Hoke County Bd. of Educ. v. State

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-108

No. 425A21-2

Filed 4 November 2022

HOKE COUNTY BOARD OF EDUCATION, et al.;

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION; and

RAFAEL PENN, et al.,

v.

STATE OF NORTH CAROLINA;

STATE BOARD OF EDUCATION;

CHARLOTTE-MECKLENBURG BOARD OF EDUCATION; and

PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North

Carolina Senate, and TIMOTHY K. MOORE, in his official capacity as Speaker of

the North Carolina House of Representatives.

Appeal pursuant to N.C.G.S. § 7A-31(b) from the 10 November 2021 order by

Judge W. David Lee in Superior Court, Wake County, and from the 26 April 2022

order of Judge Michael L. Robinson in Superior Court, Wake County. On 21 March

2022, pursuant to N.C.G.S. § 7A-31(a) and Rule 15(e) of the North Carolina Rules of

Appellate Procedure, the Supreme Court allowed the State’s petition for discretionary

review prior to determination by the Court of Appeals. Heard in the Supreme Court

on 31 August 2022.

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Parker Poe Adams & Bernstein, LLP, by Melanie Black Dubis, Scott E. Bayzle

and Catherine G. Clodfelter; and Armstrong Law, PLLC, by H. Lawrence

Armstrong for Hoke County Board of Education, et al.

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

David Hinojosa, and Michael P. Robotti,for Penn, Rafael, et al.

Joshua Stein, Attorney General, by Amar Majmundar, Senior Deputy Attorney

General, W. Swain Wood, First Assistant Attorney General, Ryan Park,

Solicitor General, Sripriya Narasimha, Deputy General Counsel, and South A.

Moore, Assistant General Counsel, for the State.

Joshua Stein, Attorney General, by Matthew Tulchin, Special Deputy Attorney

General, Tiffany Y. Lucas, Deputy General Counsel, for the State Board of

Education.

Womble Bond Dickinson (U.S.) LLP, by Matthew F. Tilley, Russ Ferguson, W.

Clark Goodman, and Michael A. Intersoll, for Philip E. Berger, et al.

Higgins Benjamin, PLLC, by Robert N. Hunter, Jr., for Nels Roseland,

Controller of the State of North Carolina.

Jane R. Wettach and John Charles Boger, for Professors and Long-Time

Practitioners of Constitutional and Educational Law, amici curiae.

Duke Children’s Law Clinic, by Peggy D. Nicholson and Crystal Grant;

Education Law Center, by David Sciarra, for Duke Children’s Law Clinic,

Center for Educational Equity, Southern Poverty Law Center, and

Constitutional and Education Law Scholars, amici curiae.

Elizabeth Lea Troutman, Eric M. David, Daniel F.E. Smith, Kasi W. Robinson,

Richard Glazier, and Matthew Ellinwood, for North Carolina Justice Center,

amicus curiae.

John R. Wester, Adam K. Doerr, Erik R. Zimmerman, Emma W. Perry, Patrick

H. Hill, and William G. Hancock, for North Carolina Business Leaders, amici

curiae.

Jeanette K. Doran, for North Carolina Institute for Constitutional Law and

John Locke Foundation, amici curiae.

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Opinion of the Court

HUDSON, Justice.

¶1 A quarter-century ago, this Court recognized that the North Carolina

Constitution vests in all children of this state the right to the opportunity to receive

a sound basic education and that it is the constitutional duty of the State to uphold

that right. Leandro v. State, 346 N.C. 336, 345 (1997) (Leandro I). In 2004, we

affirmed the trial court’s determination “that the State had failed in its constitutional

duty to provide certain students with the opportunity to attain a sound basic

education,” and that “the State must act to correct those deficiencies.” Hoke County

Bd. of Educ. v. State, 358 N.C. 605, 607, 647–48 (2004) (Leandro II). At that still-early

stage of the litigation, this Court deferred to the legislative and executive branches

to craft and implement a remedy to this failure. Id. at 643. However, we also

expressly noted that

when the State fails to live up to its constitutional duties,

a court is empowered to order the deficiency remedied, and

if the offending branch of government or its agents either

fail to do so or have consistently shown an inability to do

so, a court is empowered to provide relief by imposing a

specific remedy and instructing the recalcitrant state

actors to implement it.

Id. at 642.

¶2 In the eighteen years since, despite some steps forward and back, the

foundational basis for the ruling of Leandro II has remained unchanged: today, as in

2004, far too many North Carolina schoolchildren, especially those historically

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marginalized,1 are not afforded their constitutional right to the opportunity to a

sound basic education. As foreshadowed in Leandro II, the State has proven—for an

entire generation—either unable or unwilling to fulfill its constitutional duty.

¶3 Now, this Court must determine whether that duty is a binding obligation or

an unenforceable suggestion. We hold the former: the State may not indefinitely

violate the constitutional rights of North Carolina schoolchildren without

consequence. Our Constitution is the supreme law of the land; it is not optional. In

exercising its powers under the Appropriations Clause, the General Assembly must

also comply with its duties under the Education Provisions.

¶4 Accordingly, in response to decades of inaction by other branches of state

government, the judiciary must act. This Court has long recognized that our

Constitution empowers the judicial branch with inherent authority to address

constitutional violations through equitable remedies. See, e.g., Wilson v. Jenkins, 72

N.C. 5, 6 (1875); In re Alamance Cnty. Court Facilities, 329 N.C. 84, 94 (1991)

(Alamance). Today, to remedy that inaction, we exercise that power. For twenty-five

years, the judiciary has deferred to the executive and legislative branches to

implement a comprehensive solution to this ongoing constitutional violation. Today,

that deference expires. If this Court is to fulfill its own constitutional obligations, it

1For instance, students from economically disadvantaged families and communities,

students with learning differences, English-language learners, and students of color. See, e.g.,

Leandro II, 328 N.C. at 632, n.13, 636, n. 16 (defining “at-risk”).

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can no longer patiently wait for the day, year, or decade when the State gets around

to acting on its constitutional duty “to guard and maintain” the constitutional rights

of North Carolina schoolchildren. Further deference on our part would constitute

complicity in the violation, which this Court cannot accept. Indeed, ultimately “[i]t is

the state judiciary that has the responsibility to protect the state constitutional rights

of the citizens.” Corum v. Univ. of N.C., 330 N.C. 761, 783 (1992).

¶5 After decades of largely choosing to watch this litigation from the sidelines,

Legislative Defendants now intervene to allege a variety of procedural and

substantive infirmities. They argue that despite twenty-eight years of focusing on

statewide problems and statewide solutions, this case really involves only Hoke

County. They argue that the passage of the 2021 Budget Act fulfills their

constitutional duties under Leandro. They argue that because this case implicates

education policies, it raises non-justiciable political questions. They argue that prior

to their intervention, this case constituted a friendly suit with no actual controversy

before the court.

¶6 These claims unequivocally fail. They are untimely, distortive, and meritless.

At best, they reveal a fundamental misunderstanding of the history and present

reality of this litigation. At worst, they suggest a desire for further obfuscation and

recalcitrance in lieu of remedying this decades-old constitutional violation. In any

event, they do not prevent this Court from exercising its inherent authority to realize

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the constitutional right of North Carolina children to the opportunity to a sound basic

education.

¶7 Accordingly, we affirm and reinstate the trial court’s 10 November 2021

Order’s directive instructing certain State officials to transfer the funds necessary to

comply with Years 2 and 3 of the State’s Comprehensive Remedial Plan. We vacate

in part and reverse in part the trial court’s April 2022 Order removing that transfer

directive. We remand the case to the trial court for the narrow purpose of

recalculating the amount of funds to be transferred in light of the State’s 2022

Budget. Once those calculations have been made, we instruct the trial court to order

those State officials to transfer those funds to the specified State agencies. To enable

the trial court to do so, we stay the 30 November 2021 Writ of Prohibition issued by

the Court of Appeals.2 Finally, we instruct the trial court to retain jurisdiction over

the parties to monitor State compliance with this order. In so doing, we uphold our

own obligation to safeguard the constitutional rights of North Carolina’s

schoolchildren while still allowing for our coequal branches to correct course in the

years to come.

I. Factual and Procedural History

¶8 The long history of this litigation is well documented. Nevertheless, the

extraordinary nature of the remedy we order today—and Legislative Defendants’

2 On its own motion, today the Court is issuing a Special Order to stay this Writ.

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attempt to rewrite and relitigate the case’s history—demands a summary of the

equally extraordinary path that now renders that remedy necessary.

A. Leandro I: Establishing the Right

¶9 In May 1994, students and families from five rural North Carolina school

districts united to sue the State and the State Board of Education for failing to provide

adequate educational opportunities. These students and families—including Robert

Leandro and his mother Kathleen, after whom the case would be named—

represented students and schools at all levels of K–12 education, from Rollins

Elementary School in Henderson to Carroll Middle School in Lumberton to Hoke

County High School in Raeford. The Boards of Education of the five rural counties—

Hoke, Halifax, Robeson, Cumberland, and Vance—likewise joined the students and

families as plaintiffs in the suit (collectively referred to as Plaintiffs).

¶ 10 Specifically, Plaintiffs brought a declaratory judgment action “based on state

constitutional and statutory provisions that entitle all North Carolina children to

receive adequate and equitable educational opportunities, no matter where in the

State they may live.” Plaintiffs’ complaint alleged that “[s]uch opportunities have

been denied to children in some of the poorest school districts in the State[ ] as a

result of an irrational, unfair, and unconstitutional funding system.”

¶ 11 To support this claim, Plaintiffs identified specific examples of inadequate

educational opportunities resulting from inadequate funding. For instance, Plaintiffs

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noted facilities issues such as a “lack [of] adequate classroom space,” instructional

issues such as a lack of basic science equipment and up-to-date textbooks, and

personnel issues such as a lack of well qualified teachers. “The end result of the[se]

inferior education opportunities caused by this unconstitutional system[,]” Plaintiffs

alleged, “is poorly educated students.”

¶ 12 That end result showed in student achievement. Plaintiffs noted that under

numerous tests, “the majority of children in plaintiff districts have been unable to

satisfy the State’s standards for basic proficiency.” Likewise, Plaintiffs showed that

the performance of students in plaintiff districts on the Scholastic Aptitude Test

(SAT) for college admission lagged well below the statewide average, and that

students from plaintiff districts who do graduate and enter or attempt to enter college

faced significant challenges due to their lack of foundational educational

opportunities.

¶ 13 Plaintiffs further noted that the funding differences between wealthy and poor

districts at the heart of these disparities “are not accounted for by the amount of tax

effort exerted by districts.” Indeed, “[t]he average tax effort of plaintiff districts—that

is, the amount of local dollars spent on education for every dollar of property tax

valuation—is substantially higher than the average tax effort in the wealthiest North

Carolina school districts.” (emphasis added). Rather, Plaintiffs alleged, the

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significant gap in education funding and subsequent gap in educational opportunities

falls on the shoulders of the State.

