Hoke County Bd. of Educ. v. State

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-108
No. 425A21-2
Filed 4 November 2022
HOKE COUNTY BOARD OF EDUCATION, et al.;
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION; and
RAFAEL PENN, et al.,
v.
STATE OF NORTH CAROLINA;
STATE BOARD OF EDUCATION;
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION; and
PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North
Carolina Senate, and TIMOTHY K. MOORE, in his official capacity as Speaker of
the North Carolina House of Representatives.
Appeal pursuant to N.C.G.S. § 7A-31(b) from the 10 November 2021 order by
Judge W. David Lee in Superior Court, Wake County, and from the 26 April 2022
order of Judge Michael L. Robinson in Superior Court, Wake County. On 21 March
2022, pursuant to N.C.G.S. § 7A-31(a) and Rule 15(e) of the North Carolina Rules of
Appellate Procedure, the Supreme Court allowed the State’s petition for discretionary
review prior to determination by the Court of Appeals. Heard in the Supreme Court
on 31 August 2022.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Parker Poe Adams & Bernstein, LLP, by Melanie Black Dubis, Scott E. Bayzle
and Catherine G. Clodfelter; and Armstrong Law, PLLC, by H. Lawrence
Armstrong for Hoke County Board of Education, et al.
Lawyers Committee for Civil Rights Under Law, by Christopher A. Brook,
David Hinojosa, and Michael P. Robotti,for Penn, Rafael, et al.
Joshua Stein, Attorney General, by Amar Majmundar, Senior Deputy Attorney
General, W. Swain Wood, First Assistant Attorney General, Ryan Park,
Solicitor General, Sripriya Narasimha, Deputy General Counsel, and South A.
Moore, Assistant General Counsel, for the State.
Joshua Stein, Attorney General, by Matthew Tulchin, Special Deputy Attorney
General, Tiffany Y. Lucas, Deputy General Counsel, for the State Board of
Education.
Womble Bond Dickinson (U.S.) LLP, by Matthew F. Tilley, Russ Ferguson, W.
Clark Goodman, and Michael A. Intersoll, for Philip E. Berger, et al.
Higgins Benjamin, PLLC, by Robert N. Hunter, Jr., for Nels Roseland,
Controller of the State of North Carolina.
Jane R. Wettach and John Charles Boger, for Professors and Long-Time
Practitioners of Constitutional and Educational Law, amici curiae.
Duke Children’s Law Clinic, by Peggy D. Nicholson and Crystal Grant;
Education Law Center, by David Sciarra, for Duke Children’s Law Clinic,
Center for Educational Equity, Southern Poverty Law Center, and
Constitutional and Education Law Scholars, amici curiae.
Elizabeth Lea Troutman, Eric M. David, Daniel F.E. Smith, Kasi W. Robinson,
Richard Glazier, and Matthew Ellinwood, for North Carolina Justice Center,
amicus curiae.
John R. Wester, Adam K. Doerr, Erik R. Zimmerman, Emma W. Perry, Patrick
H. Hill, and William G. Hancock, for North Carolina Business Leaders, amici
curiae.
Jeanette K. Doran, for North Carolina Institute for Constitutional Law and
John Locke Foundation, amici curiae.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
HUDSON, Justice.
¶1 A quarter-century ago, this Court recognized that the North Carolina
Constitution vests in all children of this state the right to the opportunity to receive
a sound basic education and that it is the constitutional duty of the State to uphold
that right. Leandro v. State, 346 N.C. 336, 345 (1997) (Leandro I). In 2004, we
affirmed the trial court’s determination “that the State had failed in its constitutional
duty to provide certain students with the opportunity to attain a sound basic
education,” and that “the State must act to correct those deficiencies.” Hoke County
Bd. of Educ. v. State, 358 N.C. 605, 607, 647–48 (2004) (Leandro II). At that still-early
stage of the litigation, this Court deferred to the legislative and executive branches
to craft and implement a remedy to this failure. Id. at 643. However, we also
expressly noted that
when the State fails to live up to its constitutional duties,
a court is empowered to order the deficiency remedied, and
if the offending branch of government or its agents either
fail to do so or have consistently shown an inability to do
so, a court is empowered to provide relief by imposing a
specific remedy and instructing the recalcitrant state
actors to implement it.
Id. at 642.
¶2 In the eighteen years since, despite some steps forward and back, the
foundational basis for the ruling of Leandro II has remained unchanged: today, as in
2004, far too many North Carolina schoolchildren, especially those historically
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
marginalized,1 are not afforded their constitutional right to the opportunity to a
sound basic education. As foreshadowed in Leandro II, the State has proven—for an
entire generation—either unable or unwilling to fulfill its constitutional duty.
¶3 Now, this Court must determine whether that duty is a binding obligation or
an unenforceable suggestion. We hold the former: the State may not indefinitely
violate the constitutional rights of North Carolina schoolchildren without
consequence. Our Constitution is the supreme law of the land; it is not optional. In
exercising its powers under the Appropriations Clause, the General Assembly must
also comply with its duties under the Education Provisions.
¶4 Accordingly, in response to decades of inaction by other branches of state
government, the judiciary must act. This Court has long recognized that our
Constitution empowers the judicial branch with inherent authority to address
constitutional violations through equitable remedies. See, e.g., Wilson v. Jenkins, 72
N.C. 5, 6 (1875); In re Alamance Cnty. Court Facilities, 329 N.C. 84, 94 (1991)
(Alamance). Today, to remedy that inaction, we exercise that power. For twenty-five
years, the judiciary has deferred to the executive and legislative branches to
implement a comprehensive solution to this ongoing constitutional violation. Today,
that deference expires. If this Court is to fulfill its own constitutional obligations, it
1For instance, students from economically disadvantaged families and communities,
students with learning differences, English-language learners, and students of color. See, e.g.,
Leandro II, 328 N.C. at 632, n.13, 636, n. 16 (defining “at-risk”).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
can no longer patiently wait for the day, year, or decade when the State gets around
to acting on its constitutional duty “to guard and maintain” the constitutional rights
of North Carolina schoolchildren. Further deference on our part would constitute
complicity in the violation, which this Court cannot accept. Indeed, ultimately “[i]t is
the state judiciary that has the responsibility to protect the state constitutional rights
of the citizens.” Corum v. Univ. of N.C., 330 N.C. 761, 783 (1992).
¶5 After decades of largely choosing to watch this litigation from the sidelines,
Legislative Defendants now intervene to allege a variety of procedural and
substantive infirmities. They argue that despite twenty-eight years of focusing on
statewide problems and statewide solutions, this case really involves only Hoke
County. They argue that the passage of the 2021 Budget Act fulfills their
constitutional duties under Leandro. They argue that because this case implicates
education policies, it raises non-justiciable political questions. They argue that prior
to their intervention, this case constituted a friendly suit with no actual controversy
before the court.
¶6 These claims unequivocally fail. They are untimely, distortive, and meritless.
At best, they reveal a fundamental misunderstanding of the history and present
reality of this litigation. At worst, they suggest a desire for further obfuscation and
recalcitrance in lieu of remedying this decades-old constitutional violation. In any
event, they do not prevent this Court from exercising its inherent authority to realize
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
the constitutional right of North Carolina children to the opportunity to a sound basic
education.
¶7 Accordingly, we affirm and reinstate the trial court’s 10 November 2021
Order’s directive instructing certain State officials to transfer the funds necessary to
comply with Years 2 and 3 of the State’s Comprehensive Remedial Plan. We vacate
in part and reverse in part the trial court’s April 2022 Order removing that transfer
directive. We remand the case to the trial court for the narrow purpose of
recalculating the amount of funds to be transferred in light of the State’s 2022
Budget. Once those calculations have been made, we instruct the trial court to order
those State officials to transfer those funds to the specified State agencies. To enable
the trial court to do so, we stay the 30 November 2021 Writ of Prohibition issued by
the Court of Appeals.2 Finally, we instruct the trial court to retain jurisdiction over
the parties to monitor State compliance with this order. In so doing, we uphold our
own obligation to safeguard the constitutional rights of North Carolina’s
schoolchildren while still allowing for our coequal branches to correct course in the
years to come.
I. Factual and Procedural History
¶8 The long history of this litigation is well documented. Nevertheless, the
extraordinary nature of the remedy we order today—and Legislative Defendants’
2 On its own motion, today the Court is issuing a Special Order to stay this Writ.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
attempt to rewrite and relitigate the case’s history—demands a summary of the
equally extraordinary path that now renders that remedy necessary.
A. Leandro I: Establishing the Right
¶9 In May 1994, students and families from five rural North Carolina school
districts united to sue the State and the State Board of Education for failing to provide
adequate educational opportunities. These students and families—including Robert
Leandro and his mother Kathleen, after whom the case would be named—
represented students and schools at all levels of K–12 education, from Rollins
Elementary School in Henderson to Carroll Middle School in Lumberton to Hoke
County High School in Raeford. The Boards of Education of the five rural counties—
Hoke, Halifax, Robeson, Cumberland, and Vance—likewise joined the students and
families as plaintiffs in the suit (collectively referred to as Plaintiffs).
¶ 10 Specifically, Plaintiffs brought a declaratory judgment action “based on state
constitutional and statutory provisions that entitle all North Carolina children to
receive adequate and equitable educational opportunities, no matter where in the
State they may live.” Plaintiffs’ complaint alleged that “[s]uch opportunities have
been denied to children in some of the poorest school districts in the State[ ] as a
result of an irrational, unfair, and unconstitutional funding system.”
¶ 11 To support this claim, Plaintiffs identified specific examples of inadequate
educational opportunities resulting from inadequate funding. For instance, Plaintiffs
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
noted facilities issues such as a “lack [of] adequate classroom space,” instructional
issues such as a lack of basic science equipment and up-to-date textbooks, and
personnel issues such as a lack of well qualified teachers. “The end result of the[se]
inferior education opportunities caused by this unconstitutional system[,]” Plaintiffs
alleged, “is poorly educated students.”
¶ 12 That end result showed in student achievement. Plaintiffs noted that under
numerous tests, “the majority of children in plaintiff districts have been unable to
satisfy the State’s standards for basic proficiency.” Likewise, Plaintiffs showed that
the performance of students in plaintiff districts on the Scholastic Aptitude Test
(SAT) for college admission lagged well below the statewide average, and that
students from plaintiff districts who do graduate and enter or attempt to enter college
faced significant challenges due to their lack of foundational educational
opportunities.
¶ 13 Plaintiffs further noted that the funding differences between wealthy and poor
districts at the heart of these disparities “are not accounted for by the amount of tax
effort exerted by districts.” Indeed, “[t]he average tax effort of plaintiff districts—that
is, the amount of local dollars spent on education for every dollar of property tax
valuation—is substantially higher than the average tax effort in the wealthiest North
Carolina school districts.” (emphasis added). Rather, Plaintiffs alleged, the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
significant gap in education funding and subsequent gap in educational opportunities
falls on the shoulders of the State.
¶ 14 Cumulatively, Plaintiffs alleged that the consequences of these inadequate
educational opportunities could not be more dire:
Plaintiff students and other students from plaintiff
districts face a lifetime of relative disadvantage as a result
of their inadequate educational opportunities. They have
diminished prospects for higher education, for obtaining
satisfying employment, and for providing well for
themselves and their families. They face increased risks of
unemployment, welfare dependency, drug and alcohol
addiction, violence, and imprisonment. Thus the inferior
educational opportunities in plaintiff districts perpetuate a
vicious cycle of poverty and despair that will, unless
corrected, continue from one generation to the next. This
cycle entails enormous losses, both in dollars and in human
potential, to the State and its citizens.
¶ 15 Based on this factual foundation, Plaintiffs alleged that the failure of the State
and State Board of Education “to provide plaintiff schoolchildren with adequate
educational opportunities violates Articles I and IX of the [North Carolina]
Constitution.”3 Accordingly, Plaintiffs’ complaint asked the court to:
[Declare] that education is a fundamental right, and that
the public education system of North Carolina, including
its system of funding, violates the Constitution of North
Carolina by failing to provide adequate educational
opportunities . . . ;
[Declare] that the education system of North Carolina
3 Plaintiffs likewise asserted claims based on equal protection, equal educational
opportunities, due process, and statutory rights.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
must be reformed so as to assure that all North Carolina
schoolchildren, no matter where they may live in the State,
receive adequate educational opportunities, . . . ;
[Declare] that, to assure adequate educational
opportunities, the State must provide for the necessary
resources, including well qualified teachers and other
school personnel in fully sufficient numbers, adequate
school buildings, equipment, technology, and instructional
materials; . . . .
[Declare] that the public education system of North
Carolina, including its system of funding, must recognize
and provide for the needs of at[-]risk schoolchildren and
others who are educationally disadvantaged;
Order defendants to take all steps necessary to provide
plaintiff school boards with the funds necessary to provide
their students with an adequate education;
[R]etain jurisdiction over this case to ensure full
compliance with the [c]ourt’s decree; [and]
[Order] such other equitable relief including relief by way
of injunction or mandamus as the [c]ourt deems proper.
¶ 16 In October 1994, students and families from five urban school districts, along
with the districts themselves, joined Plaintiffs’ suit as “Plaintiff Intervenors.”
Plaintiff Intervenors—representing schools in Buncombe, Charlotte-Mecklenburg,
Durham, Wake, and Forsyth Counties—alleged that the State’s educational funding
system also failed to account for “the burdens faced by urban school districts that
must educate large numbers of students with extraordinary educational needs.”
Accordingly, Plaintiff Intervenors raised the same constitutional claims and requests
as Plaintiffs, asserting that “[a]s a result of defendants’ violations of their
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
constitutional duty, [Plaintiff Intervenors] have been denied access to an adequate
public school education” under the North Carolina Constitution.
¶ 17 In response, the State and the State Board of Education (collectively, the State
or State Defendants) moved to dismiss Plaintiffs’ complaint. State Defendants
claimed that the trial court lacked jurisdiction over the complaint because the issues
raised were non-justiciable, State Defendants were shielded by sovereign immunity,
and Plaintiffs failed to state a claim upon which relief could be granted. Defendants
contended that the North Carolina constitution does not “create[ ] a right to an
adequate education in the public schools, greater than the right to attend a free public
school for nine months a year in which equal opportunities are afforded as provided
by Article IX of the Constitution,” and therefore that “neither the State nor the State
Board of Education has deprived any plaintiff of any right under the North Carolina
Constitution.”
¶ 18 After a hearing, the trial court denied State Defendants’ motion to dismiss.
State Defendants appealed this ruling to the North Carolina Court of Appeals.
¶ 19 In March 1996, the Court of Appeals reversed the trial court’s denial of State
Defendants’ motion to dismiss. Leandro v. State, 122 N.C. App. 1 (1996). The Court
of Appeals held that “the fundamental educational right under the North Carolina
Constitution is limited to one of equal access to education, and it does not embrace a
qualitative standard.” Id. at 11 (emphasis added). “Thus,” the court stated,
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
“[Plaintiffs’] claims that the Constitution provides a fundamental right to adequate
educational opportunities, and that the State has violated that alleged right, should
have been dismissed for failure to state a claim upon which relief can be granted.” Id.Plaintiffs subsequently appealed this ruling to this Court.
¶ 20 In July 1997, this Court unanimously reversed. 4 Leandro I, 346 N.C. at 358.
As an initial matter, the Court addressed the State’s argument that courts could not
hear cases on claims of educational adequacy because they raised “nonjusticiable
political questions.” Id. at 344–45. The Court squarely rejected this notion. Id.Rather, “[w]hen a government action is challenged as unconstitutional, the courts
have a duty to determine whether that action exceeds constitutional limits.” Id. at
345. “Therefore,” the Court held, “it is the duty of this Court to address plaintiff-
parties’ constitutional challenge to the state’s public education system.” Id.¶ 21 Next, the Leandro I Court addressed the primary question of that case:
whether the North Carolina Constitution establishes the right to qualitatively
adequate educational opportunities, rather than mere educational access. Id. Here,
the Court unanimously agreed with Plaintiffs’ claim: the educational rights
enshrined in our Constitution do not merely protect a student’s ability to access an
4Justice Orr dissented from the Court’s rejection of Plaintiff’s argument regarding
equal educational opportunities but concurred in the Court’s recognition of Plaintiff’s claim
regarding educational adequacy. Id. at 358–64 (Orr, J., dissenting in part and concurring in
part).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
education; rather, “there is a qualitative standard inherent in the right to education
guaranteed by this state’s constitution.” Id. at 346. More specifically, this Court
conclude[d] that the right to education provided in the state
constitution is a right to a sound basic education. An
education that does not serve the purpose of preparing
students to participate and compete in the society in which
they live and work is devoid of substance and is
constitutionally inadequate.
Id. at 345. Accordingly, the Court held that “[t]he trial court properly denied
defendants’ motion to dismiss this claim for relief[, and] [t]he Court of Appeals erred
in concluding otherwise.” Id. at 348.
¶ 22 After recognizing the right to a sound basic education, this Court then set out
to broadly define its contours. “For purposes of our Constitution,” the Court held,
a “sound basic education” is one that will provide the
student with at least: (1) sufficient ability to read, write,
and speak the English language and a sufficient knowledge
of fundamental mathematics and physical science to enable
the student to function in a complex and rapidly changing
society; (2) sufficient fundamental knowledge of geography,
history, and basic economic and political systems to enable
to student to make informed choices with regard to issues
that affect the student personally or affect the student’s
community, state, and nation; (3) sufficient academic and
vocational skills to enable the student to successfully
engage in post-secondary education or vocational training;
and (4) sufficient academic and vocational skills to enable
to student to compete on an equal basis with others in
further formal education or gainful employment in
contemporary society.
Id. at 347.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 23 The Leandro I Court then noted certain factors that the trial court could
consider on remand in assessing whether Plaintiff-parties were being afforded their
constitutional right to a sound basic education. Id. at 355. These factors included, but
were expressly not limited to, “[e]ducational goals and standards adopted by the
legislature,” “ ‘input’ [measurements] such as per-pupil funding or general
educational funding provided by the state,” and “ ‘output’ measurements” such as “the
level of performance of the children of the state and its various districts on standard
achievement tests.” Id. at 355, 357.
¶ 24 Finally, the Leandro I Court noted the powers and duties of each branch of our
government in protecting the constitutional right to a sound basic education. Because
“the administration of the public schools of the state is best left to the legislative and
executive branches,” the Court clarified that “the courts of this state must grant every
reasonable deference to [those] branches when considering whether they have
established and are administering a system that provides the children of the various
school districts of the state a sound basic education.” Id. at 357. “[A] clear showing to
the contrary must be made before the courts may conclude that they have not.” Id.“Only such a clear showing,” the Court counseled, “will justify a judicial intrusion
into an area so clearly the province, initially at least, of the legislative and executive
branches as the determination of what course of action will lead to a sound basic
education.” Id. (emphasis added).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 25 After noting the importance of this initial deference, though, this Court made
clear its own constitutional obligation:
[L]ike the other branches of government, the judicial
branch has its duty under the North Carolina Constitution.
If on remand this case to the trial court, that court makes
findings and conclusions from competent evidence to the
effect that defendants in this case are denying children of
the state a sound basic education, a denial of a
fundamental right will have been established. It will then
become incumbent upon defendants to establish that their
actions denying this fundamental right are necessary to
promote a compelling governmental interest. If defendants
are unable to do so, it will then be the duty of the court to
enter a judgment granting declaratory relief and such other
relief as needed to correct the wrong while minimizing the
encroachment upon the other branches of government.
Id. (emphasis added).
¶ 26 With these principles as a guide, this Court then remanded the case back to
the trial court to determine whether the State was upholding its constitutional duty
to provide all children with a sound basic education. Id. at 358.
B. Leandro II: Establishing a Violation
¶ 27 Upon remand, then-Chief Justice Mitchell designated the case as exceptional
under Rule 2.1 of our General Rules of Practice and assigned it to Judge Howard
Manning.5 Thereafter, Judge Manning presided over several years of fact finding,
research, and hearings culminating in a fourteen-month trial in which the court took
5 We take a moment of privilege to express the Court’s gratitude to Judge Manning
for his many years of diligent service to the State presiding over this case.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
evidence from over forty witnesses and thousands of pages of exhibits to answer one
foundational question: whether the State was complying with or violating Leandro
I’s constitutional mandate to provide all children with the opportunity to receive a
sound basic education. At the conclusion of this process, the trial court issued its
factual findings and legal conclusions via four “Memoranda of Decision” published
between October 2000 and April 2002.
¶ 28 In its first Memorandum of Decision, issued 12 October 2000, the trial court
considered the constitutionality of the major components of North Carolina’s
Statewide Education Delivery system. As a preliminary matter, the trial court
explained that “[b]ecause of the sheer size and complexity of dealing with evidence
relating to five (5) low wealth districts,” the court “made the initial decision to take
evidence on one system” that would serve as a representative district. “The [c]ourt
suggested that the low wealth district be Hoke County and the parties agreed with
that decision[.]”Upon selecting this representative district, the court noted that “[i]t
is clear that the same issues affecting each small district are similar[.]” Thereafter,
the trial court focused its inquiry primarily—though not exclusively—on this
representative county, and “plaintiff-intervenors were permitted to participate fully
in discovery and in the trial of the case centered on Hoke County.” Likewise, the State
repeatedly made clear that despite the parties’ selection of Hoke County as a
representative district, its various remedial “efforts have been directed to
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
establishing and maintaining a State-wide system which provides adequate
educational opportunities to all students,” and that “[t]he State has never understood
the Supreme Court or [the trial] [c]ourt to have ordered the defendants to provide
students in Hoke County or any of the other plaintiff or plaintiff-intervenor school
districts special treatment, services or resources which were not available to at-risk
students in other LEAs across the State.” (emphasis added).
¶ 29 After noting this procedure, the trial court’s first Memorandum of Decision
noted its preliminary conclusions of law. Most pertinently, the court determined that
as a whole, North Carolina’s Statewide Educational Delivery System—including its
curriculum, teacher licensing and certification standards, funding delivery system,
and school accountability program—was “sound, valid, and constitutional when
measured against the sound basic education standard of Leandro.” “However,” the
court noted, “the existence of a constitutionally sound and valid [educational delivery
system], standing alone, does not constitute clear evidence that [that system] is being
properly implemented . . . in such a manner as to provide each child with an equal
opportunity to receive a sound basic education.” The court made clear that these legal
conclusions applied “to all school systems in North Carolina, including Hoke County.”
¶ 30 In its second Memorandum of Decision, issued 26 October 2000, the trial court
considered the implementation of the various facets of the statewide educational
delivery system with respect to at-risk students. The court determined that in order
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
“for at-risk children to have an equal opportunity for a sound basic education, the
State should provide quality pre-kindergarten programs for at-risk children.” Again,
the court emphasized that its findings and conclusions were directed at both Hoke
County and “other counties in North Carolina.”
¶ 31 In its third Memorandum of Decision, issued 26 March 2001, the trial court
compared student achievement data from at-risk students in various counties across
the state. The court considered several different measures of student achievement,
including standardized test scores, high school retention rates, and vocational and
college preparedness. “This comparison showed that there were at-risk students
failing to achieve a sound basic education statewide, as well as in Hoke County, and
that the low performance of at-risk students was similar regardless of the wealth and
resources of the school system attended.” “Taking all of the evidence into account, the
[c]ourt determined that the at-risk children in North Carolina are not obtaining a
sound basic education[.]” Again, the court emphasized that “[t]his problem is not
limited to Hoke County.” Indeed, the court expressly stated that the evidence
show[ed] that HCSS is not alone or isolated in terms of the
poor academic performance of great numbers of its at-risk
students. Poor academic performance of at-risk
populations of North Carolina public school students
permeates throughout the State regardless of the “wealth”
or local funding provided. Based on the data available and
the enormity of the at-risk problems throughout the State,
the [c]ourt cannot close its eyes to this fact and look only at
HCSS. The poor academic performance of at-risk
populations is too widespread to by-pass and put off for
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
another day.
“Reduced to essentials,” the court concluded, “the plaintiffs and plaintiff-intervenors
have produced clear and convincing evidence that there are at-risk children in Hoke
County and throughout North Carolina who are, by virtue of the ABCs accountability
system and other measures, not obtaining a sound basic education.”
¶ 32 In its fourth and final Memorandum of Decision, issued 4 April 2002, the trial
court issued its final judgments and orders. First, the trial court enumerated certain
minimum requirements for statewide Leandro compliance including: (1) “that every
classroom be staffed with a competent, certified, well-trained teacher who is teaching
the standard course of study by implementing effective educational methods that
provide differentiated, individualized instruction, assessment and remediation to the
students in that classroom;” (2) “that every school be led by a well-trained, competent
Principal with the leadership skills and the ability to retain competent, certified, and
well-trained teachers;” and (3) “that every school be provided, in the most cost-
effective manner, the resources necessary to support the effective instructional
programs within that school so that the educational needs of all children, including
at-risk children, to obtain a sound basic education, can be met.” Second, the trial court
concluded that “there are children at-risk of educational failure who are not being
provided the equal opportunity to obtain a sound basic education because their
particular LEA, such as the Hoke County Public Schools, is not providing them with
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
one or more of the educational services set out . . . above.” Third, the trial court
emphasized that “the State of North Carolina is ultimately responsible for providing
each child with access to a sound basic education and that this ultimate responsibility
cannot be abdicated by transferring responsibility to local boards of education.”
Fourth, the trial court declared that “the State of North Carolina is ORDERED to
remedy the [c]onstitutional deficiency for those children who are not being provided
the basic educational services set out [above], whether they are in Hoke County[ ] or
another county within the State.” Fifth, the court stated that “[t]he nuts and bolts of
how this task should be accomplished is not for the [c]ourt to do,” but rather “belongs
to the executive and legislative branches of government.” “By directing this to be
done,” the court noted, “the [c]ourt is showing proper deference to the executive and
legislative branches by allowing them, initially at least, to use their informed
judgment as to how best to remedy the identified constitutional deficiencies.” Finally,
the court clarified that its prior three Memoranda of Decision were incorporated into
its final judgment and “constitute the Decision and Judgment of th[e] [c]ourt,”
ordered the State to keep the plaintiff-parties and the court advised of its remedial
actions, and retained jurisdiction over the case to resolve issues of enforcement.
¶ 33 On 6 May 2002, the State appealed. Thereafter, both the plaintiff-parties and
the State sought discretionary review by this Court prior to a determination by the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Court of Appeals. On 18 March 2003, this Court allowed the parties’ motions for
discretionary review. The appeal was heard in this Court on 10 September 2003.
¶ 34 On 30 July 2004, in Leandro II, this Court unanimously affirmed the trial
court’s central conclusion: “the State had failed in its constitutional duty to provide
certain students with the opportunity to attain a sound basic education, as defined
by this Court’s holding in [Leandro I]. 358 N.C. at 608.
¶ 35 As an initial matter, the Court in Leandro II noted the unique procedural
history of this case. Because the trial court designated Hoke County “as the
representative plaintiff district,” this Court noted that “our consideration of the case
is properly limited to the issues relating solely to Hoke County as raised at trial.” Id.
at 613. The Court recognized, however, that “plaintiffs from the four other rural
districts . . . were not eliminated as parties as a result of the trial court’s decision to
confine evidence to its effect on Hoke County Schools.” Id. at 613 n.5. Accordingly,
“[w]ith regard to the claims of named plaintiffs from the other four rural districts,
[this Court] remanded [the case] to the trial court for further proceedings that
include, but are not necessarily limited to, presentation of relevant evidence by the
parties, and findings and conclusions of law by the trial court.” Id. More generally,
though, the Court emphasized that
the unique procedural posture and substantive importance
of the instant case compel us to adopt and apply the
broadened parameters of a declaratory judgment action
that is premised on issues of great public interest. The
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
children of North Carolina are our state’s most valuable
renewable resource. If inordinate numbers of them are
wrongfully being denied their constitutional right to the
opportunity for a sound basic education, our state courts
cannot risk further and continued damage because the
perfect civil action has proved elusive.
Id. at 616. Likewise, the Court noted that while declaratory judgment actions
require that there be a genuine controversy to be decided,
they do not require that the participating parties be strictly
designated as having adverse interests in relation to each
other. In fact, declaratory judgment actions, by definition,
are premised on providing parties with a means for courts
of record to declare such rights, status, and other legal
relations among such parties.
Id. at 617 (cleaned up). This procedural flexibility is necessary, the Court concluded,
because
Leandro and our state Constitution . . . accord[ ] the right
at issue to all children of North Carolina, regardless of
their respective ages or needs. Whether it be the infant Zoe,
the toddler Riley, the preschooler Nathaniel, the “at-risk”
middle-schooler Jerome, or the not “at-risk” seventh-
grader Louise, the constitutional right articulated in
Leandro is vested in them all.
Id. at 620.
¶ 36 With these procedural issues addressed, the Leandro II Court then assessed
the merits of the trial court’s ruling. First, the Court considered “whether there was
a clear showing of evidence supporting the trial court’s conclusion that ‘the
constitutional mandate of Leandro has been violated [in the Hoke County School
System] and action must be taken by both the LEA [Local Educational Area] and the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
State to remedy the violation.’ ” Id. at 623 (alterations in original). After reviewing
the evidence documented by the trial court regarding educational “inputs,” academic
“outputs,” post-secondary and vocational opportunities, and the State’s educational
delivery system and funding mechanisms, the Court agreed with the trial court’s
foundational determination: “the State’s method of funding and providing for
individual school districts such as Hoke County was such that it did not comply with
Leandro’s mandate of ensuring that all children of the state be provided with the
opportunity for a sound basic education.” Id. at 637. The Court concluded that “the
trial court’s approach to the issue was sound and its order reflects both findings of
fact that were supported by the evidence and conclusions that were supported by
ample and adequate findings of fact.” Id. at 638. Therefore, the Court “affirmed those
portions of the trial court’s order that conclude that there has been a clear showing
of a denial of the established right of Hoke County students to gain their opportunity
for a sound basic education and those portions of the order that require the State to
assess its education-related allocations to the county’s schools so as to correct any
deficiencies that presently prevent the county from offering its students the
opportunity to obtain a Leandro-conforming education.” Id.¶ 37 Second, the Leandro II Court addressed the trial court’s Pre-K ruling. On the
questions of rights and violations, the Court agreed with the trial court: the evidence
presented at trial clearly supported the conclusion “that there was an inordinate
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
number of ‘at-risk’ children who were entering the Hoke County school district . . .
behind their non ‘at-risk’ counterparts[,]” that such ‘at-risk children were likely to
stay behind, or fall further behind, their non ‘at-risk’ counterparts as they continued
their education[,]” “that the State was providing inadequate resources for such ‘at-
risk’ prospective enrollees, and that the State’s failings were contributing to the ‘at-
risk’ prospective enrollees’ subsequent failure to avail themselves of the opportunity
to obtain a sound basic education.” Id. at 641. Accordingly, the Court agreed with the
trial court’s conclusion “that State efforts towards providing remedial aid to ‘at-risk’
prospective enrollees were inadequate.” Id. at 642.
¶ 38 On the question of remedy, though, this Court disagreed. “[T]here is a marked
difference,” the Court noted, “between the State’s recognizing a need to assist ‘at-risk’
students prior to enrollment in the public schools and a court order compelling the
legislative and executive branches to address that need in a singular fashion.” Id.In our view, while the trial court’s findings and conclusions
concerning the problem of ‘at-risk’ prospective enrollees are
well supported by the evidence, a similar foundational
support cannot be ascertained for the trial court’s order
requiring the State to provide pre-kindergarten classes for
either all of the State’s ‘at-risk’ prospective enrollees or all
of Hoke County’s ‘at-risk’ prospective enrollees.
Id. While the Court
assuredly recognize[d] the gravity of the situation for “at-
risk” prospective enrollees in Hoke County and elsewhere,
and acknowledge[d] the imperative need for a solution that
will prevent existing circumstances from remaining static
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
or spiraling further, we [were] equally convinced that the
evidence indicates that the State shares our concerns and,
more importantly, that the State has already begun to
assume its responsibilities for implementing corrective
measures.
Id. at 643. Accordingly, the Court held that the trial court’s Pre-K remedy was
“premature” and “reverse[d] those portions of the trial court order that . . . require[d]
the State to provide pre-kindergarten services as the remedy for [the aforementioned]
constitutional violations.” Id. at 645.
¶ 39 Simultaneously, though, the Leandro II Court emphasized that if push came
to shove, it would not shy away from its duty to address constitutional violations.
Certainly, when the State fails to live up to its
constitutional duties, a court is empowered to order the
deficiency remedied, and if the offending branch of
government or its agents either fail to do so or have
consistently shown an inability to do so, a court is
empowered to provide relief by imposing a specific remedy
and instructing recalcitrant state actors to implement it.
Id. at 642.
¶ 40 Finally, the Leandro II Court addressed the question of federal funds.
Plaintiffs contended that the trial court had erred by considering educational services
provided by federal funds within its statewide assessment for Leandro compliance.
Id. at 645–46. The Court disagreed and concluded that the trial court’s consideration
of federal funds was permissible because “the relevant provisions of the North
Carolina Constitution do not forbid the State from including federal funds in its
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
formula for providing the state’s children with the opportunity to obtain a sound basic
education.” Id. at 646. “While the State has a duty to provide the means for such
educational opportunity,” the Court clarified, “no statutory or constitutional
provisions require that it is concomitantly obliged to be the exclusive source of the
opportunity’s funding.” Id.¶ 41 The Leandro II Court concluded by emphasizing the “paramount” importance
of education toward “[a]ssuring that our children are afforded the chance to become
contributing, constructive members of society.” Id. at 649. “Whether the State meets
this challenge[,]” the Court noted, “remains to be determined.” Id. Accordingly, the
Court remanded “to the lower court[,] and ultimately into the hands of the legislative
and executive branches, one more installment in the 200-plus year effort to provide
an education to the children of North Carolina.” Id. “As for the pending cases
involving either other rural school districts or urban school districts,” the Court
“order[ed] that they should proceed, as necessary, in a fashion that is consistent with
the tenets outlined in this opinion.” Id. at 648.
C. Remedial Phase: 2004–2018
¶ 42 Following Leandro II, the trial court diligently undertook its responsibilities
on remand and initiated the remedial phase of the Leandro litigation. For over a
decade, through more than a dozen hearings, the trial court took evidence and heard
arguments from the parties regarding the State’s various efforts to achieve
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
constitutional compliance. In alignment with its 2002 Judgment and Leandro II, the
trial court took evidence and rendered factual finding and legal conclusions regarding
the constitutional adequacy of educational opportunities not just in Hoke County, but
statewide. For instance, at different points during this period, the trial court reviewed
evidence regarding the State’s Disadvantaged Student Supplemental Funding
(DSSF) program, county-specific student achievement data from Hoke and other
counties, statewide grade-specific achievement data, and statewide subject-specific
achievement data, among many other categories. The trial court primarily issued its
factual findings and legal conclusions based on this evidence in periodic “Notice of
Hearing and Order[s]” or “Report[s] from the Court,” in which the trial court
memorialized past proceedings, made factual findings and legal conclusions, and
requested particular information from the parties in upcoming hearings.
¶ 43 Reviewing a few of these orders is illustrative. First, on 9 September 2004, the
trial court’s order focused in part on the State’s response to statewide teacher
recruitment and retention issues through the DSSF program. After reviewing the
submissions of the parties, the trial court concluded that “[t]here is no dispute that
there exists a serious problem in hiring, training[,] and retaining certified teachers
in North Carolina, especially in the low wealth plaintiff LEAs and other low wealth
LEAs.” The court observed that the Department of Public Instruction and the State
Board of Education
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
acknowledged the constitutional deficiency and the lack of
compliance under Leandro in the classroom teacher area
and sought $22,000,000 from the General Assembly to fund
the DSSF pilot program for sixteen (16) LEAs in which
there was demonstrated need to remedy the constitutional
deficiency of the presence of a competent, certified[,] and
well trained teacher in individual classrooms.
“Despite knowing of this deficiency and being repeatedly advised of [the]
demonstrated need for assistance in these low-wealth school districts and despite
being advised of the constitutional requirements in Leandro,” the court noted, “the
General Assembly of North Carolina passed its budget and adjourned without
funding the DSSF program for any LEA, including HCSS.” As such, the trial court
“direct[ed] counsel for the State . . . to be prepared [at the next hearing] to report to
the [c]ourt on behalf of the legislative branch of government (the General Assembly)
what action the General Assembly has taken[ ] to address its failure to fund the pilot
$22,000,000 DSSF program.”
¶ 44 Second, on 15 March 2009, the trial court’s order focused primarily on Halifax
County Public Schools. After an extensive review of student achievement data broken
down by individual schools and grade-levels throughout the district, the trial court
concluded that
[t]he majority of these children in the Halifax County
Public Schools from elementary school through high school
are not receiving the equal opportunity to obtain a sound
basic education and the State of North Carolina must take
action to remedy this deprivation of constitutional rights
since the State of North Carolina is responsible to see that
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
these schools become Leandro compliant in the classroom
and in the principal’s office and in the general
administration and leadership of the system.
“Accordingly,” the trial court concluded, “it is time for the State to exert itself and
exercise command and control over the Halifax County Public Schools beginning in
the school year 2009–2010, nothing more and nothing less.” More broadly, based on
the extensive evidence presented, the trial court reiterated its conclusion regarding a
statewide Leandro violation:
poor academic performance remains a problem in a host of
elementary, middle[,] and high schools throughout North
Carolina and as a result, the children of those schools who
are blessed with the right to the equal opportunity to
obtain a sound basic education as guaranteed by the
Constitution and as set out in Leandro are being deprived
of their constitutional right to that opportunity on a daily
basis.
