Hoke Cnty. Bd. of Educ. v. State

IN THE SUPREME COURT OF NORTH CAROLINA

No. 425A21-3

Filed 2 April 2026

HOKE COUNTY BOARD OF EDUCATION, et al., plaintiffs

and

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, plaintiff-intervenor

and

RAFAEL PENN, et al., plaintiff-intervenors

v.

STATE OF NORTH CAROLINA and the STATE BOARD OF EDUCATION,

defendants

and

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, realigned defendant

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, intervenor-defendants

Appeal pursuant to N.C.G.S. § 7A-27(b) from an order entered on 17 April 2023

by Judge James Floyd Ammons Jr. in Superior Court, Wake County. On 20 October

2023, pursuant to N.C.G.S. § 7A-31(a)–(b), the Supreme Court allowed

defendant-intervenors’ petition for discretionary review prior to determination by the

Court of Appeals. Heard in the Supreme Court on 22 February 2024.

HOKE CNTY. BD. OF EDUC. V. STATE

Opinion of the Court

Melanie Black Dubis, Scott E. Bayzle, Catherine G. Clodfelter, and H. Lawrence

Armstrong Jr. for plaintiff-appellees Hoke County Board of Education, et al.

Tharrington Smith, LLP, by Neal A. Ramee and David B. Noland, for

plaintiff-intervenor/realigned-defendant-appellee Charlotte-Mecklenburg

Board of Education.

Lawyers’ Committee for Civil Rights Under Law, by Christopher A. Brook,

Maya Brodziak, pro hac vice; Chavis Jones, pro hac vice; and Michael P.

Robotti, pro hac vice, for plaintiff-intervenor-appellees Rafael Penn, et al.

Jeff Jackson, Attorney General, by Lindsay Vance Smith, Deputy Solicitor

General, and Daniel P. Mosteller, Associate Deputy Attorney General, for

defendant-appellee State of North Carolina.

No brief for defendant-appellee State Board of Education.

Matthew F. Tilley, W. Clark Goodman, and Michael A. Ingersoll for

intervenor-defendant-appellants Philip E. Berger Sr. and Destin Hall.*

Jane R. Wettach for Professors Dereck Black, Joseph Blocher, John Charles

Boger, et al., amici curiae.

NEWBY, Chief Justice.

In this case we resolve whether the trial court lacked subject matter

jurisdiction to enter its order of 17 April 2023. To do so, we must consider what

happens to a case when the original claims have been transformed into claims very

different than those in the pleadings. In other words, can a party completely change

* Pursuant to Rule 38(c) of the Rules of Appellate Procedure, “When a person is a party

to an appeal in an official or representative capacity and during its pendency dies, resigns,

or otherwise ceases to hold office, the action does not abate and the person’s successor is

automatically substituted as a party.” N.C. R. App. P. 38(c). Timothy Moore is no longer the

Speaker of the North Carolina House of Representatives; accordingly, his successor, Destin

Hall, has been automatically substituted as a party in this appeal.

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the subject matter of its action without following the proper procedure for invoking

the trial court’s subject matter jurisdiction over a new, very different claim? We

conclude that the answer is no. Rather, litigants are required to properly invoke the

trial court’s subject matter jurisdiction over claims they want resolved. If litigants do

not do so, the trial court lacks subject matter jurisdiction to adjudicate the claims.

In 1994, students from five low-wealth school districts, joined by their parents

or guardians and their respective local school boards (plaintiffs), sued the State of

North Carolina and State Board of Education (defendants), claiming that they had

deprived the students in plaintiffs’ school districts of their education rights enshrined

in the North Carolina Constitution. Plaintiffs were subsequently joined by students

from six urban school districts, who were also joined by their parents or guardians

and their respective local school boards (plaintiff-intervenors). Like plaintiffs,

plaintiff-intervenors alleged that defendants were not providing students in

plaintiff-intervenors’ school districts a constitutionally compliant education.1

Thus, in 1994 plaintiff parties’ complaints presented challenges to the

1 When plaintiff-intervenors filed their intervening complaint in this action, they

called the six intervening school boards “the urban school boards” and the school districts

they administered “the urban school districts.” This opinion adopts those identifiers. Because

the five school boards identified in plaintiffs’ complaint operated in self-described low-wealth

counties, this opinion refers to those school boards as “the low-wealth school boards” and the

school districts they administered as “the low-wealth school districts.” Throughout this

opinion, references to the urban school boards, the urban school districts, the low-wealth

school boards, and the low-wealth school districts are only to those school boards and school

districts specifically named in plaintiffs’ and plaintiff-intervenors’ respective complaints;

these identifiers do not broadly refer to any school board or school district that one could

conceivably classify as “urban” or “low-wealth.”

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Opinion of the Court

constitutionality of the way state education funds were allocated in the named

students’ school districts at that time—i.e., as-applied challenges.2 There were no

claims saying there was a statewide constitutional problem with the existing

education system—i.e., there was not a facial challenge.

When this case was first considered by this Court, we had to determine the

extent of the education rights in the constitution. Namely, did the State satisfy its

constitutional duty merely by providing a free public education system for the

children who live within its boundaries, or does the constitution also guarantee a

certain quality of education for the public school students of this state? In Leandro v.

State, 346 N.C. 336, 488 S.E.2d 249 (1997), this Court held that the constitution’s

education provisions, taken together, have a qualitative component—specifically, the

requirement for the State to provide schoolchildren with the “opportunity for a sound

basic education.”

This Court recognized that there are numerous facets to the successful

provision of the opportunity for a sound basic education. Such facets include, but are

not limited to, the quality of the system’s curricula, the level of the State’s education

expenditures, and the performance of the public education bureaucracy

2 Throughout this litigation, plaintiffs and plaintiff-intervenors have been collectively

denominated the “plaintiff parties.” E.g., Hoke Cnty. Bd. of Educ. v. State (Hoke County I),

358 N.C. 605, 611, 599 S.E.2d 365, 374 (2004); cf. Leandro v. State, 346 N.C. 336, 342, 488

S.E.2d 249, 252 (1997) (“plaintiff-parties”). Any references to plaintiffs, plaintiff-intervenors,

or plaintiff parties do not include the “Penn Intervenors,” who intervened over a decade after

this litigation began and whose claims are discussed below.

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administering the school system at the state and local levels.

Although this Court ultimately rejected most of the claims raised in the 1994

complaints, we remanded some of the claims for resolution. Most pertinently to the

case today, this Court remanded the case to the trial court to determine whether

school children in each named school district were being denied their opportunity for

a sound basic education and, if so, why. At the same time, this Court recognized the

judiciary’s general lack of expertise in matters of education policy; observed that such

policy determinations properly resided in the legislative and executive branches; and

conceded that courts should give proper deference to those branches.

Once the case had returned to the trial court in 1997, the judge assigned to the

case directed plaintiff parties to amend their complaints to encompass claims

concerning prekindergarten services. The judge then decided to begin with a trial on

the as-applied claims of the Hoke County students, recognizing that there needed to

be a district-by-district assessment of the plaintiff parties’ school districts. As a result

of this year-long trial, the trial court acknowledged that the State’s education system

was generally constitutionally compliant, including its curriculum and funding. It

determined, however, that the State’s education system was unconstitutional as

applied to at-risk students in the Hoke County school district because resource

allocation issues at both the state and local levels were preventing those students

from receiving an opportunity for a sound basic education.

In Hoke County Board of Education v. State (Hoke County I), 358 N.C. 605, 599

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S.E.2d 365 (2004), this Court affirmed the trial court’s decision while further

clarifying that the constitutional education rights belonged only to students. We

remanded the case so that plaintiff parties’ other as-applied claims concerning the

other named school districts could proceed to trial.

Several procedural developments then occurred. In 2005, a group known as the

“Penn Intervenors,” who were represented by current Justice Anita Earls, sued

defendants and the Charlotte-Mecklenburg Board of Education and sought

intervention in this lawsuit. The Penn Intervenors were students from the

Charlotte-Mecklenburg school district; their parents or guardians; and, eventually,

the Charlotte-Mecklenburg Branch of the National Association for the Advancement

of Colored People (NAACP), which was added in an amended complaint. The trial

court allowed the intervention only as to the issues raised in the Penn Intervenors’

complaint similar to those already before the court—i.e., as-applied claims. In 2006,

five local school boards that had originally joined plaintiff-intervenors’ complaint

voluntarily dismissed their claims.

Over the next eleven years, none of the remaining as-applied claims were tried.

The judge who presided over this case made numerous observations about his

continuing belief that state and local education officials were not properly

administering the school system. Then that judge retired, resulting in the

appointment of a new judge.

On 24 July 2017, the then-Attorney General of North Carolina filed a motion

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for relief from the Hoke County trial judgment on the State Board’s behalf.3 In the

motion and supporting documents, the Attorney General highlighted that the original

claims, which were stated in the pleadings and refined by this Court’s decisions, were

no longer the focus of this case. The subject of the original complaints—the education

system of the 1990s and early 2000s—no longer existed. The litigation had instead

become a statewide challenge to a “future school system,” exceeding the jurisdiction

of the original pleadings. Therefore, the Attorney General argued that the trial court

did not have jurisdiction to address this question.

In this appeal, the General Assembly made similar arguments in support of its

position that the trial court lacked subject matter jurisdiction to entertain a new,

statewide claim. For example, the General Assembly argued that “[t]he trial court . . .

exceeded its jurisdiction” by “purport[ing] to grant relief on a supposed ‘statewide’

claim that no party has ever asserted.”

We agree. By 24 July 2017, the remaining participants in the litigation and the

trial court officially transformed this case into one addressing matters never pled.

Specifically, the trial court worked with the remaining parties in this case—while

excluding the General Assembly—to enforce a statewide plan that overhauled the

legislatively enacted educational system. What began as modest, as-applied

challenges to the allocation of educational resources in the named school districts

became a full-scale, facial assault on the entire educational system enacted by the

3 Former Attorney General Josh Stein is now Governor of North Carolina.

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General Assembly. When this case ceased to be about the as-applied claims raised in

the complaints and refined by this Court’s decisions, the trial court’s authority to hear

the case likewise ceased. No facial constitutional challenge was ever pled. What is

more, this unpled facial challenge was not directed to the one tribunal empowered to

address it: a three-judge panel of the Superior Court, Wake County. As a result, the

trial court was without subject matter jurisdiction to consider that claim in the

current case.4

4 Two of our dissenting colleagues clearly read the pleadings, this Court’s opinions,

and Justice Earls’s recusal orders differently than we do. See Earls dissent infra; Riggs

dissent infra. In disagreeing with our recitation of the pleadings, these dissenting colleagues

take allegations out of context or misunderstand their significance. Indeed, they even rely

heavily on allegations made in and supporting claims that were dismissed by this Court in

Leandro. Instead of responding to each misused quotation by these dissents, we encourage

the readers to review the pleadings, this Court’s opinions, and Justice Earls’s recusal orders

for themselves. After all, “sunlight is the best disinfectant.” See Louis Brandeis, What

Publicity Can Do, in Other People’s Money and How the Bankers Use It 92, 92 (1914)

(“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”).

Here we will limit ourselves to a few examples that illustrate how these dissenting

colleagues have mischaracterized allegations in the complaints. First, one dissenting

colleague selectively quotes plaintiffs’ Count I to suggest that plaintiffs asserted a statewide

claim. See Earls dissent infra Section I.A.3. n.8. She quotes the following from paragraph 84

in plaintiffs’ Count I: “[p]laintiff [students] ha[d] not received the [adequate] educational

opportunities guaranteed by the . . . [c]onstitution[ ] because the State ha[d] failed to provide

the necessary funds.” Id. (alterations in original). She omits, however, crucial language from

the same paragraph. The full paragraph demonstrates that plaintiffs asserted as-applied

claims: “Plaintiff school children have not received the educational opportunities guaranteed

by the state [c]onstitution, because the State has failed to provide the necessary funds. The

funding system substantially ignores the poverty of plaintiff districts.” (Emphases added.)

Our dissenting colleague likewise omits important language when quoting an

allegation contained in plaintiff-intervenors’ Count II. She quotes from paragraph 82 in

plaintiff-intervenors’ complaint: “[t]he State’s public education system, including its

educational funding system . . . [was] inadequate, inequitable, irrational, arbitrary and

capricious, and not general and uniform, in violation of the . . . [c]onstitution.” Id. (alterations

in original). The following paragraph in plaintiff-intervenors’ complaint, paragraph 83,

demonstrates the as-applied nature of plaintiff-intervenors’ claims: “As a result of

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defendants’ violations of their constitutional duty, the individual intervenors have been

denied access to a general and uniform system of public education in which equal

opportunities are provided.” (Emphasis added.)

Another dissenting colleague asserts: “From the beginning, plaintiffs’ allegations

alleged a statewide injury.” See Riggs dissent infra Section II.B. To support this statement,

she cites the first factual allegation (paragraph 40) contained in plaintiffs’ complaint:

[The State Board of Education and the State of North Carolina]

have failed in numerous respects to satisfy their constitutional

and statutory obligations regarding education. These failures

stem from the State’s system for funding its schools, which does

not take sufficient account of the substantial disparities in

wealth among school districts. The result of inadequate funding

is an education system with inadequate and unequal

educational opportunities.

Id. (alteration in original).

When paragraph 40 is read in context with paragraphs 41 through 81 of the complaint,

it becomes abundantly clear that plaintiffs were not asserting a facial attack of statewide

funding. Rather, they were providing background for their allegations that the funding

system left plaintiffs—i.e., low-wealth school districts—at a disadvantage relative to

wealthier school districts.

For instance, in paragraph 71 plaintiffs alleged that

the average salary supplement in 1993–94 for teachers in

Chapel Hill School District was $3,310, while that in Halifax was

$208. Such disparities make it difficult for plaintiff districts to

compete with wealthy districts for the most qualified teachers,

and ultimately reduce the quality of the education available to

children in plaintiff districts.

(Emphasis added.) Then in paragraph 72 plaintiffs alleged that “in 1992–93, Robeson

[County] (with approximately 22,535 students) was only able to hire 2 teachers entirely with

local funds, while Chapel Hill (with approximately 6,733 students) hired 86. This relative

inability to hire teachers restricts the ability of plaintiff districts to provide varied courses

for schoolchildren.” (Emphasis added.)

