Law professors jump into Leandro case to oppose legislators’ arguments

A group of 20 law professors is asking the state’s highest court to uphold previous court orders that could force the state to spend hundreds of millions of additional taxpayer dollars on education.

The group filed a motion Wednesday to submit a friend-of-the-court brief in a 30-year-old lawsuit commonly referred to as Leandro.

The group bills itself as “professors and long-time practitioners of constitutional and education law.” Nineteen of the 20 professors teach or taught in North Carolina, with six associated with the University of North Carolina at Chapel Hill. Four group members are linked to Duke University, four more with North Carolina Central, with others teaching at Campbell and Wake Forest. The 20th professor teaches at the University of South Carolina.

The 21st group member, Gerry Hancock, lists himself as “long-time counsel” for the Low-Wealth Schools Consortium and founding chair of the Public School Forum of North Carolina. His professional website biography describes him as “instrumental in the initiation” of the Leandro lawsuit.

Other notable group members include UNC law professor Gene Nichol, a regular critic of the Republican legislative leaders on the editorial pages of the Raleigh News and Observer; and Campbell Law School’s Rick Glazier, a former Democratic legislator and executive director of the left-of-center NC Justice Center.

The state Supreme Court will hold oral arguments on Feb. 22 in the latest round of the education funding dispute. At issue is state legislative leaders’ argument that a trial judge had no “subject matter jurisdiction” to issue an order calling for education spending that lacked legislative approval. Originally set at $1.75 billion, the latest version of the trial order mandated $677 million in extra spending.

“What is not at issue on this appeal is whether the North Carolina Constitution promises to every schoolchild an opportunity to receive a sound basic education. Some twenty-seven years ago, the Court unanimously held that it did,” the law professors wrote. “A second issue not presented is whether the State has sufficiently afforded that precious opportunity to every North Carolina student; twenty years ago, the Court unanimously ruled that it had not. Uncontested evidence demonstrates that woeful educational deficiencies continue to this day.”

“What is left for this appeal to consider is whether the State judiciary, after years of appropriate initial deference to the state legislative branch in fashioning an adequate remedy, and after repeated legislative delay, has the constitutional authority to assure, through its own careful judicial supervision, that these rights long recognized and the deficiencies long noted, will at last be vindicated, and whether a statewide remedy was appropriately ordered here to remedy what had been conclusively found by the trial court to be ongoing, deficient statewide educational policies, practices, and procedures, all properly attributable to the defendant State of North Carolina and the State Board of Education,” the professors’ court filing continued.

The law professors supported the courts’ decision to bypass the General Assembly and order more education spending. They “contend that under these thankfully rare circumstances, where a constitutional right has been long announced, its failure long manifest, and a thorough-going judicial process now faithfully observed, the remedy concurred in by the Plaintiffs and the State, through its Attorney General and its educational leadership may, and indeed must, be judicially enforced.”

Professors’ arguments arrived one week after plaintiffs and lawyers from Democratic Attorney General Josh Stein’s state Justice Department filed their own briefs. Each brief opposed lawmakers’ arguments about subject matter jurisdiction.

The state Supreme Court voted 5-2 in October to take another look at the case, officially known as Hoke County Board of Education v. State. The decision split the court along party lines. Republicans agreed to grant another review. Democrats dissented.

Three of the five Republican justices and the two Democrats even disagree about what to call the case. It’s known to most observers as “Leandro,” the name of the case’s original lead plaintiff in 1994. Yet Republican justices instead label the case “Hoke County.”

Republican justices refer to the state Supreme Court’s last major ruling in the case in November 2022 as “Hoke County III.” Democratic justices label the same ruling “Leandro IV.” In that decision, the court’s 4-3 Democratic majority called on a trial judge to update an earlier court order calling on the state to spend more money for education-related items.

Since that ruling, voters replaced two Democratic justices with Republicans. Republicans now hold a 5-2 state Supreme Court majority.

Legislative leaders asked the state’s highest court in September to take the case again, bypassing the state Court of Appeals. At issue in the legislators’ appeal is a trial judge’s decision in April ordering North Carolina to spend an additional $677 million. The money would cover items linked to a court-endorsed document called the comprehensive remedial plan. A Supreme Court order refers to the $677 million mandate as a “remedial order.”

Justice Anita Earls explained in a dissent why she and fellow Democratic Justice Allison Riggs would have rejected lawmakers’ request.