Indeed, this legal conclusion was repeated verbatim in the trial court’s subsequent
orders on 3 August 2009, 26 March 2010, and 20 May 2011, among many others.6
6 On 15 August 2011, Legislative Defendants filed a Motion to Intervene and For
Clarification from the trial court order issued 18 July 2011 regarding “Pre-K services for at-
risk four year[-]olds.” On 2 September 2011, the trial court denied Legislative Defendants’
motion, reasoning that the defendant in this case was the State as a whole, “not the
legislative branch―nor the executive branch” individually. In 2013, the General Assembly
enacted N.C.G.S. § 1-72.2, which established that legislative leaders “have standing to
intervene on behalf of the General Assembly as a party in any judicial proceeding challenging
a North Carolina statute or provision of the North Carolina Constitution.” N.C.G.S. § 1-
72.2(b). In 2017, N.C.G.S. § 1-72.2 was amended by adding: “[i]ntervention pursuant to this
section shall be effected upon the filing of a notice of intervention of right in the trial or
appellate court in which the matter is pending regardless of the stage of the proceeding.”
Here, the record reflects no attempt by Legislative Defendants to intervene in this litigation
between the 2011 motion and their 2021 intervention.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 45 Third, on 5 May 2014, the trial court’s order focused on “the reading problem.”7
The trial court summarized its factual findings regarding various reading programs
and assessments from Halifax County, Forsyth County, Durham County, Guilford
County, Johnston County, Union County, and Charlotte-Mecklenburg County, among
several others. Based on these statewide factual findings, the trial court concluded
“that there are way too many thousands of school children from kindergarten through
. . . high school who have not obtained the sound basic education mandated and
defined above and reaffirmed by the North Carolina Supreme Court in November
2013.”
¶ 46 Fourth, on 17 March 2015, the trial court’s order addressed the State’s recent
“redefin[ing] and relabeling [of] the standards for academic achievement.” The court
expressed its concern that
[n]o matter how many times the [c]ourt has issued Notices
of Hearings and Orders regarding unacceptable academic
performance, and even after the North Carolina Supreme
Court plainly stated that the mandates of Leandro remain
“in full force and effect[,]” many adults involved in
education . . . still seem unable to understand that the
constitutional right to have an equal opportunity to
On 8 November 2013, this Court considered a third appeal within this litigation.
7
Hoke Cnty. Bd. of Educ. v. State, 367 N.C. 156 (2013) (Leandro III). There, plaintiffs
challenged the General Assembly’s 2011 statutory changes to its “More at Four” Pre-K
program. Id. at 156. However, before this Court could consider the case, the General
Assembly substantively amended the statute with the apparent intent of ridding the law of
its dubious constitutionality. Id. at 159. Accordingly, this Court “conclude[d] that the
questions originally in controversy between the parties [were] no longer at issue and that
th[e] appeal [was] moot.” Id. Nevertheless, the Court took the opportunity to emphasize that
“[o]ur mandates in [Leandro I and II] remain in full force and effect.” Id. at 160.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
obtain a sound basic education is a right vested in
each and every child in North Carolina regardless of
their respective age or educational needs.
Based on these findings, trial court again concluded “that the valid assessments of
student achievement in North Carolina show that many thousands of children in K–
12 . . . are not obtaining a sound basic education. This is an ongoing problem that
needs to be dealt with and corrected.” Accordingly, the trial court ordered the State
to “propose a definite plan of action as to how the State of North Carolina intends to
correct the educational deficiencies in the student population.”
¶ 47 These orders illustrate several key themes within the record. First, the trial
court made extensive factual findings over the course of about twelve years regarding
many educational “inputs” and “outputs” including school funding, teacher retention,
instructional methods, and academic performance. In reviewing this data, the trial
court’s findings of fact consider the efficacy of the State’s various piecemeal proposals
to achieve Leandro compliance, such as the DSSF and the redefining of academic
standards. Second, these factual findings did not focus solely on Hoke County, but
expressly drew upon testimony and evidence regarding rural, urban, and suburban
counties across the state. Third, based upon this clear and convincing evidence, the
trial court repeatedly documented its ultimate legal conclusion that “in way too many
school districts across the state, thousands of children in the public schools have
failed to obtain, and are not now obtaining[,] a sound basic education as defined by
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
and required by the Leandro decisions.” Put differently, the trial court repeatedly
concluded based on clear and convincing evidence that, despite its piecemeal
compliance efforts, the State remained in an ongoing and statewide violation of its
constitutional duty. Fourth, despite its growing impatience with the State’s failure to
remedy its statewide violation, the trial court continued—for well over a decade—to
defer to the executive and legislative branches to craft a remedy. Fifth and finally, in
response to the repeated failure of various piecemeal remedial attempts, the trial
court ultimately ordered the State to propose and implement a comprehensive
“definite plan of action” to remedy its statewide Leandro violation.
D. WestEd Report and the Comprehensive Remedial Plan: 2018–2021
¶ 48 On 7 October 2016, upon Judge Manning’s retirement, then-Chief Justice
Mark Martin reassigned this case to Judge W. David Lee.8 On 10 July 2017, the State
Board of Education filed a Motion for Relief Pursuant to Rule 60 and Rule 12
requesting that the trial court relinquish jurisdiction over the case. The SBE
contended that “[b]ecause the factual and legal landscapes have significantly changed
[since the beginning of the case], the original claims, as well as the resultant trial
court findings and conclusions, are divorced from the current law and circumstances
8 We take a moment of privilege to express the Court’s gratitude to Judge Lee’s family
(Judge Lee himself recently passed away on 4 October 2022) for his many years of diligent
service to the State presiding over this case.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
[and] are stale.” As such, the SBE argued, “[c]ontinued status hearings on the present
system . . . exceed the jurisdiction established by the original pleadings in this action.”
¶ 49 On 7 March 2018, the trial court denied the SBE's motion to relinquish
jurisdiction. First, the court stated its factual findings, including expressly finding
that “[t]he court record is replete with evidence that the Leandro right continues to
be denied to hundreds of thousands of North Carolina schoolchildren” and that “a
definite plan of action is still necessary to meet the requirements and duties of the
State of North Carolina with regard to its children having equal opportunity to obtain
a sound basic education.” While the court noted that it “indeed indulges in the
presumption of constitutionality with respect to each and every one of the legislative
enactments cited by the SBE,” that “is not the issue before the court.” Rather, the
court found, “the evidence before this court upon the SBE motion is wholly inadequate
to demonstrate that these enactments translate into substantial compliance with the
constitutional mandate of Leandro measured by applicable educational standards.”
¶ 50 Based on these factual findings, the trial court concluded that “[t]he changes
in the factual landscape that have occurred during the pendency of this litigation do
not serve to divest the court of its jurisdiction to address the constitutional right at
issue in this case.” Further, the court concluded that “there is an ongoing
constitutional violation of every child’s right to receive the opportunity for a sound
basic education[,]” and that “[t]his court not only has the power to hear and enter
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
appropriate orders declaratory and remedial in nature, but also has a duty to address
this violation.” The trial court concluded that “state defendants have the burden of
proving that remedial efforts have afforded substantial compliance with the
constitutional directives of our Supreme Court,” and that “[t]o date, neither defendant
has met this burden.” “Both law and equity demand the prospective application of the
constitutional guarantee of Leandro to every child in this State.”
¶ 51 In closing, the trial court emphasized its own constitutional duty and growing
impatience with the legislative and executive branches:
This [c]ourt notes that both branches have had more than
a decade since the Supreme Court remand in Leandro II to
chart a course that would adequately address this
continuing constitutional violation. The clear import of the
Leandro decisions is that if the defendants are unable to do
so, it will be the duty . . . of the court to enter a judgment
“granting declaratory relief and such other relief as needed
to correct the wrong while minimizing the encroachment
upon the other branches of government.” (Leandro I).
This trial court has held status conference after status
conference and continues to exercise tremendous judicial
restraint. This court is encouraged by Governor Cooper’s
creation of the Governor’s Commission on Access to a
Sound Basic Education. . . . The time is drawing nigh,
however, when due deference to both the legislative and
executive branches must yield to the court’s duty to
adequately safeguard and actively enforce the
constitutional mandate on which this case is premised. It
is the sincere desire of this court that the legislative and
executive branches heed the call.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 52 That same day, the trial court also issued a Consent Order Appointing
Consultant. In January 2018, the State and plaintiffs filed a joint motion in which
they proposed to nominate, for the court’s consideration and appointment, an
independent, non-party consultant to assess the current state of Leandro compliance
in North Carolina and to make subsequent comprehensive recommendations for
specific actions necessary to achieve sustained constitutional compliance. In its
subsequent Order, the court agreed to the parties’ request and stated that the
appointed consultant would be charged with recommending specific actions the State
should take to meet the core requirements of Leandro, including providing a
competent and well-trained teacher in every classroom, providing a competent and
well-trained principal in every school, and identifying resources necessary to ensure
that all students have an equal opportunity to obtain a sound basic education. In its
Consent Order, the trial court consented to the parties’ joint nomination of WestEd,
a nationally acclaimed nonpartisan education research and development nonprofit,
to serve as the independent non-party consultant. As such, WestEd was instructed to
submit its final recommendation to the parties and the court within one year, and the
parties were required to submit a subsequent “proposed consent order . . . of specific
actions to achieve compliance with the constitutional mandates establish forth
above.”
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 53 Thus began the WestEd chapter of this litigation. For the next year, in
collaboration with the Friday Institute for Educational Innovation at North Carolina
State University and the Learning Policy Institute, WestEd conducted thirteen
distinct studies to better identify, define, and understand key issues and challenges
to North Carolina’s education system and to offer a comprehensive framework of
change for the State. The researchers developed and carried out an extensive research
agenda to investigate the current state and major needs of North Carolina public
education in four overarching areas: (1) access to effective educators, (2) access to
effective school leaders, (3) adequate and equitable school funding and resources, and
(4) adequate accountability and assessment systems.
¶ 54 WestEd’s methodology was comprehensive. Each of its thirteen studies was
designed to address specific research questions and used mixed-method designs such
as data analysis, school visits, focus group interviews with key stakeholders,
statewide surveys, reviews of prior studies, and cost function analysis. “Site visits,
interviews, and focus groups were designed to maximize engagement with education
stakeholders representing the diversity of the state in terms of geography, school
level, and school type as well as the characteristics of the student and educator
populations.” Researchers collected new data from schools in forty-four counties,
engaged with over 1,200 educators, and examined existing data from Duke
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
University’s North Carolina Education Research Data Center and UNC’s Education
Policy Initiative at Carolina.
¶ 55 On 4 October 2019, WestEd submitted its final report to the trial court. In
short, the WestEd Report concluded that as North Carolina educators “prepare for
the 2019–20 school year, the state is further away from meeting its constitutional
obligation to provide every child with the opportunity for a sound basic education
than it was when the Supreme Court of North Carolina issued the Leandro decision
more than 20 years ago.” (emphasis added). “Although there have been many efforts
on the part of the state and districts to improve students’ achievement, the challenges
of providing every student with a sound basic education have increased, along with
the number of at-risk students.” Specifically, the WestEd Report found systemic
deficiencies in teacher and principal quality and supply (especially in low-wealth
districts) and programmatic funding and resources (especially those necessary to
support disadvantaged students), among other statewide shortcomings. While the
WestEd Report noted that many promising initiatives had been put in place, they
“have neither been sustained nor been brought to scale and are insufficient to
adequately address the Leandro requirements.”
¶ 56 Accordingly, the WestEd Report issued eight primary findings and
recommendations. These recommendations included revising the state funding model
to provide adequate and equitable resources, providing all at-risk students with the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
opportunity to attend high-quality early childhood programs, directing resources and
opportunities to economically disadvantaged students, revising the student
assessment and school accountability systems, and building an effective regional and
statewide system of support for the improvement of low-performing and high-poverty
schools, among others. For each of these recommendations, the WestEd Report
provided a detailed “investment overview and sequenced action plan” which described
the timeline, stakeholders, and resources necessary for proper implementation.
Likewise, the action plan itemized the necessary statewide investments for each
recommendation for each fiscal year from 2020–2021 to 2027–2028.
¶ 57 On 21 January 2020, the trial court issued its subsequent Consent Order.
First, the trial court noted that “[t]he State of North Carolina, North Carolina State
Board of Education, and other actors have taken significant steps over time in an
effort to improve student achievement and students’ opportunity to access a sound
basic education.” “However,” the trial court continued,
historic and current data before the [c]ourt show that
considerable, systemic work is necessary to deliver fully
the Leandro right to all children in the State. In short,
North Carolina’s PreK-12 public education system leaves
too many students behind—especially students of color and
economically disadvantaged students. As a result,
thousands of students are not being prepared for full
participation in the global, interconnected economy and the
society in which they will live, work, and engage as
citizens. The costs to those students, individually, and to
the State are considerable and if left unattended will result
in a North Carolina that does not meet its vast potential.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 58 Next, the trial court addressed the WestEd Report. The court concluded that
“[t]he WestEd Report confirms what this [c]ourt has previously made clear: that the
State Defendants have not yet ensured the provision of education that meets the
required constitutional standard to all school children in North Carolina.” The court
observed that the WestEd Report’s “findings and recommendations are rooted in an
unprecedented body of research and analysis, which will inform decision-making and
th[e] [c]ourt’s approach to this case.”
¶ 59 Based on the WestEd Report, the trial court made two primary conclusions of
law. First, the trial court concluded that “North Carolina has substantial assets to
draw upon to develop a successful PreK-12 education system that meets the Leandro
tenets.” These assets “includ[e] a strong state economy, a deep and long-standing
commitment to public education to support the social and economic welfare of its
citizens, and an engaged business community that sees the value and economic
benefits of the public education system.”
¶ 60 Second, the trial court concluded that “despite numerous initiatives, many
children are not receiving a Leandro-conforming education; systemic changes and
investments are required to deliver the constitutional right to all children.” On this
point, the court acknowledged that “the State Defendants face greater challenges
than ever” in achieving Leandro compliance, and that “systemic, synchronous action
and investments are necessary to successfully deliver the Leandro tenets,” including
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
in teacher quality and supply, principal quality and supply, resources and school
funding, assessment and accountability systems, low-performing and high-poverty
schools, early childhood learning and Pre-K, and alignment and preparation for post-
secondary opportunities. Throughout its order, the trial court repeatedly emphasized
that “[t]he Defendants have not yet met their constitutional duty to provide all North
Carolina students with the opportunity to obtain a sound basic education.”
¶ 61 Based on these legal conclusions, the trial court ordered “the State Defendants
to work expeditiously and without delay to take all necessary actions to create and
fully implement” a comprehensive remedial plan to address each of the seven Leandro
compliance issues noted above. The trial court further ordered the parties
[t]o keep the [c]ourt fully informed as to the remedial
progress . . . [by] submit[ting] a status report to the [c]ourt
. . . setting out . . . :
1. Specific actions that the State Defendants must
implement in 2020 to begin to address the issues identified
by WestEd and described herein and the seven components
set forth above;
2. A date by which the State Defendants, in consultation
with each other and the Plaintiffs, will submit to the [c]ourt
additional, mid-range actions that should be implemented,
including specific actions that must be taken, a timeframe
for implementation, and an estimate of the resources in
addition to current funding, if any, necessary to complete
those actions[; and]
3. A date by which the State Defendants, in consultation
with each other and the Plaintiffs, will submit to the
[c]ourt a comprehensive remedial plan . . . to provide all
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
public school children the opportunity for a sound basic
education, including specific long-term actions that must
be taken, a timeframe for implementation, an estimate of
resources in addition to current funding, if any, necessary
to complete those actions, and a proposal for monitoring
implementation and assessing the outcomes of the plan.
The trial court likewise ordered State Defendants to “identify the State actors and
institutions responsible for implementing specific actions and components of the
proposed Plan,” and retained jurisdiction over the case and parties.
¶ 62 On 15 June 2020, the parties submitted their initial “Fiscal Year 2021
Remedial Plan and Action Steps” to the trial court. As instructed, the joint report
stated the parties’ shared goals and commitments for each of the seven issue areas
identified in the trial court’s January 2020 Order for fiscal year 2021. These
commitments addressed both broad issues, such as “[s]ignificantly increas[ing] the
racial and ethnic diversity of North Carolina’s qualified and well-prepared teacher
workforce,” and more specific steps, such as “[r]emov[ing] [the] 12.75 percent funding
cap for students with disabilities to provide supplemental funding for all students
with disabilities at the current formula rate.”
¶ 63 On 1 September 2020, the trial court issued a “Consent Order on Leandro
Remedial Action Plan for Fiscal Year 2021” in response to the parties’ joint report.
The trial court approved the report and ordered Defendants to implement its
remedial actions by 30 June 2021. Further, the trial court ordered Defendants, “in
consultation with Plaintiff parties, [to] develop and present to the [c]ourt[ ] a Leandro
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Comprehensive Remedial Plan to be fully implemented by the end of 2028 with the
objective of fully satisfying the Defendant’s Leandro obligations by the end of 2030.”
The court likewise ordered Defendants to submit quarterly status reports “to assist
the [c]ourt’s efforts to enter a final, enforceable judgment in this case, while
promoting transparency in these proceedings.”
¶ 64 On 15 March 2021, State Defendants submitted their Comprehensive
Remedial Plan (CRP) to the trial court. As mandated by the trial court’s prior orders,
the CRP laid out “both broad programs and discrete, individual action steps to be
taken [between 2021 and 2028] to achieve the overarching constitutional obligation
to provide[ ] all children the opportunity to obtain a sound basic education in a public
school [by 2030].” “The Parties agree[d] that the actions outlined in [the CRP] are the
necessary and appropriate actions needed to address the constitutional violations in
providing the opportunity for a sound basic education to all children in North
Carolina.”
¶ 65 As its title indicates, the CRP is comprehensive. For each of the seven pillar
issues, the CRP enumerates specific action steps to be initiated in various fiscal years
between 2021 and 2028. Each action step lists the various state actors responsible for
its implementation and itemizes the specific funding required in each year. Some of
the steps, such as “[u]pdat[ing] the State’s school administrator preparation
standards and principal licensure requirements to align with the National Education
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Leadership Preparation (NELP) standards,” require administrative effort, but no
additional funding. Others, such as “[p]rovid[ing] funding to cover the reduced-price
lunch co-pays for all students who qualify for reduced-price meals so that those
students would receive free lunches,” require a static amount of funding ($3.9 million)
each fiscal year. Still others, like “[i]ncreas[ing] low wealth funding to provide eligible
counties supplemental funding equal to 110% of the statewide local revenue per
student,” require increasing funding in each fiscal year (growing from $20 million in
2022 to $182.7 million by 2028). The CRP is the only remedial plan submitted to the
trial court by any party in this case.
¶ 66 On 11 June 2021, the trial court issued its “Order on Comprehensive Remedial
Plan.” After reviewing and approving the CRP, the trial court noted that “[t]he
urgency of implementing the [CRP] on the timeline currently set forth by State
Defendants cannot be overstated . . . . Time is of the essence.” The trial court further
emphasized that “[i]f the State fails to implement the actions described in the [CRP,]
. . . ‘it will then be the duty of this [c]ourt to enter a judgment granting declaratory
relief and such other relief as needed to correct the wrong.’ [Leandro I,] 346 N.C. at
357.” Finally, the trial court ordered that “the [CRP] shall be implemented in full and
in accordance with the timelines set forth therein,” and that
[t]he State shall inform and engage its actors, agencies,
divisions, and/or departments as necessary to ensure the
State’s compliance with this Order, including without
limitation seeking and securing such funding and
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
resources as are needed and required to implement in a
sustainable manner the programs and policies set forth in
the [CRP].
E. November 2021 Order, April 2022 Order, and Present Appeal
¶ 67 On 6 August 2021, State Defendants submitted their first progress report
regarding implementation of the CRP. Plaintiff parties submitted responses on 25
August 2021. On 8 September 2021, the trial court held a subsequent hearing to
review the State’s progress toward the CRP. In short, State Defendants made clear
to the trial court that they had not made progress toward substantially implementing
the action steps within the CRP due to inadequate existing allocations of the
necessary funding.
¶ 68 On 22 September 2021, the trial court issued its subsequent “Order on First
Progress Reports for Implementation of Comprehensive Remedial Plan.” Therein, the
trial court made the following “findings of fact, each of which was stipulated to by
Counsel on the record at the [8 September 2021] hearing:”
1. The [CRP], developed by State Defendants in
consultation with Plaintiffs, is a fair and reasonable plan
that is based upon the extensive evidence developed in this
action . . . . The parties to this action agree that this fair
and reasonable plan is the necessary step to provide the
children of our State the opportunity to obtain a sound
basic education.
....
3. The [CRP] represents the only robust and all-embracing
plan to secure the opportunity for a sound basic education
that has been presented to the [c]ourt over the course of
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
this decades-long litigation . . . .
....
5. The State of North Carolina presently has available the
fiscal resources needed to implement Years 2 and 3 of the
[CRP], which in total is approximately $1.7 billion.
According to the First Progress Report from the State, as
of the time the Report was filed a collection of funding
sources could be utilized to support the policies, programs,
and procedures in the [CRP]. To wit, an unappropriated
cash balance of $8 billion, projected revenues for the
current fiscal year of 2021–22 exceeding the current
budgetary allocations by about $5 billion, and additional
funding from the federal government amounting to over $5
billion.
¶ 69 Following these findings, the trial court noted that
[i]mproved educational policies, programs, and procedures
alone do not ensure that the children of our State have the
opportunity to obtain a sound basic education unless those
policies, programs, and procedures are in fact supported by
the resources and funds necessary for implementation.
Accordingly, should all necessary steps to fully fund the
[CRP] not be taken by the State—that is, our legislative
and executive branches—as of [18 October 2021], this
[c]ourt is prepared to implement the judicial remedies at
its disposal to ensure that our State’s children are finally
guaranteed their constitutionally-mandated opportunity to
obtain a sound basic education.
¶ 70 Therefore, the trial court ordered the parties to appear before it on 18 October
2021 “to inform the court of the State’s progress in securing the full funds necessary
to implement the [CRP].” “In the event the full funds necessary to implement the
[CRP] are not secured by that date,” the trial court ordered, “the [c]ourt will hear and
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
consider any proposals for how the [c]ourt may use its remedial powers to secure such
funding.”
¶ 71 On 18 October 2021, the trial court conducted this compliance hearing. That
same day, the trial court issued an Order in which it noted that it had been “informed
by counsel that an appropriations bill in which the [CRP] is fully funded has not, as
of that date, been finalized and enacted.” “Because the full funds necessary to
implement the [CRP] were not secured by [that day], the [c]ourt heard proposals for
how [it] may use its remedial powers to secure such funding.” The trial court further
ordered that Plaintiffs would have until 1 November 2021 to submit “any additional
authorities, memoranda of law, or proposed orders for the [c]ourt’s consideration on
the use of its remedial powers, which include, but are not necessarily limited to, a
writ of mandamus, a legislative injunction, sanctions, or a combination thereof,” and
that State Defendants would have until 8 November 2021 to subsequently respond.
¶ 72 On 10 November 2021, the trial court issued the subsequent Order (November
2021 Order) now before us for review. First, the November 2021 Order made findings
of fact summarizing the history of the litigation to that point. The court repeated its
prior conclusion that “the evidence before this court is wholly inadequate to
demonstrate substantial compliance with the constitutional mandate of Leandro
measured by applicable educational standards.” (cleaned up). The court “noted many
shortcomings in the State’s accomplishments and the State admitted that [its
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Progress] Report showed that it had failed to implement the Year One Plan as
ordered.” The court found that “more than sufficient funds are available to execute
the current needs of the [CRP].” “As of the date of this Order,” the trial court declared,
“the State’s implementation of the [CRP] is already behind the contemplated
timeline, and the State has failed yet another class of students. Time is of the
essence.”
¶ 73 Next, the trial court noted its years and years of deference. The court found
that, in compliance with this Court’s 1997 instructions in Leandro I, it had “granted
every reasonable deference to the legislative and executive branches to establish and
administer a [Leandro-compliant education] system . . . , including, most recently,
deferring to State Defendants’ leadership in the collaborative development of the
[CRP] over the past three years.” The court noted its
extraordinary lengths in granting these co-equal branches
of government time, deference, and opportunity to use their
informed judgment as to the ‘nuts and bolts’ of the remedy,
including the identification of the specific remedial actions
that required implementation, the time frame for such
implementation, the resources necessary for the
implementation, and the manner in which to obtain those
resources.
The trial court further found that “[t]he failure of the State to provide the funding
necessary to effectuate North Carolina’s constitutional right to a sound basic
education is consistent with the antagonism demonstrated by legislative leaders
towards these proceedings, the constitutional rights of North Carolina children, and
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
this [c]ourt’s authority.” The court found that it had “provided the State with ample
time and every opportunity to make meaningful progress towards remedying the
ongoing constitutional violations that persist within our public education system.”
Nevertheless, “[t]he State has repeatedly failed to act to fulfill its constitutional
obligations.”
¶ 74 Finally, the court found that “[i]n the seventeen years since the Leandro II
decision, a new generation of school children, especially those at-risk and
socioeconomically disadvantaged, were denied their constitutional right to a sound
basic education. Further and continued damage is happening now, especially to at-
risk children from impoverished backgrounds, and that cannot continue.”
¶ 75 Accordingly, the trial court made the following conclusions of law. First,
regarding its own constitutional duties and powers, the trial court concluded:
11. Because the State has failed for more than seventeen
years to remedy the constitutional violation as the
Supreme Court ordered, this [c]ourt must provide a remedy
through the exercise of its constitutional role. Otherwise,
the State’s repeated failure to meet the minimum
standards for effectuating the constitutional right to a
sound basic education will threaten the integrity and
viability of the North Carolina Constitution by:
a. nullifying the Constitution’s language without the
people’s consent, making the right to a sound basic
education merely aspirational and not enforceable;
b. ignoring rulings of the Supreme Court of North
Carolina setting forth authoritative and binding
interpretations of our Constitution; and
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
c. violating separation of powers by preventing the
judiciary from performing its core duty of
interpreting our Constitution.
....
13. . . . This [c]ourt concludes that Article I Section 15 of
the North Carolina Constitution represents an ongoing
constitutional appropriation of funds sufficient to create
and maintain a school system that provides each of our
State’s students with the constitutional minimum of a
sound basic education. This constitutional provision may
therefore be deemed an appropriation “made by law”
[under Article V Section 7].
14. . . . [S]uch an appropriation may be considered to have
been made by the people themselves, through the
Constitution, thereby allowing fiscal resources to be drawn
from the State Treasury to meet that requirement. The
Constitution reflects the direct will of the people; an order
effectuating Article I, § 15’s constitutional appropriation is
fully consistent with the framers[’] desire to give the people
ultimate control over the state’s expenditures.
....
20. Accordingly, this [c]ourt recognizes, as a matter of
constitutional law, a continuing appropriation from the
State Treasury to effectuate the people’s right to a sound
basic education. . . . When the General Assembly fulfills its
constitutional role through the normal (statutory) budget
process, there is no need for judicial intervention to
effectuate the constitutional right. As the foregoing
findings of fact make plain, however, this [c]ourt must
fulfill its constitutional duty to effect a remedy at this time.
....
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
22. The [c]ourt further concludes that . . . [it] has inherent
and equitable powers that allow it to enter this Order. . . .
....
23. . . . [T]he [c]ourt’s inherent powers are derived from
being one of three separate, coordinate branches of the
government. . . .
24. In fact, it is the separation of powers doctrine itself
which undergirds the judicial branch’s authority to enforce
its order here. “Inherent powers are critical to the court’s
autonomy and to its functional existence: ‘If the courts
could be deprived by the Legislature of these powers, which
are essential in the direct administration of justice, they
would be destroyed for all efficient and useful purposes.’”
Matter of Alamance Cty. Ct. Facilities, 329 N.C. 84, 93–94
(1991) . . . (citing Ex Parte Scheneck, 65 N.C. 353, 355
(1871).
¶ 76 Second, regarding its duty to limit its encroachment upon its coequal branches,
the trial court concluded:
25. . . . The relief proposed here carefully balances these
interests with the [c]ourt’s constitutional obligation of
affording relief to injured parties. First, there is no
alternative or adequate remedy available to the children of
North Carolina that affords them the relief to which they
are so entitled. State Defendants have conceded that the
[CRP]’s full implementation is necessary to provide a sound
basic education to students and there is nothing else on the
table. . . .
26. Second, this [c]ourt will have minimized its
encroachment on legislative authority through the least
intrusive remedy. Evidence of the [c]ourt’s deference over
the last seventeen years and its careful balancing of the
interests at stake includes but is not limited to:
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
a. The [c]ourt has given the State seventeen years
to arrive at a proper remedy and numerous
opportunities proposed by the State have failed
to live up to their promise. Seventeen classes of
students have since gone through schooling
without a sound basic education;
b. The [c]ourt deferred to State Defendants and the
other parties to recommend to the [c]ourt an
independent, outside consultant to provide
comprehensive, specific recommendations to
remedy the existing constitutional violations;
c. The [c]ourt deferred to State Defendants and the
other parties to recommend a remedial plan and
the proposed duration of the plan . . . .
d. The [c]ourt deferred to State Defendants to
propose an action plan and remedy for the first
year and then allowed the State Defendants
additional latitude in implementing its actions in
light of the pandemic’s effect on education;
e. The [c]ourt deferred to State Defendants to
propose a long-term comprehensive remedial
plan, and to determine the resources necessary
for full implementation . . . .
f. The [c]ourt also gave the State discretion to seek
and secure the resources identified to fully
implement the [CRP]. . . .
g. The [c]ourt has further allowed for extended
deliberations between the executive and
legislative branches over several months to give
the State an additional opportunity to implement
the [CRP];
h. The status conferences, including more recent
ones held in September and October 2021, have
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
provided the State with additional notice and
opportunities to implement the [CRP], to no
avail. The [c]ourt has further put [the] State on
notice of forthcoming consequences if it
continued to violate students’ fundamental
rights to a sound basic education.
¶ 77 Based on these findings of fact and conclusions of law, the trial court ordered
the following:
1. The Office of State Budget and Management and the
current State Budget Director (“OSBM”), the Office of the
State Controller and the current State Comptroller
(“Controller”), and the Office of the State Treasurer and the
current State Treasurer (“Treasurer”) shall take the
necessary actions to transfer the total amount of funds
necessary to effectuate years 2 & 3 of the [CRP], from the
unappropriated balance within the General Fund to the
state agencies and state actors with fiscal responsibility for
implementing the [CRP] as follows:
(a) Department of Health and Human Services
(“DHHS”): $189,800,000.00;
(b) Department of Public Instruction (“DPI”):
$1,522,058,000.00; and
(c) University of North Carolina System:
$41,300,000.00
2. OSBM, the Controller, and the Treasurer are directed to
treat the foregoing funds as an appropriation from the
General Fund as contemplated within [N.C.G.S.] § 143C-6-
4(b)(2)(a) and to carry out all actions necessary to
effectuate those transfers;
....
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
4. DHHS, the University of North Carolina System, and
the State Superintendent of Public Instruction, and all
other State agents or State actors receiving funds under
the [CRP] are directed to administer those funds to
guarantee and maintain the opportunity of a sound basic
education consistent with, and under the time frames set
out in, the [CRP], including the Appendix thereto;
5. In accordance with its constitutional obligations, the
State Board of Education is directed to allocate the funds
transferred to DPI to the programs and objectives specified
in the Action Steps in the [CRP] and the Superintendent of
Public Instruction is directed to administer the funds so
allocated in accordance with the policies, rules, . . . and
regulations of the State Board of Education so that all
funds are allocated and administered to guard and
maintain the opportunity of a sound basic education
consistent with, and under the time frames set out in, the
[CRP], including the appendix thereto[;]
6. OSBM, the Controller, and the Treasurer are directed to
take all actions necessary to facilitate and authorize those
expenditures;
7. To the extent any other actions are necessary to
effectuate the year 2 & 3 actions in the [CRP], any and all
other State actors and their officers, agents, servants, and
employees are authorized and directed to do what is
necessary to fully effectuate years 2 and 3 of the [CRP];
8. The funds transferred under this Order are for
maximum amounts necessary to provide the services and
accomplish the purposes described in years 2 and 3 of the
[CRP]. Savings shall be effected where the total amounts
appropriated are not required to perform these services
and accomplish these purposes and the savings shall revert
to the General Fund at the end of fiscal year 2023, unless
the General Assembly extends their availability[.]
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Finally, the trial court declared that its Order would be “stayed for a period of thirty
(30) days to preserve the status quo . . . to permit the other branches of government
to take further action consistent with the findings and conclusions of this Order.”
¶ 78 One week later, on 18 November 2021, the State enacted An Act to Make
Budget Appropriations for Current Operations of State Agencies, Departments, and
Institutions, and for Other Purposes, S.L. 2021-180,
https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2021-2022/SL2021-
180.pdf (Budget Act).
¶ 79 On 24 November 2021, the Controller of the State of North Carolina petitioned
the Court of Appeals for a Writ of Prohibition. The Controller sought an order
preventing her from being required to comply with the trial court’s November 2021.
Specifically, the Controller asserted that the transfer directive within the trial court’
November 2021 was legally erroneous and required her to act in a manner which
would defeat a legal right.
¶ 80 On 30 November 2021, the trial court issued a “Notice of Hearing and Order
Continuing Stay of Court’s November 10, 2021 Order.” After reviewing the Budget
Act, the trial court concluded that the Act “appear[ed] to provide for some―but not
all―the resources and funds required to implement years 2 & 3 of the [CRP], which
may necessitate a modification in the November 10 Order.” Therefore, the court
announced that it would hold a hearing on 13 December 2021 for the State “to inform
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
the [c]ourt of the specific components of the [CRP] plan for years 2 & 3 that are funded
by the [Budget] Act and those that are not.” The court further stayed its 10 November
2021 Order until ten days after the conclusion of its December hearing.
¶ 81 But the trial court’s planned 13 December hearing never came to pass. Instead,
also on 30 November 2021, the Court of Appeals issued a writ of prohibition
restraining the trial court from proceeding in the matter. In its writ, the Court of
Appeals concluded that the trial court’s November Order erred for two reasons. First,
the Court of Appeals reasoned that the trial court’s interpretation of a constitutional
appropriation within Article I, § 15 would render the subsequent Educational
Provisions in Article IX “unnecessary and meaningless.” Second, the Court of Appeals
stated that the trial court’s reasoning “would result in a host of ongoing constitutional
appropriations . . . that would devastate the clear separation of powers between the
legislative and judicial branches and threaten to wreck the carefully crafted checks
and balances that are the genius of our system of government.” The Court of Appeals
therefore restrain[ed] the trial court from enforcing its direct transfer order. Judge
Arrowood dissented from the Court of Appeals’ Order.9
9 The dissent reasoned that the majority’s ex meru motu shortening of the time for
Plaintiff parties to file a response to the petition to one day when there were no immediate
consequences in the case “was arbitrary, capricious and lacked good cause and instead
designed to allow this panel to rule on this petition during the month of November” before a
new panel was assigned.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 82 On 7 December 2021, the State appealed the November 2021 Order to the
Court of Appeals. The next day, 8 December 2021, for the first time since their August
2011 Motion to Intervene regarding Pre-K, Legislative Defendants intervened as a
matter of right pursuant to N.C.G.S. § 1-72.2(b) and likewise appealed the trial
court’s November Order to the Court of Appeals.
¶ 83 On 14 February 2022, the State filed with this Court a Petition for
Discretionary Review Prior to Determination by the Court of Appeals of the trial
court’s November 2021 Order. On 24 and 28 February 2022, Plaintiffs and Plaintiff
Intervenors likewise requested this Court’s discretionary review prior to
determination by the Court of Appeals. On 28 February 2022, Legislative Defendants
filed a response requesting that this Court deny the State’s petition.
¶ 84 On 21 March 2022, this Court issued an order allowing the State’s petition.
Before appellate review, however, this Court remanded the case to the trial court “for
a period of no more than thirty days for the purpose of allowing the trial court to
determine what effect, if any, the enactment of the [2021] State Budget has upon the
nature and extent of the relief that the trial court granted in its 11 November 2021
order.” This Court instructed the trial court to “make any necessary findings of fact
and conclusions of law and to certify any amended order that it chooses to enter with
this Court on or before the thirtieth day following the entry of this order.” That same
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
day, Chief Justice Newby reassigned this case from Judge Lee to Judge Michael L.
Robinson.10
¶ 85 On 24 March, 13 April, and 22 April 2022, the trial court conducted hearings
with the parties to determine the effect of the 2021 Budget Act on the relief granted
in the trial court’s November 2021 Order. At these hearings, the parties took
contrasting views on the scope of this Court’s 21 March 2022 Remand Order.
Legislative Defendants contended that the remand order allowed the trial court “to
make a de novo legal determination on the legality and enforceability of the 10
November Order—claiming that, as concluded by the panel of the Court of Appeals,
the trial court lacked legal authority to order funds transferred from the North
Carolina treasury to fund specific educational programs.” Alternatively, Legislative
Defendants argued “that the Budget Act as passed fully satisfies the State’s
obligation to provide K–12 students with a sound basic education as established by
the Supreme Court in [Leandro I].”
¶ 86 “By comparison, Plaintiffs and the State Defendants contend[ed] that the trial
court’s task [was] simply to examine the Budget Act as passed and determine the
amount of funding provided therein for each of the CRP programs during years 2 and
3 of the CRP.” The State’s evidence, based on the affidavit of the Chief Deputy
10 We take a moment of privilege to express the Court’s gratitude to Judge Robinson
for his diligent service to the State presiding over this case.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Director of State Budget for the North Carolina Office of State Budget and
Management, indicated that “the Budget Act funded approximately 60 percent of year
2 CRP programs and 49 percent of year three programs.”
¶ 87 On 26 April 2022, the trial court issued its subsequent order (April 2022
Order), also now before us for review. As an initial matter, the trial court addressed
the parties’ arguments regarding its own authority in light of the Court of Appeals’
Writ of Prohibition. Because that order “has not been overruled or modified[,]” the
court “conclude[d] that it is binding on the trial court.” “Accordingly,” the trial court
determined that it “cannot and shall not consider the legal issue of the trial court’s
authority to order State officers to transfer funds from the State treasury to the CRP.”