Obviously, plaintiffs intended the allegations in paragraphs 71 and 72 to highlight the

alleged lack of resources in their counties as compared to other school districts. The

allegations certainly cannot be rightly understood to allege that the statewide funding system

deprived all of North Carolina’s children—including Chapel Hill students—of their

constitutional education rights. Indeed, if plaintiffs had intended to assert a facial challenge

to the statewide funding system, why did they delineate themselves as “low-wealth school

districts”? If plaintiffs had asserted a facial constitutional challenge regarding statewide

funding, such a delineation would have been entirely unnecessary. Further, the allegations

alluded to by our dissenting colleague were made to support plaintiffs’ equal opportunity

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Consequently, we hold that any court decision entered in this matter after 24

July 2017 was entered without subject matter jurisdiction and is void ab initio,

meaning it is “a nullity anywhere, at any time, for any purpose.” High v. Pearce, 220

N.C. 266, 271, 17 S.E.2d 108, 112 (1941) (first citing Clark v. Carolina Homes, Inc.,

189 N.C. 703, 128 S.E. 20 (1925); and then citing Carter v. Rountree, 109 N.C. 29, 13

S.E. 716 (1891)). This includes this Court’s opinion in Hoke County Board of

Education v. State (Hoke County III), 382 N.C. 386, 879 S.E.2d 193 (2022), and the

17 April 2023 Order. The trial court order of 17 April 2023 is vacated, and this matter

is dismissed with prejudice.5

I. Background & Procedural History

This litigation is one chapter in the long, ever-developing history of public

education in this state. Indeed, as discussed below, several of this Court’s decisions

throughout this litigation have established important principles concerning the

education rights in the constitution. Leandro v. State, 346 N.C. 336, 488 S.E.2d 249

(1997); Hoke Cnty. Bd. of Educ. v. State (Hoke County I), 358 N.C. 605, 599 S.E.2d

365 (2004). To comprehensively explain every twist and turn of this case’s background

and procedural history would require gallons of ink spilled across many pages. The

claim—plaintiffs’ Count III. The Court of Appeals dismissed Count III, and this Court

affirmed the dismissal in Leandro.

5 Dismissal with prejudice is appropriate because the various complaints and

amended complaints presented as-applied constitutional challenges to the education system

of 1994, which no longer exists.

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following recitation of the facts and procedural history focuses on those aspects

necessary to analyze the trial court’s subject matter jurisdiction as it existed on 17

April 2023.

A. Backdrop to the Pleadings

Before diving into this case’s long procedural history, a brief survey of the

context in which plaintiffs filed their complaint is in order.

1. 1971 Constitution

The history of North Carolina reveals the State’s continually expanding

commitment to providing children a free, beneficial public education. There have been

setbacks to be sure, but undeniably, the long arc of history reveals this State’s

commitment to enhancing the public education provided to the children within its

borders. See William W. Peek, N.C. Dep’t of Pub. Instruction, The History of

Education in North Carolina 5 (1993), https://digital.ncdcr.gov/Documents/Detail/

history-of-education-in-north-carolina/2533439?item=2555702 [hereinafter NCDPI,

The History of Education]. Notably, a constant throughout this history has been “the

precedent of school support from a combination of state and local funds.” Id. at 9.

In 1971, the people ratified our current constitution, which carried over most

of the education provisions first included in the constitution of 1868. Unlike the two

versions that preceded it, the 1971 constitution “was not . . . a product of haste and

social turmoil. It was instead a good-government measure, long matured and

carefully crafted . . . to consolidate and conserve the best features of the past, not to

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break with it.” John V. Orth & Paul Martin Newby, The North Carolina State

Constitution 32 (2d ed. 2013) [hereinafter State Constitution]; see also, e.g., McKinney

v. Goins, 387 N.C. 35, 45 n.5, 911 S.E.2d 1, 10 n.5 (2025) (“The primary goal of the

1971 constitution was ‘editorial pruning, rearranging, rephrasing, and modest

amendments,’ and ‘the great majority of the changes embraced in the 1971

constitution took the form of non-substantive deletions or contractions in language.’ ”

(citation modified) (quoting State ex rel. McCrory v. Berger, 368 N.C. 633, 643, 781

S.E.2d 248, 254–55 (2016)); Sneed v. Greensboro City Bd. of Educ., 299 N.C. 609, 617,

264 S.E.2d 106, 112 (1980) (concluding that the 1971 constitution’s “reference . . . to

‘a general and uniform system of free public schools’ requires no substantive change

in the [S]tate’s long standing policy of providing its citizens with a basic tuition[-]free

education” (quoting N.C. Const. art. IX, § 2, cl. 1) (emphasis omitted)).

Like the 1868 constitution before it, the current constitution declares, “The

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. It echoes, “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.” Id. art.

IX, § 1. “These provisions . . . evince our State’s resolve to foster an upright, capable

citizenry—even from youth.” State v. Tirado, 387 N.C. 104, 128 n.17, 911 S.E.2d 51,

69 n.17 (2025); see also State Constitution 62 (“Not a restriction on what the state

may do, [Article I, Section 15] requires a commitment to social betterment. The

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details are spelled out in Article IX, wholly devoted to education.”); id. at 177 (“Article

IX . . . lead[s] off with a general statement on the utility of knowledge (as well as

religion and morality) . . . .”).

The constitution’s General and Uniform System Clause specifically obligates

the General Assembly to “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, cl. 1; see also id. art. IX, § 3 (requiring the General Assembly

to enact a compulsory school attendance law for “every child of appropriate age and

of sufficient mental and physical ability . . . unless educated by other means”).

Concomitantly, the constitution establishes a “state school fund,” requiring certain

income streams to “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, . . . faithfully appropriated

and used exclusively for establishing and maintaining a uniform system of free public

schools.” Id. art. IX, § 6; see also State Constitution 181 (“The state school fund, the

subject of Section 6, is funded principally from appropriations . . . .”).

Nevertheless, consistent with the history of both state and local funding of

education, the constitution allows for the General Assembly to “assign to units of local

government such responsibility for the financial support of the free public schools as

it may deem appropriate.” N.C. Const. art. IX, § 2, cl. 2. In addition, local governments

may “use local revenues to add to or supplement any public school or post-secondary

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school program.” Id. Furthermore, the constitution establishes “county school funds.”

Id. art. IX, § 7, cl. a. The provision allowing county school funds stipulates that “[a]ll

moneys, stocks, bonds, and other property belonging to a county school fund,” as well

as “the clear proceeds of all penalties and forfeitures and of all fines collected in” a

county “for any breach of the penal laws . . . , shall belong to and remain in” that

county to be “faithfully appropriated and used exclusively for maintaining free public

schools.” Id.6

The State Board is yet another aspect of the 1868 constitution carried over to

the modern document, albeit with some modifications. See id. art. IX, § 4, cl. 1. The

constitution charges the State Board with “supervising and administering the free

public school system and the educational funds provided for its support,” including

the power to “make all needed rules and regulations in relation thereto, subject to

laws enacted by the General Assembly.” Id. art. IX, § 5. See generally State

6 In 2003, nearly a decade after this litigation began, the constitution was amended to

add Article IX, Section 7’s second clause. An Act to Amend the North Carolina Constitution

to Provide that the General Assembly May Place the Clear Proceeds of Civil Penalties, Civil

Forfeitures, and Civil Fines Collected by a State Agency in a State Fund to Be Used

Exclusively for Maintaining Free Public Schools, S.L. 2003-423, § 1, 2003 N.C. Sess. Laws

1284, 1284. The added clause provides,

The General Assembly may place in a State fund the clear

proceeds of all civil penalties, forfeitures, and fines which are

collected by State agencies and which belong to the public

schools pursuant to subsection (a) of this section. Moneys in such

State fund shall be faithfully appropriated by the General

Assembly, on a per pupil basis, to the counties, to be used

exclusively for maintaining free public schools.

N.C. Const. art. IX, § 7, cl. b.

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Constitution 180 (“The State Board . . . administers the state school fund but not the

county school fund . . . .”). The Superintendent of Public Instruction, an executive

branch official, N.C. Const. art. III, § 7, cl. 1, serves as the State Board’s secretary

and chief administrative officer, id. art. IX, § 4, cl. 2.

2. Chapter 115C and the State Education System in 1994

With the historical and constitutional framework set, we next address the

school policy and funding in place when the complaints in this litigation were filed.

Long before plaintiffs filed their complaint in May of 1994, the General Assembly had

fulfilled its constitutional obligation to provide a system of elementary and secondary

public education, both as to educational policy and funding. See NCDPI, The History

of Education at 14. As of 1994, Chapter 115C governed elementary and secondary

education (as it does today). N.C.G.S. §§ 115C-1 to -546.2 (1991 & 1993 Supp.).

Consistent with the history recounted above, North Carolina’s education

system operated on two levels: state and local. At the state level, the General

Assembly, in accordance with the constitution, created an education system that set

education policies and funded a public school system. The legislature vested the State

Board, an executive agency, with “[t]he general supervision and administration of the

free public school system.” N.C.G.S. § 115C-12 (1993 Supp.) (current version at

N.C.G.S. § 115C-12 (2025)). Accordingly, the State Board was required to “establish

policy for the system of free public schools, subject to laws enacted by the General

Assembly.” Id. In turn, the Superintendent of Public Instruction and the Department

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of Public Instruction were charged with administering the policies the State Board

adopted. See N.C.G.S. § 115C-19 (1991) (current version at N.C.G.S. § 115C-19

(2025)); N.C.G.S. § 115C-21(a)(1) (1993 Supp.) (current version at N.C.G.S.

§ 115C-21(a)(1) (2025)); id. § 115C-21(b)(1) (repealed 2017).

The lion’s share of public-school administration, however, happened at the

local level. Indeed, “[a]ll powers and duties conferred and imposed by law respecting

public schools, which [were] not expressly conferred and imposed upon some other

official, [were] conferred and imposed upon local boards of education.” N.C.G.S.

§ 115C-36 (1991). “Said boards of education . . . ha[d] general control and supervision

of all matters pertaining to the public schools in their respective administrative

units,” and they were to “enforce the school law in their respective units.” Id. The

General Assembly endowed the local school boards with specific powers and duties as

well, N.C.G.S. § 115C-47 (1993 Supp.) (current version at N.C.G.S. § 115C-47 (2025)),

not the least of which was the duty to “provide adequate school systems within their

respective local school administrative units, as directed by law,” id. § 115C-47(1)

(current version at N.C.G.S. § 115C-47(1) (2025)).

Chapter 115C was (and still is) a comprehensive and detailed statutory scheme

covering education policy. Three aspects of public education are relevant to this

litigation: (1) curriculum, (2) accountability systems, and (3) funding.

a. Curriculum

First, consider curriculum. The State Board’s duties included developing the

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curriculum for the instruction of public schoolchildren. Historically, the General

Assembly had directed the State Board to design “Standard Courses of Study” for

each grade. See, e.g., N.C.G.S. § 115C-81(a) (1981 Supp.) (repealed 2017); Elementary

and Secondary School Reform Act of 1984, ch. 1103, § 2, 1984 N.C. Sess Laws 286,

286. The Standard Courses of Study “set forth what subjects [were to] be taught in

each grade, and outline[d] the basal and supplementary books on each subject to be

used in each grade.” N.C.G.S. § 115C-81(a) (1981 Supp.) (repealed 2017). The courses

also provided “directions as to the best methods of teaching [subjects] as guidance for

the teachers.” Id. “North Carolina ha[d] maintained a Standard Course of Study since

the 1890[s]. . . . Every five to seven years since that time, the Standard Course of

Study ha[d] been revised to reflect the needs of North Carolina students.” N.C. Dep’t

of Pub. Instruction, North Carolina Standard Course of Study 7 (1999), https://

files.eric.ed.gov/fulltext/ED431211.pdf. Starting in 1985, however, the General

Assembly required the State Board to “adopt a Basic Education Program [(BEP)] for

the public schools of the State.” The Current Operations Appropriations Act of 1985,

ch. 479, § 55, 1985 N.C. Sess. Laws 412, 448–57.

The General Assembly intended the BEP to accomplish “the mission of the

public school community”—namely, “to challenge with high expectations each child

to learn, to achieve, and to fulfill his or her potential.” N.C.G.S. § 115C-81(a) (1993

Supp.) (repealed 2017). Therefore, the BEP’s basic purpose was to “describe the

education program to be offered to every child in the public schools.” Id.

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§ 115C-81(a1). The BEP offered “[i]nstruction . . . in the areas of arts,

communications skills, physical education and personal health and safety,

mathematics, media and computer skills, science, second languages, social studies,

and vocational education.” Id.; see also id. § 115C-81(g) (requiring instruction on

“Civic Literacy,” focusing on “the [N]ation’s founding and related documents”). In

Chapter 115C, the General Assembly required the BEP to “include course

requirements and descriptions similar in format to materials previously contained in

the [existing] [S]tandard [C]ourse of [S]tudy.”7 N.C.G.S. § 115C-81(b) (1993 Supp.)

7 More specifically, subsection 115C-81(b) required the BEP to include:

(1) A core curriculum for all students that takes into account

the special needs of children and includes appropriate

modifications for the learning disabled, the academically

gifted, and the students with discipline and emotional

problems;

(2) A set of competencies, by grade level, for each curriculum

area;

(3) A list of textbooks for use in providing the curriculum;

(4) Standards for student performance and promotion based

on the mastery of competencies, including standards for

graduation, that take into account children with special

needs and, in particular, include appropriate

modifications;

(5) A program of remedial education;

(6) Required support programs;

(7) A definition of the instructional day;

(8) Class size recommendations and requirements;

(9) Prescribed staffing allotment ratios;

(10) Material and equipment allotment ratios;

(11) Facilities standards; and

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(repealed 2017). “The [S]tandard [C]ourse of [S]tudy as it exist[ed] on [1 January]

1985, and as subsequently revised by the State Board, [was to] remain in effect until

its components ha[d] been fully incorporated and implemented as part of the [BEP].”

Id. § 115C-81(d).

In Chapter 115C, the General Assembly contemplated the involvement of both

the State Board and local school boards in the BEP’s implementation. In addition to

developing the BEP itself, the State Board was “[t]o adopt rules requiring all local

boards of education to implement the [BEP] on an incremental basis within funds

appropriated for that purpose by the General Assembly and by units of local

government.” Id. § 115C-12(9)(c) (repealed 2017). Such rules were to

require each local school administrative unit to implement

fully the [S]tandard [C]ourse of [S]tudy in every school in

the [s]tate in accordance with the [BEP] so that every

student in the [s]tate [would] have equal access to the

curriculum as provided in the [BEP] and the [S]tandard

[C]ourse of [S]tudy.

