Once again, we see that justice is not blind in North Carolina; it is tainted with partisanship. If it pleases the court or, more importantly, you, let me plead my case.
Since 1994 – 28 years – our state has been embroiled in an education equality lawsuit. It’s called the Leandro lawsuit, initiated by smaller, low-wealth counties who argued they were unable to provide the same level of education as wealthier counties. They asked the state to require the necessary funding to do so. The Supreme Court ruling never really spelled out who should get what amount of money, but it did say emphatically that every child in our state is guaranteed access to a “good basic education.” The case was then delegated to Wake Superior Court Judge Howdy Manning to help him uphold that assurance.
Manning worked tirelessly to understand inequalities and what could be done to address them. It was no surprise that when he retired in 2016, we weren’t much closer to that goal. Superior Court Judge David Lee was then assigned the case and wrestled with many of the issues that Manning 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 recovery plan,” an eight-year process identifying the specific investments needed to ensure all children have that guaranteed access. Lee accepted the findings and ordered the defendants to take the necessary steps to implement them.
A chorus arose saying Lee had no authority to issue such an order or require funding. Lee eventually grew weary of lawmakers’ reluctance to act, saying the court had waited long enough. In November 2021, he ordered the state comptroller and state treasurer to appropriate $1.7 billion over a two-year period to kick off the plan. Then things got really hot.
A joint statement by House Speaker Tim Moore and Senate Pro-Tem Speaker Phil Berger called it absurd to think a document (our Constitution) written in 1868 could have predicted funding levels needed for education in 2021, saying the decision was “a circus”.
Additional lawsuits followed over whether the state should fund the $1.7 billion. Many thought the state had over $8 billion in reserves, so we could easily afford it. A three-judge Court of Appeals panel ruled that the state was not required to shell out the money. The plaintiffs appealed to the Supreme Court to rehear the case, asking if the courts could force the state to pay.
Now on to partisanship. Our Chief Justice Paul Newby is a Republican, overseeing our high court having a 4-3 plurality of Democrats. It turns out that Judge David Lee is a Democrat; Clearly, Newby didn’t like Lee’s policies or his ordering the state to provide $1.7 billion. Newby knew it was likely he would be outvoted when the matter came before his colleagues, so he made the old “endgame” play. On Monday, March 22, Newby surreptitiously removed Lee from the Leandro case, without warning or explanation. Lee didn’t even know until he heard from news sources. The only answer given is that Newby has the power to do so and that Lee had reached the mandatory retirement age of 72 earlier this year. It’s not uncommon for retired judges to be brought back to the bench on “emergency duty” or in special cases, so Lee could easily have pursued a case he’s been overseeing since 2016. So why the urgency right now ?
Curiously, on the same day (March 22), our Supreme Court agreed to hear an appeal of Lee’s decision to order the transfer of the money and ordered the lower court to review, within 30 days, whether changes or revisions needed to be made. The new judge appointed to handle the case is — wait for it — a Republican, who previously ran for a Supreme Court seat and lost, to Superior Court Justice Michael Robinson.
What’s going to happen? Robinson is likely to overturn Lee’s decision or significantly alter it. Then the revised decision will come to the Supreme Court. It’s a safe bet that the final decision will be 4-3 with the Democrats voting in unison one way and the Republicans, also in unison, the other.
I put down my file. Justice is not blind. It’s just as partisan as everything else in our country today. This reaffirms that the most important elections this year will be for High Court judges. It also screams why we need a better system than partisan elections to bench people.
Unfortunately, those who pay the price for our disputes of these 28 years are our children.
Tom Campbell is a North Carolina Hall of Fame broadcaster and columnist who has covered North Carolina public policy issues since 1965. He recently retired from writing, producing and moderating the half-hour NC SPIN TV show that aired for 22½ years. Contact him at [email protected]