Once again, we see that justice is not blind in North Carolina; it is tainted by partisanship. If it please the court or, more importantly you, let me argue my case.
Since 1994 — 28 years — our state has been embroiled in a lawsuit over equality in education. It’s called the Leandro lawsuit, initiated by smaller, low-wealth counties which maintained they were not able to provide the same level of education as wealthier counties. They asked the state to require necessary funding to do so. The Supreme Court ruling never really got into who should get what amount of money, but they did state emphatically that every child in our state is guaranteed access to a “sound basic education.” The case was then delegated to Wake Superior Court Judge Howdy Manning to help in living up to that assurance.
Manning worked tirelessly to understand the inequalities and what could be done to address them. It wasn’t surprising that when he retired in 2016, we were not much closer to that goal. Superior Court Judge David Lee was then assigned the case and struggled with many of the issues Manning had faced. In 2021, Lee asked WestEd, an independent educational consultant, to recommend ways for the state to comply with Leandro. They negotiated with the various parties and came back to Lee with a negotiated “Comprehensive Remedial Plan,” an eight-year process identifying specific investments needed to ensure all children have that guaranteed access. Lee accepted the conclusions and ordered the defendants to take necessary actions to implement them.
A chorus arose saying Lee didn’t have authority to issue such an order or demand funding. Lee finally got tired of lawmaker’s unwillingness to act, saying the court had waited long enough. In November 2021 he ordered the state controller and state treasurer to appropriate $1.7 billion over a two-year period to initiate the plan. Then things really got hot.
A joint release from House Speaker Tim Moore and Senate President Pro-Tem Phil Berger called it absurd to think a document (our Constitution) written in 1868 could have predicted necessary funding levels for education in 2021, saying the ruling was “a circus.”
Additional lawsuits ensued over whether the state should fund the $1.7 billion. Many reasoned, the state had more than $8 billion in reserves, so we could easily afford it. A three-judge panel of Court of Appeals Judges ruled the state wasn’t required to fork over the cash. Plaintiffs appealed to the Supreme Court to once again hear the case, asking whether the courts could force the state to pay.
Now for the partisanship. Our Chief Justice Paul Newby is a Republican, overseeing our high court having a 4-3 plurality of Democrats. Turns out Judge David Lee is a Democrat; Newby obviously didn’t like Lee’s politics or his ordering the state to provide $1.7 billion. Newby knew it was likely he was going to be outvoted when the matter came before his colleagues, so he did the old “end-around” play. On Monday, March 22, Newby surreptitiously removed Lee from the Leandro case, without warning or explanation. Lee didn’t even know about it until he heard it from news sources. The only response given is that Newby has the authority to do so and Lee had reached the mandatory retirement age of 72 earlier this year. It is not uncommon for retired judges to be brought back to the bench in “emergency service” or in special cases, so Lee could have easily continued a case he has overseen since 2016. So why the urgency right this moment?
Curiously, that same day (March 22nd) our Supreme Court agreed to hear an appeal of Lee’s decision to mandate the transfer of the money and directed the lower court to review, within 30 days, whether any changes or revisions needed making. The new judge named to handle the case is — wait for it — a Republican, who had previously run for a Supreme Court seat and lost, Superior Court Judge Michael Robinson.
What’s going to happen? Robinson is likely to either overrule Lee’s decision or greatly modify it. Then the revised ruling will come before the Supreme Court. It’s a safe bet that the final decision will be 4-3 with Democrats voting in unison one way and Republicans, also in unison, the other.
I rest my case. Justice is not blind. It is just as partisan as everything else in our country today. This reaffirms that the most important elections this year will be high court judges. It also screams why we need a better system than partisan elections to put people on the bench.
Sadly, those paying the price for our arguing these 28 years are our children.
Tom Campbell is a former assistant N.C. State Treasurer and was the creator/host of N.C. SPIN, a weekly statewide television discussion of N.C. issues that aired on UNC-TV until 2020. Contact him at email@example.com.
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