Id. Chapter 115C directed the local school boards to “implement the [BEP] in

(12) Any other information the [State] Board considers

appropriate and necessary.

N.C.G.S. § 115C-81(b) (1993 Supp.) (repealed 2017).

Notably, the General Assembly also instructed the BEP to require “[l]ocal boards of

education [to] provide for their respective local school administrative unit kindergartens as

a part of the public school system . . . provided that funds are available from State, local,

federal or other sources.” Id. § 115C-81(f)(1). The General Assembly further directed the

State Board to adopt standards requiring “the Board [to] allocate funds for the purpose of

operating and administering kindergartens to each school administrative unit in the State.”

Id.

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accordance with rules adopted by the State Board.” Id. § 115C-47(12) (repealed 2017).

The General Assembly specifically explained how the BEP would be funded:

The State Board shall implement the [BEP] within funds

appropriated for that purpose by the General Assembly and

by units of local government. It is the intent of the General

Assembly that until the [BEP] is fully funded, the

implementation of the [BEP] shall be the focus of State

educational funding. It is the goal of the General Assembly

that the [BEP] be fully funded and completely operational

in each local school administrative unit by [1 July] 1995.[8]

Id. § 115C-81(a) (emphasis added). To ensure the BEP was funded in all school

districts, the General Assembly also created a supplemental funding program for

low-wealth counties. Id. (“It is further a goal of the General Assembly to provide

supplemental funds to low-wealth counties to allow those counties to enhance the

instructional program and student achievement.”).

The State Board complied with Chapter 115C’s directives and adopted a BEP.

In 1994, however, the General Assembly was not on pace to fully fund the BEP by the

extended 1 July 1995 deadline.

b. Accountability Systems

Next, consider the accountability systems embedded in the education system

in 1994. The General Assembly, desiring a way to assess educational achievement,

required the State Board to implement testing programs

(i) to assure that all high school graduates possess those

minimum skills and that knowledge thought necessary to

8 The General Assembly’s original deadline to fund the BEP was in 1993. The Current

Operations Appropriations Act of 1985, 1985 N.C. Sess. Laws at 456.

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function as a member of society; (ii) to provide a means of

identifying strengths and weaknesses in the education

process; and (iii) to establish additional means for making

the education system accountable to the public.

N.C.G.S. § 115C-174.10 (1991) (current version at N.C.G.S. § 115C-174.10 (2025)).

The testing program’s first component, the “Annual Testing Program,” called for

“developmentally appropriate individualized assessment instruments consistent

with the [BEP] for the first and second grades, rather than standardized tests.” Id.

§ 115C-174.11(a) (current version at N.C.G.S. § 115C-174.11(a) (2025)).9 The second

component, the “Competency Testing Program,” required the evaluation of tenth

graders “to assure that graduates of the public high schools . . . possess[ed] the skills

and knowledge necessary to function independently and successfully in assuming the

responsibilities of citizenship.” Id. § 115C-174.11(b) (repealed 2009). The third testing

component was “End-of-course and End-of-grade Tests,” which were required for

“grades three through [twelve]” and “designed to measure progress toward selected

competencies, especially core academic competencies, described in the Standard

Course of Study for appropriate grade levels.” Id. § 115C-174.11(c) (current version

at N.C.G.S. § 115C-11(c) (2025)). The statutes also provided a method for identifying

“low performing school units” for state intervention and assistance. See id.

§§ 115C-64.1 to -64.5 (repealed 1996).

In addition to these generally applicable accountability programs, in Chapter

9 The current version makes no references to the BEP.

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115C the General Assembly tasked the State Board with developing and

implementing a “Performance-based Accountability Program,” which was aimed

primarily at improving student performance. N.C.G.S. §§ 115C-238.1 to -238.8 (1994)

(repealed 1996 and recodified, as amended, at N.C.G.S. §§ 115C-105.20 to -105.35

(1997) (current version at N.C.G.S. §§ 115C-105.20 to -105.35 (2025))). Although

participation in this program was optional, id. § 115C-238.2(a), participating local

school boards received benefits, such as “increased flexibility in the expenditure of

[s]tate funds,” id. § 115C-238.2(b)(4). In exchange, participants were required to

develop “local plans” that, among other things, set out a roadmap for improving their

local school administrative units and strategies for achieving “specific, measurable”

student performance goals. Id. § 115C-238.3(a)–(b1).

c. Funding

Finally, consider funding. In Chapter 115C, the General Assembly provided,

“It [was] the policy of the State of North Carolina to create a public school system

that graduate[d] good citizens with the skills demanded in the marketplace, and the

skills necessary to cope with contemporary society, using [s]tate, local and other funds

in the most cost-effective manner.” N.C.G.S. § 115C-408(a) (1991) (emphasis added)

(current version at N.C.G.S. § 115C-408(a) (2025)). Accordingly, “[t]o insure a quality

education for every child in North Carolina, and to assure that the necessary

resources are provided, . . . the State of North Carolina [was] to provide from [s]tate

revenue sources the instructional expenses for [then-]current operations of the public

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school system.” Id. § 115C-408(b) (emphasis added) (current version at N.C.G.S.

§ 115C-408(b) (2025)). To that end, the State Board possessed “general supervision

and administration of the education funds provided by the [s]tate and federal

governments, except those mentioned in Section 7 of Article IX . . . , and also

excepting such local funds as may be provided by a county, city, or district.” Id.

§ 115C-408(a).

As had traditionally been the case, local governments played a supplemental

financial role. For instance, in Chapter 115C the General Assembly provided that “the

facilities requirements for a public education system [were to] be met by county

governments.” Id. § 115C-408(b) (emphasis added). The General Assembly also

created a “Critical School Facility Needs Fund,” id. § 115C-489.1(a) (repealed 1996),

which was administered by the State Board and allowed local governments to apply

for grants “to meet . . . particular critical need[s] in the local school administrative

unit[s],” id. § 115C-489.2(a) (repealed 1996).

With this overview of the education system as it existed in 1994, we turn to the

pleadings that commenced this litigation more than three decades ago. As we relay

the procedural history of this case, we will note relevant changes to the public

education system.

B. The Pleadings

This case commenced nearly thirty-two years ago on 25 May 1994 when

plaintiffs filed their complaint in the Superior Court, Halifax County. The named

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plaintiffs were “students and their parents or guardians from the relatively

[low-wealth] school systems in Cumberland, Halifax, Hoke, Robeson, and Vance

Counties [(plaintiff students)] and the boards of education for those counties” (the

low-wealth school boards). Leandro, 346 N.C. at 342, 488 S.E.2d at 252.

Plaintiffs’ amended complaint complained of the State’s alleged failure to

timely fund the BEP by the 1995 deadline and its “reli[ance] upon local governments

to fill the gaps” in funding instructional expenses. Plaintiffs claimed this amounted

to “an irrational, unfair, and unconstitutional funding system” resulting in adequate

and equitable educational “opportunities . . . [being] denied to children in some of the

poorest school districts in this State.”

Plaintiffs’ factual allegations focused specifically on challenges unique to their

low-wealth school districts. For example, “[b]ecause of their limited capacities to raise

funds for education” due to circumstances like lower tax bases and low per capita

income, plaintiffs asserted that “the county governments of [the low-wealth school]

districts c[ould not] and d[id] not provide as much local funding per student for . . .

schools as . . . counties with substantially greater tax bases per pupil.” Plaintiffs

further alleged that the supplemental funding program for low-wealth counties did

not provide sufficient resources to the low-wealth school boards to cover the

deficiencies in the BEP’s funding. According to plaintiffs, these shortcomings led to

many troubling results in the low-wealth school districts: the inability to provide

certain courses and programs; insufficient facilities; lack of essential equipment; the

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inability to hire and retain high quality teachers; the identification as “low

performing” districts or placement on warning status; the inability to satisfy the

Performance-based Accountability Program’s standards; and poor standardized test

performances, to name a few.

Based on their allegations, plaintiffs presented five claims for relief. In Count

I, plaintiffs claimed “[p]laintiff [students] ha[d] not received the [adequate]

educational opportunities guaranteed by the . . . [c]onstitution[ ] because the State

ha[d] failed to provide the necessary funds” and “substantially ignore[d] the poverty

of [the low-wealth school] districts.” In Count II, plaintiffs alleged that “the State’s

system of funding education, which allocate[d] substantially less money for the

education of schoolchildren in [the low-wealth school] districts than it d[id] for

schoolchildren in wealthy school districts,” was arbitrary and irrational in violation

of the constitution’s Equal Protection Clause. In Count III, plaintiffs asserted that

“wide disparities in educational opportunities available to the schoolchildren in [the

low-wealth school] districts and those available to the schoolchildren in wealthy

districts” meant that “[d]efendants ha[d] violated plaintiffs’ rights” to a general and

uniform system of public schools under Article IX, Section 2. Count IV claimed that

“[d]efendants ha[d] violated the law of the land under the . . . [c]onstitution by failing

to provide adequate educational opportunities.” And in Count V, plaintiffs submitted

that defendants had violated Chapter 115C “by failing to provide plaintiff [students]

with equal access to the [BEP], and by failing to assure that plaintiffs receive

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necessary resources for instructional purposes on an equitable basis.” In their prayer

for relief, plaintiffs sought declaratory judgments consistent with their claims.

On 18 October 1994, plaintiff-intervenors, another group animated by the

State’s delay in fully funding the BEP, filed their own complaint. Plaintiff-intervenors

were “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 [(plaintiff-intervenor students)] and the boards

of education for those systems” (the urban school boards). Leandro, 346 N.C. at 342,

488 S.E.2d at 252.

In their complaint, plaintiff-intervenors acknowledged that state law charged

the urban school boards, like all local school boards, with a “responsibility to maintain

adequate school systems within their districts,” citing subsection 115C-47(1) of the

General Statutes. But like plaintiffs, plaintiff-intervenors alleged that “[t]he

[then-]current [s]tate educational funding system d[id] not sufficiently take into

consideration the burdens faced by urban school districts that must educate large

numbers of students with extraordinary educational needs.” These included

circumstances like students “living in or near poverty” or “requiring special

education, English-as-a-second-language, or academically gifted services.”

Plaintiff-intervenors also claimed the State’s educational funding system ignored “the

high costs and ‘municipal overburden’ that characterize[d] the urban school districts.”

According to plaintiff-intervenors, in 1994 the State’s educational funding system

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“shifted virtually the entire burden of capital funding to local authorities that [were]

unable to meet the urban school districts’ capital needs.” Thus, given the

“disproportionately high” cost of educating students in their districts,

plaintiff-intervenors alleged “[m]any of the urban school boards . . . lack[ed] sufficient

[s]tate funding to provide all of their students with appropriate educational materials

and supplies.”

Based on these allegations, plaintiff-intervenors also advanced five claims for

relief. In Count I, plaintiff-intervenors claimed they were entitled to relief because

defendants failed to (1) “provide an adequate education to all students in the urban

school districts,” and (2) “provide the urban school boards with the resources

necessary to provide all of their students with an adequate education.” This second

failure, said plaintiff-intervenors, prevented the urban school boards from

accomplishing “the[ir] responsibility to provide all of their students with a

constitutionally adequate education.” In Count II, plaintiff-intervenors contended

“[t]he State’s public education system, including its educational funding system

[(particularly the BEP’s supplemental funding program)] [was] inadequate,

inequitable, irrational, arbitrary and capricious, and not general and uniform, in

violation of the . . . [c]onstitution.” This meant that “[plaintiff-intervenor students]

ha[d] been denied access to a general and uniform system of public education in which

equal opportunities are provided” and that the urban school boards could not fulfill

their responsibility to provide “equal educational opportunities.”

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Count III subsumed two grievances. More generally, plaintiff-intervenors

complained that “whether a student receive[d] an adequate education depend[ed] on

capricious circumstances, including where the student live[d].” More particularly,

plaintiff-intervenors alleged that “[t]he State’s supplemental funding scheme

irrationally discriminate[d] against school districts not defined as ‘low wealth’ or

‘small’ and against the students and communities served by those districts.” For these

reasons, plaintiff-intervenors argued that the State’s funding of education “denied

equal protection of the laws to [plaintiff-intervenor students]” because it “d[id] not

provide, and d[id] not ensure that the urban school boards c[ould] provide, an

adequate education to all students in the urban school districts.” For the same

reasons, in Count IV, plaintiff-intervenors claimed that “[t]he State ha[d] denied due

process of law to [plaintiff-intervenor students].”

And in Count V, plaintiff-intervenors presented two theories of how defendants

had violated Chapter 115C’s requirements: First, defendants had not provided the

“resources necessary to allow [plaintiff-intervenor students] to have access to

‘adequate school systems’ that provide[d] them with a ‘[BEP]’ and ‘equal educational

opportunities.’ ” Second, defendants had not provided resources sufficient to enable

the urban school boards to provide an education that met the requirements of the

BEP and other state standards. In their prayer for relief, plaintiff-intervenors sought

declaratory judgments consistent with these claims.

In Leandro, we summarized the nature of plaintiff parties’ allegations as

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follows:

Both plaintiff 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

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.

Plaintiff[ ]parties allege that defendants have denied them

this right.

Plaintiffs allege that children in their poor school

districts are not receiving a sufficient education to meet the

minimal standard for a constitutionally adequate

education. Plaintiffs further allege that children in their

districts are denied an equal education because there is a

great disparity between the educational opportunities

available to children in their districts and those offered in

more wealthy districts of our state. Plaintiffs allege that

their districts lack the necessary resources to provide

fundamental educational opportunities for their children

due to the nature of the [S]tate’s system of financing

education and the burden it places on local governments.

They allege that the [S]tate leaves the funding of capital

expenses, as well as twenty-five percent of current school

expenses, to local governments. They further allege that

although their poor districts are the beneficiaries of higher

local tax rates than many wealthy school districts, those

higher rates cannot make up for their lack of resources or

for the disparities between systems. Plaintiffs also allege

that students in their poor school districts are not receiving

the education called for by the [BEP], part of the statutory

framework for providing education to the children of this

state.

