North Carolina High Court Set to Backtrack on School Funding

The state supreme court will hear arguments Thursday — for the fifth time — over the baseline standard of education required by the constitution and how it must be funded. This time, state legislators are asking the court to back away from a decision it made less than 15 months ago.

Litigation over North Carolina’s constitutional right to an education has been winding through the state’s courts for 30 years. The litigation, collectively known as Leandro after a plaintiff in the original lawsuit, began in 1994 when several lower-income school districts sued the state, saying they could not provide an education equal to that of higher-wealth public schools. In a unanimous 1997 opinion, the supreme court found that schoolchildren had a right to “a sound basic education” under the state constitution.

In subsequent rulings, North Carolina courts repeatedly found that the state was failing to provide an adequate education. The supreme court eventually demanded the parties develop an improvement plan. In 2021, plaintiffs and the state jointly submitted a wide-ranging plan to improve education standards, including increasing teacher pay and support and adding educational professionals, including counselors, for underperforming districts. But the legislature never allocated enough funding to make the changes deemed necessary by the courts.

In November 2022, the supreme court ruled that the legislature must transfer funds from state budget reserves to state education agencies to fund the plan. The court further reiterated prior findings that "based on clear and convincing evidence that, despite its piecemeal compliance efforts, the state remained in an ongoing and statewide violation of its constitutional duty.” The violation disproportionately affects historically marginalized students, the court said. The supreme court remanded the case to the district court for calculation of the amount the legislature needed to allocate to fund the improvement plan over two years. In an April 2023 , the lower court calculated the amount to be about $677 million.

At the time of the remand, Democrats held a 4–3 majority on the supreme court, and the decision fell along party lines. In an election held days after the November 2022 supreme court decision, Republicans gained two more supreme court seats, taking a 5–2 majority in the supreme court. The durability of the most recent supreme court ruling on education funding was immediately raised.

“To think that they can appropriate [the educational funding], I think we’re unified in a message that that’s not something this [legislature] supports at all,” Timothy Moore, a Republican and speaker of the North Carolina House of Representatives, said at the time. He added that the issue was “something that we’re going to revisit.”

Arguments this week in Hoke County Board of Education v. State are the culmination of that revisiting. Moore and Sen. Philip Berger, who serves as president pro tempore of the state senate, intervened in the ongoing litigation in their official capacities in 2021. The legislators are functioning as appellants in this case and fighting against funding the improvement plan. (Though the state was an original defendant, the executive branch is now arguing against the legislators on behalf of the state.) The legislators are now asking the supreme court to determine whether the district court had jurisdiction to require the state to “develop, implement, and fund” the program developed by the parties in response to earlier court orders. They argue that any court order in this case should be limited to districts in the litigation — the courts have no power, they say, to issue statewide relief here. Moreover, they contend, by specifying how much should be spent on education statewide, the courts have usurped the rights of the people to determine school funding through their elected representatives.

The plaintiff school districts — along with the state and other plaintiff-intervenors — argue that the issues in front of the court have already been decided, repeatedly, in prior litigation. “It would be grossly improper for this court to use this appeal to overrule” its own November 2022 opinion, the North Carolina brief says. (Democrat Roy Cooper is the governor of North Carolina.)

Two recusal requests, relating to two different justices, were made and denied in the matter currently in front of the supreme court. First, Berger and Moore requested that Justice Anita Earls recuse herself because, before she was a justice, she had represented an intervenor-plaintiff. In her order declining to recuse herself, Earls said she was “confident” that her work “in a distinct matter almost twenty years ago will not impair” her “ability to impartially decide this appeal.”

Second, the plaintiffs requested Justice Philip Berger, Jr., recuse himself because his father — Senator Burger — is one of the defendants-intervenors. Justice Berger asked his fellow justices to determine whether he should recuse. Last week, the conservative majority denied the recusal request, saying that because the senator is acting in his official capacity, as opposed to bringing a personal suit, recusal isn’t necessary.

Justice Alison Riggs wrote a sharply worded dissent. “In a feat of inescapable common sense, our canons of judicial conduct . . . provide that judges should not decide cases where their parents or children are parties,” she said, adding that the elder Berger touts North Carolina’s surplus budget in his campaigns — a budget which would be diminished if hundreds of millions of dollars were allocated to education. “A son’s vote to deliver his father a campaign ‘win’ in an election year substantially affects the latter’s personal and financial interests.”

Against this politically charged backdrop, the state’s brief seeks to remind the court of the real-world stakes of the litigation: “North Carolina’s educational system falls woefully behind most American states,” it writes. “Only three states spend less on public schools relative to their gross state product, and our state ranks forty-eighth in per pupil funding.” If the supreme court sides with the legislators, hundreds of millions of dollars earmarked for specific improvements to North Carolina schools would go elsewhere, or remain unspent.

To reach that outcome, the state supreme court would have to disregard its own prior ruling, from just over a year ago. Since the 2022 election swung the court’s majority to the right, the court has revisited and reversed at least two recent decisions, one on partisan gerrymandering and one on voter ID laws. Another such reversal would — yet again — raise challenging questions about how judicial politics impact the rule of law, and shine a spotlight on the increasing politicization of judicial elections.

Erin Geiger Smith is a writer and editor at the Brennan Center for Justice.