NC Court of Appeals rules judge can’t force legislature to meet state’s obligation for $1.7B school improvement plan

The plaintiffs in the state’s long-running school funding case were dealt a setback Tuesday when the NC Court of Appeals ruled the judge overseeing the case doesn’t have the authority to require the state to spend $1.7 billion on a public-school improvement plan.

Superior Court Judge David Lee had ordered State Treasurer Dale Folwell, a Republican, State Controller Linda Combs and state Budget Director Charles Perusse to release state money to fund the first two years of a state-wide school improvement plan that grew out of the decades old Leandro v. State of North Carolina. The State Supreme Court ruled in that case that the state was not meeting its constitutional obligation to provide children with sound basic education.

Tuesday’s Appeals Court ruling came on a 2-1 vote with Republican judges Chris Dillon and Jefferson Griffin agreeing that the state Constitution “permits” but does not require the General Assembly to “supplement” existing sources of school funding. Combs had asked the Court to dismiss the order.

Furthermore, the judges said Lee’s order is “constitutionally impermissible and beyond the power of the trial court.”

“We note that our Supreme Court has long held that, while our judicial branch has the authority to enter a money judgment against the State or another branch, it had no authority to order the appropriation of monies to satisfy any execution of that judgment,” the judges said.

Judge John Arrowood, a Democrat, wrote the dissent, arguing that a temporary stay of Lee’s order was appropriate because the Court was not under any “real time pressure.”

The plaintiffs were given one day to respond, following a holiday weekend [Thanksgiving] to respond to Combs’ request to dismiss Lee’s order, Arrowood said. That violates the Rules of Appellate Procedure that allow “parties to fully and fairly present their arguments to the Court,” he said.

“My concerns are exacerbated in this case by the fact that no adverse actions would occur to the petitioner during the regular response time as the trial court had already stayed its own order until several days after responses were due,” Arrowood said.

State Republican leaders applauded the court’s decision, and then took aim at state educators.

“The people of North Carolina through their elected legislators, not an unelected county-level trial judge, decide how to spend tax dollars,” Senate leader Phil Berger said in a statement. “Rather than accepting responsibility for lagging achievement and outright failure, the Leandro parties insist that the pathway to student improvement is always the simple application of more money.”

Tamika Walker Kelly, president of the NC Association of Educators,  responded to the Court’s ruling on Twitter.

“I’ve never ever, in my whole life, seen people work so hard to DENY children the resources they need to be successful,” Kelly said.

The state’s landmark school funding case was brought by five school districts in low-wealth counties that argued their districts did not have enough money to provide children with a quality education. The rural school systems did not have tax bases large enough to fund schools at the same level as wealthier urban districts.

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.

Lee hired WestEd, an independent consultant to develop recommendations to improve North Carolina’s public schools. The public school improvement plan before the court is largely based on WestEd’s report. The recommendations include staffing each classroom with a competent, well-trained teacher; staffing each school with a competent, well-trained principal and identifying the resources to ensure all children have an equal opportunity to obtain a sound, basic education, among others.

The state budget funds 53% of the school improvement plan this school year but falls to 43% next year, according to Kris Nordstrom, a senior policy analyst in the North Carolina Justice Center’s Education & Law project.

Policy Watch is also a project of the Justice Center.

 

State Treasurer Dale Folwell seeks independent legal counsel, delay in Leandro court order

State Treasurer Dale Folwell has received permission to hire outside counsel to represent the treasurer’s office in the Leandro case instead of depending on State Attorney Josh Stein who he contends has a conflict in the matter.

Folwell, a Republican, State Controller Linda Combs and state Budget Director Charles Perusse have been ordered by Superior Court Judge David Lee to release state money to fund the first two years of a state-wide school improvement plan that grew out of the long-running Leandro court case.

Dale Folwell

Lee set a 30-day deadline for the state to comply. Folwell has asked Stein’s office to seek an extension to the deadline.

