Guest Viewpoint: Accountable to No One

April 20, 2022
Guest viewpoint from Renee Sekel, co-founder of Save Our Schools NC, a grassroots organization dedicated to supporting public education.


Over the last 17 years, underfunded school districts have gone to court several times to demand the state honor its obligation under the North Carolina Constitution to provide a “sound, basic education” to every child in the state.

The most recent hearing in the Leandro case was held on Wednesday, and state legislators basically argued that courts had no power to rule school funding unconstitutional. They even made the unprecedented claim that the 2004 court ruling that required more funding only applied to one school system, Hoke County. This argument would mean that, despite 17 years of court action impacting students across the State, those students’ constitutional rights had actually never been violated.

Let’s back up a little bit. Today’s hearing was about the budget that the legislature passed last November. Four (possibly 5) of the 6 parties agreed on exactly where the budget fell short, as compared to the Comprehensive Leandro Plan (“the Leandro Plan”) composed by court-appointed experts. The parties agreed that the court’s November 2021 order to appropriate funds should be modified accordingly.

The legislature’s attorney, however, argued that since lawmakers passed a budget shortly after Judge David Lee issued his November 2021 order, the mere existence of that budget renders the order moot, regardless of the content of the Budget.

There are actually two distinct aspects to this argument, and both are novel, to say the least. First, legislators argue that Judge Lee intended his November order to be a mere placeholder – that he issued it only because there wasn’t a budget yet and that therefore now that there is a budget, Lee’s placeholder order Is no longer necessary.

I suspect Judge Lee would disagree with that characterization of his order, but unfortunately, Judge Lee no longer has any say on the issue, as he was unceremoniously removed from this case by Chief Justice Paul Newby last month and replaced with a Republican jurist who serves on the state’s business court. Lee had reached the mandatory retirement age, and although Newby allowed him to remain on another case, he took him off Leandro.

Second, lawmakers argued that only they can decide what constitutes a sound basic education under the constitution and that the biennial budget process requires a complete reset on the Leandro case every other year. Here’s how that works: Because the Constitution gives the legislature the “power of the purse,” only itcan ever decide how money should be spent and its spending decisions are presumed constitutional. Since each biennial budget represents lawmakers’ judgment on what constitutes a sound basic education, such judgment is entitled to fresh deference every two years and must be litigated again and again.

Moreover, the legislature now contends that the plaintiffs are required to prove “beyond a reasonable doubt” that each individual budget is unconstitutional, applying a criminal standard of review to a civil matter in a way that seems entirely novel. This would, of course, trap North Carolina’s children in an endless cycle of fruitless litigation, with no time for a remedy ever to be reached (let alone enforced) before the next budget bill is written and the cycle begins anew.

And this is where the legislature’s argument – that since the NC Constitution gave it a power, that nobody, not even the courts, can ever force it to take any particular action with regard to that power – starts to sound very, and ominously, familiar. We just heard this argument recently in the context ofgerrymandering. There, as here, the courts found that the legislature was violating the constitutional rights of North Carolina citizens. And there, as here, lawmakers claimed that since one part of the Constitution gave them a specific power, no court can ever provide a remedy if the legislature chooses to violate the Constitution when it exercises that power. Even merely providing an outline of what would constitute a Constitutional redistricting, lawmakers claimed, would trample on their rights, so instead their every plan must be litigated anew, as often as it takes, for as long as legislators choose to keep submitting gerrymandered maps.

The only way an action of the Legislature may ever truly be challenged, the argument goes, is at the ballot box. This is, of course, exceedingly convenient when lawmakers are arguing that they have an absolute right to manipulate voting maps such that the votes of the people simply don’t matter. The legislature’s arguments in Leandro and the gerrymandering cases would, if accepted, destroy the separation of powers in North Carolina and replace it with a brand new system with a supreme legislature, unanswerable to the courts, the executive branch, or the voters. The rights of all North Carolinans could be be granted or denied at the whim of a legislature that is no longer accountable to any outside force. We the people cannot let this happen. Because of the North Carolina Supreme Court’s gerrymandering decision in February, it may actually be possible to hold the legislature accountable at the ballot box this year. It is imperative that we do.

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