¶ 88 The trial court then addressed the effect of the Budget Act on the CRP. “Based
on [its] review of analyses provided to it by [OSBM] and the General Assembly’s
Fiscal Research Division . . . , and the arguments and submissions of the parties,” the
trial court found that “significant necessary services for students, as identified in the
CRP, remain unfunded and/or underfunded by the Budget Act.” The court found that
“the Budget Act fail[ed] to provide nearly one-half of the[ ] total necessary funds.”
Specifically, the court found that “the Budget Act fund[ed] approximately 63% of the
total cost of the programs to be conducted during year 2 and approximately 50% of
the total cost of the programs to be conducted during year 3.” Regarding the State’s
unappropriated savings, the trial court found that “[t]he Budget Act reserves during
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
each year of the two-year budget cycle $1.134 billion to the State’s Saving Reserve,
which brings the total of unappropriated funds in the State’s Savings Reserve to $4.25
billion after the fiscal year 2022–23 legislatively-mandated transfer.” Therefore, “[a]s
a matter of mathematical calculation,” the trial court found that “the funds
transferred on a discretionary basis to the State’s Savings Reserve and the State’s
Capital and Infrastructure Reserve during the two-year budget cycle is substantially
in excess of the amount necessary to fully fund the CRP during years 2 and 3 of the
CRP.”
¶ 89 Based on these findings of fact, the trial court concluded that the Budget Act
“partially but not totally fund[ed] years 2 and 3 of the CRP.” Specifically, the court
concluded that “the total underfunding of CRP programs during years 2 and 3 . . . is
$785,106,248 in the aggregate.” Regarding the State’s potentially available funds, the
court concluded that “the General Fund does contain sufficient unappropriated
monies to make the transfer anticipated by the 10 November Order and the lesser
amount of underfunding identified above.” However, based on the Court of Appeals’
Writ of Prohibition, the trial court “conclude[d] that the 10 November Order should
be amended to remove a directive that State officers or employees transfer funds from
the State treasury to fully fund the CRP.” Instead, the trial court concluded that its
Order must simply “determine that the State of North Carolina has failed to comply
with the trial court’s prior order to fully fund years 2 and 3 of the CRP” without
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
specifically directing the State officials to make the transfers necessary to do so.
¶ 90 Accordingly, the trial court ordered:
The Department of Health and Human Services[,] the
Department of Public Instruction, and the University of
North Carolina System have and recover from the State of
North Carolina to properly fund years 2 and 3 of the [CRP]
the following sums in addition to those sums otherwise
provided for the [CRP] by the Budget Act and federal or
other funds made available:
a. The [DHHS] recover from the State of North Carolina the
sum of $142,900,000;
b. The [DPI] recover from the State of North Carolina the sum
of $608,006,248; and
c. The [UNC] System recover from the State of North
Carolina the sum of $34,200,000.
¶ 91 In alignment with the November 2021 Order, the trial court further ordered
that “DHHS, DPI, UNC System, and all other State agents or State actors receiving
funds under the [CRP] are directed to administer those funds consistent with, and
under the time frames set out in the [CRP], including the Appendix thereto.”
Likewise, the court ordered that upon administering these funds, any “savings shall
revert to the General Fund at the end of fiscal year 2023, unless the General
Assembly extends their availability.”
¶ 92 In July 2022, the State enacted the 2022 Appropriations Act. An Act to Modify
the Current Operations Appropriations Act of 2021 and to Make Other Changes in
the Budget Operations of the State, S.L. 2022-74,
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2021-2022/SL2022-
74.pdf.
¶ 93 Following the trial court’s April 2022 Order, this case returned to the
jurisdiction of this Court. On appeal, Plaintiffs, Plaintiff-Intervenors, and the State
argued that, contrary to the order of the Court of Appeals, under the extraordinary
circumstances summarized here, the trial court had the proper authority to direct
State actors to transfer the available funds necessary to fulfill years two and three of
the Comprehensive Remedial Plan in its November 2021 Order.11 The State Board of
Education emphasized that the CRP is the product of the State’s efforts to fulfill its
constitutional commitment and that the CRP’s action steps are necessary to avoid
judicial encroachment on the Board’s constitutional authority.
¶ 94 Contrastingly, Legislative Defendants argued that the trial court’s November
2021 Order’s transfer provisions violated the Separation of Powers Clause of our
State’s Constitution.12 Legislative Defendants further argued that both the
November 2021 and April 2022 Orders were improper because the case is narrowly
confined to Hoke County and not the state as a whole, the trial court engaged with
11 Plaintiffs and Plaintiff-Intervenors’ position was supported by amici curiae
professors and longtime practitioners of constitutional and educational law, the North
Carolina Justice Center, the Duke Law Children’s Law Clinic, the Center for Educational
Equity, the Southern Poverty Law Center, and over fifty North Carolina business leaders.
12 Legislative Defendants’ position was supported by amici curiae North Carolina
Institute for Constitutional Law and the John Locke Foundation.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
non-justiciable political questions, the trial court failed to presume that the Budget
Act was constitutionally compliant, and the suit was friendly and lacked genuine
controversy.
¶ 95 Finally, the State Controller argued that the trial court’s November 2021
Order lacked constitutional authority to order the Controller and other state officials
to transfer available State funds, and therefore that this Court should affirm the trial
court’s April 2022 Order removing those transfer directives.
¶ 96 This case came before this Court once more for oral arguments on 31 August
2022.
II. Analysis
¶ 97 Now, this Court must assess the constitutionality of the trial court’s 10
November 2021 and 26 April 2022 Orders. This Court reviews constitutional
questions de novo. Cooper v. Berger, 370 N.C. 392, 413 (2018). Under the
extraordinary circumstances of this case, we hold that the trial court’s November
2021 Order properly directed certain State officials to transfer State funds in
compliance with the CRP. We thus affirm the constitutional analysis and transfer
directives within the November 2021 Order and vacate in part and reverse in part
the April 2022 Order with further instructions on remand. To enable the trial court
to comply with these instructions, we stay the Court of Appeals’ Writ prohibiting the
trial court from issuing the November 2021 transfer directive.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 98 First, we review the meaning and scope of the constitutional right at the heart
of this case: the right of all North Carolina schoolchildren to the opportunity to receive
a sound basic education. Second, we consider the duties and powers of the legislative
and judicial branches as they relate to guarding and maintaining that constitutional
right. Third, we apply this constitutional analysis to the trial court’s November 2021
and April 2022 Orders. Fourth, we address Legislative Defendants’ various assertions
of trial court error.
A. The Constitutional Right to a Sound Basic Education
¶ 99 Our Constitution and statutes recognize certain rights. In particular, our
Constitution’s Declaration of Rights vests within all people of our State rights that
we deem fundamental, such as the right to free elections, equal protection under law,
and freedom of speech and assembly. N.C. Const. Art. I, §§ 10, 12, 14, 19; see also
Harper v. Hall, 380 N.C. 317, 2022-NCSC-17, ¶ 159 (discussing these rights).
¶ 100 Since its inception in 1994, this case has revolved around the rights enshrined
within our Constitution’s “Education Provisions:” namely Article I, § 15 and Article
IX, § 2, but also Article IX, §§ 6 and 7. Accordingly, we begin our analysis by reviewing
the text, structure, and history of the right to a sound basic education as established
in these Education Provisions. See Harper, 2022-NCSC-17, ¶ 121 (considering the
text, history, and structure of constitutional rights to ascertain their meaning).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 101 Constitutional analysis begins with the text. State ex rel. Martin v. Preston,
325 N.C. 438, 449 (1989). “We look to the plain meaning of [each] phrase to ascertain
its intent.” Town of Boone v. State, 369 N.C. 126, 132 (2016). To understand the
meaning of the fundamental right at issue in this case, we must consider the plain
text of our Constitution’s Education Provisions.
¶ 102 First, Article I, § 15 of our Constitution’s Declaration of Rights declares that
“[t]he people have a right to the privilege of education, and it is the duty of the State
to guard and maintain that right.” The plain text of this provision is not suggestive,
but obligatory. It does not declare that the State may guard and maintain the people’s
right to the privilege of education, but that it is the duty of the State to do so. Further,
the plain text of this provision places this affirmative duty on the shoulders of one
entity: the State. While subsequent constitutional provisions note that the State may
involve local units of government in school operation, Article I, § 15 makes clear that
the ultimate responsibility lies with the State. Finally, the word “maintain” within
this provision begins to establish that the State’s affirmative duty here is not merely
administrative, but financial. One definition of maintain is “[t]o support . . .
financially,” Maintain, Black’s Law Dictionary (11th ed. 2019), or “to support the
expense of.” Maintain, Webster’s American Dictionary of the English Language
(1865). See also Maintain, A Dictionary of the English Language (1865) (“To bear the
expense of; to support; to keep up; to supply with what is needed.”). This meaning
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
aligns with the Constitution’s plain emphasis on education funding within
subsequent provisions noted below.
¶ 103 Second, Article IX, § 2(1) establishes that “[t]he General Assembly shall
provide by taxation and otherwise for a general and uniform system of free public
schools, which shall be maintained at least nine months in every year, and wherein
equal opportunities shall be provided for all students.” Like Article I, § 15, the plain
language of this section is obligatory; it does not declare that the General Assembly
may provide for a system of free public schools, but that it shall do so. See Mebane
Graded Sch. Dist. v. Alamance Cnty., 211 N.C. 213, 223 (1937) (Mebane) (“The duty
imposed on the State, under Art. IX of the Constitution of North Carolina, is
mandatory.”). This contrasts with the subsequent permissive language in Article IX,
§ 2(2), which states that “[t]he General Assembly may assign to units of local
government such responsibility for the financial support of the free public schools as
it may deem appropriate[,]” and that “units of local government with financial
responsibility for public education may use local revenues to add or to supplement
any public school or post-secondary school program.” (emphasis added). Here again,
the plain constitutional text makes clear that the ultimate responsibility for securing
the people’s right to education lies with the State. And in declaring the governmental
entity that is obligated to fund public education, the plain language of Article IX, § 2
is even more specific: “[t]he General Assembly.”
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 104 Third, two subsequent provisions within Article IX further specify methods for
funding the state’s system of free public schools. Article IX, § 6 states that
The proceeds of all lands that have been or hereafter may
be granted by the United States to this State, and not
otherwise appropriated by this State or the United States;
all moneys, stocks, bonds, and other property belonging to
the State for purposes of public education; the net proceeds
of all sales of the swamp lands belonging to the State; and
all other grants, gifts, and devises that have been or
hereafter may be made to the State, and not otherwise
appropriated by the State or by the terms of the grant, gift,
or devise, shall be paid into the State Treasury and,
together with so much of the revenue of the State as may
be set apart for that purpose, shall be faithfully
appropriated and used exclusively for establishing and
maintaining a uniform system of free public schools.
Next, Article IX, § 7(a) states that
[e]xcept as provided in subsection (b) of this section, all
moneys, stocks, bonds, and other property belonging to a
county school fund, and the clear proceeds of all penalties
and forfeitures and of all fines collected in the several
counties for any breach of the penal laws of the State, shall
belong and remain in the several counties, and shall be
faithfully appropriated and used exclusively for
maintaining free public schools.
Building from Article IX, § 2, the plain text of these provisions further clarifies the
Constitution’s repeated emphasis on adequately funding the State’s system of free
public schools. Indeed, these provisions establish specific requirements for the
manner in which the General Assembly may exercise its appropriation powers by
declaring that such funds “shall be faithfully appropriated and used exclusively for
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
establishing and maintaining a uniform system of free public schools.” More broadly,
the plain text of these provisions emphasizes the distinctive prominence of public
education within our Constitution: it is first established as a positive right of the
people within the Declaration of Rights, then mandated to be guarded and
maintained by the State, then specifically required to be funded through taxation and
otherwise by the General Assembly. This renders the fundamental right established
within these provisions highly exceptional, even among other rights enumerated
within the Declaration of Rights.
¶ 105 The structure of our Constitution likewise supports this prominence. As an
initial matter, the location of the right to education (N.C. Const. art. I, § 15) within
the Constitution’s Declaration of Rights indicates its significance. “The Declaration
of Rights was passed by the Constitutional Convention on 17 December 1776, the day
before the [state] Constitution itself was adopted, manifesting the primacy of the
Declaration in the minds of the framers.” Corum, 330 N.C. at 782. That original
“logical and chronological primacy is preserved in our present constitution, with the
Declaration of Rights now incorporated in the text of the [C]onstitution itself as
article I.” Harper, 2022-NCSC-17, ¶ 122. The fundamental purpose for the adoption
of the Declaration of Rights “was to provide citizens with protection from the State’s
encroachment upon these rights.” Corum, 330 N.C. at 782. It is no wonder, then, that
the Framers chose to enshrine the fundamental right to education within the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Declaration; like the right to free elections, N.C. Const. art. I, § 10, the right to
religious liberty, N.C. Const. art. I, § 13, and the right to freedom of speech and press,
N.C. Const. art. I, § 14, the right to education inherently strengthens the ability of a
person and a community to safeguard their personal liberty and popular sovereignty
from infringement. See N.C. Const. art. IX, § 1 (“Religion, morality, and knowledge
being necessary to good government and the happiness of mankind, schools, libraries,
and the means of education shall forever be encouraged”); Brown v. Bd. of Educ., 347
U.S. 483, 493 (1954) (Brown I) (describing education as “the very foundation of good
citizenship.”).
¶ 106 Beyond the location of Article I, § 15, the structure of the North Carolina
Constitution further emphasizes the paramount importance of the right to education
by devoting an entire article to it: Article IX. For context, there are only fourteen
articles in our entire Constitution, including the Declaration of Rights and those
establishing our three branches of government. Within Article IX, the Constitution
contains ten sections enumerating certain principles and requirements for our state’s
system of public education, such as those establishing the State Board of Education,
N.C. Const. art. IX, § 4, and describing methods of education funding, N.C. Const.
art. IX, §§ 2, 6, 7. By comparison, the articles addressing local governments and
corporations contain three and two sections, respectively. See N.C. Const. art. VII;
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
N.C. Const. art. VIII. In short, the Constitution’s structure makes clear that the right
to education is regarded with foremost significance.
¶ 107 Finally, constitutional history likewise supports this significance. See Comm.
to Elect Dan Forest v. Emps. Pol. Action Comm., 376 N.C. 558, 2021-NCSC-6, ¶ 15
(“Constitutional provisions should be construed in consonance with the objects and
purposes in contemplation at the time of their adoption.”). North Carolina
constitutional history illustrates both that our citizens have long valued public
education and that experience taught them the necessity of safeguarding it through
our Constitution, particularly to secure the fundamental rights of marginalized
communities.
¶ 108 “Throughout the colonial period, the provincial government accepted no
responsibility for education.” N.C. Dep’t of Public Instruction, The History of
Education in North Carolina, 5 (1993) (hereinafter DPI Report). Because of the
absence of State funding, what few educational opportunities that did exist were
largely private, religious, and limited to affluent white families. Id.¶ 109 In 1776, North Carolina’s original Constitution provided “[t]hat a school or
schools shall be established by the Legislature, for the convenient instruction of
youth, with such salaries to the masters, paid by the public.” N.C. Const. of 1776 art.
XLI. Nevertheless, educational opportunities remained underfunded and exclusive,
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
and “[m]any North Carolina citizens were dissatisfied with the deplorable state of
affairs and efforts were begun to remedy the situation.” DPI Report at 7.
¶ 110 The 1825 enactment of the Literary Fund was one such effort. Id. at 8. Over
time, the fund grew and, in conjunction with further legislative support, “ushered in
a period of expansion and progress for North Carolina public schools.” Id. at 9. “By
the time the Civil War erupted in 1861, it was generally recognized that North
Carolina had one of the best school systems in the South.” Id. Notably, though, this
system still expressly excluded Black children, who could only access educational
opportunities—if at all—at freedmen schools established and funded by private
groups such as the American Missionary Association. See John L. Bell, Samuel
Stanford Ashley, Carpetbagger and Educator, 72 N.C. Hist. Rev. 456, 459, 461 (1995)
(hereinafter Bell).
¶ 111 The Civil War “brought this progressive period in education to an abrupt halt.”
DPI Report at 10. First, the Literary Fund was depleted due to wartime economic
instability. Bell at 476. Then, in 1866, due to this economic fallout and “fear[ ] that
the federal government would force integration of [B]lack pupils into the statewide
school system,” the General Assembly abolished North Carolina’s public school
system entirely, instead leaving county governments to establish schools “at their
discretion.” Id.HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 112 Against this historical backdrop, North Carolina’s first ever multiracial cohort
of state leaders “met in the winter of 1868 to draft a new state constitution.” Id. at
473; see also Leonard Bernstein, The Participation of Negro Delegates in the
Constitutional Convention of 1868 in North Carolina, The Journal of Negro History,
Vol. 34, No. 4, 391, 394 (Oct. 1949) (describing the composition of the Constitutional
Convention of 1868) (hereinafter Bernstein); John V. Orth, The North Carolina State
Constitution 12 (1993) (same) (hereinafter Orth). The resulting 1868 Constitution
was markedly more progressive than its predecessor, including, for instance, the
expansion of property rights to women and elimination of property qualifications from
political participation. See Orth at 15; DPI Report at 10.
¶ 113 The 1868 Constitution likewise expanded educational rights. “Seeing that the
legislature could abolish the school system by law in 1866, [delegates] insisted that
the guarantee of a public school education for all children of North Carolina be
embedded in the [C]onstitution beyond the reach of legislative majorities.” Bell at
482–83. Thus, Article I, § 27 of the 1868 Constitution established the express positive
right of the people to the privilege of education and corresponding duty of the State
to guard and maintain that right. See Orth at 52 (“[T]he right to education was
intended to mark a new and more positive role for state government.”). The 1868
Constitution likewise established the General Assembly’s duty to fund the state’s
public education system, declaring that [t]he General Assembly shall provide by
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
taxation and otherwise for a general and uniform system of Public Schools,” and
specified that certain funds “shall be faithfully appropriated for establishing and
perfecting in this State a system of Free Public Schools, and for no other purposes or
uses whatsoever.” N.C. Const. of 1868 art. IX, §§ 2, 4. Although conservative
legislators attempted “to add segregation amendments to the [Education
Provisions,]” these were rejected. Bernstein at 398. Instead, these constitutional
guarantees “made no mention of race.”13 Bell at 473. As noted above, our current
State Constitution, ratified in 1971, includes substantially similar or identical
language within its Education Provisions as its 1868 predecessor. See N.C. Const. art.
I, § 15; N.C. Const. art. IX, §§ 2, 6, 7. Cumulatively, this historical context
emphatically supports the paramount importance of the right to the opportunity to a
sound basic education within our Constitution and of the will of the people to
safeguard this right from legislative diminishment or abandonment.
¶ 114 These historical origins confirm what the text and structure make plain: that
our Constitution expressly establishes the fundamental right of the people to the
privilege of education, that it is the “sacred duty” of the State to safeguard that right,
and that the General Assembly is constitutionally obligated to provide for our system
13However, “a post-Reconstruction amendment in 1876 required segregated schooling
(‘separate but equal’) . . . [until] [o]utlawed in 1954 by the U.S. Supreme Court’s ruling in
Brown v. Board of Education [and subsequently] forbidden by the 1971 Constitution.” Orth
at 145.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
of free public schools by taxation and otherwise. Mebane, 221 N.C. at 223. More
specifically, the Education Provisions express a clear desire by the people to hold the
executive and legislative branches accountable for ensuring that our public school
system is properly maintained, financially and otherwise. Finally, “[w]e give our
Constitution a liberal interpretation in favor of its citizens with respect to those
provisions which were designed to safeguard the liberty and security of the citizens.”
Corum, 330 N.C. at 783.
¶ 115 In accordance with these principles, this Court has held that the Education
Provisions “combine to guarantee every child of this state an opportunity to receive a
sound basic education in our public schools.” Leandro I, 346 N.C. at 345. This Court
has further concluded that this right is substantive, robust, and paramount. Id.;
Leandro II, 358 N.C. at 649. Today, we expressly and emphatically reaffirm the
inherent substance, broad scope, and paramount importance of the fundamental right
to the opportunity to a sound basic education enshrined in our Constitution as first
recognized by this Court in Leandro I and II.
B. Legislative and Judicial Duties and Powers
¶ 116 When rights are violated, justice requires a remedy. N.C. Const. art. I, § 18
(“[E]very person for an injury done him . . . shall have remedy by due course of law.”);
see also Marbury v. Madison, 5 U.S. 137, 163 (1803) (“[E]very right, when withheld,
must have a remedy, and every injury its proper redress.”). The nature of the right
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
and the extent of the violation dictate the appropriate nature and extent of the
corresponding remedy. Corum, 330 N.C. at 784. Accordingly, a longstanding violation
of a fundamental constitutional right demands a remedy of equivalent magnitude.
¶ 117 Here, as summarized above, the trial court repeatedly concluded based on an
abundance of clear and convincing evidence that the State—for many years—has
continued to violate the fundamental constitutional rights of North Carolina
schoolchildren across the state by failing to guard and maintain their right to the
opportunity of a sound basic education. The trial court likewise repeatedly concluded
that this violation disproportionately impacts historically marginalized students such
as students from economically disadvantaged families, English language learners,
students with learning differences, and students of color. The trial court emphasized
these conclusions most recently within the November 2021 Order before us on this
appeal.
¶ 118 Now, this Court must consider the scope of its authority to appropriately
remedy this violation. To do so, we first analyze the constitutional duties and powers
of the legislative branch as they relate to guarding and maintaining the fundamental
right to a sound basic education. Second, we analyze the constitutional duties and
powers of the judicial branch relating to that right. Third, we harmonize these
constitutional duties and powers in light of the principles of separation of powers and
checks and balances within our tripartite system of democratic governance.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
1. Legislative Duties and Powers
¶ 119 Because this case primarily involves the boundaries between the legislative
and judicial branches, we begin by considering the constitutional duties and powers
of the legislative branch.
¶ 120 Our Constitution assigns certain positive and negative duties to the legislative
branch. Positive duties are those the Constitution mandates that the legislative
branch fulfill. For instance, Article II, §§ 3 and 5 respectively mandate that “[t]he
General Assembly, at the first regular session convening after the return of every
decennial census of population taken by order of Congress, shall revise the senate
[and representative] districts and the apportionment of Senators [and
Representatives] among those districts.” (emphasis added). Likewise, Article II, § 20
establishes that each house of the General Assembly “shall prepare bills to be enacted
into laws.” (emphasis added). Contrastingly, negative duties prohibit certain
legislative action. For instance, Article II, § 24 dictates that “[t]he General Assembly
shall not enact any local private, or special act or resolution” relating to certain
subjects, such as “changing the names of cities, towns, and townships.” N.C. Const.
art. II, § 24(b) (emphasis added).
¶ 121 This case considers the legislature’s duties under the Education Provisions. As
summarized above, these provisions create a positive duty for the legislature to fulfill
its role (as part of “the State”) in maintaining the people’s right to education by
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
providing by taxation and otherwise for a general and uniform system of free public
schools. N.C. Const. art. I, § 15; N.C. Const. art. IX, §§ 2, 6. As established by Leandro
I, this constitutional guarantee is not one of mere education access, but of education
adequacy. 346 N.C. at 345–46. Put differently, the General Assembly is not merely
responsible for ensuring that there is an operational school building in each district
that lets students in its front doors, but for ensuring that once a student enters those
doors, she has the opportunity to receive—at minimum—a sound basic education. See
id. at 345 (“An education that does not serve the purpose of preparing students to
participate and compete in the society in which they live and work is devoid of
substance and is constitutionally inadequate.”). The history of this case has
established that this duty is both substantive (for instance, ensuring through
education statutes and policies that there is a competent, well-trained teacher in
every classroom) and financial (ensuring that state funding is distributed in a manner
that allows every school district to provide all students with the opportunity to receive
a sound basic education).
¶ 122 To fulfill these constitutional duties, the legislature is granted broad powers.
For instance, Article II, § 1 provides that “[t]he legislative power of the State shall be
vested in the General Assembly[.]” As such, the General Assembly is broadly
empowered to enact legislation to advance its policy goals, including in the realm of
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
education. Other constitutional provisions, such as Article II, § 22, describe the
procedures that the General Assembly must follow in exercising its legislative power.
¶ 123 More specifically, our Constitution grants the General Assembly extensive
financial authority. For instance, Article II, § 23 provides for the General Assembly’s
power to enact revenue bills. Likewise, Article III, § 5(3) “defines the manner in which
th[e] three-branch governmental structure should operate in the budgetary context
by providing that . . . ‘[t]he budget as enacted by the General Assembly shall be
administered by the Governor.’ ” Cooper v. Berger, 376 N.C. 22, 37 (2020). Article V §
2 delineates the General Assembly’s taxation power. Finally, Article V, § 7 notes that
“[n]o money shall be drawn from the State treasury but in consequence of
appropriations made by law[.]” The Appropriations Clause is further operationalized
by statute in N.C.G.S. § 143C-1-2 of the State Budget Act, which states that “[a] law
enacted by the General Assembly that expressly appropriates funds from the State
treasury is an appropriation.”
¶ 124 Here, the trial court’s November 2021 Order concluded that Article I, § 15
“represents an ongoing constitutional appropriation of funds sufficient to create and
maintain a school system that provides each of our State’s students with the
constitutional minimum of a sound basic education[,] . . . [and] may therefore be
deemed an appropriation ‘made by law.’ ” By contrast, Legislative Defendants and
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
the State Controller contend that the Appropriations Clause and the Separation of
Powers Clause indicate that the trial court’s subsequent transfer order is prohibited.
2. Judicial Duties and Powers
¶ 125 Next, we must likewise consider the duties and powers of the judicial branch
in addressing the violation of constitutional rights.
¶ 126 Article I, § 18 of our Constitution establishes that “every person for an injury
done him in his lands, goods, person, or reputation shall have remedy by due course
of law; and right and justice shall be administered without favor, denial, or delay.”
In accordance with this constitutional promise, this Court has expressed a
“longstanding emphasis on ensuring redress for every constitutional injury.” Craig ex
rel. Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 342 (2009).
¶ 127 The duty to ensure such redress belongs to the courts. Because the judicial
branch “is the ultimate interpreter of our State Constitution[,] [i]t is the state
judiciary that has the responsibility to protect the state constitutional rights of the
citizens; this obligation to protect the fundamental rights of individuals is as old as
the State.” Corum, 330 N.C. at 783.
¶ 128 With this constitutional duty comes constitutional powers. Generally, judicial
power arises from Article IV, § 1 of our Constitution, which establishes that “[t]he
judicial power of the State shall . . . be vested in a Court for the Trial of Impeachments
and in a General Court of Justice.” The Constitution further establishes that “[t]he
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
General Assembly shall have no power to deprive the judicial department of any
power or jurisdiction that rightfully pertains to it as a co-ordinate department of
government.” N.C. Const. art. IV, § 1.
¶ 129 More specifically, the judiciary is endowed with certain inherent power. In
1991, Chief Justice Exum, writing unanimously on behalf of this Court, observed that
[a] court’s inherent power is that belonging to it by virtue
of its being one of three separate, coordinate branches of
government. For over a century this Court has recognized
such powers as being plenary within the judicial branch—
neither limited by our [C]onstitution nor subject to
abridgment by the legislature. In fact, the inherent power
of the judicial department is expressly protected by the
constitution: “The General Assembly shall have no power
to deprive the judicial department of any power or
jurisdiction that rightfully pertains to it as a co-ordinate
department of the government . . . . ” N.C. Const. art. IV, §
1. Inherent powers are critical to the court’s autonomy and
to its functional existence: if the courts could be deprived
by the legislature of these powers, which are essential to
the direct administration of justice, they would be
destroyed for all efficient and useful purposes.
Generally speaking, the scope of a court’s inherent power
is its authority to do all things that are reasonably
necessary for the proper administration of justice. . . . This
Court has upheld the application of the inherent powers
doctrine to a wide range of circumstances, from dealing
with its attorneys[ ] to punishing a party for contempt.
Alamance, 329 N.C. at 93–94 (1991) (cleaned up).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 130 “Typically, . . . [due to the Separation of Powers,] the exercise of inherent power
by courts of this state has been limited to matters discretely within the judicial
branch.” Id. at 94. However,
[t]he scope of the inherent power of a court does not, in
reality, always stop neatly short of explicit, exclusive
powers granted to the legislature, but occasionally must be
exercised in the area of overlap between branches. The
North Carolina Constitution provides: “The legislative,
executive, and supreme judicial powers of the State
government shall be forever separate and distinct from
each other.” N.C. I. art. I, § 4. The perception of the
separation of the three branches of government as
inviolable, however, is an ideal not only unattainable but
undesirable. An overlap of powers constitutes a check and
preserves the tripartite balance, as two hundred years of
constitutional commentary note. “Unless these [three
branches of government] be so far connected and blended
as to give each a constitutional control over the others, the
degree of separation which the maxim requires, as
essential to a free government, can never in practice be
duly maintained.” The Federalist No. 48, at 308 (J.
Madison) (Arlington House ed. 1966). This “constant check
. . . preserving the mutual relations of one branch with the
other . . . can best be accomplished, if not solely
accomplished, by an occasional mixture of the powers of
each department with that of the others, while the separate
existence, and constitutional independence of each are
fully provided for.” 2 J. Story, Commentaries on the
Constitution of the United States 22 (1833). A
contemporary view notes that this area of overlap is
occupied not only by the doctrine of checks and its basis in
maintaining the province of each power, but also by a
functional component of pragmatic necessity—termed by
some commentators “incidental powers”—whereby one
branch exercises some activities usually belonging to one
of the other two branches in order to fully and properly
discharge its duties.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Like the jealous checks by one branch upon the
encroachments of another, which the Framers viewed
positively as the basis for government’s critical balance, a
functional overlap of powers should facilitate the tasks of
each branch. . . . No less important to a functional balance
of power is the notion of a working reciprocity and
cooperativeness amongst the branches: “While the
Constitution diffuses power the better to secure liberty, it
also contemplates that practice will integrate the dispersed
powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but
reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 635, 96 L. Ed. 1153, 1199 (1952) (Jackson, J.,
concurring).
Id. at 96–97 (cleaned up).
¶ 131 “In the realm of appropriations,” this Court has noted, “some overlap of power
between the legislative and the judicial branches is inevitable.” Id. at 97. Accordingly,
this Court has “[held] that when inaction by those exercising legislative authority
threatens fiscally to undermine the integrity of the judiciary, a court may invoke its
inherent power to do what is reasonably necessary for the orderly and efficient
administration of justice.” Id. at 99. Although “Article V prohibits the judiciary from
taking public monies without statutory authorization[,]” when the exercise of
remedial power “necessarily includes safeguarding the constitutional rights of the
parties[,] . . . the court has the inherent authority to direct local authorities to perform
that duty.” Id.¶ 132 However, even inherent power is not without limitation. For instance,
doing what is reasonably necessary for the proper
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
administration of justice means doing no more than is
reasonably necessary. The court’s exercise of its inherent
power must be responsible—even cautious—and in the
spirit of mutual cooperation among the three branches. The
very genius of our tripartite Government is based upon the
proper exercise of their respective powers together with
harmonious cooperation between the three independent
branches. However, if this cooperation breaks down, the
Judiciary must exercise its inherent power to preserve the
efficient and expeditious administration of Justice and
protect it from being impaired or destroyed.
The inherent power of the court must be exercised with as
much concern for its potential to usurp the powers of
another branch as for the usurpation it is intended to
correct. It is a tool to be utilized only where other means to
rectify the threat . . . are unavailable or ineffectual, and its
wielding must be no more forceful or invasive than the
exigency of the circumstances requires.
The very conception of inherent power carries with it the
implication that its use is for occasions not provided for by
established methods. Only when established methods fail
and the court shall determine that by observing them the
assistance necessary . . . cannot be had, or when an
emergency arises which the established methods cannot or
do not instantly meet, then and not till then does occasion
arise for the exercise of the inherent power.
Id. at 99–100 (cleaned up).
¶ 133 More specifically,
the court’s judicious use of its inherent power to reach
towards the public purse must recognize two [further]
critical limitations: first, it must bow to established
procedural methods where these provide an alternative to
the extraordinary exercise of its inherent power. Second, in
the interests of the future harmony of the branches, the
court in exercising that power must minimize the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
encroachment upon those with legislative authority in
appearance and in fact. This includes not only recognizing
any explicit, constitutional rights and duties belonging
uniquely to the other branch, but also seeking the least
intrusive remedy.
Id. at 100–101.
¶ 134 Here, the trial court concluded that given the extraordinary circumstance of
this case, it was required to “provide a remedy [for the ongoing constitutional
violation] through the exercise of its constitutional role.” “Otherwise,” the trial court
concluded, “the State’s repeated failure to meet the minimum standards for
effectuating the constitutional right to obtain a sound basic education will threaten
the integrity and viability of the North Carolina Constitution.” By contrast,
Legislative Defendants contend that the trial court’s remedy violated the doctrine of
separation of powers because the power to appropriate state funds is vested
exclusively with the legislative branch.
3. Harmonizing Judicial and Legislative Duties and Powers
¶ 135 Now, we must address the intersection of these legislative and judicial powers
and duties. When considering the meaning of multiple constitutional provisions, this
Court seeks to read the provisions in harmony. “It is axiomatic that the terms or
requirements of a constitution cannot be in violation of the same constitution—a
constitution cannot violate itself.” Leandro I, 346 N.C. at 352. Specifically, this case
requires the interpretation of the General Assembly’s powers under the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Appropriations Clause in light of its duties under the Education Provisions. It
likewise requires the interpretation of the judiciary’s inherent power in light of the
Education Provisions, the Appropriations Clause, and the Separation of Powers
Clause. We address each of these constitutional crossroads in turn.
¶ 136 First, this case requires this Court to harmonize the General Assembly’s
powers under the Appropriations Clause in light of its duties under the Education
Provisions. On the one hand, the General Assembly enjoys broad discretion over all
legislative matters, including the appropriation of state funds. In conjunction with
the Separation of Powers Clause, this Court has observed that “[i]n drafting the
appropriations clause, the framers sought to ensure that the people, through their
elected representatives in the General Assembly, had full and exclusive control over
the allocation of the state’s expenditures.” Cooper, 376 N.C. at 37. On the other hand,
this Court has repeatedly held that the General Assembly, as part of “the State,” has
a constitutional duty to “guard and maintain” the fundamental right of North
Carolina schoolchildren to the opportunity to a sound basic education, including
adequately funding our system of free public schools such that this right is
maintained. See generally Leandro I, 346 N.C. 33; Leandro II, 358 N.C. 605.
¶ 137 In order to harmonize these principles, we hold that our Constitution requires
the General Assembly to exercise its power under the Appropriations Clause in
contemporaneous compliance with its duties under the Education Provisions. Under
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Leandro I, this means that the General Assembly must exercise its appropriations
powers such that every student receives the opportunity to obtain a sound basic
education. In other words, the General Assembly is constitutionally required to
appropriate at least enough funding to public education such that every child in every
school in every district is provided with the opportunity to receive at least a sound
basic education. When it does not, it violates both its own constitutional duties and
the constitutional rights of North Carolina schoolchildren under the Education
Provisions. To hold otherwise would allow the General Assembly to ignore these
duties and rights, rendering them—and, in other contexts, other constitutional duties
or fundamental rights—meaningless and not subject to judicial enforcement. This our
Constitution does not allow. See Leandro I, 346 N.C. at 345 (concluding that plaintiffs’
educational adequacy claims are not nonjusticiable political questions and that “it is
the duty of this Court to address [their] constitutional challenge to the state’s public
education system.”).
¶ 138 This principle is not novel. Since 1787, the highest Court of our state has held
that because our Constitution is “the fundamental law of the land,” the General
Assembly may not exercise its legislative power in a manner that violates
constitutional rights. Bayard v. Singleton, 1 N.C. (Mart.) 5, 7 (1787). Accordingly, in
Bayard, the Court rejected a statute that abrogated the constitutional right to a trial
by jury. Id.HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 139 We have applied this same principle to voting rights. In Stephenson v. Bartlett,
for instance, this Court stated that the principle of constitutional harmony “require[d]
us to construe [the legislature’s power under] Article II, Sections 3(1) and 5(1) in
conjunction with [the right to equal protection of the laws under] Article I, Section 19
in such a manner as to avoid internal textual conflict.” 355 N.C. 354, 378 (2002).
Accordingly, the Court held that
[t]he General Assembly may consider partisan advantage
and incumbency protection in the application of its
discretionary redistricting decisions, but it must do so in
conformity with the State Constitution. To hold otherwise
would abrogate the constitutional limitations or “objective
constraints” that the people of North Carolina have
imposed on legislative redistricting and reapportionment
in the State Constitution.
Id. at 371–72.
¶ 140 More recently, this Court reaffirmed this principle in Harper, 2022-NCSC-17.
There we again noted that “[a]lthough the task of redistricting is primarily delegated
to the legislature, it must be performed in conformity with the State Constitution.”
Id. at ¶ 6 (cleaned up). Thus, we held that the General Assembly’s “redistricting
authority is subject to limitations contained in the North Carolina Constitution,
including both in the provisions allocating the initial redistricting responsibility to
the General Assembly and in other provisions [in our Declaration of Rights].” Id. at
¶ 12. In these cases and others, this Court has made clear that the General Assembly
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
may not exercise its broad legislative power in a manner that violates fundamental
constitutional rights.
¶ 141 So too here. The Education Provisions obligate the General Assembly to fund
a uniform system of free public schools in which every child has the opportunity to
receive a sound basic education. N.C. Const. art. I, § 15; N.C. Const. art. IX, § 2;
Leandro I, 346 N.C. at 345. The Appropriations Clause, among other provisions,
establishes the General Assembly’s power to appropriate State funds. Therefore, in
exercising its broad discretion within appropriations and other legislative powers, the
General Assembly must fulfill its constitutional duty to maintain every child’s right
to the opportunity to receive a sound basic education.