“The Attorney General’s office has responded that they are researching the appropriate mechanism and options to do so,” Folwell said.

State Republicans leaders have said Lee has no authority to issue such an order.

Stein, a Democrat, issued a Memorandum of Law earlier this month on behalf of the state affirming the court’s authority to do so.

“If there exists a conflict between legislation and the Constitution, it is acknowledged that the Court ‘must determine the rights and liabilities or duties of the litigants before it in accordance with the Constitution, because the Constitution is the superior rule of law in that situation,’ ” Stein wrote, citing Green v. Eure (1975).

Folwell believes Stein’s law memo affirming the court’s authority to order the state to fund the Leandro plan represents a conflict of interest.

Meanwhile, Combs has asked the NC Court of Appeals to dismiss the order because the court “lacks jurisdiction to order the Controller to take any action.” The State Controller is the state’s chief fiscal officer and is appointed by the governor to seven-year terms. Combs was first appointed in 2014 by Republican governor Pat McCrory.

Robert N. Hunter Jr., a Republican judge who formerly sat on the Court Appeals and state Supreme Court, represents Combs. If Combs did release funds without the General Assembly’s authorization, she could land in legal trouble, Hunter wrote in court documents.

“The Petitioner or her staff would be subject to these penalties in the event she were compelled by the Order to comply with its term,” the document said. “Compliance with the court’s order would violate the Controller’s oath of office.”

The state’s landmark school funding case – Leandro v. State of North Carolina – was brought by five school districts in low-wealth counties that argued their districts did not have enough money to provide children 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.

Lee hired WestEd, an independent consultant to develop recommendations to improve North Carolina’s public schools. The public school improvement plan before the court is largely based on WestEd’s report. The recommendations include staffing each classroom with a competent, well-trained teacher; staffing each school with a competent, well-trained principal and identifying the resources to ensure all children have an equal opportunity to obtain a sound, basic education, among others.

New law changes how North Carolina governs prep sports

Gov. Roy Cooper

A bill changing how middle-and high-school sports are governed was signed into law Tuesday by Gov. Roy Cooper.

Beginning next school year, House Bill 91 allows the State Board of Education (SBE) to enter into a four-year contract with NC High School Athletic Association or another nonprofit to manage middle-and high-school athletics.

The NCHSAA is likely to continue to regulate the state’s high school sports provided it agrees to new reforms to ensure accountability and increase transparency.

The NCHSAA had pushed back against earlier versions of the bill that would have effectively ended its governance of high school athletics.

The NCHSAA tabled opposition to HB 91 after several bill revisions and being “assured” by the SBE that it will work with the NCHSAA to adopt a memorandum of understanding to allow it to continue to oversee prep sports.

“Considering the changes to the legislation, and assurances that the State Board of Education will partner with the NCHSAA so that we can continue to serve our member schools, the Board of Directors of the NCHSAA does not oppose the passage of House Bill 91 as revised,” Bobby Wilkins, president of the NCHSAA Board of Directors said in a Nov. 16 statement.

The statement came after the House and Senate had approved the bill.

Sill, Wilkins, and the board contend the legislation isn’t needed.

“Although we continued to believe that legislation was unnecessary, we advocated for changes to the legislation that would best serve the needs of student-athletes,” Wilkins said.

HB 91 grew out of a review of NCHSAA finances by Republicans members of the General Assembly. The lawmakers found the organization has amassed more than $41 million in assets while continuing to collect fees from school districts. They also expressed concerns about accountability and oversight of the private nonprofit.

The SBE will set rules for eligibility, gameplay, health and safety, appeals, administration, fees, and other items under the new law. The board will have the authority to delegate rule-making requirements to a non-profit but override any such rules with a simple majority vote.