¶ 14 Cumulatively, Plaintiffs alleged that the consequences of these inadequate

educational opportunities could not be more dire:

Plaintiff students and other students from plaintiff

districts face a lifetime of relative disadvantage as a result

of their inadequate educational opportunities. They have

diminished prospects for higher education, for obtaining

satisfying employment, and for providing well for

themselves and their families. They face increased risks of

unemployment, welfare dependency, drug and alcohol

addiction, violence, and imprisonment. Thus the inferior

educational opportunities in plaintiff districts perpetuate a

vicious cycle of poverty and despair that will, unless

corrected, continue from one generation to the next. This

cycle entails enormous losses, both in dollars and in human

potential, to the State and its citizens.

¶ 15 Based on this factual foundation, Plaintiffs alleged that the failure of the State

and State Board of Education “to provide plaintiff schoolchildren with adequate

educational opportunities violates Articles I and IX of the [North Carolina]

Constitution.”3 Accordingly, Plaintiffs’ complaint asked the court to:

[Declare] that education is a fundamental right, and that

the public education system of North Carolina, including

its system of funding, violates the Constitution of North

Carolina by failing to provide adequate educational

opportunities . . . ;

[Declare] that the education system of North Carolina

3 Plaintiffs likewise asserted claims based on equal protection, equal educational

opportunities, due process, and statutory rights.

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must be reformed so as to assure that all North Carolina

schoolchildren, no matter where they may live in the State,

receive adequate educational opportunities, . . . ;

[Declare] that, to assure adequate educational

opportunities, the State must provide for the necessary

resources, including well qualified teachers and other

school personnel in fully sufficient numbers, adequate

school buildings, equipment, technology, and instructional

materials; . . . .

[Declare] that the public education system of North

Carolina, including its system of funding, must recognize

and provide for the needs of at[-]risk schoolchildren and

others who are educationally disadvantaged;

Order defendants to take all steps necessary to provide

plaintiff school boards with the funds necessary to provide

their students with an adequate education;

[R]etain jurisdiction over this case to ensure full

compliance with the [c]ourt’s decree; [and]

[Order] such other equitable relief including relief by way

of injunction or mandamus as the [c]ourt deems proper.

¶ 16 In October 1994, students and families from five urban school districts, along

with the districts themselves, joined Plaintiffs’ suit as “Plaintiff Intervenors.”

Plaintiff Intervenors—representing schools in Buncombe, Charlotte-Mecklenburg,

Durham, Wake, and Forsyth Counties—alleged that the State’s educational funding

system also failed to account for “the burdens faced by urban school districts that

must educate large numbers of students with extraordinary educational needs.”

Accordingly, Plaintiff Intervenors raised the same constitutional claims and requests

as Plaintiffs, asserting that “[a]s a result of defendants’ violations of their

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constitutional duty, [Plaintiff Intervenors] have been denied access to an adequate

public school education” under the North Carolina Constitution.

¶ 17 In response, the State and the State Board of Education (collectively, the State

or State Defendants) moved to dismiss Plaintiffs’ complaint. State Defendants

claimed that the trial court lacked jurisdiction over the complaint because the issues

raised were non-justiciable, State Defendants were shielded by sovereign immunity,

and Plaintiffs failed to state a claim upon which relief could be granted. Defendants

contended that the North Carolina constitution does not “create[ ] a right to an

adequate education in the public schools, greater than the right to attend a free public

school for nine months a year in which equal opportunities are afforded as provided

by Article IX of the Constitution,” and therefore that “neither the State nor the State

Board of Education has deprived any plaintiff of any right under the North Carolina

Constitution.”

¶ 18 After a hearing, the trial court denied State Defendants’ motion to dismiss.

State Defendants appealed this ruling to the North Carolina Court of Appeals.

¶ 19 In March 1996, the Court of Appeals reversed the trial court’s denial of State

Defendants’ motion to dismiss. Leandro v. State, 122 N.C. App. 1 (1996). The Court

of Appeals held that “the fundamental educational right under the North Carolina

Constitution is limited to one of equal access to education, and it does not embrace a

qualitative standard.” Id. at 11 (emphasis added). “Thus,” the court stated,

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“[Plaintiffs’] claims that the Constitution provides a fundamental right to adequate

educational opportunities, and that the State has violated that alleged right, should

have been dismissed for failure to state a claim upon which relief can be granted.” Id.

Plaintiffs subsequently appealed this ruling to this Court.

¶ 20 In July 1997, this Court unanimously reversed. 4 Leandro I, 346 N.C. at 358.

As an initial matter, the Court addressed the State’s argument that courts could not

hear cases on claims of educational adequacy because they raised “nonjusticiable

political questions.” Id. at 344–45. The Court squarely rejected this notion. Id.

Rather, “[w]hen a government action is challenged as unconstitutional, the courts

have a duty to determine whether that action exceeds constitutional limits.” Id. at

345. “Therefore,” the Court held, “it is the duty of this Court to address plaintiff-

parties’ constitutional challenge to the state’s public education system.” Id.

¶ 21 Next, the Leandro I Court addressed the primary question of that case:

whether the North Carolina Constitution establishes the right to qualitatively

adequate educational opportunities, rather than mere educational access. Id. Here,

the Court unanimously agreed with Plaintiffs’ claim: the educational rights

enshrined in our Constitution do not merely protect a student’s ability to access an

4Justice Orr dissented from the Court’s rejection of Plaintiff’s argument regarding

equal educational opportunities but concurred in the Court’s recognition of Plaintiff’s claim

regarding educational adequacy. Id. at 358–64 (Orr, J., dissenting in part and concurring in

part).

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education; rather, “there is a qualitative standard inherent in the right to education

guaranteed by this state’s constitution.” Id. at 346. More specifically, this Court

conclude[d] that the right to education provided in the state

constitution is a right to a sound basic education. An

education that does not serve the purpose of preparing

students to participate and compete in the society in which

they live and work is devoid of substance and is

constitutionally inadequate.

Id. at 345. Accordingly, the Court held that “[t]he trial court properly denied

defendants’ motion to dismiss this claim for relief[, and] [t]he Court of Appeals erred

in concluding otherwise.” Id. at 348.

¶ 22 After recognizing the right to a sound basic education, this Court then set out

to broadly define its contours. “For purposes of our Constitution,” the Court held,

a “sound basic education” is one that will provide the

student with at least: (1) sufficient ability to read, write,

and speak the English language and a sufficient knowledge

of fundamental mathematics and physical science to enable

the student to function in a complex and rapidly changing

society; (2) sufficient fundamental knowledge of geography,

history, and basic economic and political systems to enable

to student to make informed choices with regard to issues

that affect the student personally or affect the student’s

community, state, and nation; (3) sufficient academic and

vocational skills to enable the student to successfully

engage in post-secondary education or vocational training;

and (4) sufficient academic and vocational skills to enable

to student to compete on an equal basis with others in

further formal education or gainful employment in

contemporary society.

Id. at 347.

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¶ 23 The Leandro I Court then noted certain factors that the trial court could

consider on remand in assessing whether Plaintiff-parties were being afforded their

constitutional right to a sound basic education. Id. at 355. These factors included, but

were expressly not limited to, “[e]ducational goals and standards adopted by the

legislature,” “ ‘input’ [measurements] such as per-pupil funding or general

educational funding provided by the state,” and “ ‘output’ measurements” such as “the

level of performance of the children of the state and its various districts on standard

achievement tests.” Id. at 355, 357.

¶ 24 Finally, the Leandro I Court noted the powers and duties of each branch of our

government in protecting the constitutional right to a sound basic education. Because

“the administration of the public schools of the state is best left to the legislative and

executive branches,” the Court clarified that “the courts of this state must grant every

reasonable deference to [those] branches when considering whether they have

established and are administering a system that provides the children of the various

school districts of the state a sound basic education.” Id. at 357. “[A] clear showing to

the contrary must be made before the courts may conclude that they have not.” Id.

“Only such a clear showing,” the Court counseled, “will justify a judicial intrusion

into an area so clearly the province, initially at least, of the legislative and executive

branches as the determination of what course of action will lead to a sound basic

education.” Id. (emphasis added).

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¶ 25 After noting the importance of this initial deference, though, this Court made

clear its own constitutional obligation:

[L]ike the other branches of government, the judicial

branch has its duty under the North Carolina Constitution.

If on remand this case to the trial court, that court makes

findings and conclusions from competent evidence to the

effect that defendants in this case are denying children of

the state a sound basic education, a denial of a

fundamental right will have been established. It will then

become incumbent upon defendants to establish that their

actions denying this fundamental right are necessary to

promote a compelling governmental interest. If defendants

are unable to do so, it will then be the duty of the court to

enter a judgment granting declaratory relief and such other

relief as needed to correct the wrong while minimizing the

encroachment upon the other branches of government.

Id. (emphasis added).

¶ 26 With these principles as a guide, this Court then remanded the case back to

the trial court to determine whether the State was upholding its constitutional duty

to provide all children with a sound basic education. Id. at 358.

B. Leandro II: Establishing a Violation

¶ 27 Upon remand, then-Chief Justice Mitchell designated the case as exceptional

under Rule 2.1 of our General Rules of Practice and assigned it to Judge Howard

Manning.5 Thereafter, Judge Manning presided over several years of fact finding,

research, and hearings culminating in a fourteen-month trial in which the court took

5 We take a moment of privilege to express the Court’s gratitude to Judge Manning

for his many years of diligent service to the State presiding over this case.

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evidence from over forty witnesses and thousands of pages of exhibits to answer one

foundational question: whether the State was complying with or violating Leandro

I’s constitutional mandate to provide all children with the opportunity to receive a

sound basic education. At the conclusion of this process, the trial court issued its

factual findings and legal conclusions via four “Memoranda of Decision” published

between October 2000 and April 2002.

¶ 28 In its first Memorandum of Decision, issued 12 October 2000, the trial court

considered the constitutionality of the major components of North Carolina’s

Statewide Education Delivery system. As a preliminary matter, the trial court

explained that “[b]ecause of the sheer size and complexity of dealing with evidence

relating to five (5) low wealth districts,” the court “made the initial decision to take

evidence on one system” that would serve as a representative district. “The [c]ourt

suggested that the low wealth district be Hoke County and the parties agreed with

that decision[.]”Upon selecting this representative district, the court noted that “[i]t

is clear that the same issues affecting each small district are similar[.]” Thereafter,

the trial court focused its inquiry primarily—though not exclusively—on this

representative county, and “plaintiff-intervenors were permitted to participate fully

in discovery and in the trial of the case centered on Hoke County.” Likewise, the State

repeatedly made clear that despite the parties’ selection of Hoke County as a

representative district, its various remedial “efforts have been directed to

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establishing and maintaining a State-wide system which provides adequate

educational opportunities to all students,” and that “[t]he State has never understood

the Supreme Court or [the trial] [c]ourt to have ordered the defendants to provide

students in Hoke County or any of the other plaintiff or plaintiff-intervenor school

districts special treatment, services or resources which were not available to at-risk

students in other LEAs across the State.” (emphasis added).