¶ 142 Below, the dissent focuses exclusively on the legislature’s powers while
ignoring its constitutional duties. Such an approach would allow the legislature to
exercise its broad powers under the Appropriations Clause (or others) in a manner
that indefinitely violates the fundamental constitutional rights of the people. This
interpretation would approve both constitutional dissonance and constitutional
disregard in direct violation of this Court’s own constitutional duties.
¶ 143 Second and accordingly, this case requires the interpretation of the judiciary’s
inherent power to remedy constitutional violations in light of the Education
Provisions, the Appropriations Clause, and the Separation of Powers Clause. On the
one hand, the Appropriations Clause states that “[n]o money shall be drawn from the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
State treasury but in consequence of appropriations made by law.” N.C. Const. art.
V, § 7. The Separation of Powers Clause states that “[t]he legislative, executive, and
supreme judicial powers of the State government shall be forever separate and
distinct from each other.” N.C. Const. art. I, § 6. As applied to the Appropriations
Clause, this Court has noted that the principle of separation of powers indicates “that
the legislative power is supreme over the public purse.” State v. Davis, 270 N.C. 1, 14
(1967). More recently, this Court has stated that “[i]n light of [the Appropriations
Clause], the power of the purse is the exclusive prerogative of the General Assembly.”
Cooper, 376 N.C. at 37.
¶ 144 On the other hand, the judicial branch derives inherent and inalienable
authority to address the violation of constitutional rights from its very status as one
of three separate and coordinate branches of our state government. See Ex Parte
McCown, 139 N.C. 95, 105–06 (1905) (citing N.C. Const. art. I, § 4); Corum, 330 N.C.
at 783 (“It is the state judiciary that has the responsibility to protect the state
constitutional right of the citizens.”). As a coequal part of “the State,” the judiciary—
like the legislative and executive branches—is constitutionally bound by Article I, §
15 to fulfill its own unique role in guarding and maintaining the right to a sound basic
education. This role requires the judiciary to assess the constitutional compliance of
the other branches and—if an offending branch proves unwilling or unable to remedy
the deficiency—after showing due deference, invoke its inherent power to do what is
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
reasonably necessary to restore constitutional rights “by imposing a specific remedy
and instructing the recalcitrant state actors to implement it.” Leandro II, 358 N.C. at
642.
¶ 145 In order to harmonize these principles, we hold that because the Constitution
itself requires the General Assembly to adequately fund the state’s system of public
education, in exceedingly rare and extraordinary circumstances, a court may remedy
an ongoing violation of the constitutional right to the opportunity to a sound basic
education by ordering the transfer of adequate available state funds.
¶ 146 This holding is consistent with foundational constitutional principles. First, it
upholds the will of the people. Above any statute or legislative prerogative, our
Constitution “expresses the will of the people in this State and is, therefore, the
supreme law of the land.” In re Martin, 295 N.C. 291, 299 (1978). Accordingly, just as
the General Assembly’s authority over appropriations is grounded in its function as
the elected voice of the people, see Cooper, 376 N.C. at 37, the requirement for
adequate education funding embedded within the Education Provisions is fully
consistent with the Framers’ intent to give the people ultimate control over the state’s
expenditures.
¶ 147 Second, this holding upholds constitutional integrity. Allowing the legislature
to indefinitely violate the constitutional right of North Carolina schoolchildren to a
sound basic education would threaten the integrity and viability of the Constitution
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
itself by nullifying its language without the people’s consent, thus rendering this
right—and therefore, perhaps others—meaningless and unenforceable. This Court
has already forsworn this possibility: in Leandro I, the Court squarely rejected the
State’s contention that claims of education adequacy were judicially unenforceable.
346 N.C. at 344–45.
¶ 148 Third, this holding upholds constitutional checks and balances and the
separation of powers. The North Carolina Constitution “incorporates a system of
checks and balances that gives each branch some control over the others.” State ex
rel. McCroy v. Berger, 368 N.C. 633, 635 (2016). Simultaneously, “the separation of
powers clause requires that, as the three branches of government carry out their
duties, one branch will not prevent another branch from performing its core
functions.” Id. at 636. Although at first glance these principles may appear to be in
tension—one indicating flexibility and the other rigidity—a deeper look reveals that
they both support a common democratic purpose: ensuring that no single person or
branch may accumulate excessive power, and thus threaten the liberty and
sovereignty of the people. See The Federalist No. 47 (James Madison) (“The
accumulation of all powers, legislative, executive, and judiciary, in the same hands .
. . may justly be pronounced the very definition of tyranny.”). As cases arise that probe
the contours of these foundational constitutional principles, this Court “must look
freshly at the separation of powers provision in the North Carolina Constitution, with
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
an eye to the actual constitutional, pragmatic, and philosophical limitations on the
power granted therein.” Alamance, 329 N.C. at 96.
¶ 149 Our fresh look is informed by old sources. In The Federalist Papers, James
Madison stated that the separation of powers between the three branches does “not
mean that these departments ought to have no partial agency in, or no control over,
the action of each other.” Federalist No. 47. Rather, the separation of powers properly
dictates “that where the whole power of one department is exercised by the same
hands which possess the whole power of another department, the fundamental
principles of a free Constitution are subverted.” Id.14 Indeed, Madison observed that
“[i]f we look into the constitutions of the several states we find that, notwithstanding
the emphasis and, in some instances, the unqualified terms in which [the separation
of powers] has been laid down, there is not a single instance in which the several
departments of power have been kept absolutely separate and distinct.” Id. This
marginal intersection of certain powers is necessary because “unless these
departments be so far connected and blended as to give each a constitutional control
over the others, the degree of separation which the maxim requires, as essential to a
free government, can never in practice be duly maintained.” Federalist No. 48 (James
14See also 2 J. Story, Commentaries on the Constitution of the United States 22 (1833)
(observing that that the “constant check . . . preserv[ing] the mutual relations of one [branch]
with the other . . . can be best accomplished, if not solely accomplished, by an occasional
mixture of the powers of each department with that of the others, which the separate
existence, and constitutional independence are each fully provided for”).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Madison). In short, “the lesson the Founding Fathers drew was that separation of
powers needed to be qualified by checks and balances lest one branch become
overpowerful.” Orth at 4.
¶ 150 Specifically, the founders expressed concern about an overpowerful legislature.
In The Federalist No. 48, Madison warned that because the constitutional powers of
the legislative branch are “at once more extensive, and less susceptible of precise
limits, it can, with greater facility, mask, under complicated and indirect measures,
the encroachment which it makes on the co-ordinate departments.” Federalist No. 48.
Accordingly, Alexander Hamilton observed in The Federalist No. 78 that “the courts
were designed to be an intermediate body between the people and the legislature in
order, among other things, to keep the latter within the [constitutional] limits
assigned to their authority.” This role does not
suppose a superiority of the judicial to the legislative
power. It only supposes that the power of the people is
superior to both, and that where the will of the legislature
. . . stands in opposition to that of the people, declared in
the Constitution, the judges ought to be governed by the
later rather than the former. They ought to regulate their
decisions by the fundamental laws rather than by those
which are not fundamental.
Id.¶ 151 Precedents from this Court align with these foundational authorities. This
Court has long made clear that “[o]bedience to the Constitution on the part of the
Legislature is no more necessary to orderly government than the exercise of the power
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
of the Court in requiring it when the Legislature inadvertently exceeds its
limitations.” State v. Harris, 216 N.C. 746, 764 (1940). As such, for over two centuries
our courts have faithfully checked legislative actions for constitutional compliance.
See Bayard, 1 N.C. 5. “Like the jealous checks by one branch upon the encroachments
of another, which the Framers viewed positively as the basis for government’s critical
balance, a functional overlap of powers should facilitate the tasks of each branch.”
Alamance, 329 N.C. at 97.
¶ 152 In extraordinary circumstances, this Court has held that this “functional
overlap of powers” may include directing the transfer of State funds. In Alamance,
this Court held that even within “the realm of appropriations, some overlap of power
between the legislative and the judicial branches is inevitable.” 329 N.C. at 97. There,
the Court held “that when inaction by those exercising legislative authority threatens
fiscally to undermine the integrity of the judiciary, a court may invoke its inherent
power to do what is reasonably necessary for the orderly and efficient exercise of the
administration of justice.” Id. at 99. Here, we invoke our inherent authority to protect
against an equally grave threat of legislative inaction: the indefinite violation of the
constitutional right to the opportunity to a sound basic education.
¶ 153 Even standing apart from checks and balances, separation of power principles
likewise support this holding. “[T]he separation of powers clause requires that, as the
three branches of government carry out their duties, one branch will not prevent
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
another branch from performing its core functions.” McCrory, 368 N.C. at 636. Here,
to allow the State to indefinitely fail to meet the minimum standards for effectuating
the constitutional right to obtain a sound basic education would violate this maxim
by preventing the judiciary from performing its core duty of interpreting our
Constitution and “protecting the state constitutional rights of the citizens.” Corum,
330 N.C. 761.
¶ 154 Below, the dissent would abandon all notions of checks and balances in favor
of an absolutely rigid interpretation of the separation of powers. Such an approach
would empower the legislative or executive branch to indefinitely violate the
fundamental constitutional rights of the people without consequence in direct
contravention of the judiciary’s own constitutional “responsibility to protect the state
constitutional rights of the citizens.” Corum, 330 N.C. at 783.
¶ 155 Finally, this holding aligns with precedent regarding equitable remedies.
When extraordinary circumstances render it necessary and proper for a court to
exercise its inherent authority, it is obligated and empowered to craft and order
flexible equitable relief to remedy the violation of fundamental constitutional rights.
“It is the unique role of the courts to fashion equitable remedies to protect and
promote the principles of equity.” Lankford v. Wright, 347 N.C. 115, 120 (1997) “It is
a long-standing principle that ‘when equitable relief is sought, courts claim the power
to grant, deny, limit, or shape that relief as a matter of discretion.’ ” Sara Lee Corp.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
v. Carter, 351 N.C. 27, 36 (1999) (quoting Roberts v. Madison County Realtors Ass’n,
344 N.C. 394, 399 (1996)). “A court of equity traditionally has discretion to shape the
relief in accord with its view of the equities or hardships of the case.” Roberts, 344
N.C. at 401. “It is a fundamental premise of equitable relief that equity regards as
done that which in fairness and good conscience ought to be done.” Thompson v. Sole,
299 N.C. 484, 489 (1980). Intuitively, “[v]arious rights that are protected by our
Declaration of Rights may require greater or lesser relief to rectify the violation of
such rights, depending on the right violated and the facts of the particular case.”
Corum, 330 N.C. at 784.
¶ 156 The equitable remedy considered within this case is extraordinary, but not
unprecedented. Indeed, precedent for this broad and flexible equitable remedial
power can be found within this very litigation, in other cases from this Court, and in
related cases from federal courts and other state courts.
¶ 157 First, emphasis on this Court’s equitable remedial power can be found within
the history of this very case. In Leandro I, after recognizing the constitutional right
to a sound basic education, this Court summarized the process and standards through
which a violation of that right may be established and how the judiciary may address
such a violation. 346 N.C. at 357. Because “the administration of the public schools
of the state is best left to the legislative and executive branches of government,” the
Court emphasized that “the courts of the state must grant every reasonable deference
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
to [those] branches when considering whether they have established and are
administering a system that provides the children of the various school districts of
the state a sound basic education.” Id.A clear showing to the contrary must be made before the
courts may conclude that they have not. Only such a clear
showing will justify a judicial intrusion into an area so
clearly the province, initially at least, of the legislative and
executive branches as the determination of what course of
action will lead to a sound basic education.
Id.¶ 158 However, immediately following the explanation of this procedure, this Court
made expressly clear that
[l]ike the other branches of government, the judicial branch
has its duty under the North Carolina Constitution. If on
remand of this case to the trial court, that court makes
findings and conclusions from competent evidence to the
effect that defendants in this case are denying children of
the state a sound basic education, a denial of a
fundamental right will have been established. It will then
become incumbent upon defendants to establish that their
actions denying this fundamental right are necessary to
promote a compelling governmental interest. If defendants
are unable to do so, it will then be the duty of the court to
enter a judgment granting declaratory relief and such other
relief as necessary to correct the wrong while minimizing
the encroachment upon the other branches of government.
Id. (emphasis added).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 159 In Leandro II, this Court was even more explicit. After holding that the trial
court’s pre-kindergarten order was premature at that early stage of the remedial
process, this Court cautioned:
[c]ertainly, when the State fails to live up to its
constitutional duties, a court is empowered to order the
deficiency remedied, and if the offending branch of
government or its agents either fail to do so or have
consistently shown an inability to do so, a court is
empowered to provide relief by imposing a specific remedy
and instructing the recalcitrant state actors to implement
it.
Leandro II, 358 N.C. at 642 (emphasis added). Today, we confirm that we meant what
we said in Leandro I and II.
¶ 160 Second, prior cases likewise affirm this Court’s broad equitable powers to
remedy the violation of rights in a wide variety of substantive and procedural
contexts. In Alamance, for instance, this Court addressed the inaction of county
officials to adequately fund the county’s court facilities. 329 N.C. at 884. This Court
held that “[a]lthough the statutes do not expressly pass the duty of providing
adequate judicial facilities to the court in cases of default by local authorities, the
court has the inherent authority [to remedy the violation by] direct[ing] local
authorities to perform that duty.”15 329 N.C. at 99. Ultimately, the Court vacated the
15Here, by contrast, the General Assembly does have an express constitutional duty
to “guard and maintain” the right to a sound basic education and to fund that right “by
taxation and otherwise.” N.C. Const. art. I, § 15; N.C. Const. art. IX, § 2; see generally Leandro
I, 346 N.C. 336; Leandro II, 358 N.C. 605.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
trial court’s order because “in form and in substance the order’s attempted remedy
went beyond requiring the Alamance County Commissioners to do their
constitutional and statutory duty” and therefore “exceeded what was reasonably
necessary to the administration of justice under the circumstances of th[at] case, and
in so doing strained at the rational limits of the court’s inherent power.” Id. at 106–
07. A more reasonable remedy, the Court explained, would be to “call attention to [the
official’s] statutory duty and their apparent failure to perform that duty,” and “[i]f
after a hearing it was determined that the commissioners had indeed failed to
perform their duty, . . . the court could order the commissioners to respond with a
[remedial] plan . . . to submit to the court within a reasonable time.”16 Id. at 107. If
at that point the violation persisted, the Court implied, the trial court’s more invasive
remedy would have been more appropriate. See id. at 106–07.
¶ 161 Similarly, this Court has long recognized the judiciary’s broad equitable
powers to remedy constitutional violations through ordering the transfer of State
funds by mandamus. In Wilson v. Jenkins, this Court declared that
the [c]ourts have no power to compel, by mandamus, the
Public Treasurer to pay a debt which the General Assembly
has directed him not to pay, the Auditor to give a warrant
upon the Treasurer which the General Assembly has
directed him not to give, unless the act of the General
Assembly be void as violating the Constitution of the United
States of or this State.
16 Notably, this is exactly what the trial court has already done in this case.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
72 N.C. 5, 6 (1875) (emphasis added).
¶ 162 So too in the context of ordering certain education funding. In Hickory v.
Catawba County, this Court affirmed the trial court’s use of mandamus to compel the
County and the Board of County Commissioners to assume payment of school
buildings and the debt of the school district. 206 N.C. 165, 170–74 (1934). Because
“[t]he defendants are public agencies charged with the performance of duties imposed
by the Constitution and by statutes[,]” the Court held that “upon their failure or
refusal to discharge the required duties resort may be had to the courts to compel
performance by the writ of mandamus.” Id. at 173. In Mebane Graded School District
v. Alamance County, this Court held the same. 211 N.C. 213 (1937). There, the Court
stated that
[u]nder legal authority, the county of Alamance has
assumed almost every school debt of every school district
except the Mebane District. Having assumed part, it is the
duty, under the facts in this case, to assume the
indebtedness of the Mebane District, and from the findings
of the jury mandamus will lie to compel them to do so.
Technicalities and refinements should not be seriously
considered in a case like this involving a constitutional
mandate, but the record should be so interpreted that
substantial justice should be done. Under the facts in this
case and the findings of the jury, it would be inequitable
and unconscionable for defendants to assume part and not
all of the indebtedness of the school districts of Alamance
and not assume the plaintiffs’ indebtedness and give them
the relief demanded.
Id. at 226–27.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 163 So too in a variety of other substantive and procedural contexts. In Lankford
v. Wright, this Court concluded that in the adoption context, “a decree of equitable
adoption should be granted where justice, equity, and good faith require it.” 347 N.C.
115, 121 (1997). In Sara Lee Corp., this Court relied on flexible equitable remedial
power to conclude that “the trial court properly exercised its discretion in ordering
that defendant’s workers’ compensation benefits be placed in a constructive trust.”
351 N.C. at 37. In White v. Worth, this Court affirmed the trial court’s mandamus
ordering the State auditor and State treasurer to transfer state funds to pay the
state’s chief inspector in order to uphold the inspector’s statutory right to such
payment. 126 N.C. 570, 547–78 (1900). While the substantive and procedural context
of these cases (and many others) are diverse, their foundational principle is unified:
when addressing the violation of rights, our courts enjoy broad and flexible equitable
power to ensure that the violation is justly remedied.
¶ 164 Third, federal precedents provide persuasive authority. Indeed, the Supreme
Court of the United States has previously addressed the broad scope of judicial
equitable remedial power in protecting the constitutional rights of marginalized
students from executive and legislative violation and recalcitrance.
¶ 165 In 1954, the U.S. Supreme Court in Brown I declared that “in the field of public
education, the doctrine of ‘separate but equal’ has no place.” 347 U.S. at 494. In ruling
that racial segregation in public schools violated the equal protection rights of Black
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
students, the Court struck down perhaps the most visible and consequential pillar of
white supremacy and racial subordination in American society. In its second ruling
in the case, the Court expressly directed the federal district courts responsible for
overseeing the enforcement of desegregation to engage in equitable principles:
In fashioning and effectuating the decrees, the courts will
be guided by equitable principles. Traditionally, equity has
been characterized by a practical flexibility in shaping its
remedies and by a facility for adjusting and reconciling
public and private needs. These cases call for the exercise
of these traditional attributes of equity power. At stake is
the personal interests of the plaintiffs in admission to
public schools as soon as practicable on a
nondiscriminatory basis. To effectuate this interest may
call for elimination of a variety of obstacles in making the
transition to school systems operated in accordance with
the constitutional principles set forth in [Brown I]. Courts
of equity may properly take into account the public interest
in the elimination of such obstacles in a systemic and
effective manner. But it should go without saying that the
vitality of these constitutional principles cannot be allowed
to yield simply because of disagreement with them.
Brown v. Bd. of Educ., 349 U.S. 294, 300 (1955) (footnotes omitted) (Brown II).
¶ 166 Yet disagreement there was. Immediately following Brown I and Brown II,
many white state officials vigorously resisted and defied the Court’s order to
desegregate their public schools.17 For several years, the federal judiciary largely
deferred to these state officials. But as resistance to Brown continued and intensified,
17See generally Mark Tushnet, Making Civil Rights Law 247–56 (1994) (documenting
the “massive resistance” against Brown).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
the U.S. Supreme Court in a series of rulings exercised its inherent authority to
protect the constitutional rights of marginalized students by ordering broad and
flexible equitable remedies.
¶ 167 In 1958 in Cooper v. Aaron, the Court addressed resistance to desegregation
by executive and legislative officials in Arkansas. 358 U.S. 1 (1958). “The
constitutional rights of respondents[,]” the Court declared, “are not to be sacrificed or
yielded to the violence and disorder which have followed upon the actions of the
Governor and the Legislature.” Id. at 16. While it is “quite true that the responsibility
for public education is primarily the concern” of state officials, the Court noted that
“it is equally true that such responsibilities, like all other state activity, must be
exercised consistently with federal constitutional requirements.” Id. at 19. Only
through compliance with these principles, the Court concluded, “[is] [o]ur
constitutional ideal of equal justice under law . . . made a living truth.” Id. at 20.
¶ 168 In 1964 in Griffin v. County School Board, the Court spoke more forcefully. 377
U.S. 218. There, the Court addressed resistance to desegregation by state and local
officials in Virginia, where “[t]he General Assembly . . . enacted legislation to close
any public schools where white and colored children were enrolled together, to cut off
state funds to such schools, [and] to pay tuition grants to children in nonsectarian
private schools.” Id. at 221. In addressing “the question of the kind of decree
necessary and appropriate to put an end to the racial discrimination practiced against
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
these petitioners under authority of the Virginia laws[,]” the Court noted that “all of
[the state official defendants] have duties which relate directly or indirectly to the
financing, supervision, or operation of the schools.” Id. at 232. Accordingly, the Court
declared that “the District Court may, if necessary to prevent further racial
discrimination, require the [applicable officials] to exercise the power that is theirs to
levy taxes to raise funds adequate to reopen, operate, and maintain without racial
discrimination a public school system.” Id. at 233 (emphasis added). “An order of this
kind is within the court’s power if required to assure these petitioners that their
constitutional rights will no longer be denied them.” Id. at 233–34.
¶ 169 Finally, in 1971 in Swann v. Charlotte-Mecklenburg Board of Education, the
Court further emphasized its broad and flexible power to order equitable remedies.
402 U.S. 1. There, after the district court deemed the school board’s initial
desegregation plan unacceptable, it “appointed an expert in education
administration, Dr. John Finger, to prepare a desegregation plan.” Id. at 8. When the
district court ordered the school district to implement this plan, the school board
challenged the district court’s equitable remedial powers, arguing that the court had
gone too far in ordering the implementation of the plan. Id. at 16–17.
¶ 170 On appeal, the U.S. Supreme Court unanimously affirmed the district court’s
expansive and adaptable authority to enact equitable remedies in the face of an
ongoing constitutional violation. Id. at 32. “Once a right and a violation have been
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
shown,” the Court declared, “the scope of a district court’s equitable powers to remedy
past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”
Id. at 15. Indeed, it was only “because of th[e] total failure of the school board that
the District Court was obligated to turn to other qualified sources, and Dr. Finger
was designated to assist the District Court to do what the board should have done.”
Id. at 25 (emphasis added). “Thus the remedial techniques used in the District Court’s
order were within that court’s power to provide equitable relief; implementation of
the decree is well within the capacity of the school authority.” Id. at 30.
¶ 171 Of course, notable differences exist between the circumstance of the U.S.
Supreme Court enforcing Brown and the circumstances here. Where the rights in
Brown originate in the federal Constitution, the rights in this case originate in the
North Carolina Constitution. Where Brown and its progeny remedied a denial of
education access, this case remedies a denial of education adequacy. Where Brown
and its progeny considered issues of federalism, this case considers those of the
separation of powers and checks and balances between coequal branches of state
government.
¶ 172 Nevertheless, the broader applicability of Brown and its progeny to our inquiry
today arises from the fundamental alignment of the question at the heart of each
case: what is the proper role of the judiciary in guarding and maintaining the
constitutional rights of marginalized schoolchildren in the face of ongoing violations
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
by state legislative and executive powers? Because of the alignment of this
fundamental question, the U.S. Supreme Court’s answer in the wake of Brown
informs our answer here.
¶ 173 Fourth, rulings from other state supreme courts lend support. Many other
state supreme courts have exercised broad and flexible equitable remedial powers to
address ongoing violations of state constitutional education rights. In 1989, the
Supreme Court of Kentucky affirmed the trial court’s determination that the state’s
school finance system was unconstitutional and ordered the state to completely
redesign it to ensure adequate funding to meet the needs of marginalized students.
See Rose v. Council for Better Educ., 790 S.W.2d 186, 215 (1989) (“Lest there be any
doubt, the result of our decision is that Kentucky’s entire system of common schools
is unconstitutional.”). In 2003, the Court of Appeals of New York (that state’s highest
appellate court) ordered the state to reform its school finance system to provide for a
comprehensive package of foundational educational resources identified by the court.
See Campaign for Fiscal Equity, Inc. v. State, 100 N.Y.2d 893, 930 (2003) (ordering
that the State “ascertain the actual cost of providing a sound basic education in New
York City” and implement subsequent reforms to “address the shortcomings of the
current system by ensuring . . . that every school in New York City would have the
resources necessary for providing the opportunity for a sound basic education”).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 174 Other supreme courts have likewise ordered the reallocation of state funds. In
2011, the Supreme Court of New Jersey ordered the state to provide approximately
$500 million in additional education funding after violating its constitutional duty.
See Abbott v. Burke, 206 N.J. 332, 376 (2011) (“We order that funding to the Abbott
districts in FY 2012 must be calculated and provided in accordance with the SFRA
formula.”). In 2017, the Supreme Court of Kansas determined the state’s education
finance system was constitutionally noncompliant and ordered the legislature to
enact legislation remedying the deficiency in “both adequacy and equity.” Gannon v.
State, 306 Kan. 1170, 1173 (2017). The court emphasized that continued judicial
deference to the legislature’s constitutional violation would “make[ ] the courts
vulnerable to becoming complicit actors in the deprivation of those rights.” Id. at
1174. Finally, the Supreme Court of Washington in 2017 affirmed the trial court’s
order finding the state’s education funding system to be constitutionally deficient and
imposing a $100,000 daily contempt sanction on the state until compliance was
achieved. See McCleary v. State, 2017 Wash. 2017 WL 11680212, *1 (2017) (“The court
will retain jurisdiction, continue to impose daily sanctions, and reserve all
enforcement options to compel compliance with its decision and orders.”).
¶ 175 Of course, these cases are not binding precedent upon this Court. They arise
in different jurisdictions under different facts and different constitutional language.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Nevertheless, as with the federal cases noted above, they provide important national
context and persuasive authority for this Court’s similar ruling today.
¶ 176 Legislative Defendants and the Controller contend that declaratory relief
constitutes the farthest reach of judicial power on this issue. Based on the
intersection of the Appropriations Clause and the Separation of Powers Clause noted
above, they argue that once a court issues such a decree, the matter is then
exclusively in the hands of the voters to elect new legislators if they so choose. But
compliance with our Constitution is not a mere policy choice in which legislators may
align with one side or another. Indeed, the people of North Carolina have already
spoken on this issue through the Constitution itself, which constitutes the supreme
will of the people. There, they mandated that the State must guard and maintain the
right to the opportunity to a sound basic education. See Leandro I, 346 N.C. 336.
* * * * *
¶ 177 In summary, constitutional violations demand a just remedy. N.C. Const. art.
I, § 18. As the ultimate interpreter of our State Constitution, this Court “has the
responsibility to protect the state constitutional rights of the citizens.” Corum, 330
N.C. at 783. Correspondingly, the judiciary is empowered with “inherent
constitutional power to fashion a common law remedy for a violation of a particular
constitutional right.” Id. at 784. When necessary for the proper administration of
justice based on the inaction of another branch, and within important limitations,
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
that inherent judicial power may include the authority to craft a remedy “whereby
one branch exercises some activities usually belonging to one of the other two
branches in order to fully and properly discharge its duties.” Alamance, 329 N.C. at
97.
¶ 178 Here, our Constitution requires the General Assembly to exercise its power
under the Appropriations Clause in contemporaneous compliance with its
constitutional duties under the Education Provisions. Accordingly, in exceedingly
rare and extraordinary circumstances, a court may remedy an ongoing violation of
the constitutional right to a sound basic education by directing the transfer of
adequate available state funds. However, a court may reach for such an extraordinary
remedy “only when established methods fail,” and even then must “minimize the
encroachment upon those with legislative authority in appearance and in fact.” Id.This holding maintains the integrity of our Constitution, honors the principles of
checks and balances and separation of powers, aligns with this Court’s precedent on
equitable remedial power, and is supported by federal and state rulings in similar
contexts.
C. Application
¶ 179 Now, we must apply the constitutional analysis above to the two trial court
orders in question on this appeal: the November 2021 Order and the April 2022
Order. We address each in turn. This Court reviews constitutional issues de novo.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
1. November 2021 Order
¶ 180 We first review the trial court’s 10 November 2021 Order (November 2021
Order). The November 2021 Order begins with thorough findings of fact regarding
the long and extraordinary history of this case. These factual findings document the
trial court’s previous repeated findings of a statewide constitutional violation, the
State’s repeated failure to adequately remedy that violation, and the trial court’s
repeated deference to the executive and legislative branches to do so. The Order finds
that the CRP “is the only remedial plan that the State Defendants have presented to
the [c]ourt,” and that “more than sufficient funds are available to execute the current
need of the [CRP].” The Order’s factual findings conclude by observing: “[i]n the
seventeen years since the Leandro II decision, a new generation of school children,
especially those at-risk and socio-economically disadvantaged, were denied their
constitutional right to a sound basic education. Further and continued damage is
happening now, especially to at-risk children from impoverished backgrounds, and
that cannot continue.”
¶ 181 The November 2021 Order subsequently makes several conclusions of law. The
Order concludes that “[b]ecause the State has failed for more than seventeen years to
remedy the constitutional violation as the Supreme Court ordered, this [c]ourt must
provide a remedy through the exercise of its constitutional role.” To continue to defer,
the Order concludes, “will threaten the integrity and viability of the North Carolina
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Constitution by . . . nullifying [its] language without the people’s consent, . . . ignoring
rulings of the Supreme Court of North Carolina[,] . . . and . . . violating separation of
powers.” The Order further concludes that the Education Provisions constitute “an
ongoing constitutional appropriation of funds sufficient to create and maintain a
school system that provides each of our State’s students with the constitutional
minimum of a sound basic education. This constitutional provision may therefore be
deemed an appropriation ‘made by law.’ ” Finally, the Order concludes that the trial
court has “minimized its encroachment on legislative authority through the least
intrusive remedy” through its seventeen years of unfettered deference in every aspect
of the case, including allowing the State itself to create and implement the CRP.
¶ 182 Based on these factual findings and legal conclusions, the November 2021
Order orders the OSMB and the State Budget Director, the Office of the State
Controller and the State Controller, and the Office of the State Treasurer and the
State Treasurer to “take the necessary actions to transfer the total amount of funds
necessary to effectuate years 2 & 3 of the [CRP] from the unappropriated balance
within the General Funds to the state agents and state actors with fiscal
responsibility for implementing the [CRP].” The Order then specifies the dollar
amounts of three transfers to DHHS, DPI, and the UNC System. The Order directs
these recipients, their agents, and all other involved State actors to administer those
funds and take any other actions necessary “to guarantee the opportunity of a sound
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
basic education consistent with, and under the times frames set out in, the [CRP],
including the Appendix thereto.”
¶ 183 Today, this Court affirms the constitutionality of the November 2021 Order’s
transfer directives. We reach this holding because, given the extraordinary
circumstances of this case, the trial court acted within its inherent power to address
ongoing constitutional violations through equitable remedies while minimizing its
encroachment upon the legislative branch.
¶ 184 In Leandro I, this Court established the procedure through which a court may
identify and remedy a violation of the fundamental right to a sound basic education.
The Court stated that
[T]he courts of this state must grant every reasonable
deference to the legislative and executive branches when
considering whether they have established and are
administering a system that provides the children of the
various school districts of the state a sound basic education.
A clear showing to the contrary must be made before the
courts may conclude that they have not. . . .
. . . . [If a] court makes findings and conclusions from
competent evidence to the effect that defendants in this
case are denying children of the state a sound basic
education, a denial of a fundamental right will have been
established. It will then become incumbent upon
defendants to establish that their actions denying this
fundamental right are “necessary to promote a compelling
governmental interest.” If defendants are unable to do so,
it will then be the duty of the court to enter a judgment
granting declaratory relief and such other relief as
necessary to correct the wrong while minimizing the
encroachment upon the other branches of government.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
346 N.C. at 357 (citations omitted).
¶ 185 In Leandro II, this Court further noted that
when the State fails to live up to its constitutional duties,
a court is empowered to order the deficiency remedied, and
if the offending branch of government or its agents either
fail to do so or have consistently shown an inability to do
so, a court is empowered to provide relief by imposing a
specific remedy and instructing the recalcitrant state
actors to implement it.
358 N.C. at 642.
¶ 186 As noted above, when the action or inaction of a coequal branch of government
indefinitely violates the fundamental constitutional rights of the people, a court—
after showing appropriate deference—may invoke its inherent power to do what is
reasonably necessary to remedy the violation. Under extraordinary circumstances,
this may include directing state actors to transfer available state funds in order to
guard and maintain the right of every child to the opportunity to a sound basic
education.
¶ 187 Even then, important limitations apply.
[A] court’s judicious use of its inherent power to reach
towards the public purse must recognize two critical
limitations: first, it must bow to established procedural
methods where these provide an alternative to the
extraordinary exercise of its inherent power. Second, in the
interests of the future harmony of the branches, the court
in exercising that power must minimize the encroachment
upon those branches with legislative authority in
appearance and in fact . . . [by] seeking the least intrusive
remedy.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Alamance, 329 N.C. at 100–01.
¶ 188 Here, the trial court faithfully complied with these procedures, powers, and
limitations. First, after an extensive trial in which it granted every reasonable
deference to the executive and legislative branches, it determined based on an
abundance of clear and convincing evidence that the State was violating its
constitutional obligation to guard and maintain the right of all North Carolina
schoolchildren to the opportunity to a sound basic education as defined by Leandro I.
While the trial court focused primarily on Hoke County as a representative district,
it expressly and repeatedly made findings of fact and conclusions of law regarding a
statewide violation that was not isolated to Hoke County.18 The State has never and
does not contend that this statewide violation is necessary to promote a compelling
governmental interest.
¶ 189 In Leandro II, this Court affirmed the trial court’s conclusion. 358 N.C. 605.
This Court’s opinion limited itself to Hoke County as a representative district but
directed the trial court on remand to conduct “further proceedings that include, but
are not necessarily limited to, presentations of relevant evidence by the parties, and
findings and conclusions of law by the trial court” regarding other districts. Id. at 613
18 The State itself likewise emphasized that any remedial efforts must be directed
statewide because “[t]he State . . . never understood the Supreme Court or [the trial] [c]ourt
to have ordered the defendants to provide students in Hoke County or any of the other
plaintiff or plaintiff-intervenor school districts special treatment, services or resources which
were not available to at-risk students in other LEAs across the State.”
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
n.5. Within these further proceedings, the Court emphasized, “a broader mandate
may ultimately be required.” Id. at 633 n.15. Upon remand, this Court instructed the
trial court to “proceed, as necessary, in a fashion that is consistent with the tenets
outlined in this opinion.” Id. at 648.19
¶ 190 So the trial court did. For about fourteen years, the trial court presided over
presentations of relevant evidence by the parties in open court and made volumes
upon volumes of factual findings and conclusions of law. These repeatedly affirmed
the same ultimate legal conclusion: that despite its piecemeal remedial efforts, the
State remained in statewide violation of its constitutional duty to provide all students
with the opportunity to receive a sound basic education.
¶ 191 True, these factual findings and legal conclusions were typically issued within
documents titled “Notice of Hearing and Order” rather than just “Order.” But it is
well within this Court’s ability and authority to properly identify factual findings and
legal conclusions as such, regardless of how they are labeled by a trial court. See, e.g.,
In re J.O.D., 374 N.C. 797, 807 (2020) (identifying findings of fact and conclusions of
law as such despite trial court labels). Further, this Court already articulated in
Leandro II that
[i]n our view, the unique procedural posture and
19Contrary to the claim of the dissent below, this Court in Leandro II did not expressly
direct the trial court to conduct additional trials. Rather, it instructed the trial court to
“proceed, as necessary, in a fashion that is consistent with the tenets outlined in this opinion.”
Id.HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
substantive importance of this case compel us to adopt and
apply the broadened parameters of a declaratory judgment
action that is premised on issues of great public interest.
The children of North Carolina are our state’s most
valuable renewable resource. If inordinate numbers of
them are wrongfully being denied their constitutional right
to the opportunity for a sound basic education, our state
courts cannot risk further and continued damage because
the perfect civil action has proved elusive.
358 N.C. at 616. So too here regarding the perfectly formatted court paper.20
“Technicalities and refinements should not be seriously considered in a case like this
involving a constitutional mandate, but the record should be so interpreted that
substantial justice should be done.” Mebane, 211 N.C. at 227. Indeed, “[f]or well over
a century, North Carolina courts have abided by the foundational principles that
administering equity and justice prohibits the elevation of form over substance.” M.E.
v. T.J., 380 N.C. 539, 2022-NCSC-23, ¶ 1. To cover our eyes and plug our ears to the
trial court’s express and repeated findings and conclusions of a statewide Leandro
violation because of procedural imperfections would squarely violate that prohibition.
Accordingly, this Court holds that the trial court, in alignment with this Court’s
instructions in Leandro II, properly concluded based on an abundance of clear and
convincing evidence that the State’s Leandro violation was statewide.21
20 In fact, this Court has already recognized and proven itself able to handle the “free-
wheeling nature” of the trial court’s various and voluminous orders in Leandro II. 358 N.C.
at 621.
21 For a summary of this evidence, see the Factual and Procedural History above.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 192 Next, the November 2021 Order properly concluded that the trial court showed
sufficient deference to the executive and legislative branches to remedy this violation.
As summarized above, this conclusion is grounded in eighteen years of clear and
convincing evidence. Year after year, hearing after hearing, attempt after attempt,
the trial court continued to provide the executive and legislative branches more time
and space to fix the violation on their own terms. Yet year after year, hearing after
hearing, attempt after attempt, they did not.
¶ 193 Over these years, the trial court made clear its increasing frustration and
decreasing patience with the State’s failure to remedy the violation despite its
constitutional and court-ordered obligation to do so. In 2015, for instance, the trial
court lamented that
[n]o matter how many times the [c]ourt has issued Notices
of Hearings and Orders regarding unacceptable academic
performance, and even after the North Carolina Supreme
Court plainly stated that the mandates of Leandro remain
“in full force and effect[,]” many adults involved in
education . . . still seem unable to understand that the
constitutional right to have an equal opportunity to
obtain a sound basic education is a right vested in
each and every child in North Carolina regardless of
their respective age or educational needs.
