lawrence Picus, a school finance expert at the University of Southern California, said the closest example to this ruling he has seen is a 2015 order from the Washington Supreme Court that held the state legislature and issued a $100,000-a-day fine until lawmakers agreed on a way to adequately fund schools as mandated by the court’s opinion in .

That day didn’t come until June, 2018, when the court ruled that the state had increased the education budget enough to be in compliance. Penalties, which by that time had reached over $100 million, also went to schools. 

“Courts are generally extremely reluctant to order the legislature to do something,” Picus said. “In North Carolina, they’re doing it for them.”

Funding the ‘remedial’ plan

Originally named for Hoke County Schools student Robb Leandro and his mother, the North Carolina case began in 1994 when families from five rural districts sued the state and its board of education. The lack of well-qualified teachers, they argued, left students less likely than those in wealthier counties to be proficient in core subjects and to enter college without needing remediation. 

Despite the trial court siding with the plaintiffs year after year, lawmakers never complied with the orders and, following the Great Recession, cut education by a further 13.9% in per-student funding, according to . 

But then the financial picture improved — a lot — and this year, the state has a $6 billion surplus. 

A year ago, the trial court ordered the state to spend $1.7 billion to help fund an eight-year developed byWestEd, a consulting firm. The funds would cover teacher and principal training, revisions to the school funding formula and expansion of the state’s pre-K system. 

The state later passed a budget partially funding the plan, and the trial court revised the figure to $785 million. The Supreme Court’s ruling upholds that decision.

Republican House Speaker Tim Moore told local reporters the legislature the ruling, while attorneys with Parker Poe, a law firm that represents the plaintiffs, said that’s not an option.

‘Whether they agree with it or not’

Like Black, Ann McColl has seen her law career intertwined with the Leandro saga. Co-founder of The Innovation Project, a school leadership network, she represented and wrote briefs in the case on behalf of educator and school board associations. 

“It’s always the case that people react to a court opinion, and see how they can maneuver around it,” she said. But North Carolina lawmakers, she added, are showing a “certain vigor” in their objections.

There’s a potential for the ruling to influence a school finance lawsuit in Pennsylvania. Earlier this year, an appellate court heard four months of testimony in that case, with attorneys for legislative leaders arguing that students don’t need to go to college if they’re on  The case is expected to make its way to the state supreme court.

Until now, Black added, the so-called 1989 “Rose decision” in Kentucky stood as the most forceful ruling in school finance. The state supreme court ruled that Kentucky’s entire education system was unconstitutional and of an adequate education.  

The North Carolina decision goes further by ruling that schools needn’t wait for lawmakers to act.

“The court just put down a flag post,” Black said, “and every single court that grapples with this issue in the future will discuss this flag post, whether they agree with it or not.”

In , 10 of the 16 judges on the U.S. Court of Appeals for the 4th Circuit ruled that Charter Day School in Leland, North Carolina — just like any other public school — was acting on behalf of the state when it adopted a dress code requiring girls to wear skirts, and, therefore, violated their constitutional rights. 

The school’s board in Peltier v. Charter Day School Inc., maintained that because it’s a nonprofit organization, it should have flexibility over its educational approach, which includes strict expectations on student behavior and appearance.

“Were we to adopt [Charter Day School’s] position, North Carolina could outsource its educational obligation to charter school operators, and later ignore blatant, unconstitutional discrimination committed by those schools,” wrote Judge Barbara Milano Keenan, an Obama appointee. “We need look no further than the shameful history of state-sponsored racial discrimination in this country to reject an application of the Equal Protection Clause that would allow North Carolina to abdicate its duty to treat public schoolchildren equally.”

The case is the first time a federal appeals court has considered whether charter school students deserve the same constitutional rights as their peers in traditional schools. The American Civil Liberties Union sued the school on behalf of three families who argued the skirt rule was discriminatory. But the school’s argument threw the status of charters into question. Charter advocates and authorizers argued that their existence as public schools was never a matter of debate, while some school choice supporters suggested they operate more like private schools and could even be run by religious organizations.

Derek Black, a law professor at the University of South Carolina, said the ruling should come as no surprise because states created charters to be part of the public education system. 

“The court held that the Constitution applies to schools that operate under the state’s name and with the public’s money,” he said. “Yet, this obvious point has escaped several other courts. Hopefully, this case will go a long way in setting an example for others.”

In a joint statement, Nina Rees, president and CEO of the National Alliance for Public Charter Schools — which filed a brief in support of the plaintiffs — and Rhonda Dillingham, executive director of the North Carolina Association for Public Charter Schools, said the ruling gives charter schools clarity over their status and obligations to protect students’ civil rights.

“The North Carolina charter statute not only compels this outcome but the statute mirrors the substantive provisions in charter statutes around the country,” they said, adding that the “decision crosses state lines — inside and beyond the 4th Circuit.” 

Judge Keenan wrote that charter schools are not merely alternative models like private schools or homeschooling, and putting them in the same category “ignores both the ‘free, universal’ nature of this education and the statutory framework chosen by North Carolina in establishing this type of public school.”

But in the minority’s dissent, Judge A. Marvin Quattlebaum Jr., a Trump appointee, said the majority “breaks new ground” and ignores Supreme Court precedent. 

Quattlebaum’s earlier opinion — which the new ruling overturns — leaned on a 1982 case, , in which the Supreme Court ruled that a private school receiving state funds for educating “maladjusted” high school students was not acting under the “color of state law” when it fired a counselor and five teachers. 

The implications of Tuesday’s opinion go far beyond whether a charter school can require girls to wear skirts, he wrote in his dissent Tuesday.

“The majority significantly broadens the scope of what it means for the actions of a private party to be attributed to the state,” he wrote.

Aaron Streett, an attorney representing the nonprofit organization that founded the school and its board members, said the decision restricts parents’ ability to choose the kind of education they want for their children.

“[Charter Day School] will continue to provide an excellent education to its students,” he said, “even as it evaluates the next steps in challenging this mistaken and harmful ruling.”