Plaintiffs complain of inadequate school facilities

with insufficient space, poor lighting, leaking roofs, erratic

heating and air conditioning, peeling paint, cracked

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plaster, and rusting exposed pipes. They allege that their

poor districts’ [then-current] media centers have sparse

and outdated book collections and lack the technology

present in the wealthier school districts. They complain

that they are unable to compete for high quality teachers

because local salary supplements in their poor districts are

well below those provided in wealthy districts. Plaintiffs

allege that this relative inability to hire teachers causes the

number of students per teacher to be higher in their poor

districts than in wealthy districts.

Plaintiffs allege that college admission test scores

and yearly aptitude test scores reflect both the inadequacy

and the disparity in education received by children in their

poor districts. Plaintiffs allege that end-of-grade tests show

that the great majority of students in plaintiffs’ districts

are failing in basic subjects.

Plaintiff-intervenors allege that the current state

educational funding system does not sufficiently take into

consideration the burdens faced by their urban school

districts, which must educate a large number of students

with extraordinary educational needs. In particular,

plaintiff-intervenors claim that their school districts have

a large number of students who require special education

services, special English instruction, and academically

gifted programs. They allege that providing these services

requires [the urban] school boards to divert substantial

resources from their regular education programs.

Plaintiff-intervenors contend that defendants . . .

have violated the North Carolina Constitution and Chapter

115C . . . by failing to ensure that their relatively wealthy

school districts have sufficient resources to provide all of

their students with adequate and equal educational

opportunities. In addition, plaintiff-intervenors claim that

the [S]tate’s singling out of certain poor rural districts to

receive supplemental state funds, while failing to recognize

comparable if not greater needs in [the urban school]

districts, is arbitrary and capricious ....

Plaintiff-intervenors allege that deficiencies in physical

facilities and educational materials are particularly

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significant in their systems because most of the growth in

North Carolina’s student population is taking place in

urban areas such as those served by [the urban] school

boards. They claim that their urban districts must serve a

disproportionate number of children who due to poverty,

language barriers, or other handicaps, require special

resources. They allege that because urban counties have

high levels of poverty, homelessness, crime, unmet health

care needs, and unemployment which drain their fiscal

resources, they cannot allocate as large a portion of their

local tax revenues to public education as can the more rural

poor districts.

346 N.C. at 342–44, 488 S.E.2d at 252–53 (emphases added).

The pleadings (and this Court’s summary thereof) paint a clear picture of

plaintiff parties’ original theory of the case—namely, that the State had distributed

funding for the BEP in such a manner that the named students, in the named school

districts, had not been given an opportunity to receive a constitutionally compliant

education under the education system as it existed in 1994. Significantly, plaintiff

parties did not allege that all children in all school districts across all one hundred

counties were facing similar challenges, or that there was no way for the State’s

funding system to operate constitutionally. In fact, by raising an alleged statutory

violation, plaintiff parties seemed to concede that if the State had complied with the

statutory requirements, then it would have provided a constitutionally compliant

education system.

Thus, the complaints did not allege that the State’s education policy was

facially unconstitutional; rather, they challenged only the implementation of the

education system in their respective districts. In other words, the complaints raised

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as-applied challenges. See generally N.C. Dep’t of Revenue v. Philip Morris USA, Inc.,

388 N.C. 181, 189, 919 S.E.2d 175, 181 (2025) (“The chief distinction [between facial

and as-applied challenges] is found in the differing degrees to which the two kinds of

challenges can call a statute’s constitutionality into question. Whereas a facial

challenge alleges that a statute can never be applied constitutionally, an as-applied

challenge makes a significantly more modest claim. It merely asserts that a statute

cannot be constitutionally applied to the party disputing its validity, ‘even if the

statute is otherwise generally enforceable.’ ” (quoting State v. Packingham, 368 N.C.

380, 383, 777 S.E.2d 738, 743 (2015), rev’d on other grounds, 582 U.S. 98, 137 S. Ct.

1730 (2017))).

On 2 November 1994, the Attorney General appeared on defendants’ behalf

and moved to dismiss plaintiff parties’ complaints on several grounds. On 19 January

1995, the trial court transferred venue to the Superior Court, Wake County. On 1

February 1995, the trial court denied defendants’ motion to dismiss without

explanation.10 Defendants appealed.

C. Leandro v. State

1. Court of Appeals Decides Leandro v. State

When this case was first appealed, a unanimous panel of the Court of Appeals

immediately acknowledged that the judicial branch is not the appropriate forum to

10 Because these orders were entered before the case was designated as exceptional,

they were entered by a resident judge of the superior court.

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wrestle with education policy: “As a preliminary matter, we recognize that education

is primarily the responsibility of parents, teachers, and state and local officials, and

not of state judges. Judicial intervention in educational services is appropriate only

when a constitutional right is ‘directly and sharply implicate[d].’ ” Leandro v. State,

122 N.C. App. 1, 6–7, 468 S.E.2d 543, 548 (1996) (quoting Hazelwood Sch. Dist. v.

Kuhlmeier, 484 U.S. 260, 273, 108 S. Ct. 562, 571 (1988)). The Court of Appeals then

reversed the trial court’s order denying defendants’ motion to dismiss, reasoning that

plaintiff parties’ complaints had failed to state claims upon which relief could be

granted. Id. at 14, 468 S.E.2d at 552.

Ultimately, the decision rendered by the Court of Appeals had two primary

holdings: First, it held that the General and Uniform System Clause “ensure[s] [only]

a system of public education that [is] administered uniformly across the state”; it does

not require “spending or programming uniformity” or “provide[ ] [a] fundamental

right to equal educational opportunities.” Id. at 8–9, 468 S.E.2d at 548–49. Second,

the Court of Appeals held that “the fundamental educational right under the . . .

[c]onstitution is limited to one of equal access to education, and it does not embrace a

qualitative standard.” Id. at 11, 468 S.E.2d at 550. Put more bluntly, the court

concluded “that a constitutional fundamental right to adequate educational

opportunities does not exist.” Id. at 12, 468 S.E.2d at 551.

In light of these holdings, the Court of Appeals reasoned that the trial court

should have dismissed plaintiff parties’ lawsuits in their entireties. See id. at 8–14,

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468 S.E.2d at 548–52. The Court of Appeals further explained that plaintiff parties’

statutory claims alternatively failed because “the specific statutory provisions

themselves provide[d] no basis for relief.” Id. at 14, 468 S.E.2d at 552. Following the

Court of Appeals’ decision, plaintiff parties sought this Court’s discretionary review.

2. General Assembly Enacts the ABCs Accountability System

While plaintiff parties’ petitions were pending before this Court, the General

Assembly modified its accountability model for public schools in 1996.11 See An Act

to Implement the Recommendation of the Joint Legislative Education Oversight

Committee to Implement the State Board of Education’s ABC’s Plan in Order to

Establish an Accountability Model for the Public Schools to Improve Student

Performance and Increase Local Flexibility and Control, and to Make Conforming

Changes, ch. 716, § 3, 1996 N.C. Sess. Laws 352, 354 (codified as amended at N.C.G.S.

§§ 115C-105.20 to -105.21, -105.25 to -105.27, -105.30 to -105.32, -105.35 to -105.39

(1996 Supp.) (current versions at N.C.G.S. §§ 115C-105.20 to -105.23, -105.25 to

-105.27, -105.30, -105.32, -105.35, -105.37, -105.38, -105.39 (2025)). The General

Assembly directed the State Board to “develop a School-Based Management and

Accountability Program” with “[t]he primary goal of . . . improv[ing] student

performance.” N.C.G.S. § 115C-105.20(a) (1996 Supp.). More specifically, the

11 As one might expect, the General Assembly has frequently modified the public

education system over the past three decades. It would be virtually impossible to track each

change in this opinion. It was not uncommon for the education system to have undergone

several changes in between the various orders and opinions in this case. Only a few examples

are provided here, but many more changes occurred.

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program was to

(i) focus on student performance in the basics of reading,

mathematics, and communications skills in elementary

and middle schools, (ii) focus on student performance in

courses required for graduation and on other measures

required by the State Board in the high schools, and (iii)

hold schools accountable for the educational growth of their

students.

Id. § 115C-105.35.

The General Assembly instructed the State Board to “set[ ] annual

performance standards for each school in the [s]tate in order to measure the growth

in performance of the students in each individual school.” Id. To this end, the State

Board was to create “rigorous student academic achievement performance standards

for kindergarten through eighth grade and student academic performance standards

for courses in grades 9–12” that “align[ed], whenever possible, with the National

Assessment of Educational Progress (NAEP).” The Excellent Schools Act, ch. 221,

§ 3(e), 1997 N.C. Sess. Laws 427, 431 (codified at N.C.G.S. § 115C-105.40 (1999)).

Following these directives, the State Board developed “the ABCs

(Accountability, Basics, and Local Control) Accountability System,” which it first

employed in the 1996–1997 school year. The details of this complex program are

largely beyond the scope of this opinion. But in broad strokes,

[h]igh standards [were] at the center of the ABCs. The aim

[was] to ensure that all students [were] learning and

showing continuous improvement. . . . The plan look[ed] at

the progress of individual schools, rather than at whole

school systems. . . . The plan compare[d] the school with

itself and measure[d] the progress of its own students by

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comparing pretest and posttest scores on the North

Carolina End-of-Grade Tests . . . .

N.C. Dep’t of Pub. Instruction, ABCs of Public Education in North Carolina: A

Journey Toward Excellence 3 (1999) [hereinafter NCDPI, ABCs of Public Education],

https://files.eric.ed.gov/fulltext/ED469452.pdf.

To foster “accountability,” the ABCs Accountability System offered incentive

awards to schools and their administrators and teachers. Id.; see also N.C.G.S.

§ 115C-105.36 (1998 Supp.). It also provided procedures for identifying and assisting

low-performing schools, N.C.G.S. §§ 115C-105.38 to -105.38A (1998 Supp.), as well as

grounds for the removal or dismissal of school personnel in low-performing schools,

id. § 115C-105.39. As for the “basics” prong, the system required schools “to focus on

reading, writing, and mathematics,” but gave schools “more freedom to integrate

[other] subjects” like science, history, geography, and the arts. NCDPI, ABCs of

Public Education at 3; see also N.C.G.S. § 115C-105.35(i)–(ii) (1996 Supp.). Regarding

“control,” the program provided local administrators and teachers “more control over

the schools in which they work and the flexibility to make their own decisions” when

determining how to achieve their student performance goals. NCDPI, ABCs of Public

Education at 3; see also N.C.G.S. § 115C-105.21(b) (1996 Supp.).

Most pertinent to this opinion, under the ABCs Accountability System, there

were four performance/proficiency levels to measure student performance. “Level I”

meant the student did “not have sufficient mastery of knowledge and skills in th[e]

subject area to be successful at the next grade level.” NCDPI, ABCs of Public

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Education at 47. “Level II” meant the student “demonstrate[d] inconsistent mastery

of knowledge and skills in th[e] subject area and [was] minimally prepared to be

successful at the next grade level.” Id. “Level III” meant the student “consistently

demonstrate[d] mastery of grade level subject matter and skills and [was] well

prepared for the next grade level.” Id. To be considered “proficient” or “at grade level,”

students needed to score at least at Level III on their end-of-course/end-of-grade tests.

Finally, “Level IV” meant the student “consistently perform[ed] in a superior manner

clearly beyond that required to be proficient at grade level work.” Id.

3. Supreme Court of North Carolina Decides Leandro v. State

Returning to the court system, this Court allowed plaintiff parties’ petition for

discretionary review. We then affirmed in part and reversed in part the Court of

Appeals’ decision to dismiss all of plaintiff parties’ claims. Leandro, 346 N.C. at 358,

488 S.E.2d at 261.

This Court affirmed the Court of Appeals’ decision to dismiss plaintiff parties’

claims predicated on the notion that the constitution “mandate[d] equality in the

educational programs and resources offered the children in all school districts in

North Carolina” (i.e., plaintiffs’ Count III and plaintiff-intervenors’ Count II).12 Id. at

12 To the extent that plaintiff-intervenors’ Count II overlapped with their arguments

under Count I, this Court treated Count II as subsumed by Count I. See Leandro, 346 N.C.

at 351–52, 488 S.E.2d at 257; cf. Hoke County I, 358 N.C. at 612, 599 S.E.2d at 374–75 (listing

the “surviving claims for trial” after Leandro and not including claims related to equality in

the educational programs and resources offered to children in all school districts (citing

Leandro, 346 N.C. at 353–54, 358, 599 S.E.2d at 255, 258–59)). This Court’s resolution of

plaintiff-intervenors’ Count I is discussed below.

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348, 488 S.E.2d at 255. This Court did so because the General and Uniform System

Clause “does not require that equal educational opportunities be afforded students in

all of the school districts of the state.” Id. at 351, 488 S.E.2d at 257.

In this analysis, this Court—guided by the constitution’s text, the historical

context in which the people adopted it, and this Court’s caselaw—acknowledged the

facial constitutionality of the State’s educational funding system multiple times. See

id. at 349–50, 353, 488 S.E.2d at 256, 258. This Court observed further that equality

across school districts would be practically impossible, resulting in a “steady stream

of litigation [that] would constantly interfere with the running of the schools of the

state and unnecessarily deplete their human and fiscal resources as well as the

resources of the courts.” Id. at 350, 488 S.E.2d at 257; see also id. at 350–51, 488

S.E.2d at 256–57 (observing that other state courts had experienced “substantial

problems” when dealing just with the right to a sound basic education, and concluding

that the constitution’s framers did not intend for the General Assembly to strain to

achieve the “impractical or unattainable goal” of absolute equality in educational

offerings across school districts, noting “even greater problems of protracted litigation

resulting in unworkable remedies” would follow) (first citing Horton v. Meskill, 486

A.2d 1099 (Conn. 1985); then citing Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d

717 (Tex. 1995); then citing State ex rel. Bds. of Educ. v. Chafin, 376 S.E.2d 113

(W. Va. 1988); then citing William E. Thro, The Third Wave: The Impact of the

Montana, Kentucky, and Texas Decisions on the Future of Public School Finance

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Reform Litigation, 19 J.L. & Legal Educ. 219 (1990); then citing James S. Liebman,

Implementing Brown in the Nineties: Political Reconstruction, Liberal Recollection,

and Litigatively Enforced Legislative Reform, 76 Va. L. Rev. 349, 392–93 (1990); then

citing Note, Unfulfilled Promises: School Finance Remedies and State Courts, 104

Harv. L. Rev. 1072, 1075–78 (1991); and then citing Abbott v. Burke, 693 A.2d 417

(N.J. 1997))).