¶ 29 After noting this procedure, the trial court’s first Memorandum of Decision

noted its preliminary conclusions of law. Most pertinently, the court determined that

as a whole, North Carolina’s Statewide Educational Delivery System—including its

curriculum, teacher licensing and certification standards, funding delivery system,

and school accountability program—was “sound, valid, and constitutional when

measured against the sound basic education standard of Leandro.” “However,” the

court noted, “the existence of a constitutionally sound and valid [educational delivery

system], standing alone, does not constitute clear evidence that [that system] is being

properly implemented . . . in such a manner as to provide each child with an equal

opportunity to receive a sound basic education.” The court made clear that these legal

conclusions applied “to all school systems in North Carolina, including Hoke County.”

¶ 30 In its second Memorandum of Decision, issued 26 October 2000, the trial court

considered the implementation of the various facets of the statewide educational

delivery system with respect to at-risk students. The court determined that in order

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“for at-risk children to have an equal opportunity for a sound basic education, the

State should provide quality pre-kindergarten programs for at-risk children.” Again,

the court emphasized that its findings and conclusions were directed at both Hoke

County and “other counties in North Carolina.”

¶ 31 In its third Memorandum of Decision, issued 26 March 2001, the trial court

compared student achievement data from at-risk students in various counties across

the state. The court considered several different measures of student achievement,

including standardized test scores, high school retention rates, and vocational and

college preparedness. “This comparison showed that there were at-risk students

failing to achieve a sound basic education statewide, as well as in Hoke County, and

that the low performance of at-risk students was similar regardless of the wealth and

resources of the school system attended.” “Taking all of the evidence into account, the

[c]ourt determined that the at-risk children in North Carolina are not obtaining a

sound basic education[.]” Again, the court emphasized that “[t]his problem is not

limited to Hoke County.” Indeed, the court expressly stated that the evidence

show[ed] that HCSS is not alone or isolated in terms of the

poor academic performance of great numbers of its at-risk

students. Poor academic performance of at-risk

populations of North Carolina public school students

permeates throughout the State regardless of the “wealth”

or local funding provided. Based on the data available and

the enormity of the at-risk problems throughout the State,

the [c]ourt cannot close its eyes to this fact and look only at

HCSS. The poor academic performance of at-risk

populations is too widespread to by-pass and put off for

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another day.

“Reduced to essentials,” the court concluded, “the plaintiffs and plaintiff-intervenors

have produced clear and convincing evidence that there are at-risk children in Hoke

County and throughout North Carolina who are, by virtue of the ABCs accountability

system and other measures, not obtaining a sound basic education.”

¶ 32 In its fourth and final Memorandum of Decision, issued 4 April 2002, the trial

court issued its final judgments and orders. First, the trial court enumerated certain

minimum requirements for statewide Leandro compliance including: (1) “that every

classroom be staffed with a competent, certified, well-trained teacher who is teaching

the standard course of study by implementing effective educational methods that

provide differentiated, individualized instruction, assessment and remediation to the

students in that classroom;” (2) “that every school be led by a well-trained, competent

Principal with the leadership skills and the ability to retain competent, certified, and

well-trained teachers;” and (3) “that every school be provided, in the most cost-

effective manner, the resources necessary to support the effective instructional

programs within that school so that the educational needs of all children, including

at-risk children, to obtain a sound basic education, can be met.” Second, the trial court

concluded that “there are children at-risk of educational failure who are not being

provided the equal opportunity to obtain a sound basic education because their

particular LEA, such as the Hoke County Public Schools, is not providing them with

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one or more of the educational services set out . . . above.” Third, the trial court

emphasized that “the State of North Carolina is ultimately responsible for providing

each child with access to a sound basic education and that this ultimate responsibility

cannot be abdicated by transferring responsibility to local boards of education.”

Fourth, the trial court declared that “the State of North Carolina is ORDERED to

remedy the [c]onstitutional deficiency for those children who are not being provided

the basic educational services set out [above], whether they are in Hoke County[ ] or

another county within the State.” Fifth, the court stated that “[t]he nuts and bolts of

how this task should be accomplished is not for the [c]ourt to do,” but rather “belongs

to the executive and legislative branches of government.” “By directing this to be

done,” the court noted, “the [c]ourt is showing proper deference to the executive and

legislative branches by allowing them, initially at least, to use their informed

judgment as to how best to remedy the identified constitutional deficiencies.” Finally,

the court clarified that its prior three Memoranda of Decision were incorporated into

its final judgment and “constitute the Decision and Judgment of th[e] [c]ourt,”

ordered the State to keep the plaintiff-parties and the court advised of its remedial

actions, and retained jurisdiction over the case to resolve issues of enforcement.

¶ 33 On 6 May 2002, the State appealed. Thereafter, both the plaintiff-parties and

the State sought discretionary review by this Court prior to a determination by the

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Court of Appeals. On 18 March 2003, this Court allowed the parties’ motions for

discretionary review. The appeal was heard in this Court on 10 September 2003.

¶ 34 On 30 July 2004, in Leandro II, this Court unanimously affirmed the trial

court’s central conclusion: “the State had failed in its constitutional duty to provide

certain students with the opportunity to attain a sound basic education, as defined

by this Court’s holding in [Leandro I]. 358 N.C. at 608.

¶ 35 As an initial matter, the Court in Leandro II noted the unique procedural

history of this case. Because the trial court designated Hoke County “as the

representative plaintiff district,” this Court noted that “our consideration of the case

is properly limited to the issues relating solely to Hoke County as raised at trial.” Id.

at 613. The Court recognized, however, that “plaintiffs from the four other rural

districts . . . were not eliminated as parties as a result of the trial court’s decision to

confine evidence to its effect on Hoke County Schools.” Id. at 613 n.5. Accordingly,

“[w]ith regard to the claims of named plaintiffs from the other four rural districts,

[this Court] remanded [the case] to the trial court for further proceedings that

include, but are not necessarily limited to, presentation of relevant evidence by the

parties, and findings and conclusions of law by the trial court.” Id. More generally,

though, the Court emphasized that

the unique procedural posture and substantive importance

of the instant case compel us to adopt and apply the

broadened parameters of a declaratory judgment action

that is premised on issues of great public interest. The

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children of North Carolina are our state’s most valuable

renewable resource. If inordinate numbers of them are

wrongfully being denied their constitutional right to the

opportunity for a sound basic education, our state courts

cannot risk further and continued damage because the

perfect civil action has proved elusive.

Id. at 616. Likewise, the Court noted that while declaratory judgment actions

require that there be a genuine controversy to be decided,

they do not require that the participating parties be strictly

designated as having adverse interests in relation to each

other. In fact, declaratory judgment actions, by definition,

are premised on providing parties with a means for courts

of record to declare such rights, status, and other legal

relations among such parties.

Id. at 617 (cleaned up). This procedural flexibility is necessary, the Court concluded,

because

Leandro and our state Constitution . . . accord[ ] the right

at issue to all children of North Carolina, regardless of

their respective ages or needs. Whether it be the infant Zoe,

the toddler Riley, the preschooler Nathaniel, the “at-risk”

middle-schooler Jerome, or the not “at-risk” seventh-

grader Louise, the constitutional right articulated in

Leandro is vested in them all.

Id. at 620.

¶ 36 With these procedural issues addressed, the Leandro II Court then assessed

the merits of the trial court’s ruling. First, the Court considered “whether there was

a clear showing of evidence supporting the trial court’s conclusion that ‘the

constitutional mandate of Leandro has been violated [in the Hoke County School

System] and action must be taken by both the LEA [Local Educational Area] and the

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State to remedy the violation.’ ” Id. at 623 (alterations in original). After reviewing

the evidence documented by the trial court regarding educational “inputs,” academic

“outputs,” post-secondary and vocational opportunities, and the State’s educational

delivery system and funding mechanisms, the Court agreed with the trial court’s

foundational determination: “the State’s method of funding and providing for

individual school districts such as Hoke County was such that it did not comply with

Leandro’s mandate of ensuring that all children of the state be provided with the

opportunity for a sound basic education.” Id. at 637. The Court concluded that “the

trial court’s approach to the issue was sound and its order reflects both findings of

fact that were supported by the evidence and conclusions that were supported by

ample and adequate findings of fact.” Id. at 638. Therefore, the Court “affirmed those

portions of the trial court’s order that conclude that there has been a clear showing

of a denial of the established right of Hoke County students to gain their opportunity

for a sound basic education and those portions of the order that require the State to

assess its education-related allocations to the county’s schools so as to correct any

deficiencies that presently prevent the county from offering its students the

opportunity to obtain a Leandro-conforming education.” Id.

¶ 37 Second, the Leandro II Court addressed the trial court’s Pre-K ruling. On the

questions of rights and violations, the Court agreed with the trial court: the evidence

presented at trial clearly supported the conclusion “that there was an inordinate

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number of ‘at-risk’ children who were entering the Hoke County school district . . .

behind their non ‘at-risk’ counterparts[,]” that such ‘at-risk children were likely to

stay behind, or fall further behind, their non ‘at-risk’ counterparts as they continued

their education[,]” “that the State was providing inadequate resources for such ‘at-

risk’ prospective enrollees, and that the State’s failings were contributing to the ‘at-

risk’ prospective enrollees’ subsequent failure to avail themselves of the opportunity

to obtain a sound basic education.” Id. at 641. Accordingly, the Court agreed with the

trial court’s conclusion “that State efforts towards providing remedial aid to ‘at-risk’

prospective enrollees were inadequate.” Id. at 642.

¶ 38 On the question of remedy, though, this Court disagreed. “[T]here is a marked

difference,” the Court noted, “between the State’s recognizing a need to assist ‘at-risk’

students prior to enrollment in the public schools and a court order compelling the

legislative and executive branches to address that need in a singular fashion.” Id.

In our view, while the trial court’s findings and conclusions

concerning the problem of ‘at-risk’ prospective enrollees are

well supported by the evidence, a similar foundational

support cannot be ascertained for the trial court’s order

requiring the State to provide pre-kindergarten classes for

either all of the State’s ‘at-risk’ prospective enrollees or all

of Hoke County’s ‘at-risk’ prospective enrollees.

Id. While the Court

assuredly recognize[d] the gravity of the situation for “at-

risk” prospective enrollees in Hoke County and elsewhere,

and acknowledge[d] the imperative need for a solution that

will prevent existing circumstances from remaining static

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or spiraling further, we [were] equally convinced that the

evidence indicates that the State shares our concerns and,

more importantly, that the State has already begun to

assume its responsibilities for implementing corrective

measures.

Id. at 643. Accordingly, the Court held that the trial court’s Pre-K remedy was

“premature” and “reverse[d] those portions of the trial court order that . . . require[d]

the State to provide pre-kindergarten services as the remedy for [the aforementioned]

constitutional violations.” Id. at 645.

¶ 39 Simultaneously, though, the Leandro II Court emphasized that if push came

to shove, it would not shy away from its duty to address constitutional violations.

Certainly, when the State fails to live up to its

constitutional duties, a court is empowered to order the

deficiency remedied, and if the offending branch of

government or its agents either fail to do so or have

consistently shown an inability to do so, a court is

empowered to provide relief by imposing a specific remedy

and instructing recalcitrant state actors to implement it.

Id. at 642.

¶ 40 Finally, the Leandro II Court addressed the question of federal funds.

Plaintiffs contended that the trial court had erred by considering educational services

provided by federal funds within its statewide assessment for Leandro compliance.

