July 26, 2022
The nation’s leading education rights scholars and advocates have provided the North Carolina Supreme Court with extensive judicial precedent from states across the country to support upholding a lower court order directing the implementation and funding of programs to remedy a recurring violation of the right to a sound basic education guaranteed by that state’s constitution.
The crucial legal background from sister state courts is detailed in a “friend of the court,” or amicus curiae brief, filed in North Carolina’s landmark Leandro v. State case. The brief is signed by 14 noted education law and constitutional scholars, along with the Duke Children’s Law Clinic, Education Law Center, the Center for Educational Equity, and the Southern Poverty Law Center.
In 2004, the North Carolina Supreme Court affirmed a trial court adjudication that the state’s school funding system was inadequate and unconstitutional, causing severe educational harm to public school children. The Court sent the case back to a lower court to oversee the development of remedial measures to provide competent teachers, effective principals and essential resources “so that the education needs of all children, including at-risk children, to have equal opportunity to obtain a sound basic education can be met.”
After years of extended delays, the State – under court supervision and aided by independent expert reports – developed a “Comprehensive Remedial Plan” in 2019. The Plan includes effective teachers, principals, and instruction in all classrooms; programs and services for at-risk students; expanding high quality preschool; and accountability measures. After the parties agreed to the Plan, the trial court issued an order directing its implementation over eight years and identified $8 billion as needed to adequately fund the Plan. The court also ordered the transfer of $1.75 billion of available revenues within the State’s budget to fund Years 1 and 2 of the Plan.
The trial court’s authority to direct implementation and funding for the Comprehensive Remedial Plan has been challenged by the North Carolina Senate President.
The amicus brief describes rulings by the highest courts in Kentucky, New York, New Jersey, Kansas, and Washington that, when faced with state failure to act after an extensive period of time, affirmed judicial authority to adopt specific programs to remedy constitutional violations. These courts also upheld their authority to order the states to “secure” funding to implement effective remedies.
As the New Jersey Supreme Court stated 45 years ago, state courts serve “as the last-resort guarantor” of the constitutional right to public education and “must use” their power to ensure that this paramount right remains fully protected.
“The Leandro trial court clearly has authority to direct North Carolina to carry out the Comprehensive Remedial Plan for the benefit of the state’s school children,” said David Sciarra, Education Law Center Executive Director and a preeminent education rights litigator. “The power to remedy a constitutional violation is a core judicial branch function.”
“The Comprehensive Remedial Plan before the Supreme Court was painstakingly developed by the State itself, then approved by the parties under court supervision,” said Peggy Nicholson of the Duke Clinic. “As we show in our brief, when faced with similar circumstances, sister state courts have not hesitated to order the implementation and funding of specific programs designed to remedy severe and continuing constitutional violations.”
The following education law and constitutional scholars signed the amicus brief: David Bloomfield, Kristine Bowman, Janel George, Steven Green, Caitlin Millat, Martha Minow, Raquel Muñiz, Kimberly Norwood, Mark Paige, Michael Rebell (for the Center for Education Equity), Kimberly Robinson, Aaron Tang, Julie Underwood, Joshua Weishart, and Kevin Welner.
Peggy Nicholson and Crystal Grant of the Duke Children’s Law Clinic, along with ELC’s David Sciarra, are serving as co-counsel representing the scholars and organizations signing the brief.
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