In addition to the claims predicated on equality in educational opportunities,

this Court affirmed the Court of Appeals’ decision to dismiss plaintiffs’ equal

protection claims (i.e., plaintiffs’ Count II). Id. at 352, 488 S.E.2d at 258. We observed,

“Any disparity in school funding among the districts resulting from local subsidies is

directly attributable to Article IX, Section 2(2) itself. Plaintiffs are essentially reduced

to arguing that one section of the North Carolina Constitution violates another. . . .

This argument is without merit.” Id.

This Court did not address plaintiff parties’ claims predicated on the Law of

the Land Clause or due process principles (i.e., plaintiffs’ Count IV and

plaintiff-intervenors’ Count IV). Accordingly, the Court of Appeals’ decision to dismiss

those claims was the final ruling on those claims and became the law of the case. See

generally Hayes v. City of Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 681–82

(1956) (“[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, provided the

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same facts and the same questions which were determined in the previous appeal are

involved in the second appeal.”).

This Court agreed with plaintiff parties, however, that a “right to a

qualitatively adequate education arises under the . . . [c]onstitution.” Id. at 345, 488

S.E.2d at 254. Specifically, this Court acknowledged that “Article I, Section 15 and

Article IX, Section 2 . . . combine to guarantee every child of this state an opportunity

to receive a sound basic education in our public schools.” Id. at 347, 488 S.E.2d at 255.

We then defined some core qualitative components for a “sound basic education.” Id.

(first citing Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989); and

then citing Pauley v. Kelly, 255 S.E.2d 859, 877 (W. Va. 1979)). Accordingly, this

Court reversed the Court of Appeals’ decision to dismiss plaintiff parties’ claims

premised on the adequacy of educational opportunities (i.e., plaintiffs’ Count I and

plaintiff-intervenors’ Count I), allowing those claims to proceed to determine

“whether the State ha[d] failed to meet its constitutional obligation to provide an

opportunity for a sound basic education to plaintiff parties.” Hoke County I, 358 N.C.

at 612, 599 S.E.2d at 374 (emphasis added) (citing Leandro, 346 N.C. at 348, 488

S.E.2d at 255).

This Court also reversed the Court of Appeals’ decision to dismiss plaintiff

parties’ claims predicated on the 1994 statutes (i.e., plaintiffs’ Count V and

plaintiff-intervenors’ Count V). Leandro, 346 N.C. at 353–54, 488 S.E.2d at 258–59.

We did so because “most of the sections of the statutes [plaintiff parties] rel[ied] upon

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d[id] little more than codify a fundamental right guaranteed by our [c]onstitution.”

Id. at 353, 488 S.E.2d at 258. Indeed, this Court observed, “The General Assembly

. . . seem[ed] to have recognized the constitutional right to a sound basic education

and to have embraced that right in Chapter 115C.” Id. at 347, 488 S.E.2d at 254. The

statutes cited in plaintiff parties’ complaints “reiterate[d] the constitutional

requirement that every child in the state have equal access to a sound basic

education.” Id. at 354, 488 S.E.2d at 259. And “[t]o the extent that plaintiff[ ]parties

c[ould] produce evidence tending to show that defendants ha[d] committed the

violations of Chapter 115C alleged in the complaints and that those violations ha[d]

deprived children of some districts of the opportunity to receive a sound basic

education, [they were] entitled to do so.”13 Id. Thus, this Court acknowledged that the

statutory framework established by the General Assembly provided for a

constitutionally compliant statewide public education system.

Finally, this Court reversed the Court of Appeals’ decision to dismiss

plaintiff-intervenors’ equal protection claim to the extent it challenged the BEP’s

supplemental funding program for low-wealth counties (plaintiff-intervenors’ Count

III). Id. at 352–53, 488 S.E.2d at 258. This Court stated that the General Assembly

could create a supplemental funding program so long as it did not “distribute[ ] state

13 This Court clarified that “none of the statutes relied upon by plaintiff[ ]parties

require[d] that substantially equal educational opportunities be offered in each of the school

districts of the state.” Leandro, 346 N.C. at 354, 488 S.E.2d at 259.

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funds to the districts in an arbitrary and capricious manner unrelated to . . .

educational objectives.” Id. at 353, 488 S.E.2d at 258. This Court continued,

“Plaintiff-intervenors ha[d] made sufficient allegations in their complaint to entitle

them to proceed to attempt to prove that the state supplemental funding system in

question [was] unrelated to legitimate education objectives and, therefore, . . .

arbitrary and capricious.” Id.

In sum, this Court affirmed the Court of Appeals’ decision to dismiss three of

plaintiffs’ five claims and two of plaintiff-intervenors’ claims. We reversed the Court

of Appeals’ decision as to the rest of plaintiff parties’ claims. Accordingly, there were

three “surviving claims for trial”:

(1) whether 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 ha[d]

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

[was] unrelated to legitimate education objectives and, as

a consequence, [was] arbitrary and capricious, resulting in

a denial of equal protection of the laws for

plaintiff-intervenors.

Hoke County I, 358 N.C. at 612, 599 S.E.2d at 374–75 (emphasis omitted and

emphases added) (citations omitted) (citing Leandro, 346 N.C. at 348, 353–54, 488

S.E.2d at 255, 258–59). Importantly, these surviving claims for trial were the

as-applied challenges as pled, which related to specific students in specific school

districts operating under a specific education system that existed in 1994.

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This Court remanded those surviving as-applied claims to the trial court for

resolution. Leandro, 346 N.C. at 348, 353–54, 488 S.E.2d at 255, 258–59. We did so,

however, with a keen awareness of the constitutionally assigned roles for the different

branches of government in education policy. This Court accordingly acted “with some

trepidation,” understanding that “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 a sound basic education.” Id. at 354, 488 S.E.2d at 259. Instead, this

Court “acknowledge[d] that the legislative process provides a better forum than the

courts for discussing and determining what educational programs and resources”

should be provided. Id. This Court pointed out that legislators, unlike judges, “are

popularly elected to represent the public for the purpose of making just such

decisions.” Id. at 355, 488 S.E.2d at 259. We also emphasized that the legislature,

unlike the courts, is “not limited to addressing only cases and controversies brought

. . . by litigants” and may “conduct public hearings and committee meetings” to “hear

and consider the views of the general public as well as educational experts,” thereby

“permit[ting] the full expression of all points of view.” Id.

Elsewhere, this Court expressed other concerns. For example, the Court

acknowledged that education policy is an area where “there will be more than one

constitutionally permissible method of solving” problems, that “[o]n even the most

basic questions . . . the scholars and educational experts are divided,” and that

funding increases were not a guaranteed cure-all to perceived problems plaguing

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public education. Id. at 356, 488 S.E.2d at 260 (emphasis omitted) (quoting San

Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42–43, 93 S. Ct. 1278, 1301–02

(1973)). Additionally, as noted above, this Court appeared concerned about

“protracted litigation resulting in unworkable remedies,” observing that

“[s]ubstantial problems 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.

Thus, when remanding the case, this Court took care to non-exhaustively

enumerate some factors to guide the trial court as it considered whether defendants

had provided plaintiff students and plaintiff-intervenor students with an opportunity

for a sound basic education. See id. at 355–57, 488 S.E.2d at 259–60. Specifically, this

Court instructed the trial court to consider “[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 [S]tate’s

general educational expenditures and per-pupil expenditures.” Id. at 355, 488 S.E.2d

at 259–60. This Court was clear, however, that no single factor alone was to be

dispositive. See id. at 355–57, 488 S.E.2d at 259–60.

Acutely aware that judges would be tempted to insert themselves into a

province more appropriately handled by the legislative and executive branches, this

Court expressed grave concern about the potential for judicial interference with the

constitutional powers and duties of the other two branches. To that end, this Court

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provided the following 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. With those sentiments, this Court remanded the case

to the trial court.

D. Post-Leandro Developments in the Education System

Approximately a month after this Court’s Leandro opinion in 1997, the

education system underwent another relevant change—one addressing the

substantive component of education. The General Assembly passed an amendment

to section 115C-12 requiring the State Board to “develop a comprehensive plan to

revise content standards and the [S]tandard [C]ourse of [S]tudy in the core academic

areas of reading, writing, mathematics, science, history, geography, and civics.” See

The Current Operations and Capital Improvements Appropriations Act of 1997, ch.

443, § 8.27(a), 1997 N.C. Sess. Laws 1344, 1396–97 (codified as amended at N.C.G.S.

§ 115C-12(9a) (1998 Supp.) (recodified as amended at N.C.G.S. § 115C-12(9c) (2025)).

The revised content standards developed in the core

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academic areas [were to] (i) reflect high expectations for

students and an in-depth mastery of the content; (ii) be

clearly grounded in the content of each academic area; (iii)

be defined grade-by-grade and course-by-course; (iv) be

understandable to parents and teachers; (v) be developed

in full recognition of the time available to teach the core

academic areas at each grade level; and (vi) be measurable,

whenever possible, in a reliable, valid, and efficient

manner for accountability purposes.

N.C.G.S. § 115C-12(9a) (1998 Supp.). The State Board dutifully revised the Standard

Course of Study following this statutory amendment.

E. The Hoke County Trial

On 10 October 1997, the Attorney General moved on defendants’ behalf “to

dismiss all claims by [the low-wealth] school boards and [the urban] school boards”

for lack of standing. The Attorney General maintained that “[t]he constitutional right

to the opportunity for ‘a sound basic education’ . . . belongs solely to the children

attending the public schools[,] . . . not . . . to the [low-wealth and urban] school boards.

Indeed, those boards have the duty to protect that right for all students enrolled in

their local schools.”

On 30 October 1997, before the trial court could rule on defendants’ motion,

the then-Chief Justice designated the case as exceptional pursuant to Rule 2.1 of the

General Rules of Practice for the Superior and District Courts and reassigned it to a

special judge of the superior court (the first replacement judge). On 24 November

1997, the trial court denied defendants’ motion to dismiss without explanation. The

case therefore proceeded with the low-wealth and urban school boards participating

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in the litigation.

Nearly a year later, on 15 October 1998, “plaintiffs[,] at the behest of the trial

court,” amended their complaint to present allegations regarding prekindergarten

services. Hoke County I, 358 N.C. at 618, 599 S.E.2d at 378. Specifically, plaintiffs

alleged that “[t]he [low-wealth school] districts d[id] not have sufficient resources to

provide the prekindergarten and other programs and services needed for a sound

basic education.” Plaintiff-intervenors also amended their complaint the same day,

making similar allegations about the urban school districts’ inability to provide

sufficient prekindergarten services. Defendants, through the Attorney General,

denied these allegations.

Because plaintiff parties had asserted different allegations about how the

State’s educational funding system affected each of them, the trial court “bifurcated

[this case] into two separate actions”—one for plaintiffs’ remaining claims, one for

plaintiff-intervenors’. Hoke County I, 358 N.C. at 613, 599 S.E.2d at 375. The trial

court held a trial on plaintiffs’ claims first. Id. Due to the “sheer size and complexity

of dealing with evidence” from each unique school district, the trial court decided to

hold separate trials for each plaintiff school district—one at a time, see Hoke County

I, 358 N.C. at 613, 599 S.E.2d at 375. The trial court and the parties agreed that the

first trial would address only the Hoke County school district. Id.

The claims pertaining to the Hoke County school district came on for trial in

September of 1999. The trial court allowed the introduction of evidence that

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“reache[d] a broader constituency” than the students in the case’s caption; indeed, “a

far greater proportion of the evidence pertain[ed] to the circumstances of Hoke

County’s student population in general than it d[id] to the named plaintiffs in

particular.” Id. at 615, 599 S.E.2d at 376. Also, “the trial court heard evidence

concerning the plight of those children who were about to enter the school system”—

i.e., “prospective enrollees” of the Hoke County school system. Id. at 640–41, 599

S.E.2d at 392–93. Moreover, “the trial court took evidence on, and made conclusions

about, student performance across the state.” Id. at 633 n.14, 599 S.E.2d at 387 n.14;

see also id. at 625, 599 S.E.2d at 382–83. The reference to student performance in

school districts around the state necessarily rested on an assumption that there were

Leandro-compliant school districts to which comparisons could be drawn.

Nevertheless, all the “evidence in the case w[as] restricted to its effect on Hoke

County.” Id. at 613, 599 S.E.2d at 375. The trial on the Hoke County claims “lasted

approximately fourteen months and resulted in over fifty boxes of exhibits and

transcripts, an eight-volume record on appeal, and a [M]emorandum of [D]ecision

that exceeds 400 pages.” Id. at 610, 599 S.E.2d at 373; cf. id. at 621, 599 S.E.2d at

380 (highlighting the Memorandum of Decision’s “free-wheeling nature”).

Throughout the trial, defendants “consistently t[ook] the position” that the

State’s educational funding system generally “me[t] the constitutional mandate.”

Indeed, defendants “fought ‘tooth and nail’ to prevent any finding that (1) the State. . .

[was] not providing the equal opportunity for each child to obtain a sound basic

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education,” or (2) “the State . . . [was] not providing sufficient funding to its school

districts to provide each and every child with the equal opportunity to obtain a sound

basic education.” According to defendants, any constitutional violations occurring in

the Hoke County school district were due to how “the individual school district . . .

spen[t] the money the State provide[d].” Accord Hoke County I, 358 N.C. at 631, 599

S.E.2d at 386.

The trial court largely agreed with defendants. See id. at 634–35, 599 S.E.2d

at 388–89. The trial court reviewed five aspects of the State’s education system to

ensure compliance with Leandro: (1) its curriculum (namely, the BEP and the

Standard Course of Study developed pursuant to N.C.G.S. § 115C-12(9a)), (2) its

teacher licensing/certification system, (3) its funding delivery system, (4) the ABCs

Accountability System, and (5) its student performance standards. Notably, the trial

court observed that “plaintiffs ha[d] stated that they have no complaint about the

content of the [s]tate curriculum”; rather, “plaintiffs . . . confessed that their only

complaint about the Standard Course of Study is how it ‘is brought into practice’ or

‘implemented.’ ” (Emphasis added.) In the end, the trial court affirmed that each

component was constitutionally sound.

The trial court stated that the State’s educational funding system was

“structurally sufficient to enable school systems to distribute and allocate funds for

every child to have an equal opportunity to obtain a sound basic education.”