Id. at 645–46. The Court disagreed and concluded that the trial court’s consideration

of federal funds was permissible because “the relevant provisions of the North

Carolina Constitution do not forbid the State from including federal funds in its

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formula for providing the state’s children with the opportunity to obtain a sound basic

education.” Id. at 646. “While the State has a duty to provide the means for such

educational opportunity,” the Court clarified, “no statutory or constitutional

provisions require that it is concomitantly obliged to be the exclusive source of the

opportunity’s funding.” Id.

¶ 41 The Leandro II Court concluded by emphasizing the “paramount” importance

of education toward “[a]ssuring that our children are afforded the chance to become

contributing, constructive members of society.” Id. at 649. “Whether the State meets

this challenge[,]” the Court noted, “remains to be determined.” Id. Accordingly, the

Court remanded “to the lower court[,] and ultimately into the hands of the legislative

and executive branches, one more installment in the 200-plus year effort to provide

an education to the children of North Carolina.” Id. “As for the pending cases

involving either other rural school districts or urban school districts,” the Court

“order[ed] that they should proceed, as necessary, in a fashion that is consistent with

the tenets outlined in this opinion.” Id. at 648.

C. Remedial Phase: 2004–2018

¶ 42 Following Leandro II, the trial court diligently undertook its responsibilities

on remand and initiated the remedial phase of the Leandro litigation. For over a

decade, through more than a dozen hearings, the trial court took evidence and heard

arguments from the parties regarding the State’s various efforts to achieve

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constitutional compliance. In alignment with its 2002 Judgment and Leandro II, the

trial court took evidence and rendered factual finding and legal conclusions regarding

the constitutional adequacy of educational opportunities not just in Hoke County, but

statewide. For instance, at different points during this period, the trial court reviewed

evidence regarding the State’s Disadvantaged Student Supplemental Funding

(DSSF) program, county-specific student achievement data from Hoke and other

counties, statewide grade-specific achievement data, and statewide subject-specific

achievement data, among many other categories. The trial court primarily issued its

factual findings and legal conclusions based on this evidence in periodic “Notice of

Hearing and Order[s]” or “Report[s] from the Court,” in which the trial court

memorialized past proceedings, made factual findings and legal conclusions, and

requested particular information from the parties in upcoming hearings.

¶ 43 Reviewing a few of these orders is illustrative. First, on 9 September 2004, the

trial court’s order focused in part on the State’s response to statewide teacher

recruitment and retention issues through the DSSF program. After reviewing the

submissions of the parties, the trial court concluded that “[t]here is no dispute that

there exists a serious problem in hiring, training[,] and retaining certified teachers

in North Carolina, especially in the low wealth plaintiff LEAs and other low wealth

LEAs.” The court observed that the Department of Public Instruction and the State

Board of Education

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acknowledged the constitutional deficiency and the lack of

compliance under Leandro in the classroom teacher area

and sought $22,000,000 from the General Assembly to fund

the DSSF pilot program for sixteen (16) LEAs in which

there was demonstrated need to remedy the constitutional

deficiency of the presence of a competent, certified[,] and

well trained teacher in individual classrooms.

“Despite knowing of this deficiency and being repeatedly advised of [the]

demonstrated need for assistance in these low-wealth school districts and despite

being advised of the constitutional requirements in Leandro,” the court noted, “the

General Assembly of North Carolina passed its budget and adjourned without

funding the DSSF program for any LEA, including HCSS.” As such, the trial court

“direct[ed] counsel for the State . . . to be prepared [at the next hearing] to report to

the [c]ourt on behalf of the legislative branch of government (the General Assembly)

what action the General Assembly has taken[ ] to address its failure to fund the pilot

$22,000,000 DSSF program.”

¶ 44 Second, on 15 March 2009, the trial court’s order focused primarily on Halifax

County Public Schools. After an extensive review of student achievement data broken

down by individual schools and grade-levels throughout the district, the trial court

concluded that

[t]he majority of these children in the Halifax County

Public Schools from elementary school through high school

are not receiving the equal opportunity to obtain a sound

basic education and the State of North Carolina must take

action to remedy this deprivation of constitutional rights

since the State of North Carolina is responsible to see that

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these schools become Leandro compliant in the classroom

and in the principal’s office and in the general

administration and leadership of the system.

“Accordingly,” the trial court concluded, “it is time for the State to exert itself and

exercise command and control over the Halifax County Public Schools beginning in

the school year 2009–2010, nothing more and nothing less.” More broadly, based on

the extensive evidence presented, the trial court reiterated its conclusion regarding a

statewide Leandro violation:

poor academic performance remains a problem in a host of

elementary, middle[,] and high schools throughout North

Carolina and as a result, the children of those schools who

are blessed with the right to the equal opportunity to

obtain a sound basic education as guaranteed by the

Constitution and as set out in Leandro are being deprived

of their constitutional right to that opportunity on a daily

basis.

Indeed, this legal conclusion was repeated verbatim in the trial court’s subsequent

orders on 3 August 2009, 26 March 2010, and 20 May 2011, among many others.6

6 On 15 August 2011, Legislative Defendants filed a Motion to Intervene and For

Clarification from the trial court order issued 18 July 2011 regarding “Pre-K services for at-

risk four year[-]olds.” On 2 September 2011, the trial court denied Legislative Defendants’

motion, reasoning that the defendant in this case was the State as a whole, “not the

legislative branch―nor the executive branch” individually. In 2013, the General Assembly

enacted N.C.G.S. § 1-72.2, which established that legislative leaders “have standing to

intervene on behalf of the General Assembly as a party in any judicial proceeding challenging

a North Carolina statute or provision of the North Carolina Constitution.” N.C.G.S. § 1-

72.2(b). In 2017, N.C.G.S. § 1-72.2 was amended by adding: “[i]ntervention pursuant to this

section shall be effected upon the filing of a notice of intervention of right in the trial or

appellate court in which the matter is pending regardless of the stage of the proceeding.”

Here, the record reflects no attempt by Legislative Defendants to intervene in this litigation

between the 2011 motion and their 2021 intervention.

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¶ 45 Third, on 5 May 2014, the trial court’s order focused on “the reading problem.”7

The trial court summarized its factual findings regarding various reading programs

and assessments from Halifax County, Forsyth County, Durham County, Guilford

County, Johnston County, Union County, and Charlotte-Mecklenburg County, among

several others. Based on these statewide factual findings, the trial court concluded

“that there are way too many thousands of school children from kindergarten through

. . . high school who have not obtained the sound basic education mandated and

defined above and reaffirmed by the North Carolina Supreme Court in November

2013.”

¶ 46 Fourth, on 17 March 2015, the trial court’s order addressed the State’s recent

“redefin[ing] and relabeling [of] the standards for academic achievement.” The court

expressed its concern that

[n]o matter how many times the [c]ourt has issued Notices

of Hearings and Orders regarding unacceptable academic

performance, and even after the North Carolina Supreme

Court plainly stated that the mandates of Leandro remain

“in full force and effect[,]” many adults involved in

education . . . still seem unable to understand that the

constitutional right to have an equal opportunity to

On 8 November 2013, this Court considered a third appeal within this litigation.

7

Hoke Cnty. Bd. of Educ. v. State, 367 N.C. 156 (2013) (Leandro III). There, plaintiffs

challenged the General Assembly’s 2011 statutory changes to its “More at Four” Pre-K

program. Id. at 156. However, before this Court could consider the case, the General

Assembly substantively amended the statute with the apparent intent of ridding the law of

its dubious constitutionality. Id. at 159. Accordingly, this Court “conclude[d] that the

questions originally in controversy between the parties [were] no longer at issue and that

th[e] appeal [was] moot.” Id. Nevertheless, the Court took the opportunity to emphasize that

“[o]ur mandates in [Leandro I and II] remain in full force and effect.” Id. at 160.

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obtain a sound basic education is a right vested in

each and every child in North Carolina regardless of

their respective age or educational needs.

Based on these findings, trial court again concluded “that the valid assessments of

student achievement in North Carolina show that many thousands of children in K–

12 . . . are not obtaining a sound basic education. This is an ongoing problem that

needs to be dealt with and corrected.” Accordingly, the trial court ordered the State

to “propose a definite plan of action as to how the State of North Carolina intends to

correct the educational deficiencies in the student population.”

¶ 47 These orders illustrate several key themes within the record. First, the trial

court made extensive factual findings over the course of about twelve years regarding

many educational “inputs” and “outputs” including school funding, teacher retention,

instructional methods, and academic performance. In reviewing this data, the trial

court’s findings of fact consider the efficacy of the State’s various piecemeal proposals

to achieve Leandro compliance, such as the DSSF and the redefining of academic

standards. Second, these factual findings did not focus solely on Hoke County, but

expressly drew upon testimony and evidence regarding rural, urban, and suburban

counties across the state. Third, based upon this clear and convincing evidence, the

trial court repeatedly documented its ultimate legal conclusion that “in way too many

school districts across the state, thousands of children in the public schools have

failed to obtain, and are not now obtaining[,] a sound basic education as defined by

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and required by the Leandro decisions.” Put differently, the trial court repeatedly

concluded based on clear and convincing evidence that, despite its piecemeal

compliance efforts, the State remained in an ongoing and statewide violation of its

constitutional duty. Fourth, despite its growing impatience with the State’s failure to

remedy its statewide violation, the trial court continued—for well over a decade—to

defer to the executive and legislative branches to craft a remedy. Fifth and finally, in

response to the repeated failure of various piecemeal remedial attempts, the trial

court ultimately ordered the State to propose and implement a comprehensive

“definite plan of action” to remedy its statewide Leandro violation.

D. WestEd Report and the Comprehensive Remedial Plan: 2018–2021

¶ 48 On 7 October 2016, upon Judge Manning’s retirement, then-Chief Justice

Mark Martin reassigned this case to Judge W. David Lee.8 On 10 July 2017, the State

Board of Education filed a Motion for Relief Pursuant to Rule 60 and Rule 12

requesting that the trial court relinquish jurisdiction over the case. The SBE

contended that “[b]ecause the factual and legal landscapes have significantly changed

[since the beginning of the case], the original claims, as well as the resultant trial

court findings and conclusions, are divorced from the current law and circumstances

8 We take a moment of privilege to express the Court’s gratitude to Judge Lee’s family

(Judge Lee himself recently passed away on 4 October 2022) for his many years of diligent

service to the State presiding over this case.

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[and] are stale.” As such, the SBE argued, “[c]ontinued status hearings on the present

system . . . exceed the jurisdiction established by the original pleadings in this action.”

¶ 49 On 7 March 2018, the trial court denied the SBE's motion to relinquish

jurisdiction. First, the court stated its factual findings, including expressly finding

that “[t]he court record is replete with evidence that the Leandro right continues to

be denied to hundreds of thousands of North Carolina schoolchildren” and that “a

definite plan of action is still necessary to meet the requirements and duties of the

State of North Carolina with regard to its children having equal opportunity to obtain

a sound basic education.” While the court noted that it “indeed indulges in the

presumption of constitutionality with respect to each and every one of the legislative

enactments cited by the SBE,” that “is not the issue before the court.” Rather, the

court found, “the evidence before this court upon the SBE motion is wholly inadequate

to demonstrate that these enactments translate into substantial compliance with the

constitutional mandate of Leandro measured by applicable educational standards.”