The court subsequently ordered the State to “propose a definite plan of action as to
how the State of North Carolina intends to correct the educational deficiencies in the
student population.” Three years later, the trial court expressly warned the State
that
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
[the] trial court has held status conference after status
conference and continues to exercise tremendous judicial
restraint. . . . The time is drawing nigh, however, when due
deference to both the legislative and executive branches
must yield to the court’s duty to adequately safeguard and
actively enforce the constitutional mandate on which this
case is premised. It is the sincere desire of this court that
the legislative and executive branches heed the call.
(Emphasis added.) Three years after that, the trial court cautioned the State that “in
the event the full funds necessary to implement the [CRP] are not secured . . . , the
[c]ourt will hear and consider any proposals for how the [c]ourt may use its remedial
powers to secure such funding.” Even in the November 2021 Order itself, the trial
court showed continued deference by staying its order for thirty days “to permit the
other branches of government to take further action consistent with the findings and
conclusions of this Order.”
¶ 194 In short, the trial court demonstrated an abundance of restraint and deference
to its coequal branches in compliance with this Court’s instructions in Leandro I and
II. Accordingly, this Court holds that the trial court’s November 2021 Order properly
concluded based on an abundance of clear and convincing evidence that the trial court
had shown sufficient deference to the executive and legislative branches.
¶ 195 When a constitutional violation persists after extended judicial deference, “a
court is empowered to provide relief by imposing a specific remedy and instructing
the recalcitrant state actors to implement it.” Leandro II, 358 N.C. at 642. As
explained above, in exceedingly rare and extraordinary circumstances, a court’s
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
inherent power to remedy an ongoing violation of the constitutional right to a sound
basic education includes the authority to direct the transfer of adequate available
state funds to address that violation. Before doing so, however, the court must first
exhaust all established alternative procedural methods. Alamance, 329 N.C. at 100–
01. Further, a court exercising such extraordinary authority must minimize its
encroachment by seeking the least intrusive remedy. Id.¶ 196 Here, we hold that the trial court properly exercised its remedial authority
within these limitations. First, the circumstances of this case are exceedingly rare
and extraordinary. For eighteen years, the executive and legislative branches have
repeatedly failed to remedy an established statewide violation of the constitutional
right to the opportunity to a sound basic education. As noted by the trial court, since
Leandro II, an entire “new generation of school children, especially those at-risk and
socio-economically disadvantaged, were denied their constitutional right to a sound
basic education.” The court has repeatedly deferred. The State has repeatedly failed.
All the while, North Carolina’s schoolchildren, their families, their communities, and
the state itself have suffered the incalculable negative consequences. These
extraordinary circumstances demand swift and decisive remedy.
¶ 197 Second, the trial court properly exhausted all established alternative methods
before directing the transfer of available State funds. For the past eighteen years, the
trial court allowed the State to craft and implement its own remedies, pass new
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
budgets, consult and engage with independent experts, establish commissions, and
create its own comprehensive remedial plan. During this time, the court has stuck to
more traditional judicial procedures: issuing declaratory judgments and ordering the
parties to remedy the violation on their own terms. They have not. Only after
exhausting these more ordinary alternatives did the trial court reach for the
extraordinary measure of ordering the transfer of available State funds.
¶ 198 Third, in doing so, the trial court minimized its encroachment by seeking the
least intrusive remedy that would still adequately address the constitutional
violation. On its face, the November 2021 Order does not involve the legislative
branch at all; it does not order the General Assembly to pass certain legislation, raise
additional state funds through taxation, conduct certain legislative proceedings, or
pay a daily contempt sanction, as other state courts have ordered under similar
circumstances. Such remedies would have directly forced the General Assembly’s
hand to take certain actions, thereby exerting a higher degree of judicial influence
over legislative powers.
¶ 199 Instead, the November 2021 Order opted for a less intrusive measure: directing
certain executive officials responsible for transferring State funds to make certain
transfers as if the General Assembly had directed the same. This remedy minimizes
encroachment by implicating legislative duties without directing any order toward
the legislature itself. To be sure, it is safe to say that everyone involved in this
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
litigation—including this Court—would have preferred if the legislature had fulfilled
these legislative duties. But it has not. That leaves the judiciary with the
constitutional obligation to fulfill its own role in guarding and maintaining the right
to a sound basic education by directing the transfer of remedial funds.22
¶ 200 The invasiveness of the November 2021 Order is further minimized because
these funds are readily available. The trial court found based on clear, convincing,
and undisputed evidence “that more than sufficient funds are available to execute the
current needs of the [CRP].” Accordingly, the November 2021 Order did not require
the State to raise additional funds or to reallocate funds that had previously been
allocated for other uses, which could implicate policy choices. Rather, it directs the
State actors to transfer the necessary funds “from the unappropriated balance with
the General Fund.”23
¶ 201 Finally, the invasiveness of the November 2021 Order must be assessed within
the broader history and context of the litigation that necessitated it. For instance, it
is true that yet another declaratory judgment order—as later issued in the April 2022
Order—would have been less invasive than the November 2021 Order’s transfer
22 See Swann, 402 U.S. at 25 (“It was because of this total failure of the school board
that the District Court was obligated to turn to other qualified sources, and Dr. Finger was
designated to assist the District Court to do what the board should have done.”).
23 This is not to minimize the effort required by these State officials in properly
executing the transfer of these funds, which the Court recognizes as a challenging
administrative task. However, it does not implicate the same policy choices that would be
involved in reallocating funds between different agencies or initiatives.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
directive. However, given the history of this case in which the trial court issued such
declaratory judgments again and again and again to no avail, issuing the same
judgment one more time with crossed fingers and bated breath cannot reasonably be
considered a remedy at all. Instead, the State’s repeated and ongoing failure to
remedy the constitutional violation after many prior such declaratory judgments
required the trial court to this time do more.
¶ 202 Below, the dissent insists that affirming the November 2021 Order would allow
this Court to invoke similar inherent authority in a wide variety of dissimilar
contexts. This parade of horribles is—in a word—overstated. To be clear, today’s
ruling creates precedent for the exercise of this type of judicial remedial power in
exactly one circumstance: when the recalcitrant inaction of the legislative or
executive branch indefinitely violates the fundamental constitutional rights of the
people after years of judicial deference.24
¶ 203 Finally, the dissent contends that affirming the November 2021 Order would
violate the rights of the Controller. But as an executive branch official, the
Controller’s interests have been adequately represented throughout this litigation. A
court cannot reasonably add as a party to a case every state official who may be
24 See Leandro II, 358 N.C. at 642 (“[W]hen the State fails to live up to its
constitutional duties, a court is empowered to order deficiency remedied, and if the offending
branch of government or its agents either fail to do so or have consistently shown an inability
to do so, a court is empowered to provide relief by imposing a specific remedy and instructing
the recalcitrant state actors to implement it.”).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
involved in implementing a remedy; instead, the interests of those officials are
represented by that agency, branch, or the State as a whole.
¶ 204 In summary, the trial court’s November 2021 Order complied with its
constitutional authority and limitations. We therefore affirm and reinstate the trial
court’s order directing certain State officials to transfer the funds required to
implement years two and three of the CRP. To enable the trial court to comply with
this ruling, we stay the Court of Appeals’ Writ prohibiting this transfer.
2. April 2022 Order
¶ 205 We next review the trial court’s 26 April 2022 Order (April 2022 Order). The
April 2022 Order recalculated the State’s CRP funding shortcomings in light of the
2021 Budget Act but removed the transfer directive in favor of a declaratory
judgment.
¶ 206 First, April 2022 Order confirmed the State’s continued failure to fully fund
the CRP. The trial court found “that significant necessary services for students, as
identified in the CRP, remain unfunded and/or underfunded by the [2021] Budget
Act.” Specifically, the court found “the Budget Act funds approximately 63% of the
total cost of the programs to be conducted during year 2 and approximately 50% of
the total cost of the programs to be conducted during year three.” Because the CRP
remains the only comprehensive remedial plan submitted to and ordered by the trial
court, this finding further confirms the present continuance of the State’s statewide
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Leandro violation.
¶ 207 Next, the April 2022 Order confirmed that adequate State funds are available.
The trial court found that “the total of unappropriated funds in the State’s Savings
Reserve [will be] $4.25 billion after the fiscal year 2022-23 legislative-mandated
transfer.” Accordingly, the trial court found that “the funds transferred on a
discretionary basis to the State’s Saving Reserve and the State’s Capital and
Infrastructure Reserve during the two-year budget cycle is substantially in excess of
the amount necessary to fully fund the CRP during years 2 and 3 of the CRP.”
¶ 208 Based on these factual findings, the trial court concluded that “the total
underfunding of CRP programs during years 2 and 3 of the CRP is $785,106,248 in
the aggregate.” The court concluded that “[t]aking the two-year budget as a whole,
the General Fund does contain sufficient unappropriated monies to make the transfer
anticipated by the 10 November Order and the lesser amount of underfunding
identified above.”
¶ 209 However, because the Court of Appeals’ writ of prohibition “determined that
the trial court had no proper basis in law to direct the transfer by state officers or
departments of funds to DHHS, DPI, and the UNC System,” the trial court removed
those direct transfer provisions from its order. Instead, it issued a declaratory
judgment by decreeing that DHHS, DPI, and the UNC System “have and recover from
the State of North Carolina” the specified funds and that the funds are “owed by the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
State to DHHS, DPI, and the UNC system.”
¶ 210 Since the trial court’s April 2022 Order, the State has presented no argument
that it has complied with this declaratory judgment by transferring these funds.
¶ 211 Today, we vacate in part and reverse in part the trial court’s April 2022 Order.
First, we vacate the trial court’s calculation of the amount of funds by which each
portion of the CRP is underfunded. This is not because the trial court erred in its
calculations, which were diligent and precise. Rather, those calculations have been
functionally mooted by the State’s subsequent enactment of the 2022 Budget Act.
Accordingly, on remand, we direct the trial court to recalculate the appropriate
transfer amounts required for compliance with years two and three of the CRP in
light of the 2022 Budget Act.
¶ 212 Second, we reverse the trial court’s conclusion that it lacked the legal authority
to order certain State actors to transfer the available State funds to comply with years
two and three of the CRP. In accordance with the principles described above, we hold
that under the extraordinary circumstances of this case, the trial court was properly
empowered to do so. As such, the trial court’s contrary conclusion in its April 2022
Order was grounded in an error of law and is therefore reversed.
¶ 213 Accordingly, our order to the trial court on remand is threefold. First, we order
the trial court to recalculate the funding required for full compliance with years two
and three of the CRP in light of the 2022 Budget Act. Second, we order the trial court
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
to reinstate its November 2021 Order transfer directive instructing certain State
actors to transfer those recalculated amounts from available State funds as an
appropriation under law. To enable the trial court to do so, we stay the Court of
Appeals’ 30 November 2021 Writ of Prohibition. Third, we order the trial court to
retain jurisdiction over the case in order to monitor compliance with its order and
with future years of the CRP. In future years, the General Assembly may—and is
encouraged to—choose to moot the necessity for further transfer directives from the
court by substantially complying with the terms of the CRP on its own accord.
¶ 214 We recognize that the remedy decreed by the trial court’s November 2021
Order and reinstated by this Court today is extraordinary. It exercises powers at the
outer bounds of the reach of the judiciary and encroaches into the traditional
responsibilities of our coequal branches of government. We do not do so lightly.
Nevertheless, years of continued judicial deference and legislative non-compliance
render it our solemn constitutional duty to do so. For our Constitution to retain its
integrity and legitimacy, the fundamental rights enshrined therein must be “guarded
and maintained.” When other branches indefinitely abdicate this constitutional
obligation, the judiciary must fill the void.
D. Legislative Defendants’ Assertions of Error
¶ 215 Finally, we address Legislative Defendants’ various assertions of error. On
appeal, Legislative Defendants raise four primary claims of error in addition to the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
foundational constitutional issues addressed above, most of which are also echoed by
the dissent below. First, they argue that the trial court exceeded its jurisdiction and
authority by imposing a statewide remedy because this case is properly “limited to
just at-risk students in Hoke County.” Second, they argue that the trial court
erroneously failed to presume that the 2021 Budget Act satisfied the State’s
constitutional obligations under Leandro. Third, they argue that the trial court’s
order engaged in a non-justiciable political question by deciding the amount of State
funds to be transferred to certain State agencies. Fourth, they argue that “the trial
court erred in making a constitutional determination in a friendly suit.”
¶ 216 These claims unequivocally fail. As an initial matter, they are untimely. Since
2004, and especially since the enactment of N.C.G.S. § 1-72.2 in 2013, Legislative
Defendants have had any number of opportunities to intervene in this litigation and
thereby earnestly engage with these important issues from within the arena where
the parties and the trial court sought to solve the formidable problems facing our
state. Besides their single Motion to Intervene regarding Pre-K issues in 2011, they
have not. Instead, Legislative Defendants have largely opted to comment upon the
proceedings from the sidelines, including by publicly disparaging the trial court itself.
In doing so, Legislative Defendants functionally abdicated their constitutional duties
and accordingly undermined their own credibility to raise these arguments at this
eleventh hour.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 217 In any event, these arguments are meritless. At best, they reveal a
fundamental misunderstanding of the history and present reality of this litigation.
At worst, they suggest a desire for further obfuscation and recalcitrance in lieu of
remedying this decades-old constitutional violation. Regardless, they will not prevent
this Court from exercising its inherent authority to protect the constitutional right of
North Carolina children to the opportunity to a sound basic education.
1. Scope of Violation
¶ 218 First, and most enthusiastically, Legislative Defendants assert this case is
properly “limited to just at-risk students in Hoke County.” As such, they argue that
the trial court erred by exceeding its jurisdiction and authority by imposing a
statewide remedy. Legislative Defendants contend that because this Court’s ruling
in Leandro II was expressly restricted to Hoke County, “there has never been a
judgment finding a statewide violation of the right to a sound basic education.” The
dissent below echoes this claim.
¶ 219 To be sure, it is true that this Court’s ruling in Leandro II was expressly limited
to Hoke County as a representative district. See 358 N.C. at 613 n.5. However, on
remand, this Court instructed the trial court to address other districts by conducting
“further proceedings that include, but are not necessarily limited to, presentations of
relevant evidence by the parties, and findings and conclusions of law by the trial
court.” Id. This Court further instructed the trial court to “proceed[ ] as necessary[ ]
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
in a fashion that is consistent with the tenets outlined in this opinion.” Id. at 648.25
¶ 220 On remand, the trial court did just that: it conducted further proceedings that
included, but were not limited to, presentations of relevant evidence by the parties
and findings and conclusions of law by the trial court regarding other districts in a
fashion consistent with the tenets outlined in Leandro I and II. Based on an
abundance of clear and convincing evidence, the trial court repeatedly concluded that
the State’s Leandro violation was not limited to Hoke County but was pervasive
statewide. Time and time again, the trial court observed that the evidence
“indicate[d] that in way too many school districts across the state, thousands of
children in the public schools have failed to obtain, and are not now obtaining a sound
basic education as defined by and required by the Leandro decisions.”
¶ 221 As addressed above, the fact that the trial court’s filings were often titled
“Notice of Hearing and Order” instead of just “Order” does not render this Court
suddenly incapable of understanding the trial court’s express findings and
conclusions. In any event, the trial court’s factual finding and legal conclusion of a
continued statewide Leandro violation were most recently repeated in its November
2021 Order, which was formally titled “Order” and formally enumerated “Findings of
Fact” and “Conclusions of Law.” These findings and conclusions were neither
25As noted above, at no point did this Court instruct the trial court to formally conduct
separate trials for all of the other school districts involved in this litigation and in the state.
See id.HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
amended nor revoked—and indeed were functionally confirmed again—in the trial
court’s subsequent April 2022 Order.
¶ 222 Further, the State itself has consistently proposed and advocated for a
statewide remedy. This is because its constitutional obligation applies not just toward
marginalized students in Hoke County, but to every student in every district in the
state. As such, it strains both reason and judicial economy to contend that separate
cases with identical facts and constitutional claims must be brought by plaintiffs in
all 114 of North Carolina’s other school districts in order for the State to implement
a remedy that applies to each of those districts. The paramount public interest of the
constitutional rights at stake in this case demand a more reasonable and efficient
resolution.26
¶ 223 Accordingly, to contend that there has never been a finding or conclusion of a
Leandro violation beyond Hoke County reflects, at best, a fundamental
misunderstanding of the history of this case and the State’s constitutional
obligations. Legislative Defendants’ argument is unequivocally rejected.
2. Impact of the Budget Act
26“In declaratory actions involving issues of significant public interest, such as those
addressing alleged violations of education rights under a state constitution, courts have often
broadened both standing and evidentiary parameters to the extent that plaintiffs are
permitted to proceed so long as the interest sought to be protected by the complainant is
arguably within the ‘zone of interest’ to be protected by the constitutional guaranty in
question.” Leandro II, 358 N.C. at 615.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 224 Second, Legislative Defendants assert that the trial court erroneously failed to
presume that the 2021 Budget Act satisfied the State’s constitutional obligations
under Leandro. They argue that “in reducing its assessment of the Budget to a
mathematical exercise and assuming that the CRP was the only means to provide a
Leandro-compliant education, the trial court got the analysis backwards” by
“start[ing] with the assumption that the Budget was insufficient, and then skipp[ing]
straight to asking whether the General Assembly had provided Plaintiffs with their
chosen remedy.” The dissent below likewise echoes this claim.
¶ 225 This is wrong on several fronts. First, it is true that the CRP is by no means
the only path toward constitutional compliance under Leandro. The executive and
legislative branches are—and have been—granted broad deference in crafting a
remedy on their own terms. However, as the trial court repeatedly observed, the CRP
is currently the only remedial plan that the State has presented to the court in
response to its January 2020, September 2020, and June 2021 Orders. Indeed, no
party in this litigation, including Legislative Defendants, have presented any
alternative remedial plan. As such, the trial court did not erroneously “assum[e] that
the CRP was the only means to provide a Leandro-compliant education.” Rather, it
assessed the constitutional compliance of the Budget Act against the only
comprehensive remedial plan that it has been presented with in the eighteen-year
long remedial phase of this case.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
¶ 226 Second, the trial court did not erroneously fail to presume the constitutionality
of the Budget Act. The constitutionality of the Budget Act was not the question before
the trial court. Rather, the trial court’s task was to assess the constitutional
compliance of the Budget Act against the only comprehensive remedial plan that had
been presented to it by the State.
¶ 227 In fact, a review of the record reveals that the trial court has already addressed
and rejected this argument. In 2018, the State argued in a motion to dismiss “that
legislation enacted by . . . [the] General Assembly now adequately addresses those
criteria that our Supreme Court has decreed constitute a ‘sound basic education’ . . .
[and] that these enactments must be presumed by this court to be constitutional.” In
rejecting this argument, the trial court explained that
[t]his court indeed indulges in the presumption of
constitutionality with respect to each and every one of the
legislative enactments cited by the [State]. That these
enactments are constitutional and seek to make available
to children in this State better educational opportunities is
not the issue before this court. The issue is whether the
court should continue to exercise such remedial jurisdiction
as may be necessary to safeguard and enforce the much
more fundamental constitutional right of every child to
have the opportunity to receive a sound basic education.
Again, the evidence before this court upon the [State’s]
motion is wholly inadequate to demonstrate that these
enactments translate into substantial compliance with the
constitutional mandate of Leandro measured by applicable
educational standards.
¶ 228 So too here. Neither the Plaintiff-parties nor the State dispute the presumed
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
constitutionality of the passage of the 2021 Budget Act as a general procedural
matter. But that was not the issue before the trial court and is not the issue before
this Court. The more specific question in the context of this case is the extent to which
the 2021 Budget Act remedies the State’s longstanding statewide Leandro violation.
As such, the Budget Act must be assessed against the terms of the only
comprehensive remedial plan thus far presented by the parties to the court. The mere
passage of a state budget—even one that enjoys a general presumption of
constitutionality—is insufficient to meet that more specific burden. Accordingly, the
trial court did not err in its evaluation of the 2021 Budget Act.27
¶ 229 Finally, it bears emphasizing that the CRP is not the “Plaintiffs[’] . . . chosen
remedy.” The CRP was created by neither Plaintiff-parties nor the trial court, but by
the State itself. It is therefore the State’s chosen remedy, and thus far the only viable
remedy presented by any party in this litigation.
3. Political Question
¶ 230 Third, Legislative Defendants argue that the trial court’s November 2021 and
27Relatedly, the dissent contends that the CRP—and thus the November 2021 Order
enforcing it—unduly focuses on education funding when the real problem is implementation.
To be sure, this case is not just about money; it is also about competent and qualified teachers
and principals, support for high-poverty school districts, effective state assessment and
accountability systems, and adequate and accessible early education opportunities, among
many other programs outlined at length in the CRP. Of course, just as no one would
reasonably expect the Department of Public Safety or Department of Transportation to
implement their various programs and responsibilities without adequate funding, none of
these educational priorities can be implemented and sustained with fidelity without adequate
education funding. Minimally adequate funding is a necessary means to that end.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
April 2022 Orders impermissibly engaged in a non-justiciable political question by
deciding the amount of State funds to be transferred to certain State agencies. Doing
so, Legislative Defendants contend, requires the trial court to engage in policy-based
prioritization that “is precisely the type of determination the people must make
through their elected representatives.”
¶ 231 This argument likewise ignores the history and prior rulings of this case. In
Leandro I, this Court squarely rejected the State’s threshold argument that courts
may not assess issues of educational adequacy because they are non-justiciable
political questions. 346 N.C. at 344–45. The Court held that “it is the duty of this
Court to address plaintiff-parties’ constitutional challenge to the state’s public
education system.” Id. at 345.
¶ 232 More specifically, the trial court did not err by assessing the adequacy of the
2021 Budget Act. The court did not make its own policy determination. Rather, after
concluding based on undisputed evidence that sufficient unappropriated State funds
were available, it ordered that certain funds be transferred in order to comply with
the terms of the only comprehensive plan for Leandro compliance presented to it by
the State. Put differently, the court assessed the State’s compliance with the State’s
own determination of constitutional educational adequacy, not the court’s.
Constitutional compliance is not a policy choice; it is a mandate that this Court is
obligated to protect.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
4. Friendly Suit
¶ 233 Finally, Legislative Defendants argue that “the trial court erred in making a
constitutional determination in a friendly suit.” They argue that there is no genuine
controversy in this case because after the trial court’s 2018 order requiring the parties
to craft a comprehensive remedial plan, “Plaintiffs, Plaintiff-Intervenors, and [the
State] have worked together to obtain judicial orders mandating their desired
policies.” The dissent below likewise echoes this claim.
¶ 234 Again, this is wrong on several fronts. First, this argument ignores the decades
of history summarized above in which this case was hotly contested and the State
repeatedly asserted either that it had achieved constitutional compliance or that the
trial court no longer had jurisdiction over the case. While Legislative Defendants’
Hoke County argument functionally disregards everything that occurred in this
litigation after 2004, their friendly suit argument functionally disregards everything
before 2018. Neither approach appreciates the complete past and present reality of
this case, which provide vital context for the two trial court orders in question on this
appeal.
¶ 235 Further, the State’s efforts to achieve constitutional compliance after 2018 do
not render this suit friendly. Rather, they reflect the State’s commitment—at long
last—to honor its constitutional duty to guard and maintain the right of North
Carolina schoolchildren to a sound basic education. If the State’s Comprehensive
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Remedial Plan aligns with the interests of Plaintiff-parties, it is because during the
remedial phase this litigation—in which parties are encouraged to create a
collaborative solution that will settle their respective rights and duties—both the
State and Plaintiff-parties seek to align with the requirements of the Constitution. A
shared commitment to constitutional compliance does not render this suit friendly.
Legislative Defendants’ argument to the contrary is rejected.
III. Conclusion
¶ 236 The ultimate wisdom of Leandro, whispered through the ages from the
Framers’ vision in 1868 to the Plaintiffs’ Complaint in 1994 to the untold and
untapped potential of our schoolchildren today, is that public education is a public
good. That is, when the State ensures that a child has the opportunity to receive a
sound basic education, it is not only that child who benefits. It is not only that child’s
family that benefits. It is not only that child’s community that benefits. Rather, when
a child receives a sound basic education—one that prepares her “to participate fully
in society as it exist[s] in . . . her lifetime”—we all benefit. Leandro I, 346 N.C. at 348.
¶ 237 Accordingly, our Constitution not only guarantees all children the right to the
opportunity to a sound basic education, it establishes that “it is the duty of the State
to guard and maintain that right.” N.C. Const. art. I, § 15 (emphasis added).
“[I]nitially, at least,” it is the responsibility of the executive and legislative branches
to fulfill that constitutional obligation. Leandro I, 346 N.C. at 357. But when those
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
branches indefinitely “fail[ ] to live up to [their] constitutional duties . . . or have
consistently shown an inability to do so, a court is empowered to provide relief by
imposing a specific remedy and instructing the recalcitrant state actors to implement
it.” Leandro II, 358 N.C. at 642.
¶ 238 For a quarter-century, the judiciary has deferred to the executive and
legislative branches to remedy this statewide constitutional violation. Yet
overwhelming evidence clearly demonstrates that it persists today. In 2004, the
Leandro II Court lamented that “the instant case commenced ten years ago,” and that
“[i]f in the end it yields a clearly demonstrated constitutional violation, ten classes of
students . . . will have already passed through our state’s school system without
benefit of relief. We cannot similarly imperil one more class unnecessarily.” Id. at 616(emphasis added). Today, that figure is twenty-eight years, and twenty-eight classes
of students. The children of the original Leandro plaintiffs could well have entered or
graduated from high school by now, all under a well-established constitutionally
inadequate education system. As noted in Plaintiffs’ original 1994 Complaint, this
cycle “entails enormous losses, both in dollars and in human potential, to the State
and its citizens.” All the while, the judiciary has continued—patiently but with
increasing concern—to defer.
¶ 239 Today, that deference expires. At this point, to continue to condone delay and
evasion would render this Court complicit in the constitutional violation. Ultimately,
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
“[i]t is the state judiciary that has the responsibility to protect the state constitutional
rights of the citizens; this obligation to protect the fundamental rights of individuals
is as old as the State.” Corum, 330 N.C. at 783.
¶ 240 Today, we must fulfill that obligation. To do so, this Court exercises its power
“to provide relief by imposing a specific remedy and instructing the recalcitrant state
actors to implement it.” Leandro II, 358 N.C. at 642. Specifically, we reinstate the
trial court’s November 2021 Order directing certain State officials to transfer
available state funds to implement years two and three of the Comprehensive
Remedial Plan. On remand, we narrowly direct the trial court to recalculate the
appropriate distributions in light of the State’s 2022 Budget. Once that calculation is
complete, we instruct the trial court to order the applicable State officials to transfer
these funds as an appropriation under law. Accordingly, we stay the Court of Appeals’
30 November 2021 Writ of Prohibition. Finally, we order the trial court to retain
jurisdiction over this matter to ensure the implementation of this order and to
monitor continued constitutional compliance.
¶ 241 Given these remand instructions, this ruling will not be the final page in the
Leandro litigation. Nevertheless, it is the sincere hope of this Court that it will serve
as the start of a new chapter—one in which the parties lay down old divisions and
distrust to forge a spirit of collaboration in good faith toward a common goal:
constitutional compliance. The same recalcitrant approach would only yield the same
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
inadequate outcomes. Instead, this Court calls upon the parties to imagine a future
in which all North Carolina children receive the opportunity to a sound basic
education, then honor their constitutional oaths by working together to make that
future real. Indeed, our Constitution’s Declarations of Rights is neither aspirational
nor advisory; it is a mandate.
¶ 242 Until that mandate is fulfilled, the judiciary will stand ready to carry out its
constitutional duties. We too comprise “the State,” and we too must honor our
constitutional obligations. While we recognize the primacy of the executive and
legislative branches in creating and implementing our system of public education, we
cannot and will not tolerate the ongoing violation of constitutional rights.
¶ 243 “Today, education is perhaps the most important function of state and local
governments. . . . It is the very foundation of good citizenship.” Brown I, 347 U.S. at
493. “Assuring that our children are afforded the chance to become contributing,
constructive members of society is paramount. Whether the State meets this
challenge remains to be determined.” Leandro II, 358 N.C. at 649. Accordingly, this
Court once more “remands to the lower court[,] and ultimately into the hands of the
legislative and executive branches, one more installment in the 200-plus year effort
to provide an education to the children of North Carolina.” Id. We do so with hope
that the parties will chart a new course, firmness in our resolve to uphold our
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Opinion of the Court
Constitution, and faith that the brightest days for our schoolchildren and our state
lie still ahead.
IT IS SO ORDERED.
Justice BERGER dissenting.
¶ 244 “Frequently an issue of this sort will come before the Court clad, so to speak,
in sheep’s clothing: the potential of the asserted principle to effect important change
in the equilibrium of power is not immediately evident, and must be discerned by a
careful and perceptive analysis. But this wolf comes as a wolf.” Morrison v. Olson,
487 U.S. 654, 699, 108 S. Ct. 2597, 2623 (1988) (Scalia, J., dissenting).
¶ 245 “The accumulation of all powers, legislative, executive, and judiciary, in the
same hands, whether of one, a few, or many, and whether hereditary, selfappointed,
or elective, may justly be pronounced the very definition of tyranny.” The Federalist
No. 47 (James Madison). “By tyranny, . . . [Madison] means arbitrary, capricious,
and oppressive rule by those possessing any two of these powers.” George W. Carey
& James McClellan, Reader’s Guide to The Federalist, The Federalist, at lxx (George
W. Carey & James McClellan, eds., Gideon ed. 2001). We see in this opinion the
arbitrary usurpation of purely legislative power by four justices. The majority affirms
the trial court order which strips the General Assembly of its constitutional power to
make education policy and provide for its funding. Indeed, this wolf comes as a wolf.
¶ 246 “The legislative, executive, and supreme judicial powers of the State
government shall be forever separate and distinct from each other.” N.C. Const. art.
I, § 6. This clear and unambiguous principle “is the rock upon which rests the fabric
of our government. Indeed, the whole theory of constitutional government in this
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
State and in the United States is characterized by the care with which the separation
of the departments has been preserved and by a marked jealousy [against]
encroachment” by another branch. Pers. v. Bd. of State Tax Comm’rs, 184 N.C. 499,
502, 115 S.E. 336, 339 (1922).
¶ 247 Without question, the General Assembly, in which our constitution vests the
legislative power of the State, N.C. Const. art. II, § 1, is “the policy making agency of
our government[.]” Rhyne v. K-Mart Corp., 358 N.C. 160, 169, 594 S.E.2d 1, 8 (2004).
The General Assembly is the policymaking agency because “[a]ll political power is
vested in and derived from the people,” N.C. Const. art I, § 2, and the people act
through the General Assembly, State ex rel. Ewart v. Jones, 116 N.C. 570, 570, 21
S.E. 787, 787 (1895); see also Pope v. Easley, 354 N.C. 544, 546, 556 S.E.2d 265, 267
(2001) (per curiam) (“[P]ower remains with the people and is exercised through the
General Assembly, which functions as the arm of the electorate.”). The General
Assembly possesses both plenary and express lawmaking authority, and, as provided
by the text of the state constitution, the legislative branch enacts policy through
statutory directives and appropriations.
¶ 248 Relevant here, the Declaration of Rights in our constitution provides that “[t]he
people have a right to the privilege of education, and it is the duty of the State to
guard and maintain that right.” N.C. Const. art. I, § 15. This provision within the
Declaration of Rights must be considered with the related, more specific provisions
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
in Article IX that outline the General Assembly’s responsibilities with regard to
public education. Placed in the working articles of the constitution, Article IX,
entitled “Education,” see id. art. IX, actually “implements the right to education as
provided in Article I,” Demenski ex rel. C.E.D. v. State Bd. of Educ., 377 N.C. 406,
2021-NCSC-58, ¶ 14. This Court has explained that “these two provisions work in
tandem,” id., to “guarantee every child in the state an opportunity to receive a sound
basic education[.]” Silver v. Halifax Cnty. Bd. of Comm’rs, 371 N.C. 855, 862, 821
S.E.2d 755, 760 (2018) (emphasis added).
¶ 249 The state constitution explicitly recognizes that it is for the General Assembly
to develop educational policy and to provide for its funding in keeping with its
legislative authority. Article IX, section 2 requires that “[t]he General Assembly shall
provide by taxation and otherwise for a general and uniform system of free public
schools, which shall be maintained at least nine months in every year, and wherein
equal opportunities shall be provided for all students.” N.C. Const. art. IX, § 2. The
General Assembly creates the system through policy and funds it through taxation
and appropriations. The text then tasks the State Board of Education with
“supervis[ing] and administer[ing]” that system with “needed rules and regulations”
that remain “subject to laws enacted by the General Assembly.” N.C. Const. art. IX,
§ 5.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
¶ 250 The “power of the purse,” or the legislative authority to direct or deny
appropriations, represents policy decisions made solely by the General Assembly. For
that reason, our constitution provides that “[n]o money shall be drawn from the State
treasury but in consequence of appropriations made by law[.]” N.C. Const. art. V,
§ 7(1).
¶ 251 As this Court unanimously noted just two years ago, “the appropriations clause
states in language no man can misunderstand that the legislative power is supreme
over the public purse.” Cooper v. Berger, 376 N.C. 22, 36–37, 852 S.E.2d 46, 58 (2020)
(emphasis added); see also Wilson v. Jenkins, 72 N.C. 5, 6 (1875) (“The General
Assembly has absolute control over the finances of the State.”). By way of historical
explanation, this Court stated:
In light of this constitutional provision, the 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. In drafting the appropriations clause, the framers
sought to ensure that the people, through their elected
representatives in the General Assembly, had full and
exclusive control over the allocation of the state’s
expenditures.
Cooper, 376 N.C. at 36–37, 852 S.E.2d at 58 (cleaned up). These constitutional
principles remain true when the legislative branch enacts educational policy through
appropriations.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
¶ 252 If legislative power over appropriations is absolute, then the judicial branch
has no role in this endeavor. Clear and unambiguous language that “no man can
misunderstand,” id., should yield results that no reasonable person can question.
¶ 253 As set out in the constitutional text and this Court’s precedent, the General
Assembly determines and develops educational policy through statutes and
appropriations. However, a review of this case’s lengthy litigation reveals that the
General Assembly was notably excluded. Due process requires notice and an
opportunity to be heard—legislative defendants have been denied the protection of
this fundamental fairness.
¶ 254 From the filing of the initial complaint until January 2011, the Attorney
General represented the executive and legislative branches (the State). In 2011, the
majority party of General Assembly, both House and Senate, changed. The Attorney
General, then asserting a purported conflict of interest, ceased to represent the
General Assembly at that time. The Attorney General noted that executive branch
defendants refused to waive this conflict. The General Assembly attempted to
intervene in the case, but the trial court rejected intervention because the issue in
the case was not the legislature’s education policy or funding, but the implementation
of that policy by the executive branch.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
¶ 255 Judge Howard Manning, perhaps the one individual most familiar with this
case, later stated in a memorandum that educational shortcomings did not result
from legislative failures:
Our children that cannot read by the third grade are by and
large doomed not to succeed by the time they get to high
school. As shown by the record in this case, that is a failure
of classroom instruction.
...
Reduced to essentials, in my opinion the children are not
being provided the opportunity because after all the
millions spent, 90% of school costs are for adult salaries
and benefits, and the data show as it did years ago and up
to now the educational establishment has not produced
results.
In other words, Judge Manning clearly understood that the problem is not with
education policy or funding; rather, the problem is with implementation and delivery
by the education establishment.
¶ 256 Moreover, the focus of this litigation post-Leandro has been the general
implementation and delivery of educational opportunities to the “at risk” children in
plaintiffs’ counties. See Hoke Cnty. Bd. of Educ. v. State, 358 N.C. 605, 612 n.1, 599
S.E.2d 365, 375 n.1 (2004) (the only issue which “faces scrutiny in the instant appeal
[is] whether the State has failed in its constitutional duty to provide Hoke County
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
school children with the opportunity to receive a sound basic education.”).1 Despite
the express directive of this Court in Hoke County, the trial court failed to conduct
any other trial. Furthermore, given that the education statutes and policy changed
significantly through the years, the original Leandro claims and resulting decision
have become stale.
¶ 257 When Judge Manning withdrew for health reasons in 2016, a new judge, in
collaboration with executive branch defendants and plaintiffs, dramatically changed
the direction of this litigation to focus on policy and funding statewide, rather than
problems with implementation and delivery in plaintiffs’ counties as originally pled.
In November 2021, the new judge entered an order stripping the General Assembly
of its constitutional authority, setting educational policy, and judicially appropriating
taxpayer monies to fund his chosen policy. Only then did the legislative defendants
receive the opportunity to intervene as they sought appellate review of this judicial
invasion into their constitutional powers.
¶ 258 Because of the collusive nature of this litigation, the majority today now joins
in denying legislative defendants due process, the fundamental fairness owed to any
party, and usurps the legislative power by crafting policy and directly appropriating
funds. Further, this Court approves the deprivation of due process to other non-
1 Because the distinction is meaningful, we refer to Hoke County Board of Education
v. State as Hoke County, not Leandro II. See discussion at Hoke County Board of Education
v State, 367 N.C. 156, 158 n.2, 749 S.E.2d 451, 453 n.2 (2013).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
parties by affirming the trial court order which required certain state officials to
violate their oaths and circumvent the constitutionally and statutorily required
lawful method of appropriating monies from the general fund.
¶ 259 In addition, the majority takes it upon itself to resolve issues in this case
without notice and in the face of this Court’s order to the contrary. In March 2022,
this Court entered a special order holding “in abeyance [certain issues] with no other
action, including the filing of briefs, to be taken until further order of the Court.”