Significantly, the trial court explicitly stated, “The evidence clearly and convincingly

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show[ed] that the majority of North Carolina children [were] not at-risk of

educational failure and [were] obtaining a sound basic education as required by

Leandro.” As summarized by this Court,

the trial court found that the State’s general 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.”

Hoke County I, 358 N.C. at 632, 599 S.E.2d at 387 (alteration in original); see also id.

at 634, 599 S.E.2d at 388 (noting that the trial court found, “as a general proposition,”

that “the State’s Funding Delivery System for education was adequate” and observing

“that the trial court went to great lengths in its efforts to convey its view that the

evidence offered no definitive showing that the State’s overall funding, resources, and

programs scheme lacked the essentials necessary to provide a sound basic

education”). In other words, the trial court acknowledged that the State’s provision

and funding of education were facially constitutional, meaning any viable

constitutional challenge to the education system would therefore have to be an

as-applied challenge.

But after reviewing data produced under the ABCs Accountability System and

comparing Hoke County students to other students across the state, the trial court

determined that “at-risk” students in Hoke County were not receiving a sound basic

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education.14 According to the trial court, this was because neither defendants nor the

Hoke County school board had “strategically allocat[ed] the available resources to see

that at-risk children have the equal opportunity to obtain a sound basic education.”

(Emphasis added.) Accord Hoke County I, 358 N.C. at 637, 599 S.E.2d at 390. The

trial court therefore “ordered the State to reassess both its financial allocations and

its other resource provisions earmarked for Hoke County schools . . . to ensure that

‘at-risk’ children in Hoke County are afforded a chance to take advantage of their

constitutionally-guaranteed opportunity to obtain a sound basic education.” Id.

(emphases added); see also id. at 608–09, 599 S.E.2d at 373. It left the “ ‘nuts and

bolts’ of the educational resource [allocation] assessment in Hoke County to the other

branches of government” and provided only general guidelines. Id. at 636, 599 S.E.2d

at 389; see also id. at 637–38, 599 S.E.2d at 390.

In short, the trial court: (1) informed the State what was

wrong with Hoke County schools; (2) directed the State to

reassess its educational priorities for Hoke County; and (3)

ordered the State to correct any and all education-related

deficiencies that contribute to a student’s inability to take

advantage of his right to the opportunity to obtain a sound

basic education.

Id. at 638, 599 S.E.2d at 390.

14 See generally Hoke County I, 358 N.C. at 632 n.13, 599 S.E.2d at 387 n.13 (“[A]

particular and identifiable subgroup of students has been singled out by experts in the

education field and described as ‘at-risk’ students. In a general sense, such students are those

who, due to circumstances such as an unstable home life, poor socio-economic background,

and other factors, either enter or continue in school from a disadvantaged standpoint, at least

in relation to other students who are not burdened under such circumstances.”).

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“In addition to ordering the State to reassess its resource allocations to Hoke

County schools in an effort to improve them for students currently in attendance,” id.

at 640, 599 S.E.2d at 392, the trial court also found that, in the Hoke County school

district, “the evidence showed that the State was providing inadequate resources for

. . . ‘at-risk’ prospective enrollees, and that the State’s failings were contributing to

the ‘at-risk’ prospective enrollees’ subsequent failure[s] to avail themselves of the

opportunity to obtain a sound basic education,” id. at 641, 599 S.E.2d at 392–93. “The

trial court concluded that [s]tate efforts towards providing remedial aid to ‘at-risk’

prospective enrollees were inadequate,” and it ordered the State to provide

pre-kindergarten classes for that group. Id. at 642, 599 S.E.2d at 393.

F. Supreme Court of North Carolina Decides Hoke County Board of

Education v. State (Hoke County I)

Following the Hoke County trial, the parties cross-appealed and petitioned this

Court for discretionary review prior to a determination by the Court of Appeals. This

Court allowed their petitions.

At the outset of the opinion in Hoke County I, this Court acknowledged that

although “[t]his litigation started primarily as a challenge to the educational funding

mechanism imposed by the General Assembly[,] . . . [w]ith the Leandro decision, . . .

the thrust of this litigation [had] turned from a funding issue to one requiring the

analysis of the qualitative educational services provided to the respective plaintiffs

and plaintiff-intervenors.” Hoke County I, 358 N.C. at 609, 599 S.E.2d at 373

(emphasis added). Moreover, the statutory question that remained after Leandro

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“ha[d] been subsumed, for all practical purposes, by the constitutional question.” Id.

at 612 n.1, 599 S.E.2d at 374 n.1. In other words, because the education policy

established by the statutes provided a constitutionally compliant sound basic

education, compliance with the statutes would equate to constitutional compliance.

Plaintiff-intervenors’ equal protection claim concerning the BEP’s supplemental

funding program for low-wealth counties was not yet ripe because it had not yet been

addressed in a separate action. Id. at 612 n.2, 599 S.E.2d at 375 n.2. Thus, in Hoke

County I this Court considered whether “the evidence show[ed] that the State ha[d]

failed to provide Hoke County school children with the opportunity to receive a sound

basic education, as defined in Leandro.” Id. at 610, 599 S.E.2d at 373 (emphasis

added).

After addressing some procedural matters, this Court affirmed the trial court’s

conclusion that statewide educational policy and funding were generally

constitutionally sound. See id. at 632–38, 599 S.E.2d at 387–91. In its analysis, this

Court pointed out that “the question of whether students are obtaining a sound basic

education” is different than “the question of whether they were afforded their

opportunity to obtain one.” Id. at 625 n.11, 599 S.E.2d at 383 n.11. Indeed, we

recognized that “[t]he failure to obtain such an education may be due to any number

of reasons beyond the defendant State’s control, not the least of which may be the

student’s lack of individual effort and a failure on the part of parents and other

caregivers to meet their responsibilities.” Id. As such, this Court stated, “In order to

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prevail, plaintiffs must show more than a failure on the part of Hoke County students

to obtain a sound basic education.” Id. Rather, “in order to show Hoke County

students [were] being wrongfully denied their rightful opportunity for a sound basic

education, plaintiffs [were required to] show that their failure to obtain such an

education was due to the State’s failure to provide them with the opportunity to

obtain one.” Id. Ultimately, this Court agreed that at-risk students in Hoke County

were being deprived of their constitutional opportunity for a sound basic education

and affirmed the trial court’s directive for defendants to correct those shortcomings

in that county. See id. at 638, 599 S.E.2d at 391.

Nonetheless, this Court reversed the portions of the Memorandum of Decision

that had required the State to provide prekindergarten services for all at-risk

children in Hoke County. Id. at 645, 599 S.E.2d at 395. We began by explaining that

the General Assembly’s establishment of “the proper age parameters for starting and

completing school” were nonjusticiable political questions. Id. at 638–39, 599 S.E.2d

at 391. Finally, although this Court agreed that the State was not adequately

providing resources for at-risk prospective enrollees in the Hoke County school

district, id. at 642, 599 S.E.2d at 393, we concluded that the trial court’s ordered

remedy was, “at best,” “a premature judicial encroachment on a core function of our

[S]tate’s legislative and executive branches” given the evidence the parties had

presented at trial, id. at 644–45, 648, 599 S.E.2d at 394–97.

Notably, Hoke County I was replete with reminders of its holding’s narrowness.

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This Court continually expressed its understanding that plaintiff parties’ claims were

as-applied challenges.15 This Court also disclaimed “any opinion as to whether non

‘at-risk’ students in Hoke County [were] either obtaining a sound basic education or

being afforded their rightful opportunity by the State to obtain such an education.”

Id. at 634, 599 S.E.2d at 388 (emphasis added). We clarified that “non ‘at risk’

students [in Hoke County] [were] not: (1) held or presumed to be obtaining a sound

basic education, or (2) precluded from pursuing future claims that they [were] not

being afforded the opportunity to obtain a sound basic education.” Id. at 633 n.15, 599

S.E.2d at 387 n.15 (second emphasis added).

15 See, e.g., Hoke County I, 358 N.C. at 609, 599 S.E.2d at 373 (“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.” (emphases added)); id.

at 610, 599 S.E.2d at 373 (“The Leandro decision and the ensuing trial have resulted in the

thrust of the instant case breaking down into the following contingencies: (1) Does the

evidence show that the State has failed to provide Hoke County school children with the

opportunity to receive a sound basic education . . . .” (emphasis added)); id. at 612, 599 S.E.2d

at 374–75 (“The surviving claims for trial [after Leandro] included the following: (1) whether

the State has failed to meet its constitutional obligation to provide an opportunity for a sound

basic education to plaintiff parties, . . . and (3) whether the State’s supplemental school

funding system is . . . arbitrary and capricious, resulting in a denial of equal protection of the

laws for plaintiff-intervenors.” (first and third emphases added) (citations omitted)); id. at

623, 599 S.E.2d at 381 (“We begin our examination under the umbrella of the State’s first

argument—namely, 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] . . . .’ ” (alteration in original) (emphasis added)); id. at 625 n.11, 599

S.E.2d at 383 n.11 (“Thus, in order to show Hoke County students are being wrongfully denied

their rightful opportunity for a sound basic education, plaintiffs must show that their failure

to obtain such an education was due to the State’s failure to provide them with the

opportunity to obtain one.” (emphases added)).

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Additionally, this Court emphasized its “consideration of the case [was]

properly limited to the issues relating solely to Hoke County” because only those

issues were “raised at trial.” Id. at 613, 599 S.E.2d at 375. And “because this Court’s

examination of the case [was] premised on evidence as it pertain[ed] to Hoke County

in particular,” its “holding mandates [could not] be construed to extend to the other

four [low-wealth school] districts named in the complaint.” Id. at 613 n.5, 599 S.E.2d

at 375 n.5 (emphases added). This Court instructed the trial court to move forward

with proceedings for each of the other low-wealth and urban school districts because

their individual claims had not yet been adjudicated. Id. at 648, 599 S.E.2d at 397.

In summary, by this stage of the case, many of the original claims had been

dismissed. After Hoke County I, this Court had reiterated the trial court’s

observations that the structure and funding of the State’s education system as they

existed in 1994 were facially constitutional, settling that matter for purposes of this

action. In Hoke County specifically, however, there had been a showing that at-risk

students were being deprived of their opportunity to receive a sound basic education,

and this Court affirmed the trial court’s directive for defendants to work with the

Hoke County school board to remedy the resource allocation problem identified in the

Hoke County trial. Otherwise, this Court remanded to the trial court for further

proceedings on the remaining plaintiff parties’ as-applied claims.

G. Post-Hoke County I

In the years following Hoke County I,

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[t]he State . . . established the Disadvantaged Student

Supplemental Fund . . . to assist at-risk children, and . . .

funded the Low Wealth Schools Fund . . . . Additionally,

the State . . . allocated funds to (1) expand the

More-at-Four program which provide[d] education to

at-risk four-year-olds; (2) reduce class size; (3) increase

resources to the Hoke County school system, including

increased teacher salaries and creation of Learn to Earn

High Schools; and (4) create new programs to adequately

train school superintendents and administrators.

Hoke Cnty. Bd. of Educ. v. State, 198 N.C. App. 274, 276, 679 S.E.2d 512, 515 (2009).

Importantly, however, the rest of plaintiff parties’ claims remained untried. Indeed,

the parties engaged in protracted, non-trial proceedings for several more years.

Throughout this period, the trial court made no findings of fact or conclusions of law

amounting to an appealable order. Instead, the original claims were neglected,

steadily abandoned, and seemingly forgotten.

The scope of this action contemporaneously began to exceed the boundaries set

by the complaints and refined by Leandro and Hoke County I. By no later than 2017,

the litigation went off in a different direction, focusing on public education statewide.

All the while, the very education system upon which plaintiff parties’ complaints were

based was steadily changed and then replaced.

1. 2004–2011

a. The Penn Intervenors Intervene

On 9 February 2005, over a decade after this case commenced, several “public

school students in the Charlotte-Mecklenburg school district” and their parents or

guardians (Penn Intervenors) sought to intervene in the action against both

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defendants and the Charlotte-Mecklenburg school board “to enforce their

constitutional rights to a sound basic education.” Their complaint also raised equal

protection claims. Notably, the Penn Intervenors were represented by current Justice

Anita Earls, who would eventually cast the deciding vote in Hoke County III

(discussed below).16

On 19 August 2005, the trial court allowed permissive intervention to consider

the Penn Intervenors’ claims concerning “the failure of the [Charlotte-Mecklenburg

school] district to provide sufficient human, fiscal, and educational resources to its

central city and high poverty schools.”17 It denied intervention concerning any equal

protection claims and expressly disallowed “evidence or argument on the [Penn

Intervenors’] . . . conten[tion] that the [Charlotte-Mecklenburg school board’s]

student assignment system violate[d] their right to a sound basic education under

Leandro.” The trial court then “sever[ed] the [Penn Intervenors’] claim so as to permit

16 Justice Earls also signed two amicus briefs at various points in this case’s saga: one

on behalf of the University of North Carolina School of Law Center for Civil Rights, Mem. of

Law as Amici Curiae at 15, Hoke Cnty. Bd. of Educ. v. State, No. 95-CVS-1158 (N.C. Super.

Ct. Dec. 3, 2004), and one on behalf of the Southern Coalition for Social Justice, New Br. of

Amicus Curiae at 32, Hoke Cnty. Bd. of Education v. State (Hoke County II), 367 N.C. 156,

749 S.E.2d 451 (2013) (per curiam) (No. 5PA12-2); Hoke County II, 367 N.C. at 157, 749

S.E.2d at 453 (“Anita S. Earls . . . for Southern Coalition for Social Justice . . . , amici

curiae.”), which she founded, Anita Earls, N.C. Jud. Branch, https://

www.nccourts.gov/judicial-directory/anita-earls (last visited Apr. 11, 2025).

17 Accordingly, the Charlotte-Mecklenburg school board was involved in this case both

as a participant with plaintiff-intervenors and as a defendant named by the Penn

Intervenors.