“Legislative-Intervenors’ bypass petition should be denied because it is substantively hollow and procedurally improper. This Court resolved the question of subject-matter jurisdiction in Leandro IV,” Earls wrote. “In that case — just 11 months old — the Legislative-Intervenors raised the same arguments they do in their bypass petition: That the trial court lacked jurisdiction to remedy constitutional deficiencies in public education. We examined that claim and ‘unequivocally rejected’ it.”

Earls rejected state lawmakers’ arguments that the case should focus only on Hoke County schools.

“Since the trial court found a statewide constitutional violation, we explained, it had subject-matter jurisdiction to order a statewide remedy,” she wrote. “But the Legisative-Intervenors ignored the trial court’s sound analysis and solid conclusion. They instead argued before us — as they do now in their petition — that ‘there has never been a finding’ of a constitutional violation ‘beyond Hoke County.’ We rebuffed that argument. And we went further, decrying it as ‘a fundamental misunderstanding of the history of this case and the State’s constitutional obligations.’”

“If parties can reopen a case by casting their disagreement in the language of ‘jurisdiction,’ then our courts will be nothing but revolving doors and our decisions nothing but paper tigers,” Earls wrote. “This case shows the danger of that approach.”

“We already grappled with and resolved the question of subject matter jurisdiction in this case — nothing imperils that decision or requires us to revisit it,” she added. “But by alchemizing its disagreement with Leandro IV into a ‘jurisdictional’ issue, the majority gives itself a tool to rewrite — and litigants to resist — our earlier decisions.”

A concurrence from Justice Phil Berger Jr., joined by fellow Republican Justices Richard Dietz and Trey Allen, answered Earls’ critique.

“The premise of the dissent is that this Court already ‘resolved the question of subject-matter jurisdiction in [Hoke County III].’ The dissent is wrong,” Berger wrote.

Berger noted Earls’ earlier work as a lawyer helping plaintiffs add the Charlotte-Mecklenburg Schools to the long-running case. The legal dispute had started with five different school systems.

“Core to their rationale for intervention was that every public school district faces its own unique educational challenges and groups of students or school districts in one area of our state are ill-suited to address the educational deficiencies in others,” he wrote.

“This raises questions that our Court has not yet addressed: If public school students or local school boards who are not parties to this case believe the remedial order does not sufficiently address the educational failure in their districts, are they bound by the remedial order?” Berger added. “If so, how were their rights adjudicated without their presence in the suit — an elementary principle of jurisdictional law.”

Berger wrote that Earls and the previous Supreme Court majority “rushed to complete its earlier opinion in this incredibly complex, novel case (one that has spanned decades) so that it could be released in November of last year. The failure to resolve these jurisdictional questions is not the first oversight from this Court’s rush to judgment in Hoke County III.”

“My dissenting colleague laments that subject matter is now being addressed because it will cause various harms to judicial integrity and ‘snuff out legal finality,’” Berger said of Earls. “Once again, we endure ad nauseum these fanciful protestations. But it is black letter law that courts cannot ignore potential defects in subject matter jurisdiction.”

“Even if we again failed to address jurisdictional concerns, these issues could be raised later in a collateral attack on the trial court’s order, causing tremendous chaos if steps are already being taken to execute the novel relief in the remedial order,” Berger warned.

“in its rush to publish an opinion in the prior matter, the majority declined to address fundamental subject matter jurisdiction questions,” Berger concluded. “To be sure, these issues were raised, but the majority chose to ignore the bedrock legal principle that courts must examine jurisdiction to act. Even legal neophytes understand that subject matter jurisdiction can never be waived and can be raised at any time.”

“Because these crucial issues of subject matter jurisdiction cannot be waived and must be addressed by this Court, it is a sound exercise of this Court’s constitutional role to take this case and permit the parties to brief the various issues.”

Both Berger and Earls face requests that they recuse themselves from the case’s next hearing.

Plaintiffs argue that Berger should step away from the case because his father, Senate Leader Phil Berger, R-Rockingham, helped request the latest state Supreme Court appeal. Meanwhile, legislative leaders argue that Earls should avoid the case because of her previous work representing parties in the case known today as “Penn-Intervenors.”

Neither Berger nor Earls has responded yet to the recusal requests. Court rules allow them to make a recusal decision themselves. They also can choose to turn the decision over to their colleagues for a vote.

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