State budget phases out controversial Innovative School District

Nancy McCormick is in her first year as a kindergarten teacher at Southside Ashpole and is pictured in her classroom. (Photo by Greg Childress)

The state budget signed into law by Gov. Roy Cooper on Thursday phases out the controversial Innovative School District (ISD) created by Republican lawmakers to turn around some of the state’s lowest-performing schools.

The experimental school district will continue to operate Southside-Ashpole Elementary School in Rowland, the lone school in the ISD, until the State Board of Education “adopts and executes” a transition plan to return the school to Robeson County Schools.

“But in no case shall the North Carolina Innovative School District operate Southside-Ashpole Elementary School after the completion of the 2022-2023 school year,” the budget bill states.

Policy Watch reported in July that a provision in the state Senate’s budget proposal called for the state to “Transition from the Innovative School District Model” and end plans to select additional schools for the district.

The state program was created by lawmakers in 2016 to allow outside operators, including for-profits and charter management groups, to take over a traditional public school for five years.

Former state lawmakers Rob Bryan and Chad Barefoot were the primary sponsors of the ISD legislation. It was modeled after the Achievement School District in Tennessee. The program ultimately didn’t work in Tennessee, which announced a major reset in early 2020 due to persistently low test scores and enrollment.

In an interview with Policy Watch in July, Bryan acknowledged that the district hasn’t worked well.

“You have to shake up things to try to get kids into an environment where they can be more successful,” Bryan said. “Just the pressure of it [ISD) makes the public ask; ‘How are we serving these kids’ and can we do a better job to make them not want to do this program and not want to take one of our schools?”

Critics contend such districts lack transparency and that it’s more difficult to monitor them because public money and decision-making authority are transferred to operators that are not directly accountable to taxpayers.

The ISD experiment has been expensive. The state has spent nearly $5 million on district administration since the 2016-17 school year. That includes money for the superintendent’s salary, as well as travel and administrative positions – all to oversee a single school.

Achievement for All Children (AAC), a for-profit charter operator selected to manage Southside Ashpole under a $100,000 a year contract and the NC Department of Public Instruction parted ways in the fall of 2020 because AAC was not able to provide students with the remote learning they needed in the wake of the COVID-19 pandemic.

The ISD’s relationship with AAC had been rocky. A confidential letter obtained by Policy Watch in the summer of 2020 revealed an ongoing feud between the ISD and AAC, which was under the leadership of former State Rep. Tricia Cotham, a Democrat from Charlotte.

The unsigned letter recommended that the state board terminate the contract with AAC three years early and cited numerous instances in which the firm allegedly failed to meet deadlines for reports that were contractually mandated. AAC reportedly failed to submit a proposed budget due May 1, 2019 and an annual financial audit that was due Oct. 15, 2019. Nor, says the letter, did AAC submit a compliance report for the district’s Exceptional Children’s Program or make requested corrections to COVID-19 staff work logs. 

New education budget fails to address students’ basic needs

When the General Assembly convened back in January, their assignment was to enact an education budget that put the state on the path towards providing students with “sound basic” schools by 2028. The state’s long-running Leandro court case even provided legislators with a step-by-step guide to the investments and policy changes necessary to complete the assignment.

With this week’s unveiling of the conference budget proposal – four and half months past its due date – we know the assignment was not only late, but woefully incomplete.

The key takeaway from this budget is that it fails to fund the Leandro Comprehensive Remedial Plan. In June, Superior Court judge W. David Lee ordered the state to implement the plan in full. After several months of foot-dragging and secret negotiations, the General Assembly’s budget falls far short. The budget funds just 53 percent of the Plan in FY 21-22, falling to 43 percent in FY 22-23 (full detail can be found here).

To the extent that this budget proposal funds items from the Leandro Plan, they are almost entirely concentrated in educator pay raises that barely keep pace with inflation. At a time when the core consumer price index has risen 4.6 percent over the prior year, the budget will provide teachers with an average raise of just 2.5 percent in each year of the biennium. Read more