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a separate trial of [their] claims.”18

On 30 September 2005, the Penn Intervenors filed an amended complaint,

which Justice Earls also signed, that further developed the claim allowed by the trial

court and added several more students and the Charlotte-Mecklenburg Branch of the

NAACP as plaintiffs.19 The Penn Intervenors’ amended complaint alleged the

Charlotte-Mecklenburg school board’s then-current student assignment plan created

“many ‘high poverty’ and low-performing schools” in its district, which enrolled and

“locked in[ ]” many at-risk students. Ultimately, the Penn Intervenors claimed that

“the [Charlotte-Mecklenburg school board], the State . . . , and the State Board . . .

each . . . violated their duty to provide sufficient human, fiscal and educational

resources to [the Charlotte-Mecklenburg school district’s] high poverty and

low-performing high schools in order to assure that all students in those schools

receive a sound basic education.” They therefore sought “[a]n order enjoining [the

Charlotte-Mecklenburg school board, the State, and the State Board] to provide

sufficient human, fiscal, and educational resources to every [Charlotte-Mecklenburg]

high school, including every high poverty and low-performing school, to assure that

all students in the [Charlotte-Mecklenburg] high schools [were] being consistently

18 This was an example of the proper method to alter an existing action. The aspiring

intervenors made a request of the trial court, and the trial court denied the request as to

claims unrelated to the existing litigation but allowed intervention as to what it considered

to be related claims.

19 The Penn Intervenors filed an amended complaint to ensure this claim would be

addressed. This procedure was notably not practiced later in this litigation.

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provided with a sound basic education.”

b. Most Urban School Boards Voluntarily Dismiss Their Claims

On 4 May 2006, plaintiff-intervenors Asheville City Board of Education,

Buncombe County Board of Education, Durham Public Schools Board of Education,

Wake County Board of Education, and Winston-Salem/Forsyth County Board of

Education voluntarily dismissed their claims.20 Thus, the Charlotte-Mecklenburg

school board was the only urban school board remaining in the litigation. Even had

the Charlotte-Mecklenburg school board voluntarily dismissed its claims, however, it

would still have been a participant in this litigation by virtue of being named a

defendant by the Penn Intervenors.

Following those urban school boards’ voluntary dismissals, this litigation

involved only the established violations of at-risk Hoke County students’ rights,

plaintiff parties’ yet-to-be-tried claims concerning the other low-wealth and urban

school districts, and the Penn Intervenors’ new claims concerning the

Charlotte-Mecklenburg school district.

c. Notices of Hearing and Orders Regarding Hearings

As the case languished into its second and third decades, the proceedings

strayed beyond the issues raised in the original complaints even further. Indeed, at

times in the various so-called “Notice[s] of Hearings and Order[s] [Regarding]

20 Accordingly, from here on out, references to “plaintiff parties” do not include those

urban school boards that voluntarily dismissed their claims.

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Hearings,” the first replacement judge considered evidence concerning school

districts not named in the complaints, and he made statements concerning the

general state of education in North Carolina. Yet, in line with the law of the case, the

first replacement judge repeatedly reiterated that the problem was not education

policy or funding; rather, he found that the problem was a failure of the educational

establishment and classroom instruction—i.e., implementation and delivery.

One such example can be found in the trial court’s 16 March 2009 “Notice of

Hearing and Order Re[garding] Hearing.” In this document, the trial court recounted

an “academic disaster” in Halifax County despite not having held a trial on claims

related to that school district:

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 [the Department of Public

Instruction] shows that the cost to the taxpayers to provide

school level expenditures, the majority of which are

salaries and benefits for employees, 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 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.

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....

. . . [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.

By this Notice of Hearing and Order, the [trial]

[c]ourt is providing the [e]xecutive [b]ranch 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 on behalf of

the children who have no other place to turn to for a sound

basic education.

....

The [trial] [c]ourt 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 can 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.

(Emphasis omitted & added.) Thereafter, the trial court scheduled a “non-adversarial

hearing” where “the State . . . , acting through its [e]xecutive [b]ranch,” would be

given “the opportunity to report to the [trial] [c]ourt concerning the actions that the

[e]xecutive [b]ranch w[ould] take with regard to the Halifax County Public School

system in response to the [trial] [c]ourt’s serious concerns . . . regarding the failure of

the Halifax County Public School system.”

As another example, in a memorandum addressed to his replacement and the

General Assembly, Governor, Attorney General, and Superintendent of Public

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Instruction, the first replacement judge explained:

Leandro requires that the children, not the educational

establishment, have the [c]onstitutional right to the . . .

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. . . .

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. . . .

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.

Memorandum from Judge Howard Manning Jr., Retired, to the North Carolina

General Assembly, Governor, Attorney General, and Superintendent of Public

Instruction (Nov. 9, 2021) (emphases added), https://s3.documentcloud.org/

documents/21102063/manning-memo.pdf.

These excerpts are emblematic of the trial court’s view that there was not a

general problem with education funding or education policy. Instead, the problem lay

with the education establishment responsible for implementing and administering

the education system.

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d. The Speaker of North Carolina House of Representatives and the President

Pro Tempore of North Carolina Senate Attempt to Intervene and Hoke

County Board of Education v. State (Hoke County II)

After the 2010 midterm elections, members of a political party different from

the Governor, Superintendent of Public Instruction, and Attorney General’s political

party became the majority in both the House of Representatives and Senate.21

Thereafter, in 2011 a disagreement arose between the Governor and State Board

(executive branch defendants) and the Speaker of the North Carolina House of

Representatives and President Pro Tempore of the North Carolina Senate (the

General Assembly). Specifically, “the General Assembly [had] instituted changes to

North Carolina’s prekindergarten program in the 2011 biennial budget law.” Hoke

Cnty. Bd. of Educ. v. State (Hoke County II), 367 N.C. 156, 158, 749 S.E.2d 451, 454

(2013) (per curiam) (citing Current Operations and Capital Improvements

Appropriations Act of 2011, S.L. 2011-145, § 10.7, 2011 N.C. Sess. Laws 253, 354–56).

In response, plaintiff parties sought “a judicial determination that the 2011

legislative changes failed to comply with the State’s constitutional obligations

recognized in Leandro and Hoke County [I].” Id.

The trial court then entered a “Memorandum of Decision and Order Regarding

Pre-Kindergarten Services for At-Risk Four Year Olds,” wherein it determined that

21 This marked the first time during this litigation that the Governor, Superintendent

of Public Instruction, Attorney General, and the majorities of the House and Senate were not

of the same political party other than 1995 to 1998 and 2003 to 2004, when that political

party lost the majority in the House.

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certain aspects of the 2011 amendments were unconstitutional. The Governor then

issued an executive order that, in the General Assembly’s view, was an “attempt[ ] to

interpret the [trial court’s] [o]rder as establishing a new constitutional obligation

upon the State to provide free, universal Pre-K services to each and every at-risk four

year old in North Carolina beyond the levels of service funded by the General

Assembly.”

Disagreeing with the Governor’s executive order, the General Assembly asked

the Attorney General to seek clarification from the trial court about the scope of its

order. The Attorney General refused to do so because of “an inability to obtain a

conflict waiver from the Governor or the Department of Public Instruction.” The

Attorney General no longer “adequately represented” the General Assembly’s

interests, so the General Assembly moved to intervene in the trial court proceedings

to represent “the interests of the legislative branch.”

The trial court denied the General Assembly’s motion to intervene, reasoning

“[t]he . . . obligation[ ] to establish and maintain public schools is the ‘shared province

of the executive and legislative branches,’ ” and declining to “put[ ] itself, or the

judiciary, in the middle of th[e] political dispute” between the General Assembly and

Governor. Thus, from 2011 forward, the General Assembly ceased to be a party to

this action. See generally N.C.G.S. § 1-72.2 (2025) (stating that “when the State of

North Carolina is named as a defendant . . . , both the General Assembly and the

Governor constitute the State,” but recognizing that the legislative and executive

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branches are distinct entities for purposes of litigation and that the General Assembly

may sometimes need to independently represent its own interests as its own party in

an action); Berger v. State Conf. of NAACP, 142 S. Ct. 2191, 2197 (2022) (observing

North Carolina is a State that “ha[s] chosen to authorize multiple officials to defend

their practical interests in cases”).

The validity of the General Assembly’s 2011 amendments was the subject of

another appeal. Amendments enacted in 2012, however, rendered the appeal moot.

Hoke County II, 367 N.C. at 159–60, 749 S.E.2d at 455.

2. 2011–2022

a. Changes to the Education System

Unsurprisingly, as the volumes of the General Assembly’s session laws

demonstrate, the education system experienced major revisions and many

innovations since this case’s commencement in 1994. See, e.g., An Act to Implement

Various Education Reforms, S.L. 2012-77, §§ 1–8, 2012 N.C. Sess. Laws 272, 272–77;

The Current Operations and Capital Improvements Appropriations Act of 2012, S.L.

2012-142, § 7A.1(b), 2012 N.C. Sess. Laws 484, 527–31 (creating the “Read to

Achieve” program with the goal of “ensur[ing] that every student read[s] at or above

grade level by the end of third grade and continue[s] to progress in reading

proficiency”); Current Operations and Capital Improvements Appropriations Act of

2013, S.L. 2013-360, § 9.3(b)–(c), 2013 N.C. Sess. Laws 995, 1084–88 (modifying

teacher licensing standards). A few illustrations will suffice.

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For example, on the heels of the so-called Great Recession of 2008 and the

enactment of the American Recovery and Reinvestment Act of 2009, the State

submitted a proposal for a federal grant pursuant to the “Race to the Top” program.

U.S. Dep’t of Educ., Race to the Top: North Carolina Report, Year 2: School Year

2011–2012, at 2 (2013), https://files.eric.ed.gov/fulltext/ED539241.pdf. The Race to

the Top program funded “comprehensive statewide reform grants . . . to encourage

and reward States that [were] creating the conditions for education innovation and

reform.” Id. North Carolina was one of twelve recipients of Race to the Top grants.

Id.

The funding under the grant enabled the State to “remodel [its] state system

as part of an ambitious plan to increase student achievement, close achievement gaps

and continue to increase the number of career- and college-ready graduates.” N.C.

Dep’t of Pub. Instruction, N.C. Race to the Top, http://www.dpi.state.nc.us/rttt/

[https://web.archive.org/web/20170802072032/http://www.dpi.state.nc.us/rttt/] (last

visited Mar. 25, 2026). The State updated the Standard Course of Study to include

Common Core State Standards. See, e.g., U.S. Dep’t of Educ., Race to the Top: North

Carolina Report, Year 3: School Year 2012–2013, at 3 (2014), https://

files.eric.ed.gov/fulltext/ED580337.pdf. It also adopted a new accountability model:

the READY Accountability Model. See Off. of Accountability & Testing Analysis &

Reporting Section, N.C. Dep’t of Pub. Instruction, Technical Guide for School

Accountability and Testing Results v–vi (2022), https://www.dpi.nc.gov/ncdpi-school-

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grade-technical-guide/open. These changes went into effect for the 2012–2013 school

year. N.C. Dep’t of Pub. Instruction, Report to the North Carolina General Assembly:

State Board of Education Progress Toward Implementing the Race to the Top

Initiative 4 (2012), https://webservices.ncleg.gov/ViewDocSiteFile/16625.

Like the ABCs Accountability System, the inner workings of the READY

Accountability Model are complex and largely beyond the scope of this opinion. See

generally N.C.G.S. § 115C-83.15(a) (2013) (establishing standards for measuring and

grading “[s]chool achievement, growth, and performance scores”). But according to

the State Board, the shift to the READY Accountability Model increased academic

rigor for all grade levels and placed focus on college and career readiness as opposed

to just end-of-course/end-of-grade testing. Moreover, it changed the

proficiency/performance levels for measuring student performance, opting to use

“achievement levels” to measure a student’s career/college readiness. “Achievement

Level 1” meant a student demonstrated “limited command” of a topic, and

“Achievement Level 2” meant a student demonstrated “partial command.” N.C. Dep’t

of Pub. Instruction, 2016 READY Accountability Background Brief 1 (2016).

“Achievement Level 3” meant a student demonstrated “sufficient command” of a

topic. Id. This level indicated the student demonstrated grade-level proficiency,

meaning he or she could advance to the next grade but may require additional support

to be ready for college or a career. Id. “Achievement Level 4” meant a student

demonstrated “solid command” of a topic, and “Achievement Level 5” meant a student

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demonstrated “superior command.” Id. Students achieving Levels 4 and 5 were

considered “on track to be career and college ready by the time they graduate[d] high

school.” Id.

Per the State Board (the entity charged with administering the State’s public

education system), test results under the READY Accountability Model did not

correspond to test results under the ABCs Accountability System, meaning there was

no way to statistically link results between the systems. Notably, the implementation

of the READY Accountability Model’s higher, more-stringent academic standards

initially “resulted in a lowering of academic proficiency rates statewide.” N.C. Dep’t

of Pub. Instruction, Report to the North Carolina General Assembly: An Act to Improve

Public Education SL 2012-77 (SB 274), Sec. 7(b), at 26 (2014). This decline in

proficiency rates did not necessarily signal a sudden drop in statewide student

aptitude. Rather, it was a result of more rigorous standards, and the State Board

anticipated that scores would steadily rise in the years following the READY

Accountability Model’s initial implementation.

Other pertinent changes to the education system occurred as well. In 2015, the

General Assembly codified the duty of local school boards to also provide public

schoolchildren with the opportunity to receive a sound basic education. Current

Operations and Capital Improvements Appropriations Act of 2015, S.L. 2015-241,

§ 8A.1(b), 2015 N.C. Sess. Laws 641, 748 (codified as amended at N.C.G.S.

§ 115C-47(1) (2025)). It did so after finding that “some local boards of education ha[d]

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failed to comply with the requirements of the judiciary’s decision in Leandro to

provide all public school students the opportunity to receive a sound basic education.”

Id. § 8A.1(a), 2015 N.C. Sess. Laws at 747.

In 2017, the General Assembly repealed section 115C-81. An Act to Make

Organizational and Technical Changes to the Courses of Study Statutes, S.L.

2017-126, § 1, 2017 N.C. Sess. Laws 913, 913. When it did so, it formally eliminated

the BEP—the focus of the lawsuit as originally pled.