¶ 50 Based on these factual findings, the trial court concluded that “[t]he changes

in the factual landscape that have occurred during the pendency of this litigation do

not serve to divest the court of its jurisdiction to address the constitutional right at

issue in this case.” Further, the court concluded that “there is an ongoing

constitutional violation of every child’s right to receive the opportunity for a sound

basic education[,]” and that “[t]his court not only has the power to hear and enter

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appropriate orders declaratory and remedial in nature, but also has a duty to address

this violation.” The trial court concluded that “state defendants have the burden of

proving that remedial efforts have afforded substantial compliance with the

constitutional directives of our Supreme Court,” and that “[t]o date, neither defendant

has met this burden.” “Both law and equity demand the prospective application of the

constitutional guarantee of Leandro to every child in this State.”

¶ 51 In closing, the trial court emphasized its own constitutional duty and growing

impatience with the legislative and executive branches:

This [c]ourt notes that both branches have had more than

a decade since the Supreme Court remand in Leandro II to

chart a course that would adequately address this

continuing constitutional violation. The clear import of the

Leandro decisions is that if the defendants are unable to do

so, it will be the duty . . . of the court to enter a judgment

“granting declaratory relief and such other relief as needed

to correct the wrong while minimizing the encroachment

upon the other branches of government.” (Leandro I).

This trial court has held status conference after status

conference and continues to exercise tremendous judicial

restraint. This court is encouraged by Governor Cooper’s

creation of the Governor’s Commission on Access to a

Sound Basic Education. . . . The time is drawing nigh,

however, when due deference to both the legislative and

executive branches must yield to the court’s duty to

adequately safeguard and actively enforce the

constitutional mandate on which this case is premised. It

is the sincere desire of this court that the legislative and

executive branches heed the call.

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¶ 52 That same day, the trial court also issued a Consent Order Appointing

Consultant. In January 2018, the State and plaintiffs filed a joint motion in which

they proposed to nominate, for the court’s consideration and appointment, an

independent, non-party consultant to assess the current state of Leandro compliance

in North Carolina and to make subsequent comprehensive recommendations for

specific actions necessary to achieve sustained constitutional compliance. In its

subsequent Order, the court agreed to the parties’ request and stated that the

appointed consultant would be charged with recommending specific actions the State

should take to meet the core requirements of Leandro, including providing a

competent and well-trained teacher in every classroom, providing a competent and

well-trained principal in every school, and identifying resources necessary to ensure

that all students have an equal opportunity to obtain a sound basic education. In its

Consent Order, the trial court consented to the parties’ joint nomination of WestEd,

a nationally acclaimed nonpartisan education research and development nonprofit,

to serve as the independent non-party consultant. As such, WestEd was instructed to

submit its final recommendation to the parties and the court within one year, and the

parties were required to submit a subsequent “proposed consent order . . . of specific

actions to achieve compliance with the constitutional mandates establish forth

above.”

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¶ 53 Thus began the WestEd chapter of this litigation. For the next year, in

collaboration with the Friday Institute for Educational Innovation at North Carolina

State University and the Learning Policy Institute, WestEd conducted thirteen

distinct studies to better identify, define, and understand key issues and challenges

to North Carolina’s education system and to offer a comprehensive framework of

change for the State. The researchers developed and carried out an extensive research

agenda to investigate the current state and major needs of North Carolina public

education in four overarching areas: (1) access to effective educators, (2) access to

effective school leaders, (3) adequate and equitable school funding and resources, and

(4) adequate accountability and assessment systems.

¶ 54 WestEd’s methodology was comprehensive. Each of its thirteen studies was

designed to address specific research questions and used mixed-method designs such

as data analysis, school visits, focus group interviews with key stakeholders,

statewide surveys, reviews of prior studies, and cost function analysis. “Site visits,

interviews, and focus groups were designed to maximize engagement with education

stakeholders representing the diversity of the state in terms of geography, school

level, and school type as well as the characteristics of the student and educator

populations.” Researchers collected new data from schools in forty-four counties,

engaged with over 1,200 educators, and examined existing data from Duke

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University’s North Carolina Education Research Data Center and UNC’s Education

Policy Initiative at Carolina.

¶ 55 On 4 October 2019, WestEd submitted its final report to the trial court. In

short, the WestEd Report concluded that as North Carolina educators “prepare for

the 2019–20 school year, the state is further away from meeting its constitutional

obligation to provide every child with the opportunity for a sound basic education

than it was when the Supreme Court of North Carolina issued the Leandro decision

more than 20 years ago.” (emphasis added). “Although there have been many efforts

on the part of the state and districts to improve students’ achievement, the challenges

of providing every student with a sound basic education have increased, along with

the number of at-risk students.” Specifically, the WestEd Report found systemic

deficiencies in teacher and principal quality and supply (especially in low-wealth

districts) and programmatic funding and resources (especially those necessary to

support disadvantaged students), among other statewide shortcomings. While the

WestEd Report noted that many promising initiatives had been put in place, they

“have neither been sustained nor been brought to scale and are insufficient to

adequately address the Leandro requirements.”

¶ 56 Accordingly, the WestEd Report issued eight primary findings and

recommendations. These recommendations included revising the state funding model

to provide adequate and equitable resources, providing all at-risk students with the

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opportunity to attend high-quality early childhood programs, directing resources and

opportunities to economically disadvantaged students, revising the student

assessment and school accountability systems, and building an effective regional and

statewide system of support for the improvement of low-performing and high-poverty

schools, among others. For each of these recommendations, the WestEd Report

provided a detailed “investment overview and sequenced action plan” which described

the timeline, stakeholders, and resources necessary for proper implementation.

Likewise, the action plan itemized the necessary statewide investments for each

recommendation for each fiscal year from 2020–2021 to 2027–2028.

¶ 57 On 21 January 2020, the trial court issued its subsequent Consent Order.

First, the trial court noted that “[t]he State of North Carolina, North Carolina State

Board of Education, and other actors have taken significant steps over time in an

effort to improve student achievement and students’ opportunity to access a sound

basic education.” “However,” the trial court continued,

historic and current data before the [c]ourt show that

considerable, systemic work is necessary to deliver fully

the Leandro right to all children in the State. In short,

North Carolina’s PreK-12 public education system leaves

too many students behind—especially students of color and

economically disadvantaged students. As a result,

thousands of students are not being prepared for full

participation in the global, interconnected economy and the

society in which they will live, work, and engage as

citizens. The costs to those students, individually, and to

the State are considerable and if left unattended will result

in a North Carolina that does not meet its vast potential.

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¶ 58 Next, the trial court addressed the WestEd Report. The court concluded that

“[t]he WestEd Report confirms what this [c]ourt has previously made clear: that the

State Defendants have not yet ensured the provision of education that meets the

required constitutional standard to all school children in North Carolina.” The court

observed that the WestEd Report’s “findings and recommendations are rooted in an

unprecedented body of research and analysis, which will inform decision-making and

th[e] [c]ourt’s approach to this case.”

¶ 59 Based on the WestEd Report, the trial court made two primary conclusions of

law. First, the trial court concluded that “North Carolina has substantial assets to

draw upon to develop a successful PreK-12 education system that meets the Leandro

tenets.” These assets “includ[e] a strong state economy, a deep and long-standing

commitment to public education to support the social and economic welfare of its

citizens, and an engaged business community that sees the value and economic

benefits of the public education system.”

¶ 60 Second, the trial court concluded that “despite numerous initiatives, many

children are not receiving a Leandro-conforming education; systemic changes and

investments are required to deliver the constitutional right to all children.” On this

point, the court acknowledged that “the State Defendants face greater challenges

than ever” in achieving Leandro compliance, and that “systemic, synchronous action

and investments are necessary to successfully deliver the Leandro tenets,” including

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in teacher quality and supply, principal quality and supply, resources and school

funding, assessment and accountability systems, low-performing and high-poverty

schools, early childhood learning and Pre-K, and alignment and preparation for post-

secondary opportunities. Throughout its order, the trial court repeatedly emphasized

that “[t]he Defendants have not yet met their constitutional duty to provide all North

Carolina students with the opportunity to obtain a sound basic education.”

¶ 61 Based on these legal conclusions, the trial court ordered “the State Defendants

to work expeditiously and without delay to take all necessary actions to create and

fully implement” a comprehensive remedial plan to address each of the seven Leandro

compliance issues noted above. The trial court further ordered the parties

[t]o keep the [c]ourt fully informed as to the remedial

progress . . . [by] submit[ting] a status report to the [c]ourt

. . . setting out . . . :

1. Specific actions that the State Defendants must

implement in 2020 to begin to address the issues identified

by WestEd and described herein and the seven components

set forth above;

2. A date by which the State Defendants, in consultation

with each other and the Plaintiffs, will submit to the [c]ourt

additional, mid-range actions that should be implemented,

including specific actions that must be taken, a timeframe

for implementation, and an estimate of the resources in

addition to current funding, if any, necessary to complete

those actions[; and]

3. A date by which the State Defendants, in consultation

with each other and the Plaintiffs, will submit to the

[c]ourt a comprehensive remedial plan . . . to provide all

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public school children the opportunity for a sound basic

education, including specific long-term actions that must

be taken, a timeframe for implementation, an estimate of

resources in addition to current funding, if any, necessary

to complete those actions, and a proposal for monitoring

implementation and assessing the outcomes of the plan.

The trial court likewise ordered State Defendants to “identify the State actors and

institutions responsible for implementing specific actions and components of the

proposed Plan,” and retained jurisdiction over the case and parties.

¶ 62 On 15 June 2020, the parties submitted their initial “Fiscal Year 2021

Remedial Plan and Action Steps” to the trial court. As instructed, the joint report

stated the parties’ shared goals and commitments for each of the seven issue areas

identified in the trial court’s January 2020 Order for fiscal year 2021. These

commitments addressed both broad issues, such as “[s]ignificantly increas[ing] the

racial and ethnic diversity of North Carolina’s qualified and well-prepared teacher

workforce,” and more specific steps, such as “[r]emov[ing] [the] 12.75 percent funding

cap for students with disabilities to provide supplemental funding for all students

with disabilities at the current formula rate.”

¶ 63 On 1 September 2020, the trial court issued a “Consent Order on Leandro

Remedial Action Plan for Fiscal Year 2021” in response to the parties’ joint report.

The trial court approved the report and ordered Defendants to implement its

remedial actions by 30 June 2021. Further, the trial court ordered Defendants, “in

consultation with Plaintiff parties, [to] develop and present to the [c]ourt[ ] a Leandro

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Comprehensive Remedial Plan to be fully implemented by the end of 2028 with the

objective of fully satisfying the Defendant’s Leandro obligations by the end of 2030.”

The court likewise ordered Defendants to submit quarterly status reports “to assist

the [c]ourt’s efforts to enter a final, enforceable judgment in this case, while

promoting transparency in these proceedings.”

