This story originally published online at N.C. Policy Watch. 

The showdown in the state’s landmark school funding case has been delayed until November 8.

Superior Court Judge David Lee granted the reprieve to give plaintiffs in the Leandro case three weeks to craft an appropriate action to put into play if the state doesn’t produce a plan to pay for the $5.2 billion Leandro Comprehensive Remedial Plan. The plan calls for $1.7 billion in new education spending over the next two years.

“I think everyone knows that I’m ready to pull out of the station to see what’s around the next bend, but I’m certainly willing to take a reasonable amount of time to give you an opportunity to better inform the court as to specifically what we believe ought to be the case here and would certainly entertain any proposal that I might enter,” Lee said.

If no plan is in place by November 8, Lee said he’s prepared to move forward.

“I’m not going to beat myself up further about our state adopting a budget somewhere around November and either addressing or not addressing Leandro,” Lee said. “I’ve dealt with that one as long as I reasonably can.”

Monday’s delay comes several weeks after Lee sternly warned state lawmakers that he’s willing to impose sanctions if legislators don’t live up to the constitutional mandate to provide the state’s children with sound basic education.

“That’s not to threaten anybody,” Lee said last month. “It’s to send a clear signal, clear as I know how; that come October 18, if this hasn’t already been addressed as it should be addressed, as the court finds it needs to be addressed, [the court] will certainly be prepared to address it.”

The Leandro case began more than a quarter-century ago after five rural school districts in low-wealth counties sued the state, arguing they couldn’t raise the tax revenue needed to provide students with a quality education.

In 1997, the state Supreme Court issued a ruling, later reconfirmed in 2004, in which it held that every child has a right to a “sound basic education” that includes competent and well-trained teachers and principals and equitable access to resources.

The leaders of the Republican-controlled General Assembly have pushed backed against Lee’s demands, contending that the judge has overstepped his authority.

“I don’t know how much clearer we can be. If Judge Lee wants to help decide how to spend state dollars—a role that has been the exclusive domain of the legislative branch since the state’s founding—then Judge Lee should run for a seat in the House or Senate,” Pat Ryan, an aide to Senate leader Phil Berger, told Raleigh’s News & Observer last month. “That’s where the constitution directs state budgeting decisions be made, not some county trial judge.”

Lee argued Monday that the state Constitution gives the court “sufficient authority” to rule in the case. In such cases, he added, the state is represented by the governor and the General Assembly.

“I think the legislature is a party to this matter and I know some have raised an issue about that,” Lee said.

Melanie Dubis, an attorney for the plaintiffs, agreed that the Constitution gives the court the right to weigh in on matters where “right” and “justice” are at issue.

Dubis said there is no separation of powers issue in the case.

“This court was instructed to and gave deference to its co-equal branch of the government for over 17 years,” she said. “The right that is at issue here—the right to a sound basic education—it is an affirmative constitutional right.”

She said the court must protect that right for the children of the state.

“The court unquestionably has authority and a duty to do that,” Dubis said. “And if not, then anyone who argues, I would submit, that the court does not have the authority, is arguing that our state Constitution is not worth the paper that it’s written on.”

There are multiple examples in other states in which courts have forced reluctant legislatures to adequately fund K-12 education.

In 2015, for example, the Washington State Supreme Court held the state in contempt and fined it $100,000 per day after it failed to come up with a plan to adequately fund K-12 education as required by a 2012 court order in the case of McCleary v. Washington.

The fine came after threats of sanctions if lawmakers did not live up to what that state’s constitution called a “paramount” duty to amply fund schools in that state.

Lawyers for the plaintiffs also mentioned a 2004 ruling in Kansas in which a judge ordered schools closed if lawmakers didn’t fully fund an education spending plan.

Senate Leader Phil Berger, a Republican from Rockingham, noted in a press release that a mention of closing schools piqued Lee’s interest. He called Lee “reckless” for contemplating such a move.

“This is yet another example of why the founders were right to divide power among the branches of government, giving power to create law and spend money with the legislature, not an unaccountable and unelected trial judge,” Berger said. “Judge Lee makes a mockery of our constitutional order with every additional hearing.”

Berger said the state Constitution is also clear that the legislature gets to make spending decisions.

He said the state Supreme Court reaffirmed this fact as recently as 2020: “In light of this constitutional provision, ‘[t]he power of the purse is the exclusive prerogative of the General Assembly,’ with the origin of the appropriations clause dating back to the time that the original state constitution was ratified in 1776.”

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