Thus, the education system in 2017 was materially different from the

education system that had existed in 1994, when plaintiff parties filed their

complaints and amended complaints, and 2005, when the Penn Intervenors

intervened and filed their amended complaint. Nobody amended or supplemented the

pleadings to refine their claims in light of these major changes—including the

outright repeal of the BEP, which had been the focus of the complaints.

b. State Board’s Motion for Relief from Hoke County Judgment

As significant changes took shape in the education system, this lawsuit

trudged along. The first replacement judge retired and withdrew from the case, and

on 7 October 2016, the then-Chief Justice reassigned the case to an emergency judge

of the superior court (the second replacement judge).22

22 By this time, over a decade had passed since any student had joined the litigation,

and so far as the record indicates, none of the students named in the various complaints and

amended complaints remained enrolled in public school. The remaining participants in the

lawsuit were therefore the original five low-wealth school boards, the Charlotte-Mecklenburg

school board, the Charlotte-Mecklenburg Branch of the NAACP, and executive branch

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On 24 July 2017, the Attorney General, on behalf of the State Board, moved

under Rules 12(b) and 60(b) of the Rules of Civil Procedure for relief from the Hoke

County trial judgment “and any other applicable remedial Superior Court Orders.”

In that motion, the Attorney General, on the State Board’s behalf, highlighted that

“[f]or over a decade [since Hoke County I], the [trial court] ha[d] retained and

exercised jurisdiction in this case” but “ha[d] not . . . held a trial as to any other

plaintiff school board.” (Emphasis added.) The Attorney General, on the State Board’s

behalf, further maintained that “legislative,” “legal,” “factual,” “educational,” and

political changes “divorced” the original claims “from the current laws and

circumstances” and rendered them “stale.”

Critically, the Attorney General, on the State Board’s behalf, contended that

“[c]ontinued status hearings on the present system, which to date have primarily

included constitutional attacks based on statewide test scores, exceed the jurisdiction

established by the original pleadings in this action.” (Emphasis added.) Indeed, the

Attorney General, on the State Board’s behalf, maintained 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 [Hoke County]

[j]udgment that the [trial court] is now retaining jurisdiction over a ‘future school

defendants (i.e., the Governor and State Board) represented by the Attorney General. Thus,

none of the remaining participants had the constitutional education rights at issue. The

General Assembly was not a party to the proceedings.

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system’ which was not the subject of the original action.”

In other words, the Attorney General, on the State Board’s behalf, maintained

that the trial court’s subject matter jurisdiction over claims then under consideration

had never been properly invoked. Thus, in its supporting brief, the State Board,

through the Attorney General, argued that “a new lawsuit would be needed to

challenge [legislative changes to the education system], both on their face and

as-applied.”

c. “WestEd Phase”

With the appointment of the second replacement judge, the litigation’s nature

was officially and palpably altered. Indeed, on 1 February 2018, the trial court

entered a “Case Management and Scheduling Order” noting that the remaining

participants (except the State Board) “ha[d] jointly nominated, for the [trial] [c]ourt’s

consideration and appointment, an independent, non-party consultant to develop

detailed, comprehensive, written recommendations for specific actions necessary to

achieve sustained compliance with the constitutional mandates articulated in this

case.” This private actor

w[ould] be charged with recommending specific actions the

State should take:

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

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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 . . . .

(Emphases added.) In short, the case was headed in a completely new direction. At

the trial court’s direction, and with the remaining participants’ acquiescence, the

action was officially focused on statewide education policy and funding rather than

the problems with the implementation and delivery of education in the school

districts named in the complaints as amended.

On 13 March 2018, the trial court entered two important orders. First, it

entered a consent order appointing San Francisco-based WestEd, whom the

remaining participants (except the State Board) jointly nominated, as the

“independent, non-party consultant” to assist with the case.

Second, and in conjunction with the consent order, the trial court denied the

State Board’s motion for relief. In the trial court’s view, it had jurisdiction in the case,

so it denied the State Board’s motion to the extent it relied on Rules 12(b)(1) and

(b)(2). The trial court then denied the State Board’s 12(b)(6) motion because the trial

court had denied defendants’ 12(b)(6) motion in 1995. Finally, it denied the State

Board’s Rule 60(b) motion as untimely.

In this order, the trial court stated the case had “statewide implications and

applications,” and that “[t]here [was] an ongoing constitutional violation of every

child’s right to receive the opportunity for a sound basic education” that it (i.e., the

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trial court) “ha[d] a duty to address.” It also observed that by that point, the

remaining participants (except the State Board) were working together, along with

WestEd, to come up with “specific actions to achieve Leandro compliance.” The trial

court rationalized that “[t]he successful delivery of the Leandro right”—in other

words, successful delivery of whatever “comprehensive approach” the remaining

participants (excluding the General Assembly) jointly contrived with WestEd’s

assistance—“necessarily require[d] the active participation of the [State Board] in the

discharge of its constitutional duty to supervise and administer the school system and

its funding.” Thus, the trial court would not grant the State Board relief from the

Hoke County judgment and its other orders, or the prospective application thereof.

The State Board did not appeal. Instead, it stated that it “intend[ed] to

cooperate and collaborate” with WestEd. The trial court subsequently entered an

order clarifying “procedures for keeping all parties apprised of the consultant’s

ongoing work . . . in an effort to encourage collaboration and to insure a transparent

and well-vetted study.” This order “encouraged” “[t]he parties . . . to communicate

among themselves and with WestEd as th[e] process move[d] forward.” In December

2019, WestEd submitted to the trial court a document titled, “An Action Plan for

North Carolina.”

Soon thereafter, on 21 January 2020, the trial court entered another consent

order, which was “negotiated by the State Board . . . ; the Office of the Governor; and

the Department of Justice, on behalf of the State; the [p]laintiff school districts; and

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the [Penn Intervenors].” Without regard for this Court’s express warning in Leandro

that there would be multiple ways to achieve a constitutionally compliant education,

the trial court and remaining participants (not the General Assembly) agreed that

the remaining participants would “work expeditiously and without delay to create

and fully implement a definite plan of action to achieve Leandro compliance.” This

order had “systemic” change in mind, requiring the State to achieve seven statewide

goals in the action plan. The trial court ordered the remaining participants to submit

a status report sixty days later to apprise the trial court of the short-, mid-, and

long-term actions they planned to take.

On 15 June 2020, the remaining participants submitted a joint report to the

trial court on remedial steps planned for the next year. Then, on 11 September 2020,

the trial court entered another consent order in which it ordered the remaining

participants to immediately pursue a list of action items they had provided. By the

remaining participants’ admission, “the General Assembly[’s] . . . direct involvement,

cooperation, and assistance [was] necessary to implement the specific actions.” The

trial court’s consent order also directed the remaining participants to develop a

statewide “Comprehensive Remedial Plan” (CRP) by the end of that year. The CRP

was “to be fully implemented by the end of 2028 with the objective of fully satisfying

[d]efendants’ Leandro obligations by the end of 2030.”

Using WestEd’s reports and consulting among themselves, the remaining

participants developed the CRP, which they submitted to the trial court on 15 March

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2021. The CRP contained hundreds of “action steps” for the State to complete over

the course of eight years, requiring billions of dollars in taxpayer money to fund. The

CRP was “not a ‘menu’ of options, but a comprehensive set of fiscal, programmatic,

and strategic steps necessary to achieve the outcomes for students.” The General

Assembly was not included in the development of this plan.

On 11 June 2021, the trial court ordered the remaining participants to

implement the CRP statewide. And in an ominous foreshadowing, the trial court

threatened,

If the State fails to implement the actions described in the

[CRP]—actions which it [(i.e., the executive branch

defendants)] admits are necessary and which, over the next

biennium, the Governor’s proposed budget and Senate Bill

622 confirm are attainable—“it will then be the duty of this

[c]ourt to enter judgment granting declaratory relief and

such other relief as necessary to correct the wrong.”

After the trial court’s 11 June 2021 Order, a string of progress reports and orders

ensuring implementation of the CRP followed.

On 10 November 2021, the trial court entered an order wherein it said that

“the State ha[d] not provided the necessary funding to execute the [CRP],” that “the

State ha[d] failed to implement most actions in the [CRP],” and that because “the

State’s implementation of the [CRP] [was] already behind the contemplated timeline,

. . . [it] ha[d] failed yet another class of students.” The trial court laid the blame at

the General Assembly’s feet despite having denied it the ability to participate in the

litigation ten years prior. Ultimately, the trial court ordered relevant state actors,

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including the State Controller, to transfer over 1.75 billion dollars from the General

Fund to the appropriate state agencies to fund the second and third years of the CRP.

Eight days after the trial court entered the 10 November 2021 Order, the

General Assembly passed, and the Governor signed, the State’s budget. Current

Operations Appropriations Act of 2021, S.L. 2021-180, 2021 N.C. Sess. Laws 833.

The 10 November 2021 Order led to a flurry of appellate litigation. On 24

November 2021, the State Controller, who was not originally a party to this action,

petitioned the Court of Appeals for a writ of prohibition, arguing that the trial court

lacked jurisdiction over the Controller and that the 10 November 2021 Order violated

the constitution. On 30 November 2021, a divided panel of the Court of Appeals issued

a writ of prohibition restraining the trial court from enforcing the transfer provisions

of the 10 November 2021 Order. The majority stated, “Under our [c]onstitutional

system, that trial court lack[ed] the power to impose [the 10 November 2021] [O]rder.”

The remaining plaintiff parties and Penn Intervenors sought this Court’s

review of the Court of Appeals’ decision to issue the writ of prohibition. They filed

notices of appeal, each based upon both a dissent and a constitutional question, as

well as petitions for discretionary review and the writ of certiorari. The Controller

and General Assembly moved this Court to dismiss the appeals. The filings directly

appealing the Court of Appeals’ writ of prohibition were docketed with this Court

under case number 425A21-1.

Meanwhile, on 7 December 2021, executive branch defendants inexplicably

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appealed the 10 November 2021 Order even though it ordered the funding of several

years of the CRP, which they had sought. Executive branch defendants have never

proffered an explanation for why they appealed the 10 November 2021 Order—an

order that purported to fund the plan they had helped develop. Notably, executive

branch defendants would go on to argue that this Court should uphold the order from

which they appealed.

The next day, the General Assembly intervened pursuant to N.C.G.S.

§ 1-72.2(b) and filed a notice of appeal. Executive branch defendants and the

remaining plaintiff parties filed petitions for discretionary review prior to the

determination of the Court of Appeals. The filings directly appealing the 10 November

2021 Order were filed with this Court under case number 425A21-2.

On 21 March 2022, in 425A21-1, this Court held the direct appeal of the Court

of Appeals’ writ of prohibition in abeyance, and in 425A21-2, this Court allowed the

petitions for bypass review of the 10 November 2021 Order. Before hearing argument,

this Court remanded to the trial court “for the purpose of allowing the trial court to

determine what effect, if any, the enactment of the State[’s 2021] Budget ha[d] upon

the nature and extent of the relief that the trial court granted.” The Chief Justice

assigned the task of overseeing the proceedings on remand to a third replacement

judge because the second replacement judge had reached the mandatory retirement

age. The third replacement judge’s appointment was expressly limited, lasting only

as long as “necessary and proper to address the Order of remand of the Supreme

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Court of North Carolina, No. 425A21-2.”

On 26 April 2022, the trial court determined “that the 10 November [2021]

Order should be amended to remove a directive that [s]tate officers or employees

transfer funds from the State Treasury to fully fund the CRP.” Nevertheless, the trial

court concluded that “the State . . . ha[d] failed to comply with the trial court’s prior

order to fully fund years 2 and 3 of the CRP.” In addition, because the State’s 2021

budget in fact funded portions of CRP programs, the trial court revised the amounts

to be transferred down to roughly three quarters of a billion dollars.

So revised, this Court considered the 10 November 2021 Order and the 26 April

2022 Order. In July 2022, between the 26 April 2022 Order and this Court’s decision,

the General Assembly enacted yet another budget. Current Operations

Appropriations Act of 2022, S.L. 2022-74, 2022 N.C. Sess. Laws 494.

On 13 July 2022, the General Assembly moved for Justice Earls’s recusal

because of her prior representation of the Penn Intervenors.23 On 19 August 2022,

Justice Earls denied that motion. Principally, she reasoned that the case before the

Court in 2022 was very different from the case in which she sought intervention on

behalf of the Penn Intervenors in 2005. See, e.g., Hoke Cnty. Bd. of Educ. v. State, 382

N.C. 694, 696, 698, 896 S.E.2d 720, 722, 724 (2022) (order of Earls, J.) (denying

23 The Code of Judicial Conduct provides that “a judge should disqualify

himself/herself in a proceeding in which the judge’s impartiality may reasonably be

questioned, including but not limited to instances where . . . [t]he judge served as lawyer in

the matter in controversy.” N.C. Code of Jud. Conduct, Canon 3(C)(1)(b).

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motion to recuse because “the facts and claims at issue in [the Penn Intervenor’s]

[c]omplaint . . . are entirely unrelated to the questions presently before the Court,”

reasoning that “[t]he proceedings are not substantially related” and “the past

proceeding is not relevant to the current issues”).

H. Supreme Court of North Carolina Decides Hoke County Board of

Education v. State (Hoke County III)

On 4 November 2022, this Court, on its own motion, entered an order clarifying

that we would “treat[ ] the [w]rit of [p]rohibition filed 30 November 2021 by the Court

of Appeals in 425A21-1 as consolidated with 425A21-2 to the extent necessary for the

Court to address the arguments pertaining to the [w]rit” in the appellate briefing and

oral arguments. We also “stay[ed] the [w]rit of [p]rohibition pending any further

filings in 425A21-1 pertaining to issues not already addressed in the opinion filed [the

same day].”

Also on 4 November 2022, this Court issued its divided decision in Hoke County

Board of Education v. State (Hoke County III), 382 N.C. 386, 879 S.E.2d 193 (2022).

A bare majority of four justices, with Justice Earls casting the deciding vote,

“affirm[ed] and reinstate[d] the . . . 10 November 2021 Order’s directive instructing

certain [s]tate officials to transfer the funds necessary to comply with Years 2 and 3

of the State’s [CRP].” Id. at 391, 879 S.E.2d at 198. It accordingly “vacate[d] in part

and reverse[d] in part the trial court’s [26] April 2022 Order removing that transfer

directive,” id., and stayed the Court of Appeals’ writ of prohibition, id. at 476, 879

S.E.2d at 249. Additionally, the majority remanded with instructions for “the trial

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court to recalculate the appropriate distributions in light of the State’s 2022 Budget”

and “order the applicable [s]tate officials to transfer th[o]se funds as an appropriation

under law.” Id. Finally, the majority ordered the trial court to retain jurisdiction over

the matter to ensure implementation of its order and to “monitor [for] continued

constitutional compliance.” Id. Hoke County III did not address whether the trial

court in fact had subject matter jurisdiction to enter t

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