Despite the fact that no notice has been provided to any party, and briefing has not
been done, this Court exerts its will by summarily deciding the matter. In so doing,
the majority ignores due process.
¶ 260 Fundamentally, and contrary to what plaintiffs, executive branch defendants,
and the majority would have the public believe, this case is not about North Carolina’s
failure to afford its children with the opportunity to receive a sound basic education.
The essence of this case is power—who has the power to craft educational policy and
who has the authority to fund that policy.
¶ 261 While a properly restrained judiciary has “neither FORCE nor WILL, but
merely judgment,” The Federalist No. 78 (Alexander Hamilton), we once again
address the pernicious extension of judicial power by this Court at the expense of the
constitutionally prescribed power of the legislature. Once again, the subversion of
constitutional order is engineered by a bare majority through unprecedented and
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
dangerous reasoning. Couched this time as its “inherent authority,” the majority
once again “unilaterally reassigns constitutional duties.” N.C. State Conf. of Nat’l
Ass’n for the Advancement of Colored People v. Moore, 2022-NCSC-99, ¶ 77 (Berger,
J., dissenting).
¶ 262 Relying on a gross misapplication of our caselaw, the majority’s Oppenheimer-
esque reshaping of the appropriations clause and usurpation of legislative function
has no apparent concern for constitutional strictures or the limits of this Court’s
power. The judicial branch now assumes boundless inherent authority to reach any
desired result, ignoring the express boundaries set by the explicit language of our
constitution and this Court’s precedent. Because “[t]his power in the judicia[ry] will
enable [judges] to mold the government into almost any shape they please,” Brutus,
Essay XI, The Essential Anti-Federalist 190 (W. B. Allen and Gordon Lloyd, eds., 2nd
ed. 2002), I respectfully dissent.
I. Factual and Procedural Background
¶ 263 The issues in this case are neither unprecedented nor extraordinary. Had the
trial court below, and the majority here, understood precisely what this Court held in
Leandro and Hoke County, much litigation would have been avoided. As this case is
the latest chapter of a dispute this Court first considered more than twenty-four years
ago, our prior decisions constitute the law of the case and are binding on the courts.
See Hayes v. City of Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 681–82 (1956)
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
(“[W]hen an appellate court passes on a question and remands the cause for further
proceedings, the questions there settled become the law of the case, both in
subsequent proceedings in the trial court and on subsequent appeal[.]”).
A. Leandro
¶ 264 In Leandro v. State of North Carolina, 346 N.C. 336, 342, 488 S.E.2d 249, 252
(1997) (Leandro), plaintiffs brought an action against the State and the State Board
of Education seeking declaratory and injunctive relief, alleging that children in their
school districts were not “receiving a sufficient education to meet the minimal
standard for a constitutionally adequate education.” The original plaintiffs were
“students and their parents or guardians from the relatively poor school systems in
Cumberland, Halifax, Hoke, Robeson, and Vance Counties and the boards of
educations for those counties.” Id. at 342, 488 S.E.2d at 252. Those plaintiffs were
joined by plaintiff-intervenors, “students and their parents or guardians from the
relatively large and wealthy school systems of the City of Asheville and of Buncombe,
Wake, Forsyth, Mecklenburg, and Durham counties and the boards of education for
those systems.” Id. at 342, 488 S.E.2d at 252.
¶ 265 Although plaintiffs’ and plaintiff-intervenors’ claims differed, they were
similar in one significant respect:
Both plaintiffs and plaintiff-intervenors (hereinafter
“plaintiff-parties” when referred to collectively) allege in
their complaints in the case resulting in this appeal that
they have a right to adequate educational opportunities
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
which is being denied them by defendants under the
current school funding system. Plaintiff-parties also allege
that the North Carolina Constitution not only creates a
fundamental right to an education, but it also guarantees
that every child, no matter where he or she resides, is
entitled to equal educational opportunities.
Id. at 342, 488 S.E.2d at 252.
¶ 266 Defendants responded to plaintiff-parties’ complaints by filing a motion to
dismiss, contending in part that “plaintiff-parties had failed to state any claim upon
which relief could be granted.” Id. at 344, 488 S.E.2d at 253. The trial court denied
defendants’ motion, and defendants timely appealed. Id. at 344, 488 S.E.2d at 253.
The Court of Appeals reversed the trial court and dismissed all of plaintiffs’ claims.
Id. at 344, 488 S.E.2d at 253. It concluded that “the right to education guaranteed
by the North Carolina Constitution is limited to one of equal access to the existing
system of education and does not embrace a qualitative standard.” Id. at 344, 488
S.E.2d at 253 (citing Leandro v. North Carolina, 122 N.C. App. 1, 11, 468 S.E.2d 543,
550 (1996)).
¶ 267 Plaintiff-parties petitioned this Court for discretionary review. We granted the
petition to address “whether the people’s constitutional right to education has any
qualitative content, that is, whether the state is required to provide children with an
education that meets some minimum standard of quality.” Id. at 345, 488 S.E.2d at
254. In answering that question in the affirmative, this Court stated:
We conclude that Article I, Section 15, and Article IX,
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
Section 2 of the North Carolina Constitution combine to
guarantee every child of this state an opportunity to receive
a sound basic education in our public schools. For purposes
of our Constitution, a “sound basic education” is one that
will provide the student with at least: (1) sufficient ability
to read, write, and speak the English language and a
sufficient knowledge of fundamental mathematics and
physical science to enable the student to function in a
complex and rapidly changing society; (2) sufficient
fundamental knowledge of geography, history, and basic
economic and political systems to enable the student to
make informed choices with regard to issues that affect the
student personally or affect the student’s community,
state, and nation; (3) sufficient academic and vocational
skills to enable the student to successfully engage in post-
secondary education or vocational training; and (4)
sufficient academic and vocational skills to enable the
student to compete on an equal basis with others in further
formal education or gainful employment in contemporary
society.
Id. at 347, 488 S.E.2d at 255 (emphasis added).
¶ 268 Plaintiff-parties also argued that “Article IX, Section 2(1), requiring a ‘general
and uniform system’ in which ‘equal opportunities shall be provided for all students,’
mandates equality in the educational programs and resources offered the children in
all school districts in North Carolina.” Id. at 348, 488 S.E.2d at 255. This Court
expressly rejected this argument, stating “we are convinced that the equal
opportunities clause of Article IX, Section 2(1) does not require substantially equal
funding or educational advantages in all school districts.” Id. at 349, 488 S.E.2d at
256. Thus, we affirmed the Court of Appeals’ decision to dismiss this claim.
¶ 269 As is especially relevant here, this Court made it clear that plaintiff-parties’
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
proposed constitutional requirement of “substantial equality of educational
opportunities in every one of the various school districts of the state would almost
certainly ensure that no matter how much money was spent on the schools of the state,
at any given time some of those districts would be out of compliance.” Id. at 350, 488
S.E.2d at 256–57 (emphasis added). Thus, this Court delineated between (1) a
requirement for the state to provide all students with the opportunity to receive a
sound basic education, and (2) a requirement for the state to provide the same
opportunities to all students statewide.
¶ 270 Further, we drew a sharp distinction between the right to a sound basic
education and the right to the opportunity to receive a sound basic education. This
Court discussed at length the “[s]ubstantial problems [that] have been experienced
in those states in which the courts have held that the state constitution guaranteed
the right to a sound basic education.” Id. at 350–51, 488 S.E.2d at 257 (emphasis
added). We listed multiple cases from various jurisdictions involving, as is
particularly relevant here, decisions of divided courts “striking down the most recent
efforts of the [state] legislature and for the third time declaring a funding system for
the schools of that state to be in violation of the state constitution.” Id. (citing Abbot
v. Burke, 149 N.J. 145, 693 A.2d 417 (1997)).2 In addition to referencing the flood of
2The majority cites to a continuation of Abbott v. Burke as an example to justify its
“extraordinary” remedy. It is extraordinary that the majority cites to cases and theories that
have been expressly disavowed by this Court. Further, the citations to cases from Kansas and
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
litigation brought forth in states that guarantee a right to a sound basic education,
this Court also noted law review articles which described “the difficulty in
understanding and implementing the mandates of the courts” and “the lack of an
adequate remedy” in these states. Id. (citing William E. Thro, The Third Wave: The
Impact of the Montana, Kentucky, and Texas Decisions on the Future of Public School
Finance Reform Litigation, 19 J.L. & Legal Educ. 219 (1990); Note, Unfulfilled
Promises: School Finance Remedies and State Courts, 104 Harv. L. Rev. 1072, 1075–
78 (1991)).
¶ 271 This Court “conclude[d] that the framers of our Constitution did not intend to
set such an impractical or unattainable goal.” Id. at 351, 488 S.E.2d at 257.
Accordingly, we held that “Article IX, Section 2(1) of the North Carolina Constitution
requires that all children have the opportunity for a sound basic education, but it does
not require that equal educational opportunities be afforded students in all of the
school districts of the state.” Id. (emphasis added).
¶ 272 This Court was acutely aware of the potential dangers of its holding in
Leandro. We defined the opportunity to receive a sound basic education with “some
trepidation[ ]” because “judges are not experts in education and are not particularly
able to identify in detail those curricula best designed to ensure that a child receives
Washington make little sense as neither of those cases involve the judicial exercise of
legislative authority over the public purse.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
a sound basic education.” Id. at 354, 488 S.E.2d at 259. Recognizing the General
Assembly’s crucial role in this issue, this Court stated:
We acknowledge that the legislative process provides a
better forum than the courts for discussing and
determining what educational programs and resources are
most likely to ensure that each child of the state receives a
sound basic education. The members of the General
Assembly are popularly elected to represent the public for
the purpose of making just such decisions. The legislature,
unlike the courts, is not limited to addressing only cases
and controversies brought before it by litigants. The
legislature can properly conduct public hearings and
committee meetings at which it can hear and consider the
views of the general public as well as educational experts
and permit the full expression of all points of view as to
what curricula will best ensure that every child of the state
has the opportunity to receive a sound basic education.
Id. at 355, 488 S.E.2d at 259.
¶ 273 As is clear from our opinion, this Court was well aware of the murky waters it
entered in Leandro. We took care to provide examples of what factors should be
considered by trial courts and what weight should be given to such factors. This
Court held that “[e]ducational goals and standards adopted by the legislature,” “the
level of performance of the children of the state and its various districts on standard
achievement tests[,]” and “the level of the state’s general educational expenditures
and per-pupil expenditures[ ]” were all relevant factors. Id. at 355, 488 S.E.2d at
259–60. We noted that one factor alone was not determinative.
¶ 274 Additionally, we directly addressed the basis of the trial court’s order at issue
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
before us today—whether courts of this state may rely solely on expenditures as a
remedy to an alleged violation of this right. In answering no, the Court stated:
We agree with the observation of the United States
Supreme Court that
The very complexity of the problems of financing and
managing a statewide public school system suggests that
there will be more than one constitutionally permissible
method of solving them, and that within the limits of
rationality, the legislature’s efforts to tackle the problems
should be entitled to respect. On even the most basic
questions in this area the scholars and educational experts
are divided. Indeed, one of the major sources of controversy
concerns the extent to which there is a demonstrable
correlation between educational expenditures and the
quality of education . . . .
Id. at 355–56, 488 S.E.2d at 260 (cleaned up) (quoting San Antonio Indep. Sch. Dist.
v. Rodriguez, 411 U.S. 1, 42–43, 93 S. Ct. 1278, 1301–02 (1973)).
¶ 275 This Court went further regarding the flawed notion of any reliable causal
relationship between increased expenditures and educational outcomes:
More recently, one commentator has concluded that
“available evidence suggests that substantial increases in
funding produce only modest gains in most schools.” The
Supreme Court of the United States recently found such
suggestions to be supported by the actual experience of the
Kansas City, Missouri schools over several decades. The
Supreme Court expressly noted that despite massive court-
ordered expenditures in the Kansas City schools which had
provided students there with school “facilities and
opportunities not available anywhere else in the county,”
the Kansas City students had not come close to reaching
their potential, and “learner outcomes” of those students
were “at or below national norms at many grade levels.”
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
Id. (quoting William H. Clune, New Answers to Hard Questions Posed by Rodriguez:
Ending the Separation of School Finance and Educational Policy by Bridging the Gap
Between Wrong and Remedy, 24 Conn. L. Rev. 721, 726 (1992) and Missouri v.
Jenkins, 515 U.S. 70, 70 115 S. Ct. 2038, 2040 (1995)).
¶ 276 This Court was gravely concerned with preventing judicial interference in the
legislative realm. To that end, before reversing the decision of the Court of Appeals
and remanding the case to Wake County Superior Court, we provided guidance to
future courts:
In conclusion, we reemphasize our recognition of the fact
that the administration of the public schools of the state is
best left to the legislative and executive branches of
government. Therefore, the courts of the state must grant
every reasonable deference to the legislative and executive
branches when considering whether they have established
and are administering a system that provides the children
of the various school districts of the state a sound basic
education. A clear showing to the contrary must be made
before the courts conclude that they have not. Only such a
clear showing will justify a judicial intrusion into an area
so clearly the province, initially at least, of the legislative
and executive branches as the determination of what
course of action will lead to a sound basic education.
Id. at 357, 488 S.E.2d at 261 (emphasis added).
¶ 277 Thus, this Court in Leandro explicitly stated that: (1) there are multiple
methods of ensuring children’s opportunity to receive a sound basic education; (2) the
legislature’s efforts to do so are entitled to great deference; (3) any reliance on a
correlation between educational spending and education quality is suspect at best;
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
and (4) a clear showing that children’s opportunity to receive a sound basic education
has been violated must be made before a court takes any action.
B. Hoke County
¶ 278 Seven years after deciding Leandro, we again addressed children’s opportunity
to receive a sound basic education in Hoke County Board of Education v. State, 358
N.C. 605, 599 S.E.2d 365 (2004) (Hoke County). At the conclusion of Leandro, this
Court had remanded the case to Wake County Superior Court to decide the following
claims:
(1) [W]hether the State ha[d] failed to meet its
constitutional obligation to provide an opportunity
for a sound basic education to plaintiff parties; (2)
whether the State has failed to meet its statutory
obligation, pursuant to Chapter 115C of the
General Statutes, to provide the opportunity for a
sound basic education to plaintiff parties; and (3)
whether the State’s supplemental school funding
system is unrelated to legitimate educational
objectives and, as a consequence, is arbitrary and
capricious, resulting in a denial of equal protection
of the laws for plaintiff-intervenors.
Id. at 612, 599 S.E.2d at 374–75. This Court noted the issues were further refined
because “[t]he issue of whether the State has failed in its statutory duty to provide
Hoke County school children with a sound basic education has been subsumed . . . by
the constitutional question[,]” and the supplemental funding issue was not ripe. Id.In so stating, we recognized that education policy as set forth in the relevant statutes
was consistent with the constitution.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
¶ 279 Upon remand, “two of the trial court’s initial decisions limited the scope of the
case[.]” Id. at 613, 599 S.E.2d at 375. First, the trial court, with the consent of the
parties, bifurcated the case into two separate actions—one addressing the claims of
the plaintiffs from rural school districts and one addressing the claims of the plaintiff-
intervenors from larger urban districts. Id. Because of this bifurcation, and because
plaintiff-intervenors’ trial had not yet been held, “our consideration of the case [wa]s
properly limited to those issues raised in the rural districts’ trial.” Id. Second, “the
trial court ruled that the evidence presented in the rural districts’ trial should be
further limited to claims as they pertain to a single district.” Id. Hoke County was
“designated as the representative plaintiff district,” and the “evidence in the case
w[as] restricted to its effect on Hoke County.” Id.¶ 280 Then, to determine the Hoke County claims, the trial court held a trial which
“lasted approximately fourteen months and resulted in over fifty boxes of exhibits
and transcripts, an eight-volume record on appeal, and a memorandum of decision
that exceeds 400 pages.” Id. at 610, 599 S.E.2d at 373.
¶ 281 This procedural posture had a significant effect on the impact of our holdings
in Hoke County. As this Court made abundantly clear at the outset, “our
consideration of this case is properly limited to the issues relating solely to Hoke
County as raised at trial.” Id. (emphasis added). As the case before us today is a
continuation of Hoke County, and because Hoke County constitutes the law of this
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
case, we are bound by this Court’s previous language:
[B]ecause this Court’s examination of the case is premised
on evidence as it pertains to Hoke County in particular, our
holding mandates cannot be construed to extend to the other
four rural districts named in the complaint. With regard to
the claims of named plaintiffs from the other four rural
districts, the case is remanded to the trial court for further
proceedings that include, but are not necessarily limited to,
presentation of relevant evidence by the parties, and
findings and conclusions of law by the trial court.
Id. n.5 (emphasis added).
¶ 282 What this means in plain language is that our decision in Hoke County
concerned only Hoke County and that no part of that decision attempted to determine
whether any other county was failing to provide students with the opportunity to a
sound basic education. Consistent with our holding in Leandro, a “judicial intrusion”
into any other county’s system would require an adversarial hearing complete with
the presentation of relevant evidence and findings of fact. The evidence and factual
findings would then need to support the conclusion of law that a “clear showing” had
been made that the county was denying children the opportunity to a sound basic
education. See Leandro, 346 N.C. at 357, 488 S.E.2d at 261. Absent any separate
trial for another county, the assertion that the trial court’s order reviewed in Hoke
County addressed any county other than Hoke County is plainly wrong and blatantly
contradicts the clear language of this Court.
¶ 283 Not only did our decision in Hoke County only address the Hoke County claims,
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
but we also noted that the trial court’s order was limited to claims involving “at-risk”
students in Hoke County. Accordingly, we stated that:
As a consequence, while we must limit our review of the
trial court’s order to its conclusions concerning ‘at-risk’
students, we cannot and do not offer any opinion as to
whether non ‘at-risk’ students in Hoke County are either
obtaining a sound basic education or being afforded their
rightful opportunity by the State to obtain such an
education.
Hoke County, 358 N.C. at 634, 599 S.E.2d at 388.
¶ 284 After these express limitations, we first examined whether the evidence
established “a clear showing” supporting “the trial court’s conclusion that the
constitutional mandate of Leandro has been violated in the Hoke County School
System . . . .” Id. at 623, 599 S.E.2d at 381 (cleaned up). We next reviewed two
categories of evidence presented at trial.
¶ 285 First, we reviewed the trial court’s consideration of evidence of “comparative
standardized test score data[,] . . . student graduation rates, employment potential,
[and] post-secondary education success” for Hoke County and its comparison of that
data to data regarding North Carolina students statewide. Id. We determined that
evidence of this type fell “under the umbrella term of ‘outputs,’ a term used by
educators that, in sum, measures student performance.” Id. Second, we reviewed
the trial court’s use of evidence of “deficiencies pertaining to the educational offerings
in Hoke County schools” and “deficiencies pertaining to the educational
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
administration of Hoke County schools.” Id. We determined that evidence of this
type fell “under the umbrella term of ‘inputs,’ a term used by educators that, in sum,
describes what the State and local boards provide to students attending public
schools.” Id.¶ 286 This Court examined: (1) whether these types of evidence were relevant in
determining Hoke County’s Leandro compliance; and, if so, (2) whether the evidence
presented supported the trial court’s determination that Leandro’s mandate was
being violated in Hoke County.
¶ 287 We first determined that the trial court was correct in using various
standardized test scores to compare the proficiency of Hoke County students to that
of other students in North Carolina. The trial court determined that the comparison
“clearly show[ed] Hoke County students are failing to achieve [grade-level]
proficiency in numbers far beyond the state average.” Id. at 625, 599 S.E.2d at 383.
Further,
[i]n analyzing the test score data and the opinions of those
who testified about them, the trial court noted that the
score statistics showed that throughout the 1990s, Hoke
County students in all grades trailed their statewide
counterparts for proficiency by a considerable margin. For
example, in 1997–98, only 46.9% of Hoke students scored
at Level III or above in algebra while the state average was
61.6%. Similar disparities occurred in other high school
subjects such as Biology, English, and American History.
Other test data reflected commensurate results in lower
grades. For example, in grades 3–8, Hoke County students
trailed the state average in each grade, with gaps ranging
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
from 11.7% to 15.1%.
Id. at 625–26, 599 S.E.2d at 383.
¶ 288 A wide range of tests confirmed that Hoke County students were deficient
when compared to statewide averages. The trial court made extensive detailed
findings of fact that this deficiency was confirmed by evidence regarding Hoke County
graduation rates, dropout rates, employment rates and prospects, and post-secondary
education performance. Id. at 625–30, 599 S.E.2d at 382–386. We stated that
[i]n the realm of “outputs” evidence, we hold that the trial
court properly concluded that the evidence demonstrates
that over the past decade, an inordinate number of Hoke
County students have consistently failed to match the
academic performance of their statewide public school
counterparts and that such failure, measured by their
performance while attending Hoke County schools, their
dropout rates, their graduation rates, their need for
remedial help, their inability to compete in the job markets,
and their inability to compete in collegiate ranks,
constitute a clear showing that they have failed to obtain a
Leandro-comporting education.
Id. at 630, 599 S.E.2d at 386.
¶ 289 We then addressed “inputs,” asking whether the evidence supported the trial
court’s conclusion that the defendants were responsible for the deficiency of Hoke
County students in comparison to other students statewide. First, and most relevant
to the current appeal, this Court affirmed the trial court’s conclusion that the
statewide education policy and funding were constitutionally sound.
In sum, the trial court found that the State’s general
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
curriculum, teacher certifying standards, funding
allocation systems, and education accountability standards
met the basic requirements for providing students with an
opportunity to receive a sound basic education. As a
consequence, the trial court concluded that “the bulk of the
core” of the State’s “Educational Delivery System ... is
sound, valid and meets the constitutional standards
enumerated by Leandro.”
Id. at 632, 599 S.E.2d at 387. Simply stated, we held that the General Assembly’s
statutory schemes creating and funding our education system complied with our state
constitution as interpreted in Leandro.
¶ 290 Despite the trial court’s conclusion on this issue, it determined that neither the
State, nor the Hoke County School System, were “strategically allocating the
available resources to see that at-risk children have the equal opportunity to obtain
a sound basic education.” Id. at 635, 599 S.E.2d at 388.3 We summarized the trial
court’s remedial action as such:
Although the trial court explained that it was leaving the
“nuts and bolts” of the educational resources assessment in
Hoke County to the other branches of government, it
ultimately provided general guidelines for a Leandro-
compliant resource allocation system, including the
requirements: (1) that “every classroom be staffed with a
competent, well-trained teacher”; (2) “that every school be
3 The “available resources” are the funds appropriated by the General Assembly in the
State Budget. The failure to “strategically allocate[]” these available funds is a failure on the
part of the State Board of Education—not the General Assembly. See N.C.G.S. § 115C-408(a)
(“The [State] Board shall have general supervision and administration of the educational
funds provided by the State . . . .”). As the trial court stated, “the funds presently appropriated
and otherwise available are not being effectively and strategically applied so as to meet the
[ ] principles from Leandro.” (emphasis added).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
led by a well-trained competent principal”; and (3) “that
every school be provided, in the most cost effective manner,
the resources necessary to support the effective
instructional program within that school so that the
educational needs of all children, including at-risk
children, to have the equal opportunity to obtain a sound
basic education, can be met.” Finally, the trial court
ordered the State to keep the court advised of its remedial
actions through written reports filed with the trial court
every ninety days.
Id. at 636, 599 S.E.2d at 389 (emphasis added).
¶ 291 Notably, the trial court “refused to step in and direct the ‘nuts and bolts’ of the
reassessment effort.” Id. at 638, 599 S.E.2d at 390. The trial court “deferred to the
expertise of the executive and legislative branches” because it “acknowledg[ed] that
the state’s courts are ill-equipped to conduct, or even to participate directly in, any
reassessment effort.” Id. This Court explicitly approved of such deference in
affirming the trial court’s order:
[W]e note that the trial court also demonstrated admirable
restraint by refusing to dictate how existing problems
should be approached and resolved. Recognizing that
education concerns were the shared province of the
legislative and executive branches, the trial court instead
afforded the two branches an unimpeded chance, “initially
at least,” to correct constitutional deficiencies revealed at
trial. In our view, the trial court’s approach to the issue was
sound and its order reflects both findings of fact that were
supported by the evidence and conclusions that were
supported by ample and adequate findings of fact. As a
consequence, we affirm those portions of the trial court’s
order that conclude that there has been a clear showing of
the denial of the established right of Hoke County students
to gain their opportunity for a sound basic education and
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
those portions of the order that require the State to assess
its education-related allocations to the county’s schools so
as to correct any deficiencies that presently prevent the
county from offering its students the opportunity to obtain
a Leandro-conforming education.
Id. at 638, 599 S.E.2d at 390–91 (emphasis added).
¶ 292 This Court entered two additional holdings. First, we reversed the trial court’s
decision that it could specifically determine the age for school eligibility. This Court
held the issue was nonjusticiable, stating that “[o]ur reading of the constitutional and
statutory provisions leads us to conclude that the determination of the proper age for
school children has indeed been squarely placed in the hands of the General
Assembly.” Id. at 639, 599 S.E.2d at 391. We noted that an issue is nonjusticiable
when either “the Constitution commits an issue, as here, to one branch of
government,” or “satisfactory and manageable criteria or standards do not exist for
judicial determination of the issue.” Id. (citing Baker v. Carr, 369 U.S. 186, 210, 82
S. Ct. 691, 706 (1962)). This Court determined that the issue of the proper age for
school children met both tests for nonjusticiability. Id. In addition, we affirmed the
trial court’s decision to consider all available resources, including those provided by
the federal government, when evaluating our state’s educational system. Id. at 645–
47, 599 S.E.2d at 395–96.
¶ 293 This Court’s clear and deliberate language established several crucial points
that should control our determination of the instant case. First and foremost,
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
education policy and funding are legislative responsibilities, while the executive is
tasked with administration of the education system. Id. at 643, 599 S.E.2d at 393.
Second, our holding in Hoke County was based on review of a 400-page, detailed order,
which resulted from the trial court receiving evidence over a fourteen-month period
on whether at-risk students in Hoke County were receiving the opportunity to a
sound basic education. The trial court determined that the educational opportunities
provided by Hoke County were deficient when it compared Hoke County to their
contemporaries across the state. Finally, our holding in Hoke County was expressly
limited to Hoke County.
¶ 294 We concluded our opinion by directing the trial court to conduct proceedings,
consistent with the strictures above, monitoring Hoke County compliance and
holding trials. Executive branch agencies were required to propose methods to
reallocate existing resources to address the deficiencies in Hoke County. In addition,
the trial court was to hold trials “involving either other rural school districts or [the
five] urban school districts, . . . in a fashion that is consistent with the tenets outlined
in this opinion.” Id. at 648, 599 S.E.2d at 397.
¶ 295 Thus, this case as refined by our opinions in Leandro and Hoke County did not
present a statewide claim that the education system in North Carolina was deficient,
and there has never been any such holding. To the contrary, the Court approved the
use of statewide averages to help determine if students in a particular county were
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
underperforming.4
C. Post-Hoke County
¶ 296 Following our decision in Hoke County, this matter was remanded to Wake
County Superior Court for further proceedings under Judge Howard E. Manning, Jr.
Unfortunately, none of the trials required by this Court’s decision occurred between
July 2004 and October 7, 2016, when Judge Manning had to withdraw. While no trial
occurred and no formal order was rendered—unlike the trial that led to Hoke
County—there were various hearings and reports during this twelve-year period
which the majority erroneously claims amounted to a trial and order. A careful
reading of the record reveals that there was no trial and the trial court made no
findings of fact or conclusions of law amounting to an appealable order. We address
the four trial court filings highlighted by the majority.
¶ 297 On September 9, 2004, the trial court entered one of several filings entitled
“Notice of Hearing and Order Re: Hearings.” In that filing, the Court “noticed”
4 In reviewing the trial court’s conclusion that at-risk students in Hoke County were
denied the opportunity to a sound basic education, this Court explicitly approved of Judge
Manning’s use of a comparative analysis in which Hoke County was measured against other
counties in this state. This use of better-performing counties as measuring sticks was only
possible because students in these other counties were receiving a Leandro conforming
education, and this fact is reflected in Judge Manning’s determinations regarding funding
adequacy and implementation inadequacy.
No such analysis could conceivably support Judge Lee and the education
establishment’s assertion that students in all counties in this state are being denied the
opportunity to a sound basic education—without at least one Leandro compliant county, the
measuring stick evaporates. Put another way, the existence of Leandro compliant counties
for which comparison is possible defeats any suggestion that there is a statewide violation.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
hearings to occur on October 7 and 25, 2004, and “ordered” the parties to attend. The
trial court recounted some of the history of the case, including excerpts from this
Court’s then recent Hoke County decision. In reviewing certain data, the trial court
made the following observation:
This Court believes that DPI and the State Board of Public
Instruction are heading down the right track towards
assessing problems, developing common sense solutions
and providing LEAS with guidance and assistance in
developing cost-effective, targeted solutions that can be
measured for success and accountability.
Now that the appeal is over and Leandro II is in full force
and effect, it is time for the DPI and State Board to outline
and present its plans as to how it will continue to proceed
to ensure that the children of North Carolina will be
afforded the opportunity to a sound basic education.
¶ 298 On February 9, 2005, certain Mecklenburg County parents and students (Penn
Intervenors), represented by current Justice Anita Earls, filed a complaint seeking to
intervene and raising education and race-based claims. On August 19, 2005, the trial
court allowed intervention solely for the education claim and denied participation
concerning any race-based claims.
¶ 299 Thereafter, on September 30, 2005, Justice Earls filed an amended complaint
on behalf of the Penn Intervenors, which further developed the education claim
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
allowed by the trial court and sought to add additional plaintiffs.5 On May 4, 2006,
all of the original intervening parties, except the Charlotte-Mecklenburg Board of
Education, voluntarily dismissed their claims.
¶ 300 The next trial court filing referenced by the majority was again entitled “Notice
of Hearing Order Re: Hearing.” The “order” again simply ordered the parties to
appear at the noticed hearing. The trial court noted that the hearing was “non-
adversarial” and explained its purpose was to provide executive branch defendants
the “opportunity to report to the court concerning the actions that the Executive
Branch will take with regard to the Halifax County Public School system.” The trial
court made the following observations concerning Halifax County Schools:
The bottom line is that Halifax County Public School
children are suffering from a breakdown in system
leadership, school leadership and a breakdown in
classroom instruction by and large from elementary school
through high school.
...
Financial data furnished by DPI shows that the cost to the
taxpayers to provide school level expenditures, the
majority of which are salaries and benefits, has exceeded
$75,000,000.00 for the past three years.
...
With all of this expense being paid to the adults whose
responsibility it is to provide an equal opportunity to obtain
5 That claim remains part of this case, and Justice Earls’ former clients participated
in this appeal.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
a sound basic education to each and every child in the
Halifax County Public School system, there seems to be
little trickle down benefit to the children entrusted to the
adults in these schools.
...
[I]t is time for the State to exert itself and exercise
command and control over the Halifax County Public
Schools beginning in the school year 2009-2010, nothing
more and nothing less.
...
[T]he Court is providing the Executive Branch the
opportunity, initially at least, to exercise its constitutional
authority over the Halifax County School system to remedy
the academic disaster which is occurring there[.]
...
The Court will entertain no excuses or whining by the
adults in the educational establishment in Halifax County
about how it’s the children’s fault, not theirs, for failing to
provide the academic environment where children can
obtain a sound basic education. If these children had
Leandro compliant school leadership and teachers, they
could learn and obtain a sound basic education rather than
fail and drop out of school doomed to a lifetime of poverty
and its multiple damages.
¶ 301 Subsequently, on May 5, 2014, the trial court entered a filing entitled “Report
from the Court Re: The Reading Problem.” In it, the trial court observed that the goal
of N.C.G.S. § 115C-83.1 et. seq. was “on all fours with the Leandro I definition of a
sound basic education.” After citing with approval the legislative enhancements to
education, the trial court placed the blame for students’ reading shortfalls squarely
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
on principals and teachers.
The bottom line is that the principals that sit in the office,
fail to analyze the assessment data a[t] their fingertips and
do not become proactive in seeing the K-3 assessment
system is being properly and effectively used by all
teachers to drive individualized instruction in literacy, are
not performing at a level that is expected to provide their
students and faculty with the leadership needed to be
successful and have all children obtain a sound basic
education and proficiency in reading. This principal is not
a Leandro compliant principal.
Similarly, teachers who fail to utilize the assessment tools properly “are not Leandro
compliant.”
¶ 302 The trial court issued this summary observation directed to school principals
and teachers:
Bottom line requirement: Do the formative assessment and
use the information to meet the needs of the individual
child. Do not put the data in the folder and continue on with
the instruction for the entire class on one level. (What
about this do you not understand?)
¶ 303 The final trial court filing relied on by the majority was another “Notice of
Hearing and Order Re: Hearing” dated March 17, 2015. In that filing, the trial court
expressed concern that the State Board of Education and the Department of Public
Instruction were diminishing educational standards.
Regardless of whatever excuse or reason reducing or
eliminating academic standards and assessments may be
based on, including education leaders and parent pressure,
politics or an unconditional desire to reduce children’s
equal opportunities to obtain a sound basic education, the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
reduction of academic standards and elimination of
assessments and EOC and EOG tests would be a direct
violation of the Leandro mandate regarding assessments
and testing to determine whether each child is obtaining a
sound basic education.
The bottom line is that in 2014, the SBE and DPI through
their actions in redefining achievement levels, has begun
to nibble away at accountability and academic standards[.]
¶ 304 Judge Manning further noted:
As a result of today’s heightened awareness and available
data relating to individual school and student academic
achievement in each classroom, the natural reaction by the
affected adults who are in education, is to seek a way to
eliminate the source of the data that holds them
accountable. The only way out from under the microscope
of accountability is to eliminate the assessments and the
tests themselves.
Helping non[-]Leandro compliant teachers and principals
escape from public scrutiny and accountability by
eliminating is invalid, simply wrong and in violation of the
children’s rights[.]
Teaching to the test is a “red herring’ phrase to draw
attention away from the real problem – a failure of basic
classroom instruction.
¶ 305 Judge Manning’s filings reflect his summary of the proceedings in the trial
court. Notably, in a memorandum he provided the trial court judge who succeeded
him, Judge Manning stated:
Our children that cannot read by the third grade are by and
large doomed not to succeed by the time they get to high
school. As shown by the record in this case, that is a failure
of classroom instruction.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
...
Reduced to essentials, in my opinion the children are not
being provided the opportunity because after all the
millions spent, 90% of school costs are for adult salaries
and benefits, and the data show as it did years ago and up
to now the educational establishment has not produced
results.
¶ 306 Judge Manning, who presided over this case for almost 20 years, reiterated
time and time again that the problem is not education policy or funding. The problem
is a failure of the educational establishment and classroom instruction, i.e.,
implementation and delivery.
¶ 307 During the twelve years between this Court’s decision in Hoke County and the
case’s reassignment to Judge Lee, the record reveals that Judge Manning entered
sixteen Notices of Hearings and Orders re: Hearings, four Court Memos Confirming
Hearing Date and Time, one Memorandum of Decision and Order Re: Pre-
Kindergarten Services for At-Risk Four Year Olds,6 and one Report from the Court
Re: The Reading Problems. The record demonstrates that, contrary to this Court’s
express direction, no trials were conducted for any other school districts or counties,
and the parties have failed to point this Court to anything in the record indicating
that any such trials ever occurred. Moreover, at oral argument in this case, the
6This amounted to the only actual court order, and it was vacated on appeal as
discussed herein. See Hoke Cnty. Bd. of Educ. v. State, 367 N.C. 156, 749 S.E.2d 451 (2013).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
parties were unable to direct this Court to any order finding a statewide violation.
See Oral Argument at 36:20, Hoke Cnty. Bd. of Educ. v. State of North Carolina, No.
425A21-2, https://www.youtube.com/watch?v=NOuFCf2rYdY.
¶ 308 Significant to a proper analysis by this Court of the current appeal, on August
15, 2011, the General Assembly sought to intervene in this action. Prior to 2011, the
General Assembly, the Governor, and other executive branch entities involved in
formulating education policy were all of the same political party. However, as a result
of the 2010 midterm elections, the majority in the State House and Senate changed
parties.
¶ 309 The Attorney General notified the legislature that it would no longer represent
the General Assembly’s interests in the case. The Attorney General noted a conflict
of interest between the General Assembly and the remaining State defendants, and
that neither the Governor nor the Department of Public Instruction would waive the
conflict. Thereafter, the General Assembly moved to intervene.
¶ 310 In denying the General Assembly’s motion to intervene, the trial court
acknowledged that the “obligation[ ] to establish and maintain public schools is the
‘shared province of the executive and legislative branches,’ ” but specifically declined
to “put[ ] itself, or the judiciary, in the middle of this political dispute.” The trial court
denied the motion to intervene, in part because it recognized that the case concerned
implementation of policy, and, therefore, focused on executive branch defendants.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
Thus, the legislative defendants were denied an opportunity to participate in this
litigation.
¶ 311 This case again reached this Court in 2013. See Hoke Cnty. Bd. of Educ. v.
State, 367 N.C. 156, 749 S.E.2d 451 (2013). There, we vacated an actual order entered
by the trial court finding unconstitutional certain limitations on access to early
childhood education. Id. at 159–60, 749 S.E.2d at 454–55. Because the General
Assembly had revised the contested statute, we held the case should be dismissed as
moot with the orders of the Court of Appeals and the trial court vacated. Id. at 160,
749 S.E.2d at 455.
¶ 312 Of note, Justice Earls filed an amicus brief in this matter on behalf of an
organization she had founded, the Southern Coalition for Social Justice. Justice Earls
argued that the trial court had the constitutional authority to order remedial relief
by the legislative branch, just as the majority holds today. See New Brief of Amici
Curiae, at 11, Hoke Cnty. Bd. of Educ. v. State, 367 N.C. 156 (2013) (No. 5PA12-2).
