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Former Chief Justice Exum at Pre-K argument: “It’s really a simple case”

Attorneys for the parties appearing before the state Supreme Court this morning were close to wrapping up in the latest round of Leandro litigation when former chief justice Jim Exum stepped forward to present his points on behalf of the State Board of Education.

Up to that point in the argument of the case – concerning Superior Court Judge Howard Manning’s 2011 order requiring the state to provide pre-K for all eligible at-risk four-year-olds who apply — several of the justices had been peppering the attorneys with questions.

(Manning had found that the state committed to statewide pre-K as early as 2004 as a remedy for its failure to provide at-risk children with the constitutionally-required “sound basic education.”)

Justice Paul Newby jumped in first. Had the state ever funded pre-K at the level needed for the 67,000 prospective enrollees projected by the state under the Manning order, he asked the state’s Solicitor General, John Maddrey.

Does the state’s 2004 commitment to provide pre-K to all children statewide remain binding on later legislatures, he asked Hoke County’s attorney Melanie Dubis. Was that commitment binding on the legislature when it capped at-risk enrollment at 20 percent?  Don’t we have a provision that one legislature cannot bind another legislature?

And did the trial court expand the reach of its order beyond the children from Hoke County – the party directly before the court — to children throughout the state?

Yes, Maddrey said, although he later admitted that the state itself had committed to expand the pre-K program statewide.

Justice Barbara Jackson too was concerned with numbers, asking by how much the pre-K budget had been cut in 2011 and how many pre-K slots that budget was intended to fill.

And was that 2004 state plan, set forth in a letter, really a binding settlement agreement?

Other justices wanted to know what effect changes enacted by the legislature in 2012 – namely the elimination of the 20 percent cap — had on the case.

What is left for us to review, asked Justice Robin Hudson.

On that, both attorneys agreed.

The justices still needed to decide whether the court could order the state to provide pre-K to any eligible at-risk four-year-old who applied and preclude the state from enacting any other barriers denying those children access to pre-K.

Just a little under an hour after the argument had begun and the justices had exhausted their questions about budget constraints and separation of powers and parties before the court, the former chief stepped up to the podium, looked up to the justices on the bench he too once occupied, and in just a few minutes with just a few words, summed up the argument on behalf of all the eligible at-risk four-year-olds who’d benefit from Manning’s order:

“The state committed to a remedy for a constitutional violation found by this court in the 2004 Leandro case,” Exum said. “Once it did that, once the state agreed to that remedy for a constitutional violation, subsequent legislatures could not denigrate that remedy, without putting something else in its place. And that’s the key here. It’s really a simple case.”

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