¶ 64 On 15 March 2021, State Defendants submitted their Comprehensive

Remedial Plan (CRP) to the trial court. As mandated by the trial court’s prior orders,

the CRP laid out “both broad programs and discrete, individual action steps to be

taken [between 2021 and 2028] to achieve the overarching constitutional obligation

to provide[ ] all children the opportunity to obtain a sound basic education in a public

school [by 2030].” “The Parties agree[d] that the actions outlined in [the CRP] are the

necessary and appropriate actions needed to address the constitutional violations in

providing the opportunity for a sound basic education to all children in North

Carolina.”

¶ 65 As its title indicates, the CRP is comprehensive. For each of the seven pillar

issues, the CRP enumerates specific action steps to be initiated in various fiscal years

between 2021 and 2028. Each action step lists the various state actors responsible for

its implementation and itemizes the specific funding required in each year. Some of

the steps, such as “[u]pdat[ing] the State’s school administrator preparation

standards and principal licensure requirements to align with the National Education

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Leadership Preparation (NELP) standards,” require administrative effort, but no

additional funding. Others, such as “[p]rovid[ing] funding to cover the reduced-price

lunch co-pays for all students who qualify for reduced-price meals so that those

students would receive free lunches,” require a static amount of funding ($3.9 million)

each fiscal year. Still others, like “[i]ncreas[ing] low wealth funding to provide eligible

counties supplemental funding equal to 110% of the statewide local revenue per

student,” require increasing funding in each fiscal year (growing from $20 million in

2022 to $182.7 million by 2028). The CRP is the only remedial plan submitted to the

trial court by any party in this case.

¶ 66 On 11 June 2021, the trial court issued its “Order on Comprehensive Remedial

Plan.” After reviewing and approving the CRP, the trial court noted that “[t]he

urgency of implementing the [CRP] on the timeline currently set forth by State

Defendants cannot be overstated . . . . Time is of the essence.” The trial court further

emphasized that “[i]f the State fails to implement the actions described in the [CRP,]

. . . ‘it will then be the duty of this [c]ourt to enter a judgment granting declaratory

relief and such other relief as needed to correct the wrong.’ [Leandro I,] 346 N.C. at

357.” Finally, the trial court ordered that “the [CRP] shall be implemented in full and

in accordance with the timelines set forth therein,” and that

[t]he State shall inform and engage its actors, agencies,

divisions, and/or departments as necessary to ensure the

State’s compliance with this Order, including without

limitation seeking and securing such funding and

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resources as are needed and required to implement in a

sustainable manner the programs and policies set forth in

the [CRP].

E. November 2021 Order, April 2022 Order, and Present Appeal

¶ 67 On 6 August 2021, State Defendants submitted their first progress report

regarding implementation of the CRP. Plaintiff parties submitted responses on 25

August 2021. On 8 September 2021, the trial court held a subsequent hearing to

review the State’s progress toward the CRP. In short, State Defendants made clear

to the trial court that they had not made progress toward substantially implementing

the action steps within the CRP due to inadequate existing allocations of the

necessary funding.

¶ 68 On 22 September 2021, the trial court issued its subsequent “Order on First

Progress Reports for Implementation of Comprehensive Remedial Plan.” Therein, the

trial court made the following “findings of fact, each of which was stipulated to by

Counsel on the record at the [8 September 2021] hearing:”

1. The [CRP], developed by State Defendants in

consultation with Plaintiffs, is a fair and reasonable plan

that is based upon the extensive evidence developed in this

action . . . . The parties to this action agree that this fair

and reasonable plan is the necessary step to provide the

children of our State the opportunity to obtain a sound

basic education.

....

3. The [CRP] represents the only robust and all-embracing

plan to secure the opportunity for a sound basic education

that has been presented to the [c]ourt over the course of

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this decades-long litigation . . . .

....

5. The State of North Carolina presently has available the

fiscal resources needed to implement Years 2 and 3 of the

[CRP], which in total is approximately $1.7 billion.

According to the First Progress Report from the State, as

of the time the Report was filed a collection of funding

sources could be utilized to support the policies, programs,

and procedures in the [CRP]. To wit, an unappropriated

cash balance of $8 billion, projected revenues for the

current fiscal year of 2021–22 exceeding the current

budgetary allocations by about $5 billion, and additional

funding from the federal government amounting to over $5

billion.

¶ 69 Following these findings, the trial court noted that

[i]mproved educational policies, programs, and procedures

alone do not ensure that the children of our State have the

opportunity to obtain a sound basic education unless those

policies, programs, and procedures are in fact supported by

the resources and funds necessary for implementation.

Accordingly, should all necessary steps to fully fund the

[CRP] not be taken by the State—that is, our legislative

and executive branches—as of [18 October 2021], this

[c]ourt is prepared to implement the judicial remedies at

its disposal to ensure that our State’s children are finally

guaranteed their constitutionally-mandated opportunity to

obtain a sound basic education.

¶ 70 Therefore, the trial court ordered the parties to appear before it on 18 October

2021 “to inform the court of the State’s progress in securing the full funds necessary

to implement the [CRP].” “In the event the full funds necessary to implement the

[CRP] are not secured by that date,” the trial court ordered, “the [c]ourt will hear and

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consider any proposals for how the [c]ourt may use its remedial powers to secure such

funding.”

¶ 71 On 18 October 2021, the trial court conducted this compliance hearing. That

same day, the trial court issued an Order in which it noted that it had been “informed

by counsel that an appropriations bill in which the [CRP] is fully funded has not, as

of that date, been finalized and enacted.” “Because the full funds necessary to

implement the [CRP] were not secured by [that day], the [c]ourt heard proposals for

how [it] may use its remedial powers to secure such funding.” The trial court further

ordered that Plaintiffs would have until 1 November 2021 to submit “any additional

authorities, memoranda of law, or proposed orders for the [c]ourt’s consideration on

the use of its remedial powers, which include, but are not necessarily limited to, a

writ of mandamus, a legislative injunction, sanctions, or a combination thereof,” and

that State Defendants would have until 8 November 2021 to subsequently respond.

¶ 72 On 10 November 2021, the trial court issued the subsequent Order (November

2021 Order) now before us for review. First, the November 2021 Order made findings

of fact summarizing the history of the litigation to that point. The court repeated its

prior conclusion that “the evidence before this court is wholly inadequate to

demonstrate substantial compliance with the constitutional mandate of Leandro

measured by applicable educational standards.” (cleaned up). The court “noted many

shortcomings in the State’s accomplishments and the State admitted that [its

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Progress] Report showed that it had failed to implement the Year One Plan as

ordered.” The court found that “more than sufficient funds are available to execute

the current needs of the [CRP].” “As of the date of this Order,” the trial court declared,

“the State’s implementation of the [CRP] is already behind the contemplated

timeline, and the State has failed yet another class of students. Time is of the

essence.”

¶ 73 Next, the trial court noted its years and years of deference. The court found

that, in compliance with this Court’s 1997 instructions in Leandro I, it had “granted

every reasonable deference to the legislative and executive branches to establish and

administer a [Leandro-compliant education] system . . . , including, most recently,

deferring to State Defendants’ leadership in the collaborative development of the

[CRP] over the past three years.” The court noted its

extraordinary lengths in granting these co-equal branches

of government time, deference, and opportunity to use their

informed judgment as to the ‘nuts and bolts’ of the remedy,

including the identification of the specific remedial actions

that required implementation, the time frame for such

implementation, the resources necessary for the

implementation, and the manner in which to obtain those

resources.

The trial court further found that “[t]he failure of the State to provide the funding

necessary to effectuate North Carolina’s constitutional right to a sound basic

education is consistent with the antagonism demonstrated by legislative leaders

towards these proceedings, the constitutional rights of North Carolina children, and

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this [c]ourt’s authority.” The court found that it had “provided the State with ample

time and every opportunity to make meaningful progress towards remedying the

ongoing constitutional violations that persist within our public education system.”

Nevertheless, “[t]he State has repeatedly failed to act to fulfill its constitutional

obligations.”

¶ 74 Finally, the court found that “[i]n the seventeen years since the Leandro II

decision, a new generation of school children, especially those at-risk and

socioeconomically disadvantaged, were denied their constitutional right to a sound

basic education. Further and continued damage is happening now, especially to at-

risk children from impoverished backgrounds, and that cannot continue.”

¶ 75 Accordingly, the trial court made the following conclusions of law. First,

regarding its own constitutional duties and powers, the trial court concluded:

11. Because the State has failed for more than seventeen

years to remedy the constitutional violation as the

Supreme Court ordered, this [c]ourt must provide a remedy

through the exercise of its constitutional role. Otherwise,

the State’s repeated failure to meet the minimum

standards for effectuating the constitutional right to a

sound basic education will threaten the integrity and

viability of the North Carolina Constitution by:

a. nullifying the Constitution’s language without the

people’s consent, making the right to a sound basic

education merely aspirational and not enforceable;

b. ignoring rulings of the Supreme Court of North

Carolina setting forth authoritative and binding

interpretations of our Constitution; and

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c. violating separation of powers by preventing the

judiciary from performing its core duty of

interpreting our Constitution.

....

13. . . . This [c]ourt concludes that Article I Section 15 of

the North Carolina Constitution represents an ongoing

constitutional appropriation of funds sufficient to create

and maintain a school system that provides each of our

State’s students with the constitutional minimum of a

sound basic education. This constitutional provision may

therefore be deemed an appropriation “made by law”

[under Article V Section 7].

14. . . . [S]uch an appropriation may be considered to have

been made by the people themselves, through the

Constitution, thereby allowing fiscal resources to be drawn

from the State Treasury to meet that requirement. The

Constitution reflects the direct will of the people; an order

effectuating Article I, § 15’s constitutional appropriation is

fully consistent with the framers[’] desire to give the people

ultimate control over the state’s expenditures.

....

20. Accordingly, this [c]ourt recognizes, as a matter of

constitutional law, a continuing appropriation from the

State Treasury to effectuate the people’s right to a sound

basic education. . . . When the General Assembly fulfills its

constitutional role through the normal (statutory) budget

process, there is no need for judicial intervention to

effectuate the constitutional right. As the foregoing

findings of fact make plain, however, this [c]ourt must

fulfill its constitutional duty to effect a remedy at this time.

....

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22. The [c]ourt further concludes that . . . [it] has inherent

and equitable powers that allow it to enter this Order. . . .

....

23. . . . [T]he [c]ourt’s inherent powers are derived from

being one of three separate, coordinate branches of the

government. . . .

24. In fact, it is the separation of powers doctrine itself

which undergirds the judicial branch’s authority to enforce

its order here. “Inherent powers are critical to the court’s

autonomy and to its functional existence: ‘If the courts

could be deprived by the Legislature of these powers, which

are essential in the direct administration of justice, they

would be destroyed for all efficient and useful purposes.’”

Matter of Alamance Cty. Ct. Facilities, 329 N.C. 84, 93–94

(1991) . . . (citing Ex Parte Scheneck, 65 N.C. 353, 355

(1871).

¶ 76 Second, regarding its duty to limit its encroachment upon its coequal branches,

the trial court concluded:

25. . . . The relief proposed here carefully balances these

interests with the [c]ourt’s constitutional obligation of

affording relief to injured parties. First, there is no

alternative or adequate remedy available to the children of

North Carolina that affords them the relief to which they

are so entitled. State Defendants have conceded that the

[CRP]’s full implementation is necessary to provide a sound

basic education to students and there is nothing else on the

table. . . .