In the brief, she contended that when “the other branches refuse to fulfill
[constitutional] obligations, our state courts are not only empowered, but are
obligated, to act to ensure the constitutional rights of North Carolinians are not
compromised.” Interestingly, she made various arguments in the brief similar to
those now adopted by the majority, citing many of the same cases and using some of
the same quotes. Compare New Brief of Amici Curiae, at 11–13, Hoke Cnty., 367 N.C.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
156 (No. 5PA12-2) and supra ¶¶ 162–71.7
¶ 313 At the time of Judge Manning’s medical retirement, the remaining plaintiffs
in this matter were the original five rural counties, the Charlotte-Mecklenburg Board
of Education, and certain students from Mecklenburg County (the Penn Intervenors).
The state defendants were executive branch defendants who were represented by the
Attorney General. The General Assembly was not represented and was not a
participant in the action due to the prior denial of its motion to intervene.
¶ 314 After being appointed, Judge David Lee took the litigation in a far different
direction, appointing a third-party consultant to make education policy and funding
decisions. This was done despite this Court’s explicit holding in Hoke County that
the state’s education policy and its funding met constitutional standards. See Hoke
County, 358 N.C. at 387, 599 S.E.2d at 632. The trial court did not limit its directives
to the specific plaintiffs or their specific claims; rather, the trial court greatly
expanded the scope of this litigation while knowing that the branch designated by the
constitution to make education policy and funding decisions was not a party to the
proceedings.
7 Justice Earls also signed an amicus brief in this case in December 2004 while
representing the UNC School of Law Center for Civil Rights. See Memorandum of Law as
Amici Curiae, at 15, Hoke Cnty. Bd. of Educ. v. State, No. 95-CVS-1158 (N.C. Wake County
Sup. Ct. Dec 3, 2004). There, her brief criticized executive branch defendants for not seeking
significantly more money from the General Assembly and urging immediate court action.
Subsequently, the Center for Civil Rights moved to participate as if it represented a party
and also began to represent new plaintiffs seeking to intervene in this action.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
¶ 315 The following occurred after Judge Lee was assigned to preside over this case
on October 7, 2016:
(1) July 24, 2017: The State Board of Education filed a Motion for Relief
from Judge Manning’s 2002 Judgment, based on its assertion that “the
factual and legal landscapes have significantly changed,” and that “the
original claims, as well as the resultant trial court findings and
conclusions, are divorced from the current laws and circumstances.”
(2) February 1, 2018: Judge Lee entered a Case Management and
Scheduling Order noting that “the Plaintiff parties [including Penn-
Intervenors] and the State have jointly nominated, for the Court’s
consideration and appointment, an independent, non-party consultant
to develop detailed, comprehensive, written recommendations for
specific actions necessary to achieve sustained compliance with
constitutional mandates articulated in this case.”
(3) March 13, 2018: Judge Lee denied the State Board of Education’s Motion
for Relief from Judgment.
(4) March 13, 2018: Judge Lee entered a consent order appointing WestEd
as an “independent, non-party consultant” to assist with the case.
(5) December 2019: WestEd submits its plan for North Carolina.
(6) January 21, 2020: The parties, including the State Board of Education,
enter a consent order that “[b]ased upon WestEd’s findings, research,
and recommendations and the evidence of record in this case, the Court
and parties conclude that a definite plan of action for the provision of
the constitutional Leandro rights must ensure a system of education,”
that, at a minimum, included seven components described in the order.
The order required the parties to submit a status report on the “specific
actions that State Defendants must implement in 2020 to begin to
address the issues identified by WestEd.”
(7) June 15, 2020: Parties submitted a Joint Report to the Court on
remedial steps the State planned to take in the next year.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
(8) September 1, 2020: Judge Lee entered a consent order, noting that the
parties agreed that the steps outlined in the June 15, 2020 Joint Report
“are the necessary and appropriate actions needed in Fiscal Year 2021
to begin to adequately address the constitutional violations in providing
the opportunity for a sound basic education to all children in North
Carolina.” The Court ordered defendants to implement the remedial
actions in the Joint Plan by June 30, 2021, and required the parties to
develop a Comprehensive Remedial Plan (CRP) by December 31, 2020.
(9) March 15, 2021: State defendants submitted a Comprehensive Remedial
Plan to the Court.
(10) June 11, 2021: Judge Lee entered an order providing that the “actions,
programs, policies, and resources propounded by and agreed to [by] the
State Defendants, and described in the Comprehensive Remedial Plan
are necessary to remedy the continuing constitutional violations and to
provide the opportunity for a sound basic education . . . .” Judge Lee
ordered that the “Comprehensive Remedial Plan shall be implemented
in full” and set forth deadlines for doing so.
(11) August 6, 2021: The State filed its first progress report on the status of
implementing the Comprehensive Remedial Plan.
(12) September 8, 2021: Judge Lee held a hearing on the status of
implementing the Comprehensive Remedial Plan.
(13) September 22, 2021: Judge Lee entered an order on the First Progress
report filed by the State. He noted that the parties had not yet secured
full funding for the first two years of the Comprehensive Remedial Plan
but noted that the State “has available fiscal resources needed to
implement Years 2 and 3 of the” Plan. Judge Lee ordered that another
hearing be held on October 18, 2021 “to inform the Court of the State’s
progress in securing the full funds necessary to implement the” CRP.
Judge Lee noted that “in the event full funds necessary to implement
the CRP are not secured by that date, the Court will hear and consider
any proposals for how the Court may use its remedial powers to secure
funding.”
(14) October 18, 2021: Judge Lee entered an order finding that the CRP had
not, as of that date, been fully funded by “an appropriations bill.” Judge
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
Lee gave the parties until November 8, 2021, to submit memoranda of
law what on remedial steps the court could take.
(15) November 10, 2021: Judge Lee entered the order requiring relevant
State actors to transfer over a billion dollars from the General Fund to
appropriate State agencies to fund years 2 and 3 of the CRP. Judge Lee
stayed the order for 30 days.
(16) November 18, 2021: The General Assembly passed the Budget Act of
2021. The budget appropriated $10.6 billion in FY 2021-2022 and $10.9
billion in FY 2022-2023 for K-12 education. These figures do not include
over $3.6 billion dollars in federal coronavirus funding for North
Carolina school districts. The budget was signed by the Governor.
(17) November 30, 2021: Judge Lee entered an order noticing a hearing for
December 13, 2021, for the State “to inform the Court of the specific
components of the Comprehensive Remedial Plan for years 2 & 3 that
are funded by the Appropriations Act and those that are not.” Judge Lee
also ordered that his November 10, 2021 transfer order be stayed for ten
days after the December 13, 2021 hearing.
(18) December 7, 2021: The State appealed from the November 10, 2021
order.
(19) December 8, 2021: The intervening legislative defendants filed a notice
of appeal from the November 10, 2021 order.
¶ 316 As is evident from the timeline above, after the case was reassigned to Judge
Lee, no trials or adversarial hearings took place to determine whether a statewide
violation of Leandro existed. The State Board of Education raised this exact issue
before the trial court as part of its Motion for Relief filed July 10, 2017. The State
Board of Education requested that the trial court “relinquish [remedial] jurisdiction,”
in part because “[f]or over a decade, the Superior Court has retained and exercised
jurisdiction in this case, [but] this Superior Court has not [ ] held a trial as to any
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
other plaintiff school board.” Further, the State Board of Education noted the current
direction of the case far
“exceed[ed] the jurisdiction established by the original
pleadings in this action.” The State Board of Education
recognized numerous statutory and administrative
changes since the Hoke County decision. It stated that
“[t]he cumulative effect of these changes is that the State’s
current educational system is so far removed from the
factual landscape giving rise to the complaint, trial, and
2002 Judgment that the superior court is now retaining
jurisdiction over a ‘future school system’ which was not the
subject of the original action.”
¶ 317 On March 13, 2018, eight months after the State Board filed its motion, Judge
Lee denied the motion without addressing these crucial issues. In a footnote to the
order, Judge Lee indicated that all of the parties were now working together; the
proceedings were now taking on a radically different character. The record reflects
that the parties entered into three consent orders, with the first occurring on March
13, 2018.8 In this first consent order, the trial court, upon the parties’ request,
appointed a San Francisco-based consulting company, WestEd, to serve as an
“independent non-party consultant.” According to a Case Management and
Scheduling Order dated February 1, 2018, WestEd’s role was to recommend “specific
actions” that the state should take:
8 Notably, as discussed further below, the legislature was not a party to the case at
this point because its motion to intervene was denied in 2011. Therefore, both its interests
and, commensurately, the interests of the taxpayers, voters, and people of this State, were
not represented.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
a. To provide a competent, well-trained teacher in every
classroom in every public school in North Carolina;
b. To provide a well-trained, competent principal for every
public school in North Carolina; and
c. To identify the resources necessary to ensure that all
children in public school, including those at risk, have
an equal opportunity to obtain a sound basic education,
as defined in Leandro I.9 (emphasis added).
¶ 318 In December 2019, WestEd released its “Action Plan for North Carolina.”10
This report became the basis for two further consent orders between the parties—a
Consent Order Regarding Need for Remedial, Systemic Actions for the Achievement
of Leandro compliance, filed January 21, 2020, and a Consent Order on Leandro
Remedial Action for Fiscal Year 2021, filed September 11, 2020.
¶ 319 In addition, WestEd’s report formed the basis for the “Comprehensive
Remedial Plan.” The CRP resulted from the trial court’s order for “State Defendants,
in consultation with Plaintiffs to develop and present a Comprehensive Remedial
9 It is notable that the trial court misconstrued our holding in Leandro. As discussed
above, this Court expressly rejected the contention that our constitution requires all students
to have “an equal opportunity to obtain a sound basic education.” See Leandro, 346 N.C. at
350, 488 S.E.2d at 256–57 (emphasis added) (“A constitutional requirement to provide
substantial equality of educational opportunities . . . would almost certainly ensure that no
matter how much money was spent on the schools of the state, at any given time some of
those districts would be out of compliance.”).
10 On the first page of its report, WestEd wrongly asserted that this Court’s decision
in Leandro “affirmed that the state has a constitutional responsibility to provide every
student with an equal opportunity for a sound basic education and that the state was failing
to meet that responsibility.” (Emphasis added.) This is simply wrong. This Court has never
affirmed a Leandro violation outside of Hoke County, let alone a violation occurring on a
statewide basis.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
Plan to be fully implemented by the end of 2028 . . . .” There is no doubt that the CRP
was crafted by the parties, as “State Defendants ha[d] regularly consulted with the
plaintiff-parties in the development of the Comprehensive Remedial Plan.” The CRP
contains hundreds of action steps for the state to complete over the course of eight
years, which would require billions of dollars in taxpayer money to fund. On June 7,
2021, the trial court entered its Order on Comprehensive Remedial Plan and directed
that “the Comprehensive Remedial Plan shall be implemented in full and in
accordance with the timelines set forth therein . . . .”
¶ 320 The CRP includes definitions of “responsible parties” who must implement the
plan’s “action steps.” While our state constitution provides that the General
Assembly has exclusive authority to allocate taxpayer money, the General Assembly
is consistently identified by WestEd as a responsible party for each of these action
steps. However, the General Assembly was never joined as a necessary party by the
trial court, nor was it consulted during the development of the CRP. As previously
noted, the legislature had moved to intervene in this case in 2011, but the trial court
denied its motion to intervene.
¶ 321 Following the trial court’s June 7 2021 order directing that the CRP be
implemented in full, the trial court entered an order on November 10, 2021, in which
it ordered that:
The Office of State Budget and Management and the
current State Budget Director (“OSBM”), the Office of the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
State Controller and the current State Comptroller
(“Controller”), and the Office of the State Treasurer and the
current State Treasurer (“Treasurer”) shall take the
necessary actions to transfer the total amount of funds
necessary to effectuate years 2 & 3 of the Comprehensive
Remedial Plan, from the unappropriated balance within
the General Fund to the state agents and state actors with
fiscal responsibility for implementing the Comprehensive
Remedial Plan as follows:
(a) Department of Health and Human Services (“DHHS”):
$189,800,000.00
(b) Department of Public Instruction (“DPI”):
$1,522,053,000.00
(c) University of North Carolina System: $41,300,000.00
¶ 322 In addition to ordering the transfer of more than $1.7 billion in state funds, the
trial court also ordered that “OSBM, the Controller, and the Treasurer, are directed
to treat the foregoing funds as an appropriation from the General Fund . . . .”
¶ 323 The day before Judge Lee entered the November 10 order, Judge Manning sent
a memorandum to the General Assembly, the Governor, and the Superintendent of
Public Instruction. Judge Lee was copied on the memorandum, which stated:
At the present time there is a media-induced frenzy about
the Leandro judge proposing to enter an order requiring
the General Assembly to appropriate over $1 billion for the
educational establishment. As the press is licking its lips
for 15 minutes on the 6:00 news, I will refer all to the
following decisions from our Supreme Court and other
decisions relating specifically to the power of the Judicial
Branch.
You might enjoy reading Able Outdoor, Inc. v. Harrelson
341 N.C. 167 (1995) by Justice Webb (a Democrat) as
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
follows:
We hold, however, that the Court of Appeals erred in
affirming Judge Cashwell’s orders allowing execution
against the State. In Smith v. State, 289 NC 303 (1976), we
held that . . . if a plaintiff is successful in establishing his
claim, he cannot obtain execution to enforce the judgment.
We said ‘[t]he judiciary will have performed its function to
the limit of its constitutional powers. Satisfaction will
depend upon the manner in which the General Assembly
discharges its constitutional duties.’ Pursuant to Smith, we
do not believe the Judicial Branch of our State government
has the power to enforce an execution against the Executive
Branch.
You should also read the following decisions attached to
this memorandum, which also declare the limits of the
Court’s power to execute or require the Legislative and
Executive branches of government to appropriate money.
Finally, Leandro requires that the children, not the
educational establishment, have the Constitutional right
to the equal opportunity to obtain a sound, basic education.
This has not and is not happening now as the little children
are not being taught to read and write because of a failure
in classroom instruction as required by Leandro. 358 NC
624, 625, 626 (“First, that every classroom be staffed with
a competent, certified, well-trained teacher who is teaching
the standard course of study by implementing effective
educational methods that provide differentiated
individualized instruction, assessment and remediation to
the students in that classroom.”).
This is not happening now.
Our children that cannot read by the third grade are by and
large doomed not to succeed by the time they get to high
school. As shown by the record in this case, that is a failure
of classroom instruction. This conclusion is supported
further by the Report from the Court: The Reading
Problem (2014) as well as annual statewide academic
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
performance data, including ACT statewide results for
2020–21 and several years before.
Reduced to essentials, in my opinion the children are not
being provided the opportunity because after all the
millions spent, 90% of school costs are for adult salaries
and benefits, and the data shows as it did years ago and up
to now the educational establishment has not produced
results.
‘A Failure of Classroom Instruction.’ Read Retired Judge’s Memo on NC School
Funding, The News & Observer (Nov. 10, 2021, 6:36 PM),
https://www.newsobserver.com/news/local/education/article255713686.html. 11
¶ 324 Eight days after the trial court entered the November 10 order, the General
Assembly passed, and the Governor signed, the Current Operations and
Appropriations Act of 2021, 2021 N.C. Sess. L. 180 (State Budget).
¶ 325 The State appealed to the Court of Appeals.12 It was at this point that
Legislative Intervenors intervened as of right pursuant to N.C.G.S. § 1-72.2(b) and
11 History and common sense tell us that increased funding alone is not a silver bullet.
By way of example, a young baseball player can have the best bat, glove, batting gloves,
cleats, and helmet money can buy. Mom and dad can fork out a fortune for top-notch hitting
and pitching coaches, showcase teams, and field time. But, if these coaches prioritize teaching
the young player to cook or play a musical instrument, you will see little improvement in the
sport of baseball.
The same is true with educating children. Schools can have the best teachers along
with state-of-the-art programs, equipment, and materials, but educational outcomes will not
improve if use of available resources does not prioritize reading, writing, and arithmetic.
12 This appeal is curious, as the November 10 order attempted to fund a plan that the
State defendants crafted. Counsel for the State could not provide an answer when asked why
the State had appealed and stated “I don’t think the State disagreed with the adoption of
that plan.”
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
also filed a Notice of Appeal.13
¶ 326 The State Controller, who was not a party to this action, also petitioned the
Court of Appeals for a writ of prohibition, temporary stay, and writ of supersedeas,
arguing that the trial court lacked jurisdiction over the Controller and that the
November 10 order violated our state constitution. On November 30, 2021, the Court
of Appeals issued a writ of prohibition restraining the trial court from enforcing the
transfer provisions of its November 10 order and stated that “[u]nder our
Constitutional system, that trial court lacks the power to impose that judicial order.”
¶ 327 Following the Court of Appeals’ issuance of the writ of prohibition, multiple
parties, including the State, filed petitions and notices of appeal in this Court, seeking
review of the decision of the Court of Appeals and bypass review of issues arising from
the November 10 order. On March 21, 2022, this Court allowed defendant State of
North Carolina’s and plaintiffs’ petitions for bypass review (425A21-2) but held in
abeyance the direct appeal of review of the writ of prohibition (425A21-1). However,
this matter was first remanded to Wake County Superior Court “for the purpose of
allowing the trial court to determine what effect, if any, the enactment of the State
Budget has upon the nature and extent of the relief that the trial court granted . . . .”
Judge Michael Robinson was assigned the task of overseeing the proceedings on
13 It is notable that not only could the legislative defendants not intervene as of right
prior to the passage of the State Budget, but their prior motion to intervene was denied in
2011.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
remand.14
¶ 328 On remand, Judge Robinson concluded “that the 10 November order should be
amended to remove a directive that State officers or employees transfer funds from
the State Treasury to fully fund the CRP” but also concluded that “the State of North
Carolina has failed to comply with the trial court’s prior order to fully fund years 2
and 3 of the CRP.” In addition, Judge Robinson concluded that because the State
Budget in fact funded portions of CRP programs:
The Order should be further amended to determine
specifically that the additional amounts that are due to
DHHS, DPI, and the UNC System for undertaking the
programs called for in years 2 and 3 of the CRP should be
modified and amended as follows:
a. The amount to be provided to DHHS should be reduced
from $189,800,000 to $142,900,000
b. The amount to be provided to DPI should be reduced
from $1,522,053,000 to [$]608,006,248
c. The amount to be provided to the UNC System should
be reduced from $41,300,000 to $34,200,000.
¶ 329 With a proper understanding of the history and current posture of this case,
our analysis is set forth below.
II. Analysis
A. Collusion
14The matter was assigned to Judge Robinson because Judge Lee “had reached the
mandatory retirement age for judges in January.” David Lee, Judge who Oversaw School
Funding Case, Dies at 72, North State Journal, Oct. 12, 2022, at A5.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
¶ 330 The courts of this state “have no jurisdiction to determine matters purely
speculative, enter anticipatory judgments, declare social status, [or] deal with
theoretical problems . . . .” Little v. Wachovia Bank & Trust Co., 252 N.C. 229, 243,
113 S.E.2d 689, 700 (1960), overruled on other grounds by Citizens Nat’l Bank v.
Grandfather Home for Children, Inc., 280 N.C. 354, 185 S.E.2d 836 (1972). When an
issue has not been “drawn into focus by [court] proceedings,” any decision of our
courts would “be to render an unnecessary advisory opinion.” Wise v. Harrington
Grove Cmty. Ass’n, Inc., 357 N.C. 396, 408, 584 S.E.2d 731, 740 (2003) (citing City of
Greensboro v. Wall, 247 N.C. 516, 519, 101 S.E.2d 413, 416 (1958)). “It is no part of
the function of the courts, in the exercise of the judicial power vested in them by the
Constitution, to give advisory opinions . . . .” Poore v. Poore, 201 N.C. 791, 792, 161
S.E. 532, 533 (1931).
¶ 331 Because “[c]lear and sound judicial decisions” can only be reached when
adverse parties and their legal theories “are tested by fire in the crucible of actual
controversy,” suits lacking adversity are properly barred from our courts. State ex rel.
Edmisten v. Tucker, 312 N.C. 326, 345, 323 S.E.2d 294, 307 (1984) (emphasis in
original) (quoting City of Greensboro v. Wall, 247 N.C. at 520, 101 S.E.2d at 416). “So-
called friendly suits, where, regardless of form, all parties seek the same result, are
quicksands of the law.” City of Greensboro v. Wall, 247 N.C. at 520, 101 S.E.2d at
416.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
¶ 332 Our State’s long-standing judicial policy to decline consideration of issues not
drawn into focus by adversarial court proceedings is in harmony with the approach
of the Supreme Court of the United States. “[F]ederal courts will not entertain
friendly suits, or those which are feigned or collusive in nature.” Flast v. Cohen, 392
U.S. 83, 100, 88 S. Ct. 1942, 1953 (1968) (cleaned up). As stated by the Supreme
Court in 1850 when voiding a judgment of the Circuit Court of the United States for
the District of Maine:
The court is satisfied, upon examining the record in this
case . . . that there is no real dispute between the plaintiff
and defendant. On the contrary, it is evident that their
interest in question brought here for decision is one and the
same, and not adverse; and that in these proceedings the
plaintiff and defendant are attempting to procure the
opinion of this court upon a question of law, in the decision
of which they have a common interest opposed to that of
other persons, who are not parties to this suit, who had no
knowledge of it while it was pending in the Circuit Court,
and no opportunity of being heard there in defence of their
rights. And their conduct is the more objectionable, because
they have brought up the question upon a statement of
facts agreed on between themselves, without the
knowledge of the parties with whom they were in truth in
dispute, and upon a judgment pro forma entered by their
mutual consent, without any actual judicial decision by the
court.
Lord v. Veazie, 49 U.S. 251, 254 (1850).
¶ 333 As stated by Justice Brewer for the Supreme Court in 1892:
Whenever, in pursuance of an honest and actual
antagonistic assertion of rights by one individual against
another, there is presented a question involving the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
validity of any act of any legislature, state or federal, and
the decision necessarily rests on the competency of the
legislature to so enact, the court must, in the exercise of its
solemn duties, determine whether the act be constitutional
or not; but such an exercise of power is the ultimate and
supreme function of courts. It is legitimate only in the last
resort, and as a necessity in the determination of real,
earnest, and vital controversy between individuals. It
never was the thought that, by means of a friendly suit, a
party beaten in the legislature could transfer to the courts
an inquiry as to the constitutionality of the legislative act.
Chicago & G.T. Ry. Co. v. Wellman, 143 U.S. 339, 345, 12 S. Ct. 400, 402 (1892).
¶ 334 As stated by the Supreme Court per curiam in 1943:
Such a suit is collusive because it is not in any real sense
adversary. It does not assume the honest and actual
antagonistic assertion of rights to be adjudicated—a
safeguard essential to the integrity of the judicial process,
and one which we have held to be indispensable to
adjudication of constitutional questions by this Court.
Whenever in the course of litigation such a defect in the
proceedings is brought to the court’s attention, it may set
aside any adjudication thus procured and dismiss the cause
without entering judgment on the merits. It is the court’s
duty to do so where, as here, the public interest has been
placed at hazard by the amenities of parties to a suit
conducted under the domination of only one of them.
U.S. v. Johnson, 319 U.S. 302, 305, 63 S. Ct. 1075, 1076–77 (1943) (cleaned up).
¶ 335 Here, the trial court disregarded both this Court’s precedent and the long-
standing guidance of the Supreme Court of the United States by judicially
sanctioning a collusive suit between friendly parties. While this case originally “was
filed as a declaratory judgment action pursuant to section 1-253 of the General
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
Statutes,” Hoke County, 358 N.C. at 617, 599 S.E.2d at 378, the Uniform Declaratory
Judgment Act nevertheless “preserves inviolate the ancient and sound juridic concept
that the inherent function of judicial tribunals is to adjudicate genuine controversies
between antagonistic litigants . . . .” Lide v. Mears, 231 N.C. 111, 118, 56 S.E.2d 404,
409 (1949). Further, “an action for a declaratory judgment will lie only in a case in
which there is an actual or real existing controversy between parties having adverse
interests in the matter in dispute.” Id. (emphasis added).
¶ 336 An examination of the record in this case leaves no doubt that although the
parties’ interests may have once been adverse, any such adversity dissipated years
ago. As early as February 1, 2018, the trial court’s Case Management and Scheduling
Order noted that “[t]he Plaintiff Parties and the State have jointly nominated . . . an
independent, non-party consultant,” i.e., WestEd, “to develop detailed,
comprehensive, written recommendations for specific actions” to remedy the
purported statewide violations of Leandro.
¶ 337 This Case Management and Scheduling Order was followed by multiple
consent orders, including a Consent Order Regarding Need for Remedial, Systematic
Actions For the Achievement of Leandro Compliance. In this consent order, the trial
court stated “the parties to this case . . . are in agreement that the time has come” to
proceed with WestEd’s recommendations. This consent order also reveals that,
despite executive branch defendants’ alignment with plaintiff-parties, the trial court
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
was only “hopeful that the parties, with the help of the Governor, can obtain the
support necessary from the General Assembly.”
¶ 338 This was all done to the exclusion of the one entity that controlled what the
parties wanted to accomplish—the General Assembly. Put another way, executive
branch bureaucrats and government actors, sanctioned by the court, agreed to a
process that called for the expenditure of taxpayer money without consultation from
the branch of government to which that duty is constitutionally committed. The trial
court’s denial of the General Assembly’s motion to intervene in 2011, and the
majority’s dismissal of legislative defendants’ arguments today, raise the grave
specter of executive and judicial collusion designed to subvert our constitutional
framework and, by extension, the will of the people. It is only when “the judiciary
remains truly distinct from both the legislature and the Executive” that liberty is
safeguarded. The Federalist No. 78 (Alexander Hamilton).15
15 It appears that the majority attempts to support its plundering of legislative
authority by arguing that our Founding Fathers contemplated an ephemeral separation of
powers. Such an interpretation is not just revisionist history; it is plainly wrong. We could
spend much time discussing the majority’s misuse of selections from the Federalist Papers to
justify judicial intrusion into the legislative arena. Discussion here, however, is intentionally
limited.
The Founding Fathers understood that “maintaining in practice the necessary
partition of power among the several departments” was the primary protection against
tyranny. The Federalist No. 51 (James Madison). To more clearly understand the founders’
view of separation of powers, however, one must also appreciate the concern expressed by
anti-federalist writers, to which the federalists responded, over the blending of functions in
the Constitution. See The Dissent of the Minority of the Convention of Pennsylvania, The
Essential Anti-Federalist, Allen and Lloyed (2002) at 43. For example, the United States
Constitution explicitly provides for the Senate’s involvement in executive appointments and
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
¶ 339 Here, counsel for executive branch defendants admitted at oral argument that
the General Assembly had no “insight” into the crafting of the remedy because “the
General Assembly was not a party.” Oral Argument at 58:24, Hoke Cnty. Bd. of Educ.
v. State of North Carolina, No. 425A21-2,
https://www.youtube.com/watch?v=NOuFCf2rYdY. Further, counsel readily
admitted that executive branch defendants “certainly wanted plaintiffs to be involved
in th[e] process” of crafting the remedy because executive branch defendants “wanted
to have dominion16 over the issue . . . and so getting sign-off from plaintiffs ensured
that the trial court would adopt this program.” Oral Argument at 59:15, Hoke Cnty.
Bd. of Educ. v. State of North Carolina, No. 425A21-2,
https://www.youtube.com/watch?v=NOuFCf2rYdY. (emphasis added).
treaties, and its role in the trial of impeachments. Any encroachment upon the power of
another branch was expressly granted by the Constitution, and, as Hamilton stated in The
Federalist Nos. 65 and 66, involved not separation of powers concerns, but essential checks
on power. See George W. Carey & James McClellan, Reader’s Guide to The Federalist, The
Federalist, at lxxvii (George W. Carey & James McClellan, eds., Gideon ed. 2001).
Commandeering the appropriations clause through the judiciary’s supposed “inherent
authority” is a usurpation of a constitutionally committed function, not an essential check on
power expressly granted by the constitution. As Madison stated in The Federalist No. 51, “[i]n
framing a government which is to be administered by men over men, the great difficulty lies
in this: You must first enable the government to controul the governed; and in the next place,
oblige it to controul itself.” There can be no rational argument that our Founding Fathers,
the Constitution of the United States, or the Constitution of the State of North Carolina
contemplated meaningless barriers which permit the aggrandizement of judicial power as
accomplished by this Court’s lack of restraint and control. After all, “the judiciary is beyond
comparison the weakest of the three departments of power.” The Federalist No. 78 (Alexander
Hamilton).
16 Dominion is defined by Webster’s Dictionary as “supreme authority” or “absolute
ownership.”
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
¶ 340 Thus, this case presents a situation in which the parties’ interests are aligned,
and “[s]uch a suit is collusive because it is not in any real sense adversary.” U.S. v.
Johnson, 319 U.S. at 305, 63 S. Ct. at 1076–77. The legal issues involved in this case
have been “determined” through entry of consent orders by outcome-aligned parties,
not “tested by fire in the crucible of actual controversy.” City of Greensboro v. Wall,
247 N.C. at 520, 101 S.E.2d at 417. The colluding parties agreed upon a remedy, one
which directly involved the General Assembly, without ever seeking input from that
third party. In so doing, they have attempted to “procure the opinion of” this Court
“in the decision of which they have a common interest opposed to that of other
persons, who are not parties to this suit,” and based upon “a statement of facts agreed
on between themselves . . . upon a judgment pro forma entered by their mutual
consent.” Lord v. Veazie, 49 U.S. 251, 254 (1850).
¶ 341 Further, it bears repeating that these collusive orders were entered without a
trial on the merits to determine the validity of the actual plaintiffs’ claims. A
statewide violation was simply assumed without a trial or final order. The trial court
erred in permitting this suit to continue after it became clear that the parties were
working in concert to bypass the General Assembly and achieve their mutual goals
via consent orders. As discussed further below, this collusion between plaintiffs,
executive branch defendants, and the trial court grossly violated the General
Assembly’s due process rights. In addition, the trial court further erred in attempting
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
to achieve the parties’ collusive efforts by imposing an unconstitutional remedy in its
November 10 order.
B. Separation of Powers
1. The Trial Court
¶ 342 Even if this case had not been transformed into a friendly suit, the trial court
would still lack authority to impose its chosen remedy for four clear reasons. First,
the trial court ignored this Court’s explicit holdings that a remedy may be imposed
only after the evidence establishes a clear showing of a Leandro violation. Second,
the trial court violated the legislative defendants’ right to due process, which requires
that the General Assembly be joined as a necessary party when the essence of the
case is whether the current education policy and funding are constitutionally
adequate. Third, even if the trial court had properly held a trial with all parties in
which such a clear showing established a statewide violation of Leandro, any judicial
remedy ordering the transfer of state funds violates our constitution. Finally, even if
a proper trial had been conducted, and even if the trial court’s order did not otherwise
offend our constitution, the trial court lacked jurisdiction to enter an order against
the State Controller who was not a party.
a. A Remedy Without a Violation
¶ 343 As we made clear in Hoke County, our “examination of the case [wa]s premised
on evidence as it pertain[ed] to Hoke County in particular.” Hoke County, 358 N.C.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
at 613 n.5, 599 S.E.2d at 375 n.5. “[O]ur holding mandates” in that case “cannot be
construed to extend to the other four rural districts named in the complaint.” Id.Thus, the establishment of alleged Leandro violations in any other district beyond
Hoke County would require further proceedings that must include “presentation of
relevant evidence by the parties, and findings and conclusions of law by the trial
court.” Id.¶ 344 Further, the trial court’s remedy goes far beyond that justified by the pleadings
in this case. The remaining plaintiffs are the five Boards of Education in Hoke,
Halifax, Robeson, Cumberland, and Vance counties and students from each county.
The remaining intervening plaintiffs are the Charlotte-Mecklenburg Board of
Education and some Mecklenburg County students and parents. In none of their
surviving pleadings do they purport to represent all of the students of the State, or
even all counties. To the contrary, they allege that they represent children in their
own counties. This Court’s decision in Leandro, affirming the dismissal of most of
the original claims, significantly narrowed the remaining issue. As we said:
This litigation started primarily as a challenge to the
educational funding mechanism imposed by the General
Assembly that resulted in disparate funding outlays among
low wealth counties and their more affluent counterparts.
With the Leandro decision, however, the thrust of this
litigation turned from a funding issue to one requiring the
analysis of the qualitative educational services provided to
the respective plaintiffs and plaintiff-intervenors.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
Hoke County, 358 N.C. at 609, 599 S.E.2d at 373. In other words, the issue became
the methods chosen by school administrators to provide the classroom instruction
that was needed should a deficiency be shown as to students in a particular county.
¶ 345 The proper standards for proving such alleged violations have been twice
stated by this Court. First, the trial court “must grant every reasonable deference to
the legislative and executive branches when considering whether they have
established and are administering a system that provides . . . a sound basic
education.” Id. at 622–23, 599 S.E.2d at 381 (quoting Leandro, 346 N.C. at 357, 488
S.E.2d at 261). Second, plaintiffs must prove their allegations by making “a clear
showing to the contrary,” i.e., plaintiffs must make a clear showing that the strictures
of Leandro are being violated in their districts. Id. (quoting Leandro, 346 N.C. at 357,
488 S.E.2d at 261). Finally, the imposition of a remedy is expressly barred absent
such a clear showing, as “[o]nly such a clear showing will justify a judicial intrusion[.]”
Id. (quoting Leandro, 346 N.C. at 357, 488 S.E.2d at 261).
¶ 346 It is notable that, in Hoke County, the trial court’s determination that at-risk
students were not receiving the opportunity to a sound basic education was premised
on fourteen months of adversarial hearings. That ultimate determination was
reached in a 400-page Order that recounted these hearings.
¶ 347 Here, the record is devoid of any proceedings in which the trial court concluded
as a matter of law that plaintiffs had presented relevant evidence establishing a clear
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
showing of Leandro violations in other districts beyond Hoke County. There was no
trial establishing a violation in any other county and certainly no trial establishing a
statewide violation. If it took the trial court fourteen months and a 400-page Order
to determine that a subsection of students in one county were not receiving the
opportunity to a sound basic education, then surely a clear showing of a statewide
violation would require exponentially more. The fact that the record below fails to
establish a similar in-depth adversarial hearing for any other county, and contains
no trace of the kind of monumental undertaking needed to demonstrate a statewide
violation, speaks volumes. Absent such a clear showing of a statewide violation, the
trial court lacked authority to impose any remedy.17
¶ 348 The majority ignores this. By failing to hold an actual trial for any other county
in the last fourteen years, the trial court judges failed to abide by this Court’s express
directions in Hoke County. The majority apparently imagines the existence of trial
court orders from nonexistent trials. The majority’s focus on the title of the trial
court’s routine scheduling “Notice of Hearing and Orders” completely misses the
mark. A trial is required for appellate review of this extremely fact-intensive issue
17One could argue that this Court’s finding of a statewide violation, despite the failure
of any party to plead such a claim, raises jurisdictional concerns. There has never been a
finding in the trial court that violations through implementation and delivery occurred
outside of Hoke or Halifax counties. Without the presence of the other unrepresented
counties, the remaining plaintiffs and plaintiff intervenors may lack standing to plead a
statewide violation, and the trial court therefore may lack jurisdiction to consider such a
claim.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
because an appellate court requires a record from which it may meaningfully review
the trial court’s findings and conclusions. Certainly, given the significance of the
subject matter of this case and the separation of powers concerns, this Court should
require at least a standard record of a trial and a final order.
¶ 349 The record in this case is not the record of an adversarial trial. It is the record
of trial court judges accepting studies and statistics, taking them at face value
without any real inquiry into their veracity, and then opining about the condition of
this State’s education system.18 If the General Assembly had been allowed to
intervene, then perhaps there would be a record which reflects facts derived from the
crucible of an adversarial trial.
¶ 350 It is judicial malpractice for the majority to suddenly ignore the importance of
court orders when it comes to appellate review. The majority simply declares that
the trial court “properly concluded based on an abundance of clear and convincing
evidence that the State’s Leandro violation was statewide.” The majority declines to
18 Each year, U.S. News ranks “how well states are educating their students.” North
Carolina is ranked seventh out of fifty states overall and fifteenth out of fifty states with
respect to Pre-K to 12th grade education. Brett Ziegler, Education Rankings, U.S. News,
https://www.usnews.com/news/best-states/rankings/education (last visited Oct. 24, 2022).
One wonders how the trial court and the San Francisco based consulting firm’s diminished
view of our education system can be so inconsistent. U.S. News, whose rankings of North
Carolina’s universities are celebrated, concludes that North Carolina has one of the best K-
12 education systems in the country. A cynic could argue that WestEd’s mercenary report
only utilized data from 44 of North Carolina’s one hundred counties. But, this is the type of
information that is best tested in an actual trial instead of blindly accepted by the parties
and court that hired the consultant.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
explain what this evidence was, when it was produced, or how the majority knows it
is reliable enough to form the basis of an explosive change in constitutional order and
massive transfer of taxpayer monies to fund a program crafted by a San Francisco
based consulting firm. Fundamentally, this Court cannot determine whether a “clear
showing” has been made establishing a statewide Leandro violation because the lack
of an adversarial trial renders our review purely speculative.
¶ 351 As but one example, it would have been inconceivable for this Court to review
the proceedings in Harper v. Hall, 380 N.C. 317, 2022-NCSC-17, if the trial court had
failed to hold an adversarial hearing and instead merely accepted at face value the
arguments and evidence presented by the legislative defendants in that case. So too
here. Issues of constitutional magnitude require facts and arguments to be “tested
by fire in the crucible of actual controversy.” City of Greensboro v. Wall, 247 N.C. at
520, 101 S.E.2d at 417. These requirements cannot be cast aside for political or
judicial expediency.