26. Second, this [c]ourt will have minimized its

encroachment on legislative authority through the least

intrusive remedy. Evidence of the [c]ourt’s deference over

the last seventeen years and its careful balancing of the

interests at stake includes but is not limited to:

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a. The [c]ourt has given the State seventeen years

to arrive at a proper remedy and numerous

opportunities proposed by the State have failed

to live up to their promise. Seventeen classes of

students have since gone through schooling

without a sound basic education;

b. The [c]ourt deferred to State Defendants and the

other parties to recommend to the [c]ourt an

independent, outside consultant to provide

comprehensive, specific recommendations to

remedy the existing constitutional violations;

c. The [c]ourt deferred to State Defendants and the

other parties to recommend a remedial plan and

the proposed duration of the plan . . . .

d. The [c]ourt deferred to State Defendants to

propose an action plan and remedy for the first

year and then allowed the State Defendants

additional latitude in implementing its actions in

light of the pandemic’s effect on education;

e. The [c]ourt deferred to State Defendants to

propose a long-term comprehensive remedial

plan, and to determine the resources necessary

for full implementation . . . .

f. The [c]ourt also gave the State discretion to seek

and secure the resources identified to fully

implement the [CRP]. . . .

g. The [c]ourt has further allowed for extended

deliberations between the executive and

legislative branches over several months to give

the State an additional opportunity to implement

the [CRP];

h. The status conferences, including more recent

ones held in September and October 2021, have

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provided the State with additional notice and

opportunities to implement the [CRP], to no

avail. The [c]ourt has further put [the] State on

notice of forthcoming consequences if it

continued to violate students’ fundamental

rights to a sound basic education.

¶ 77 Based on these findings of fact and conclusions of law, the trial court ordered

the following:

1. The Office of State Budget and Management and the

current State Budget Director (“OSBM”), the Office of the

State Controller and the current State Comptroller

(“Controller”), and the Office of the State Treasurer and the

current State Treasurer (“Treasurer”) shall take the

necessary actions to transfer the total amount of funds

necessary to effectuate years 2 & 3 of the [CRP], from the

unappropriated balance within the General Fund to the

state agencies and state actors with fiscal responsibility for

implementing the [CRP] as follows:

(a) Department of Health and Human Services

(“DHHS”): $189,800,000.00;

(b) Department of Public Instruction (“DPI”):

$1,522,058,000.00; and

(c) University of North Carolina System:

$41,300,000.00

2. OSBM, the Controller, and the Treasurer are directed to

treat the foregoing funds as an appropriation from the

General Fund as contemplated within [N.C.G.S.] § 143C-6-

4(b)(2)(a) and to carry out all actions necessary to

effectuate those transfers;

....

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4. DHHS, the University of North Carolina System, and

the State Superintendent of Public Instruction, and all

other State agents or State actors receiving funds under

the [CRP] are directed to administer those funds to

guarantee and maintain the opportunity of a sound basic

education consistent with, and under the time frames set

out in, the [CRP], including the Appendix thereto;

5. In accordance with its constitutional obligations, the

State Board of Education is directed to allocate the funds

transferred to DPI to the programs and objectives specified

in the Action Steps in the [CRP] and the Superintendent of

Public Instruction is directed to administer the funds so

allocated in accordance with the policies, rules, . . . and

regulations of the State Board of Education so that all

funds are allocated and administered to guard and

maintain the opportunity of a sound basic education

consistent with, and under the time frames set out in, the

[CRP], including the appendix thereto[;]

6. OSBM, the Controller, and the Treasurer are directed to

take all actions necessary to facilitate and authorize those

expenditures;

7. To the extent any other actions are necessary to

effectuate the year 2 & 3 actions in the [CRP], any and all

other State actors and their officers, agents, servants, and

employees are authorized and directed to do what is

necessary to fully effectuate years 2 and 3 of the [CRP];

8. The funds transferred under this Order are for

maximum amounts necessary to provide the services and

accomplish the purposes described in years 2 and 3 of the

[CRP]. Savings shall be effected where the total amounts

appropriated are not required to perform these services

and accomplish these purposes and the savings shall revert

to the General Fund at the end of fiscal year 2023, unless

the General Assembly extends their availability[.]

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Finally, the trial court declared that its Order would be “stayed for a period of thirty

(30) days to preserve the status quo . . . to permit the other branches of government

to take further action consistent with the findings and conclusions of this Order.”

¶ 78 One week later, on 18 November 2021, the State enacted An Act to Make

Budget Appropriations for Current Operations of State Agencies, Departments, and

Institutions, and for Other Purposes, S.L. 2021-180,

https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2021-2022/SL2021-

180.pdf (Budget Act).

¶ 79 On 24 November 2021, the Controller of the State of North Carolina petitioned

the Court of Appeals for a Writ of Prohibition. The Controller sought an order

preventing her from being required to comply with the trial court’s November 2021.

Specifically, the Controller asserted that the transfer directive within the trial court’

November 2021 was legally erroneous and required her to act in a manner which

would defeat a legal right.

¶ 80 On 30 November 2021, the trial court issued a “Notice of Hearing and Order

Continuing Stay of Court’s November 10, 2021 Order.” After reviewing the Budget

Act, the trial court concluded that the Act “appear[ed] to provide for some―but not

all―the resources and funds required to implement years 2 & 3 of the [CRP], which

may necessitate a modification in the November 10 Order.” Therefore, the court

announced that it would hold a hearing on 13 December 2021 for the State “to inform

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the [c]ourt of the specific components of the [CRP] plan for years 2 & 3 that are funded

by the [Budget] Act and those that are not.” The court further stayed its 10 November

2021 Order until ten days after the conclusion of its December hearing.

¶ 81 But the trial court’s planned 13 December hearing never came to pass. Instead,

also on 30 November 2021, the Court of Appeals issued a writ of prohibition

restraining the trial court from proceeding in the matter. In its writ, the Court of

Appeals concluded that the trial court’s November Order erred for two reasons. First,

the Court of Appeals reasoned that the trial court’s interpretation of a constitutional

appropriation within Article I, § 15 would render the subsequent Educational

Provisions in Article IX “unnecessary and meaningless.” Second, the Court of Appeals

stated that the trial court’s reasoning “would result in a host of ongoing constitutional

appropriations . . . that would devastate the clear separation of powers between the

legislative and judicial branches and threaten to wreck the carefully crafted checks

and balances that are the genius of our system of government.” The Court of Appeals

therefore restrain[ed] the trial court from enforcing its direct transfer order. Judge

Arrowood dissented from the Court of Appeals’ Order.9

9 The dissent reasoned that the majority’s ex meru motu shortening of the time for

Plaintiff parties to file a response to the petition to one day when there were no immediate

consequences in the case “was arbitrary, capricious and lacked good cause and instead

designed to allow this panel to rule on this petition during the month of November” before a

new panel was assigned.

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¶ 82 On 7 December 2021, the State appealed the November 2021 Order to the

Court of Appeals. The next day, 8 December 2021, for the first time since their August

2011 Motion to Intervene regarding Pre-K, Legislative Defendants intervened as a

matter of right pursuant to N.C.G.S. § 1-72.2(b) and likewise appealed the trial

court’s November Order to the Court of Appeals.

¶ 83 On 14 February 2022, the State filed with this Court a Petition for

Discretionary Review Prior to Determination by the Court of Appeals of the trial

court’s November 2021 Order. On 24 and 28 February 2022, Plaintiffs and Plaintiff

Intervenors likewise requested this Court’s discretionary review prior to

determination by the Court of Appeals. On 28 February 2022, Legislative Defendants

filed a response requesting that this Court deny the State’s petition.

¶ 84 On 21 March 2022, this Court issued an order allowing the State’s petition.

Before appellate review, however, this Court remanded the case to the trial court “for

a period of no more than thirty days for the purpose of allowing the trial court to

determine what effect, if any, the enactment of the [2021] State Budget has upon the

nature and extent of the relief that the trial court granted in its 11 November 2021

order.” This Court instructed the trial court to “make any necessary findings of fact

and conclusions of law and to certify any amended order that it chooses to enter with

this Court on or before the thirtieth day following the entry of this order.” That same

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day, Chief Justice Newby reassigned this case from Judge Lee to Judge Michael L.

Robinson.10

¶ 85 On 24 March, 13 April, and 22 April 2022, the trial court conducted hearings

with the parties to determine the effect of the 2021 Budget Act on the relief granted

in the trial court’s November 2021 Order. At these hearings, the parties took

contrasting views on the scope of this Court’s 21 March 2022 Remand Order.

Legislative Defendants contended that the remand order allowed the trial court “to

make a de novo legal determination on the legality and enforceability of the 10

November Order—claiming that, as concluded by the panel of the Court of Appeals,

the trial court lacked legal authority to order funds transferred from the North

Carolina treasury to fund specific educational programs.” Alternatively, Legislative

Defendants argued “that the Budget Act as passed fully satisfies the State’s

obligation to provide K–12 students with a sound basic education as established by

the Supreme Court in [Leandro I].”

¶ 86 “By comparison, Plaintiffs and the State Defendants contend[ed] that the trial

court’s task [was] simply to examine the Budget Act as passed and determine the

amount of funding provided therein for each of the CRP programs during years 2 and

3 of the CRP.” The State’s evidence, based on the affidavit of the Chief Deputy

10 We take a moment of privilege to express the Court’s gratitude to Judge Robinson

for his diligent service to the State presiding over this case.

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Director of State Budget for the North Carolina Office of State Budget and

Management, indicated that “the Budget Act funded approximately 60 percent of year

2 CRP programs and 49 percent of year three programs.”

¶ 87 On 26 April 2022, the trial court issued its subsequent order (April 2022

Order), also now before us for review. As an initial matter, the trial court addressed

the parties’ arguments regarding its own authority in light of the Court of Appeals’

Writ of Prohibition. Because that order “has not been overruled or modified[,]” the

court “conclude[d] that it is binding on the trial court.” “Accordingly,” the trial court

determined that it “cannot and shall not consider the legal issue of the trial court’s

authority to order State officers to transfer funds from the State treasury to the CRP.”

¶ 88 The trial court then addressed the effect of the Budget Act on the CRP. “Based

on [its] review of analyses provided to it by [OSBM] and the General Assembly’s

Fiscal Research Division . . . , and the arguments and submissions of the parties,” the

trial court found that “significant necessary services for students, as identified in the

CRP, remain unfunded and/or underfunded by the Budget Act.” The court found that

“the Budget Act fail[ed] to provide nearly one-half of the[ ] total necessary funds.”

Specifically, the court found that “the Budget Act fund[ed] approximately 63% of the

total cost of the programs to be conducted during year 2 and approximately 50% of

the total cost of the programs to be conducted during year 3.” Regarding the State’s

unappropriated savings, the trial court found that “[t]he Budget Act reserves during

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each year of the two-year budget cycle $1.134 billion to the State’s Saving Reserve,

which brings the total of unappropriated funds in the State’s Savings Reserve to $4.25

billion after the fiscal year 2022–23 legislatively-mandated transfer.” Therefore, “[a]s

a matter of mathematical calculation,” the trial court found that “the funds

transferred on a discretionary basis to the State’s Savings Reserve and the State’s

Capital and Infrastructure Reserve during the two-year budget cycle is substantially

in excess of the amount necessary to fully fund the CRP during years 2 and 3 of the

CRP.”