¶ 352 However, even if the trial court had properly conducted a trial in which a
statewide violation of Leandro had been established, the trial court would still lack
the authority to impose this remedy. The problem arises not only because the trial
court imposed a remedy without first establishing a violation, but because the chosen
remedy clearly violates our constitution.
b. The Limitation on Judicial Power
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
¶ 353 Separation of powers is fundamental to our republican system of self-
governance, and our constitution accordingly provides that “[t]he legislative,
executive, and supreme judicial powers of the State government shall be forever
separate and distinct from each other.” N.C. Const. art. I, § 6. This division of
governmental power acknowledges that “[t]he accumulation of all powers, legislative,
executive, and judiciary, in the same hands, whether of one, a few, or many, and
whether hereditary, selfappointed, or elective, may justly be pronounced the very
definition of tyranny.” The Federalist No. 47 (James Madison).
¶ 354 In Hoke County, this Court acknowledged the separation of these various
powers and recognized the outer boundaries of our judicial power. We stated:
The state’s legislative and executive branches have been
endowed by their creators, the people of North Carolina,
with the authority to establish and maintain a public
school system that ensures all the state’s children will be
given their chance to get a proper, that is, a Leandro-
conforming, education. As a consequence of such
empowerment, those two branches have developed a
shared history and expertise in the field that dwarfs that
of this and any other Court. While we remain the ultimate
arbiters of our state’s Constitution, and vigorously attend
to our duty of protecting the citizenry from abridgments
and infringements of its provisions, we simultaneously
recognize our limitations in providing specific remedies for
violations committed by other government branches in
service to a subject matter, such as public school education,
that is within their primary domain.
358 N.C. at 644–45, 599 S.E.2d at 395 (emphasis added).
¶ 355 “The legislative power of the State shall be vested in the General Assembly[.]”
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
N.C. Const. art. II, § 1. This Court has long acknowledged that one of the many
powers designated exclusively to the legislative branch is the power to spend public
funds. See Wilson v. Jenkins, 72 N.C. 5, 6 (1875) (“The General Assembly has
absolute control over the finances of the State.”); see also Shaffer v. Jenkins, 72 N.C.
275, 279 (1875) (“[T]he money in the Treasury is within the exclusive control of the
General Assembly.”).
¶ 356 “No money shall be drawn from the State Treasury but in consequence of
appropriations made by law[.]” N.C. Const. art. V, § 7. The interpretation of this
clause has never before been a matter of debate in this Court. In fact, Justice Ervin
recently stated for the Court that:
In light of this constitutional provision, the 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. In drafting the appropriations clause, the framers
sought to ensure that the people, through their elected
representatives in the General Assembly, had full and
exclusive control over the allocation of the state’s
expenditures. As a result, the appropriations clause states
in language no man can misunderstand that the legislative
power is supreme over the public purse.
Cooper v. Berger, 376 N.C. 22, 37, 852 S.E.2d 46, 58 (2020) (cleaned up).
¶ 357 In the realm of educational funding, the constitution is even more explicit.
“The General Assembly shall provide by taxation and otherwise for a general and
uniform system of free public school . . . .” N.C. Const. art. IX, § 2(1). The constitution
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
provides two funding mechanisms to supplement state tax revenue on a county level.
¶ 358 County school funds are supplied by “the clear proceeds of all penalties and
forfeitures and of all fines collected in the several counties for any breach of the penal
laws of the State, [which] shall belong to and remain in the several counties, and shall
be faithfully appropriated and used exclusively for maintaining free public schools.”
N.C. Const. art IX, § 7(a). In addition, “the clear proceeds of all civil penalties,
forfeitures, and fines which are collected by State agencies . . . shall be faithfully
appropriated by the General Assembly, on a per pupil basis, to the counties, to be
used exclusively for maintaining public schools.” N.C. Const. art. IX, § 7(b). In
contrast, the “State school fund” is ultimately funded by “so much of the revenue of
the State as may be set apart for that purpose . . . [and] faithfully appropriated and
used exclusively for establishing and maintaining a uniform system of free public
schools.” N.C. Const. art. IX, § 6.19
¶ 359 Of course, the “revenue” contemplated by Article IX’s funding provisions must
primarily be “provided by taxation . . . .” N.C. Const. art. IX, § 2(1). On this point,
the constitution is clear. “Only the General Assembly shall have the power to classify
19 The constitution also provides that the State school fund shall be funded by “the
proceeds of all lands that have been or hereafter may be granted by the United States to this
State . . . ; all moneys, stocks, bonds, and other property belonging to the State for purpose of
public education; the net proceeds of all sales of the swamp lands belonging to the State; and
all other grants, gifts, and devises that have been or hereafter may be made to the State [ ]
and not otherwise appropriated by the State . . . .” N.C. Const. art. IX, § 6.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
property for taxation, which power shall be exercised only on a State-wide basis and
shall not be delegated.” N.C. Const. art. V, § 2(2).
¶ 360 The constitution commits these dual powers—the power to raise state funds
for education, and the power to spend state funds on education—exclusively to the
General Assembly.20 That is why this Court recognized its “limitations in providing
specific remedies for violations committed by other government branches in service
to a subject matter, such as public school education, that is within their primary
domain.” Hoke County, 358 N.C. at 645, 599 S.E.2d at 395. Such limitations are a
necessary consequence of our constitutional structure that separates government
functions to preserve government by the people.
¶ 361 Without such limitations, there would be no conceivable constraints to this
Court’s power. Consider the situation in which the state found itself in 2009, when
Governor Perdue “ordered a half-percent pay cut for all state employees and teachers”
to try and reduce a “$3 billion-plus shortfall for the [ ] fiscal year.” Governor Cuts
Pay, Calls for Furloughs for State Employees, WRAL News (Apr. 28, 2009, 7:02 PM),
https://www.wral.com/news/local/story/5037937/. If this Court had determined that
such a pay cut violated children’s right to the opportunity to a sound basic education,
could this Court have exercised its power to increase education funding by raising
20 While the General Assembly is primarily responsible for funding education, the
State Board of Education “ha[s] general supervision and administration of the educational
funds provided by the State . . . .” N.C.G.S. § 115C-408(a).
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
taxes? Could this Court rewrite the State Budget and reappropriate funds from other
programs to fund education?
¶ 362 No, our constitution says. The constitution commands all branches of our
government to stay within their spheres of power, and this command must be heeded
with extreme obedience by the judiciary. As this Court is the final arbiter on what
our constitution says, the people of this state must be ever wary of a court which
declares “rare” or “extraordinary” the repeated usurpation of constitutional power.
¶ 363 Here, the trial court ignored both the clear language of the appropriations
clause and this Court’s binding precedent establishing the General Assembly’s
exclusive power to draw funds from the State Treasury. Rather than following our
constitution, the trial court invented two novel theories to justify its unconstitutional
exercise of legislative power.
¶ 364 First, the trial court determined that assumption of legislative duties was not
barred by the appropriations clause because “Article I, Section 15 of the North
Carolina Constitution represents an ongoing constitutional appropriation of funds”
and constitutes an appropriation “made by law.” This conclusion is a legal fiction
created out of whole cloth and has no support in either our constitution or our directly
on-point precedent. As discussed in more detail further below, the separation of
powers clause and the legislative powers clause do not provide for any exceptions.
These constitutional provisions do not merely encompass “some” or “most” of the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
legislative powers—they encompass all legislative powers.
¶ 365 The entire text of Article I, section 15 provides that “[t]he people have a right
to the privilege of education, and it is the duty of the State to guard and maintain
that right.” The plain language of this section makes no mention of educational
funding, and to read in such non-existent language is an amendment of our
constitution by judicial fiat.
¶ 366 “Our constitution clearly states that amending the constitution is a duty
designated to the General Assembly and the people of this State.” Moore, 2022-
NCSC-99, ¶ 152 (Berger, J., dissenting). A trial court may not exercise this power.
Neither may a trial court judge choose to “interpret” a constitutional provision in a
manner that contradicts this Court’s holdings.
¶ 367 In addition to its unconstitutional interpretation of Article I, section 15, the
trial court stated that it could order the transfer of state funds as an exercise of its
“inherent and equitable powers.” This is nonsense. This usurpation of legislative
authority is blatantly unconstitutional and threatens the very foundation of our
republican form of self-governance.
It is the proud boast of our democracy that we have “a
government of laws and not of men.” Many Americans are
familiar with that phrase; not many know its derivation. It
comes from Part the First, Article XXX, of the
Massachusetts Constitution of 1870, which reads in full as
follows:
“In the government of this Commonwealth, the legislative
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
department shall never exercise the executive and judicial
powers, or either of them: The executive shall never
exercise the legislative and judicial powers, or either of
them: The judicial shall never exercise the legislative and
executive powers, or either of them: to the end it may be a
government of laws and not of men.”
Morrison v. Olson, 487 U.S. 654, 697, 108 S. Ct. 2597, 2622 (1988) (Scalia, J.,
dissenting).
¶ 368 The majority’s response to our adherence to this fundamental requirement is
simply that we have a “rigid interpretation of separation of powers.” Indeed, we do,
because separation of powers is not a suggestion. It is an inexorable command upon
which the entire notion of government by the people either stands or falls. As this
Court has stated:
[T]he relief sought could not be obtained in any event
without the exercise of legislative functions, and the
plaintiff’s fatal error is found in the assumption that such
functions may be exercised by the courts, notwithstanding
the constitutional separation of the several departments of
the government. The Declaration of Rights provides: “The
legislative, executive, and supreme judicial powers of the
government ought to be forever separate and distinct from
each other.”
As to the wisdom of this provision there is practically no
divergence of opinion—it is the rock upon which rests the
fabric of our government. Indeed, the whole theory of
constitutional government in this state and in the United
States is characterized by the care with which the
separation of the departments has been preserved and by
a marked jealousy of encroachment by one upon the other.
...
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
The courts have absolutely no authority to control or
supervise the power vested by the Constitution in the
General Assembly as a co-ordinate branch of government.
They concede . . . that their jurisdiction is limited to
interpreting and declaring the law as it is written. It is only
when the Legislature transcends the bounds prescribed by
the Constitution, and the question of the constitutionality
of a law is directly and necessarily involved, that the courts
may say, “Hitherto thou shalt come, but no further.”
Pers. v. Bd. of State Tax Comm’rs, 184 N.C. 499, 502–04, 115 S.E. 336, 339 (1922).
¶ 369 The majority justifies its assault on legislative authority in part by purporting
to rely on In re Alamance County Court Facilities, 329 N.C. 84, 405 S.E.2d 125 (1991).
It is clear, however, this case does not support the majority’s position; it undermines
it. Alamance County’s discussion of inherent judicial power destroys the majority’s
own argument. A thorough discussion of this case is warranted.
¶ 370 The Alamance County Superior Court convened a grand jury to inspect the
Alamance County court facilities and jail. Id. at 89, 405 S.E.2d at 126. The grand
jury reported that there were “numerous courthouse and jail defects” and
recommended that the courthouse, which was constructed in 1924, be “remodeled and
converted to other uses, [and] that a new courthouse be built[.]” Id. Following the
grand jury’s report, the trial court scheduled a hearing “to make inquiry as to the
adequacy of the Court Facilities” in Alamance County, and the sheriff served the five
Alamance County Commissioners with notice of the hearing. Id. Four of the
Commissioners made various motions to either dismiss the case or demand a jury
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
trial. Id. at 89, 405 S.E.2d at 127. However, the trial court “struck these motions,
stating that the movants were not parties to the action and thus were without
standing.” Id.¶ 371 At the hearing, the trial court reiterated the grand jury’s findings regarding
the Alamance County court facilities, which included:
[C]itation to the statutory duties of the Clerk of Court to
secure and preserve court documents, to statutory
provisions requiring secrecy of grand jury proceedings, to
statutory requisites that counties in which a district court
has been established provide courtrooms and judicial
facilities, and to the open courts provision—all of which
were potentially violated by the condition of pertinent
facilities in Alamance County. In addition, the findings
stated that the right to a jury trial assured in Article I, §§
24 and 25 of the N.C. Constitution was jeopardized where
jury and grand jury deliberations were not dependably
private and secure and that litigants’ due process rights
were similarly at risk for lack of areas where they could
confer confidentiality with their attorneys.
Id. at 89–90, 405 S.E.2d at 127.
¶ 372 Additionally, the trial court stated that the county’s failure to provide adequate
court facilities violated the constitutional limitation under Article IV, section 1 of the
North Carolina Constitution, which prohibits the General Assembly from “depriving
the judicial department of any power or jurisdiction rightfully pertaining to it as a
coordinate department of government.” Id. at 90, 405 S.E.2d at 127. This prohibition
extended to Alamance County, since it was delegated the legislative responsibility of
providing adequate court facilities. See id.HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
¶ 373 The trial court determined that it possessed jurisdiction over the matter, in
part, because of its “inherent power necessary for the existence of the Court,
necessary to the orderly and efficient exercise of its jurisdiction, and necessary for
this Court to do justice.” Id. at 90, 405 S.E.2d at 127. In its order, the court concluded
that the inadequacies of the court facilities “thwart[ed] the effective assistance of
counsel to litigants in violation of the law of the land, jeopardize[ed] the right to trial
by jury in civil and criminal cases, and . . . constituted a clear and present danger to
persons present at criminal judicial proceedings as well as the public at large.” Id.¶ 374 Based upon these inadequacies and their effects, the trial court directed the
county, “acting through its commissioners,” to provide new facilities and modify the
existing courthouse. Id. at 91, 405 S.E.2d at 128. Specifically, the trial court found
that the county “was financially able to provide adequate judicial facilities” because
there were “undesignated unreserved funds of $15,655,778.00 . . . with which the
commissioners could begin construction of a new courthouse.” Id. The trial court
then ordered the county to “immediately” provide adequate facilities that met the
Court’s approved design features. Id. at 91−92, 405 S.E.2d at 128.
¶ 375 For example, the trial court determined that the adequate facilities must
include a Superior Court courtroom of at least 1600 square feet with a minimum of
two bathrooms, a Superior Court jury deliberation room of at least 300 square feet, a
room for the Superior Court Court Reporter that was at least 80 square feet, and a
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
Superior Court Judge’s Chambers “consisting of a conference area of at least 160
square feet, minimum, and a toilet of 40 square feet, minimum,” among other similar
requirements. Id. at 91, 405 S.E.2d at 128.
¶ 376 Members of the Alamance County Board of Commissioners petitioned this
Court for a writ of supersedeas, which this Court granted. Id. at 92, 405 S.E.2d at
128. In reviewing the superior court’s order, this Court described the issues
presented as “whether this case presents the circumstances under which a court’s
‘inherent power’ may be invoked and whether the superior court here followed proper
procedures in the exercise of its power.” Id. at 93, 405 S.E.2d at 128–29.
¶ 377 The majority’s “analysis” of Alamance County quotes most of this Court’s
discussion of inherent power, and all of it need not be repeated here. However, some
of this Court’s precise language is ignored by the majority. This language clearly
recognizes the constitutional limits of a court’s inherent authority and is worthy of
emphasis.
¶ 378 The judiciary’s “inherent power” is “plenary within the judicial branch,” which
means that constitutional provisions—like the Apportionments Clause at issue here,
“do not curtail the inherent power of the judiciary, plenary within its branch, but
serve to delineate the boundary between the branches, beyond which each is
powerless to act.” Id. at 93, 95, 405 S.E.2d at 129–30 (emphasis added).
¶ 379 However, this Court noted that in the specific circumstances of Alamance
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
County, where the superior court was literally unable to properly fulfill its
constitutional duties within the judicial branch, that boundary may be stretched to
protect the judiciary’s ability to exercise its own constitutionally committed powers.
“In the realm of appropriations, some overlap of power between the legislative and
the judicial branches is inevitable, for one branch is exclusively responsible for raising
the funds that sustain the other and preserve its autonomy.” Id. at 97, 405 S.E.2d at
131 (emphasis added).
¶ 380 Thus, this Court announced its limited holding that “when inaction by those
exercising legislative authority threatens fiscally to undermine the integrity of the
judiciary, a court may invoke its inherent power to do what is reasonably necessary
for ‘the orderly and efficient exercise of the administration of justice.’ ” Id. at 99, 405
S.E.2d at 132 (emphasis added) (quoting Beard v. N.C. State Bar, 320 N.C. 126, 129,
357 S.E.2d 694, 696 (1987)). In other words, when legislative inaction renders judicial
branch facilities inadequate “to serve the functioning of the judiciary within the
borders of those political subdivisions,” the judiciary may take limited action only to
ensure that the facilities are adequate to perform the court’s constitutional duties.
Id.¶ 381 And, in part of this Court’s holding the majority selectively omits, “[e]ven in
the name of its inherent power, the judiciary may not arrogate a duty reserved by the
constitution exclusively to another body.” Id.HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
¶ 382 Moreover, following its general discussion of inherent power, this Court asked
whether, “[u]nder the circumstances, [ ] an ex parte order implicitly mandating the
expenditure of public funds for judicial facilities [was] reasonably necessary for the
proper administration of justice?” Id. at 103, 405 S.E.2d at 135 (emphasis added).
¶ 383 In answering this question in the negative, this Court first noted that:
The means chosen by a court to compel county
commissioners to furnish suitable court facilities is of
critical importance to the question whether the court has
unreasonably exercised its inherent power, for it signals
the extent of the judiciary’s intrusion on the county’s
legislative authority. The efficacy of mandatory writs or
injunctions, unlike ex parte orders and contempt
proceedings, rests less on the expansive exercise of judicial
power than on the statutory and constitutional duties of
those against whom they are issued. Their use thus avoids
to some extent the arrogance of power palpable in an ex
parte order. Moreover, they compel the performance of the
ministerial duty imposed by law, but give the defaulting
officials room to exercise discretionary decisions regarding
how that duty may best be fulfilled.
Id. at 104–05, 405 S.E.2d at 135–36.
¶ 384 This Court also emphasized that because the superior court’s order in
Alamance County “stopped short of ordering the commissioners to release funds,” it
also stopped short of “leaving the constitutional sphere of its inherent powers.” Id.
at 106, 405 S.E.2d at 137. Nevertheless, the “ex parte nature of the order overreached
the minimal encroachment onto the powers of the legislative branch that must mark
a court’s judicious use of its inherent power,” because “[n]o procedure or practice of
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
the courts, however, even those exercised pursuant to their inherent powers, may
abridge a person’s substantive rights.” Id. at 106–07, 405 S.E.2d at 137. This remedy
was a misuse of the judiciary’s inherent authority. Thus, this Court held that the
superior court’s order “must be, and is VACATED.” Id. at 108, 405 S.E.2d at 138.
¶ 385 Thus, Alamance County does not support the unconstitutional judicial
assumption of the legislative spending power.21 Alamance County instead reaffirms
the following fundamental principles:
¶ 386 First, the judiciary’s “inherent power” applies only to matters within the
judicial branch. Second, a legislative failure to fiscally support the judicial branch,
when such failure threatens the judiciary’s existence, may justify a limited exercise
of “inherent power” to preserve the judiciary. Third, even under such circumstances,
21 As with Alamance County, the other cases on which the majority relies do not justify
its extreme remedy. See Wilson v. Jenkins, 72 N.C. 5, 10 (1875) (affirming a trial court’s
denial of the plaintiff’s request for a writ of mandamus to compel the State Treasurer to pay
certain coupons on state bonds because “[t]he General Assembly has absolute control over
the finances of the State” and “[t]he Public Treasurer and Auditor are mere ministerial
officers, bound to obey the orders of the General Assembly”); White v. Worth, 126 N.C. 570,
36 S.E. 132, 136 (1900) (relying heavily on Hoke v. Henderson, 15 N.C. 1 (1833), a case that
was expressly overruled in 1903 by Mial v. Ellington, 134 N.C. 131, 46 S.E.2d 961 (1903)).
See also Hickory v. Catawba Cnty., 206 N.C. 165, 173–74, 173 S.E. 56, 60–61 (1934) (affirming
a trial court’s writ of mandamus that required Catawba County to assume payment for a
local school building as required by the constitution and General Statutes but did not require
the spending of specific funds for specific expenditures), Mebane Graded Sch. Dist. v.
Alamance Cnty., 211 N.C. 213, 226–27, 189 S.E.2d 873, 882 (1937) (affirming a trial court’s
writ of mandamus that required Alamance County to assume the debt of its local school
district but did not direct the spending of specific funds for specific expenditures). These cases
in no way support the majority’s proposition that this Court’s precedent sanctions the judicial
exercise of legislative power.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
that limited exercise of “inherent power” may not assume legislative powers, such as
the spending power, as doing so would depart from the court’s “constitutional sphere
of its inherent powers.” Finally, even if the exercise of limited inherent power is
justified by such a threatened underfunding of the judiciary, and even if the court
does not order a state actor to spend funds, any such court action must be vacated if
the action is carried out via an ex parte order, as such an order violates the
substantive rights of the relevant state actor.
¶ 387 Thus, faithfully applying Alamance County to this case renders the decision a
simple one. The trial court’s order must be vacated because: (1) its exercise of
“inherent power” does not relate to matters within the judicial branch; (2) its exercise
of “inherent power” is not justified by a legislative failure which threatens the
judiciary’s existence; (3) its exercise of “inherent power” departs from the judiciary’s
“constitutional sphere” because it assumes the legislative spending power; and (4) its
exercise of “inherent power” was carried out via an ex parte order that violated the
substantive rights of the State Controller and the General Assembly.
¶ 388 This straightforward analysis did not make its way in the majority’s nearly
one-hundred-and-forty-page opinion, and the majority summarily dismisses the State
Controller’s arguments with a conclusory statement that his rights were not violated.
The trial court’s order must be vacated for violating the Controller’s substantive
rights, and the failure to properly discuss the Controller’s arguments demonstrates a
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
hastily crafted opinion by the majority.
¶ 389 As this Court has stated, the power to transfer state funds is a power
designated exclusively to the legislative branch. See Cooper v. Berger, 376 N.C. at 37,
852 S.E.2d at 58 (“[T]he appropriations clause states in language no man can
misunderstand that the legislative power is supreme over the public purse.”). In fact,
we announced this fundamental truth nearly one hundred and fifty years ago:
If the Legislature by way of contract, has specifically
appropriated a certain fund, to a certain debt, or to a
certain individual, or class of individuals, and the State
Treasurer having that fund in his hands, refuses to apply
it according to the law, he may be compelled to do so by
judicial process.
If any case goes farther than this, we conceive that it
cannot be supported on principal, and that it oversteps the
just line of demarcation between the legislative and judicial
powers.
Shaffer v. Jenkins, 72 N.C. 275, 280 (1875) (emphasis added).
¶ 390 The inherent remedial and equitable powers of our courts may be vast, but
“[e]ven in the name of its inherent power, the judiciary may not arrogate a duty
reserved by the constitution exclusively to another body,” nor may the judiciary
“abridge a person’s substantive rights.” Alamance County, 329 N.C. at 99, 107, 405
S.E.2d at 133, 137.22
22 While the majority attempts to cabin its exercise of “inherent authority” as an
“extraordinary remedy,” supra ¶ 178, this newfound power may be wielded by any future
majority of this Court. Moving forward, now that the constitutional boundaries enshrining
separation of powers are demolished, any four members of this Court could invoke “inherent
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
c. Due Process
¶ 391 “No rule of procedure or practice shall abridge substantive rights or abrogate
or limit the right of trial by jury.” N.C. Const. art. IX, § 13(2). One of the substantive
rights enjoyed by the people of this state is found in Article I, section 19 of our
constitution, which provides in relevant part that “[n]o person shall be taken . . . in
any manner deprived of his life, liberty, or property, but by the law of the land.”
¶ 392 “Procedural due process restricts governmental actions and decisions which
‘deprive individuals of “liberty” or “property” interests within the meaning of the Due
Process Clause of the Fifth or Fourteenth Amendment.’ ” Peace v. Emp’t Sec. Comm’n,
349 N.C. 315, 321, 507 S.E.2d 272, 277 (1998) (quoting Matthews v. Eldridge, 424
U.S. 319, 322, 96 S. Ct. 893, 901 (1976)). “The fundamental premise of procedural
due process protection is notice and the opportunity to be heard.” Id. at 322, 507
S.E.2d at 278 (citing Cleveland Bd. of Educ. V. Loudermill, 470 U.S. 532, 542, 105 S.
Ct. 1487, 1493 (1985)).
¶ 393 The State Controller’s authority to transfer or spend funds is set forth in
Chapter 143C of our General Statutes, which ensures that “[i]n accordance with
authority” to exercise powers constitutionally committed to other branches as they desire. If
this Court can exercise power under the appropriations clause, it could also invoke its
“inherent authority” to deem ratified a vetoed budget or increase statutory court fines
because they fund the education system under Article IX, section 7. Further, any majority
could increase judicial branch salaries The abuse of such power is exactly why our
constitution demands that the legislative, executive, and judicial powers “shall be forever
separate and distinct from each other.” N.C. Const. art. I, § 6.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
Section 7 of Article V of the North Carolina Constitution, no money shall be drawn
from the State treasury but in consequence of appropriations made by law.” N.C.G.S.
§ 143C-1-2(a) (2021). “This Chapter establishes procedures for the following: (1)
[p]reparing the recommended State budget[;] (2) [e]nacting the State budget[;] [and]
(3) [a]dministering the State budget.” N.C.G.S. § 143C-1-1(c).
¶ 394 Chapter 143C includes penalties for violating the procedures contained
therein. In relevant part, “[i]t is a Class 1 misdemeanor for a person to knowingly
and willfully . . . (1) [w]ithdraw funds from the State treasury for any purpose not
authorized by an act of appropriation.” N.C.G.S. § 143C-10-1(a). Further, “[a]n
appointed officer or employee of the State . . . forfeits his office or employment upon
conviction of an offense under this section.” N.C.G.S. § 143C-10-1(c).
¶ 395 Here, as is evident from Chapter 143C of our General Statutes, the State
Controller would be subject both to a Class 1 misdemeanor and termination of
employment were he to comply with the November 10 order. As the State Controller
was never made a party to the proceedings in the trial court, was never given notice
of the proceedings, and was never afforded an opportunity to be heard in these
proceedings, the trial court had no jurisdiction to enter an order that affected the
State Controller’s substantive rights in this manner. As the Court of Appeals
correctly noted in its order granting the State Controller’s petition for a writ of
prohibition, “the trial court’s conclusion that it may order petitioner to pay
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
unappropriated funds from the State Treasury is constitutionally impermissible and
beyond the power of the trial court.”
¶ 396 In addition to violating the State Controller’s due process rights, the trial court
also violated the due process rights of the General Assembly.23 The majority makes
much of the fact that the General Assembly was not represented in this suit until
after the Nov. 10 order—but rather than recognizing the obvious due process
concerns, the majority insists that the General Assembly itself is to blame. Such an
interpretation ignores factual and legal realities.
¶ 397 As discussed in much detail above, neither the proceedings under Judge
Manning that led to our decision in Hoke County, nor the proceedings under Judge
Manning that followed, implicated the General Assembly or its constitutionally
committed functions. Judge Manning consistently found, and this Court agreed, that
the legislative funding mechanisms and education policies were sound and complied
with our constitution. In fact, when the General Assembly did move to intervene in
this case because it was no longer represented by the Attorney General, Judge
Manning denied its motion specifically because the issue was never that the General
Assembly’s funding mechanisms or education policies were inadequate—the issue
was, and remains, the implementation and delivery of these policies and the
23In addition, it is arguable the trial court also violated the due process rights of all
counties not represented in this suit, yet nonetheless responsible for any implementation or
funding under WestEd’s CRP.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
application of these funds by the education establishment.
¶ 398 The majority would apparently prefer that the General Assembly renewed its
motion to intervene on a regular basis, despite Judge Manning’s denial and despite
the absence of any issue implicating the General Assembly’s authority or actions.
However, the status quo was radically altered once Judge Lee took over the case and
this became a collusive suit. The consent order entered by Judge Lee appointing
WestEd fundamentally changed the nature of the proceedings. This was an egregious
error that necessitated input from the General Assembly.
¶ 399 At this point, or, at the very latest, when he received the WestEd report naming
the General Assembly as the primary “responsible party,” Judge Lee erred by failing
to join the General Assembly as a necessary party. See N.C.G.S. §1A-1, Rule 19(a)
and (d); see also Gaither Corp. v. Skinner, 238 N.C. 254, 256, 77 S.E.2d 659, 661
(1953) (“Necessary or indispensable parties are those whose interests are such that
no decree can be rendered which will not affect them, and therefore the court cannot
proceed until they are brought in.”).
¶ 400 The trial court’s failure to join the General Assembly in this matter created a
situation where the people of this State, acting through their elected representatives,
were not afforded notice and the opportunity to be heard. Rather than allow the
General Assembly, which is the policymaking branch of our government, to defend
its heretofore adjudged adequate educational funding policies, Judge Lee delegated
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
the task of policymaking to an out-of-state third party. In delegating this crucial task
to WestEd, Judge Lee effectively usurped legislative authority by appointing a special
master—not unlike the special masters appointed in redistricting. To delegate such
authority to an out-of-state third party, to fail to join the General Assembly as an
obviously necessary party, and to attempt to enforce what was, in essence, an ex parte
order that exercises a power constitutionally committed exclusively to the General
Assembly, is to abandon all pretense of judicial propriety.
¶ 401 Thus, the trial court erred in multiple ways. Because the trial court never
conducted a trial and never concluded as a matter of law that plaintiffs had made a
clear showing of a statewide Leandro violation, the trial court never had jurisdiction
to impose any remedy in this case. Further, even if such a conclusion had been
reached after a trial, the trial court’s chosen remedy far exceeds the judiciary’s
inherent power and violates our constitution. Finally, the transfer provisions of the
November 10 order cannot be permitted to stand because they violated the State
Controller’s substantive rights and arguably denied the General Assembly due
process of law.
¶ 402 Accordingly, the transfer provisions of the trial court’s November 10 order were
properly struck by Judge Robinson on remand. However, Judge Robinson
nevertheless also erred on remand.
¶ 403 Although the trial court on remand properly considered the Court of Appeals’
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
writ of prohibition and properly struck the transfer provisions, it nevertheless erred
in upholding the CRP as an appropriate remedy.
2. The Trial Court on Remand
¶ 404 After granting the State’s bypass petition, this Court remanded this case to
Judge Robinson “for the purpose of allowing the trial court to determine what effect,
if any, the enactment of the State Budget ha[d] upon the nature and effect of the relief
that the trial court granted.” Thus, the trial court’s proper role on remand was to
consider how the passage of the State Budget, a valid law passed by the General
Assembly, affected the trial court’s conclusion that the CRP was the appropriate
remedy for the alleged statewide violation of Leandro. Because the trial court on
remand failed to properly analyze the effect of this valid legislative act, it erred in
concluding that the CRP was an appropriate remedy.
¶ 405 When reviewing whether a valid legislative act violates a constitutional right,
“we presume that laws enacted by the General Assembly are constitutional, and we
will not declare a law invalid unless we determine that it is unconstitutional beyond
a reasonable doubt.” Cooper, 376 N.C. at 33, 852 S.E.2d at 56. “All power which is
not expressly limited by the people in our State Constitution remains with the people,
and an act of the people through their representatives in the legislature is valid
unless prohibited by that Constitution.” State ex rel. Martin v. Preston, 325 N.C. 438,
448–49, 385 S.E.2d 473, 478 (1989) (citing McIntyre v. Clarkson, 254 N.C. 510, 515,
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
119 S.E.2d 888, 891 (1961)).
¶ 406 Thus, to comport with our precedent, the trial court on remand was required
to afford the State Budget a presumption of constitutionality. In this context, that
required the trial court to presume the State Budget comported with Leandro and
provided students statewide an opportunity to receive a sound basic education. Only
a clear showing by plaintiffs that the State Budget and the programs within failed to
provide this opportunity would trigger the trial court’s consideration of the CRP as a
remedy as directed by this Court.
¶ 407 Instead of following established framework for analyzing constitutional
challenges to legislative acts, the trial court on remand stated:
The Court also declines to determine, as Legislative
Intervenors urge, that the Budget Act as passed
presumptively comports with the constitutional guarantee
for a sound basic education. To make a determination on
the compliance of the Budget Act with the constitutional
right to a sound basic education would involve extensive
expert discovery and evidentiary hearings. This Court does
not believe that the Supreme Court’s Remand Order
intended the undersigned, in a period of 30 days, or, as
extended, 37 days, to perform such a massive undertaking.
In other words, the haste with which this Court was determined to act prevented
proper consideration and resolution of the issues by the trial court.
¶ 408 Setting aside the fact the trial court on remand mischaracterized the right
announced in Leandro, which was the right to the opportunity to receive a sound basic
education, the trial court on remand got the analysis backwards. Affording the State
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
Budget the presumption of Leandro conformity requires no extensive expert discovery
and evidentiary hearings—hence the word “presumption.” The need for expert
discovery, evidentiary hearings, findings of fact, and conclusions of law arises
precisely to overcome this presumption. The “massive undertaking” required is the
burden plaintiffs bear to make a clear showing that the State Budget resulted in a
statewide violation of Leandro. As plaintiffs have not yet met this burden, the trial
court on remand should have vacated the November 10 order and allowed plaintiffs
to bring claims actually challenging the State Budget.
¶ 409 Instead, the trial court on remand erred by seemingly affording the CRP, not
the State Budget, this presumption of Leandro conformity. The trial court on remand
used the CRP as a Leandro benchmark and analyzed whether the State Budget
funded each of the CRP’s measures. In so doing, it not only got the analysis
backwards but also ignored our guidance in Leandro that “there will be more than
one constitutionally permissible method of solving” statewide public school issues,
346 N.C. at 356, 488 S.E.2d at 260, and our holding in Hoke County that any remedy
for an alleged violation must “correct the failure with minimal encroachment on the
other branches of government.” 358 N.C. at 373–74, 588 S.E.2d at 610.
¶ 410 The majority merely brushes away this Court’s directly on point and well-
established precedent. Bafflingly, the majority states that “[n]either the Plaintiff-
parties nor the State dispute the presumed constitutionality of the passage of the
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
2021 Budget Act as a general procedural matter.” Supra ¶ 228. What then, is this
case about? Surely the majority must concede, at the very least, that if the State
Budget is constitutional, then it does not violate the constitutional right of children
to have the opportunity to receive a sound basic education. The majority simply
cannot have its cake and eat it too. Either the State Budget is constitutional, and
there is no statewide violation of Leandro, or there is a statewide violation of Leandro
because the State Budget fails to afford children the opportunity to a sound basic
education.
¶ 411 This case, when boiled down to its irreducible core, must be about the state
failing to provide Leandro conforming expenditures. That is why the CRP requires
the transfer of such vast amounts of taxpayer dollars. The only way for the state to
provide educational expenditures is through the State Budget. Thus, plaintiff-parties
challenge must be related to the adequacy of the State Budget’s ability to provide
constitutional, i.e., Leandro conforming, educational expenditures.
¶ 412 However, according to the majority, “that was not the issue before the trial
court and is not the issue before this Court.” Supra ¶ 228. Rather than analyzing
the State Budget in accordance with our long-standing precedent of presumptive
constitutionality, i.e., Leandro conformity, the majority decrees that “the Budget Act
must be assessed against the terms of the only comprehensive remedial plan thus far
presented by the parties to the court.” Supra ¶ 229.
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
¶ 413 Again, nonsense. Shall every legislative act now be compared not to our
constitution, but to whatever “plan” or “standard” that friendly parties agree to and
present to a trial court? The majority’s position is a perversion of this Court’s proper
role. Because the trial court on remand failed to afford the State Budget the
presumption of Leandro conformity, its analysis and decision were error.
¶ 414 Finally, this Court not only sanctions due process violations but exacerbates
the error by, on its own initiative, deciding the appeal in 425A21-1. The Court had
previously held this direct appeal in abeyance while we considered discretionary
review in 425A21-2. Now, without briefing or argument, the majority summarily
decides the issue it had previously held in abeyance, and for which there exists a right
to appeal based upon the dissent in the Court of Appeals. See N.C.G.S. § 7A-30. Once
again, the majority wields its unbounded power in the face of fundamental fairness
and basic legal tenets.
¶ 415 As stated only a few months ago:
The majority restructures power constitutionally
designated to the legislature, plainly violates the principles
of non-justiciability, and wrests popular sovereignty from
the people.
When does judicial activism undermine our republican
form of government guaranteed in Article IV, Section 4 of
the United States Constitution such that the people are no
longer the fountain of power? At what point does a court,
operating without any color of constitutional authority,
implicate a deprivation of rights and liberties secured
under the Fourteenth Amendment?
HOKE CNTY. BD. OF EDUC. V. STATE
2022-NCSC-108
Berger, J., dissenting
Moore, 2022-NCSC-99, ¶¶ 153–54 (Berger, J., dissenting).
III. Conclusion
¶ 416 Today’s decision is based on a process that was grossly deficient. Hearings
were not held as required by our decision in Hoke County. The rush to find a
statewide violation in the absence of input by the legislature, the collusive nature of
this case, the ordering of relief not requested by the parties in their pleadings or
permitted by our prior decisions, and the blatant usurpation of legislative power by
this Court is violative of any notion of republican government and fundamental
fairness. The trial court orders dated November 10, 2021 and April 26, 2022 should
be vacated, and this matter should be remanded for a remedial hearing on the Hoke
County claims as required by our decision in Hoke County. In addition, because there
have never been hearings held or orders entered as to any other county, those matters
must be addressed separately as per our decision in Hoke County.
¶ 417 Under no circumstance, however, should this Court take the astonishing step
of proclaiming that “inherent authority” permits the judiciary to ordain itself as
super-legislators. This action is contrary to our system of government, destructive of
separation of powers, and the very definition of tyranny as understood by our
Founding Fathers.
Chief Justice NEWBY and Justice BARRINGER join in this dissenting
opinion.