¶ 89 Based on these findings of fact, the trial court concluded that the Budget Act

“partially but not totally fund[ed] years 2 and 3 of the CRP.” Specifically, the court

concluded that “the total underfunding of CRP programs during years 2 and 3 . . . is

$785,106,248 in the aggregate.” Regarding the State’s potentially available funds, the

court concluded that “the General Fund does contain sufficient unappropriated

monies to make the transfer anticipated by the 10 November Order and the lesser

amount of underfunding identified above.” However, based on the Court of Appeals’

Writ of Prohibition, the trial court “conclude[d] that the 10 November Order should

be amended to remove a directive that State officers or employees transfer funds from

the State treasury to fully fund the CRP.” Instead, the trial court concluded that its

Order must simply “determine that the State of North Carolina has failed to comply

with the trial court’s prior order to fully fund years 2 and 3 of the CRP” without

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specifically directing the State officials to make the transfers necessary to do so.

¶ 90 Accordingly, the trial court ordered:

The Department of Health and Human Services[,] the

Department of Public Instruction, and the University of

North Carolina System have and recover from the State of

North Carolina to properly fund years 2 and 3 of the [CRP]

the following sums in addition to those sums otherwise

provided for the [CRP] by the Budget Act and federal or

other funds made available:

a. The [DHHS] recover from the State of North Carolina the

sum of $142,900,000;

b. The [DPI] recover from the State of North Carolina the sum

of $608,006,248; and

c. The [UNC] System recover from the State of North

Carolina the sum of $34,200,000.

¶ 91 In alignment with the November 2021 Order, the trial court further ordered

that “DHHS, DPI, UNC System, and all other State agents or State actors receiving

funds under the [CRP] are directed to administer those funds consistent with, and

under the time frames set out in the [CRP], including the Appendix thereto.”

Likewise, the court ordered that upon administering these funds, any “savings shall

revert to the General Fund at the end of fiscal year 2023, unless the General

Assembly extends their availability.”

¶ 92 In July 2022, the State enacted the 2022 Appropriations Act. An Act to Modify

the Current Operations Appropriations Act of 2021 and to Make Other Changes in

the Budget Operations of the State, S.L. 2022-74,

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https://www.ncleg.gov/EnactedLegislation/SessionLaws/PDF/2021-2022/SL2022-

74.pdf.

¶ 93 Following the trial court’s April 2022 Order, this case returned to the

jurisdiction of this Court. On appeal, Plaintiffs, Plaintiff-Intervenors, and the State

argued that, contrary to the order of the Court of Appeals, under the extraordinary

circumstances summarized here, the trial court had the proper authority to direct

State actors to transfer the available funds necessary to fulfill years two and three of

the Comprehensive Remedial Plan in its November 2021 Order.11 The State Board of

Education emphasized that the CRP is the product of the State’s efforts to fulfill its

constitutional commitment and that the CRP’s action steps are necessary to avoid

judicial encroachment on the Board’s constitutional authority.

¶ 94 Contrastingly, Legislative Defendants argued that the trial court’s November

2021 Order’s transfer provisions violated the Separation of Powers Clause of our

State’s Constitution.12 Legislative Defendants further argued that both the

November 2021 and April 2022 Orders were improper because the case is narrowly

confined to Hoke County and not the state as a whole, the trial court engaged with

11 Plaintiffs and Plaintiff-Intervenors’ position was supported by amici curiae

professors and longtime practitioners of constitutional and educational law, the North

Carolina Justice Center, the Duke Law Children’s Law Clinic, the Center for Educational

Equity, the Southern Poverty Law Center, and over fifty North Carolina business leaders.

12 Legislative Defendants’ position was supported by amici curiae North Carolina

Institute for Constitutional Law and the John Locke Foundation.

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non-justiciable political questions, the trial court failed to presume that the Budget

Act was constitutionally compliant, and the suit was friendly and lacked genuine

controversy.

¶ 95 Finally, the State Controller argued that the trial court’s November 2021

Order lacked constitutional authority to order the Controller and other state officials

to transfer available State funds, and therefore that this Court should affirm the trial

court’s April 2022 Order removing those transfer directives.

¶ 96 This case came before this Court once more for oral arguments on 31 August

2022.

II. Analysis

¶ 97 Now, this Court must assess the constitutionality of the trial court’s 10

November 2021 and 26 April 2022 Orders. This Court reviews constitutional

questions de novo. Cooper v. Berger, 370 N.C. 392, 413 (2018). Under the

extraordinary circumstances of this case, we hold that the trial court’s November

2021 Order properly directed certain State officials to transfer State funds in

compliance with the CRP. We thus affirm the constitutional analysis and transfer

directives within the November 2021 Order and vacate in part and reverse in part

the April 2022 Order with further instructions on remand. To enable the trial court

to comply with these instructions, we stay the Court of Appeals’ Writ prohibiting the

trial court from issuing the November 2021 transfer directive.

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¶ 98 First, we review the meaning and scope of the constitutional right at the heart

of this case: the right of all North Carolina schoolchildren to the opportunity to receive

a sound basic education. Second, we consider the duties and powers of the legislative

and judicial branches as they relate to guarding and maintaining that constitutional

right. Third, we apply this constitutional analysis to the trial court’s November 2021

and April 2022 Orders. Fourth, we address Legislative Defendants’ various assertions

of trial court error.

A. The Constitutional Right to a Sound Basic Education

¶ 99 Our Constitution and statutes recognize certain rights. In particular, our

Constitution’s Declaration of Rights vests within all people of our State rights that

we deem fundamental, such as the right to free elections, equal protection under law,

and freedom of speech and assembly. N.C. Const. Art. I, §§ 10, 12, 14, 19; see also

Harper v. Hall, 380 N.C. 317, 2022-NCSC-17, ¶ 159 (discussing these rights).

¶ 100 Since its inception in 1994, this case has revolved around the rights enshrined

within our Constitution’s “Education Provisions:” namely Article I, § 15 and Article

IX, § 2, but also Article IX, §§ 6 and 7. Accordingly, we begin our analysis by reviewing

the text, structure, and history of the right to a sound basic education as established

in these Education Provisions. See Harper, 2022-NCSC-17, ¶ 121 (considering the

text, history, and structure of constitutional rights to ascertain their meaning).

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¶ 101 Constitutional analysis begins with the text. State ex rel. Martin v. Preston,

325 N.C. 438, 449 (1989). “We look to the plain meaning of [each] phrase to ascertain

its intent.” Town of Boone v. State, 369 N.C. 126, 132 (2016). To understand the

meaning of the fundamental right at issue in this case, we must consider the plain

text of our Constitution’s Education Provisions.

¶ 102 First, Article I, § 15 of our Constitution’s Declaration of Rights declares that

“[t]he people have a right to the privilege of education, and it is the duty of the State

to guard and maintain that right.” The plain text of this provision is not suggestive,

but obligatory. It does not declare that the State may guard and maintain the people’s

right to the privilege of education, but that it is the duty of the State to do so. Further,

the plain text of this provision places this affirmative duty on the shoulders of one

entity: the State. While subsequent constitutional provisions note that the State may

involve local units of government in school operation, Article I, § 15 makes clear that

the ultimate responsibility lies with the State. Finally, the word “maintain” within

this provision begins to establish that the State’s affirmative duty here is not merely

administrative, but financial. One definition of maintain is “[t]o support . . .

financially,” Maintain, Black’s Law Dictionary (11th ed. 2019), or “to support the

expense of.” Maintain, Webster’s American Dictionary of the English Language

(1865). See also Maintain, A Dictionary of the English Language (1865) (“To bear the

expense of; to support; to keep up; to supply with what is needed.”). This meaning

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aligns with the Constitution’s plain emphasis on education funding within

subsequent provisions noted below.

¶ 103 Second, Article IX, § 2(1) establishes that “[t]he General Assembly shall

provide by taxation and otherwise for a general and uniform system of free public

schools, which shall be maintained at least nine months in every year, and wherein

equal opportunities shall be provided for all students.” Like Article I, § 15, the plain

language of this section is obligatory; it does not declare that the General Assembly

may provide for a system of free public schools, but that it shall do so. See Mebane

Graded Sch. Dist. v. Alamance Cnty., 211 N.C. 213, 223 (1937) (Mebane) (“The duty

imposed on the State, under Art. IX of the Constitution of North Carolina, is

mandatory.”). This contrasts with the subsequent permissive language in Article IX,

§ 2(2), which states that “[t]he General Assembly may assign to units of local

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

it may deem appropriate[,]” and that “units of local government with financial

responsibility for public education may use local revenues to add or to supplement

any public school or post-secondary school program.” (emphasis added). Here again,

the plain constitutional text makes clear that the ultimate responsibility for securing

the people’s right to education lies with the State. And in declaring the governmental

entity that is obligated to fund public education, the plain language of Article IX, § 2

is even more specific: “[t]he General Assembly.”

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¶ 104 Third, two subsequent provisions within Article IX further specify methods for

funding the state’s system of free public schools. Article IX, § 6 states that

The proceeds of all lands that have been or hereafter may

be granted by the United States to this State, and not

otherwise appropriated by this State or the United States;

all moneys, stocks, bonds, and other property belonging to

the State for purposes of public education; the net proceeds

of all sales of the swamp lands belonging to the State; and

all other grants, gifts, and devises that have been or

hereafter may be made to the State, and not otherwise

appropriated by the State or by the terms of the grant, gift,

or devise, shall be paid into the State Treasury and,

together with so much of the revenue of the State as may

be set apart for that purpose, shall be faithfully

appropriated and used exclusively for establishing and

maintaining a uniform system of free public schools.

Next, Article IX, § 7(a) states that

[e]xcept as provided in subsection (b) of this section, all

moneys, stocks, bonds, and other property belonging to a

county school fund, and the clear proceeds of all penalties

and forfeitures and of all fines collected in the several

counties for any breach of the penal laws of the State, shall

belong and remain in the several counties, and shall be

faithfully appropriated and used exclusively for

maintaining free public schools.

Building from Article IX, § 2, the plain text of these provisions further clarifies the

Constitution’s repeated emphasis on adequately funding the State’s system of free

public schools. Indeed, these provisions establish specific requirements for the

manner in which the General Assembly may exercise its appropriation powers by

declaring that such funds “shall be faithfully appropriated and used exclusively for

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establishing and maintaining a uniform system of free public schools.” More broadly,

the plain text of these provisions emphasizes the distinctive prominence of public

education within our Constitution: it is first established as a positive right of the

people within the Declaration of Rights, then mandated to be guarded and

maintained by the State, then specifically required to be funded through taxation and

otherwise by the General Assembly. This renders the fundamental right established

within these provisions highly exceptional, even among other rights enumerated

within the Declaration of Rights.

¶ 105 The structure of our Constitution likewise supports this prominence. As an

initial matter, the location of the right to education (N.C. Const. art. I, § 15) within

the Constitution’s Declaration of Rights indicates its significance. “The Declaration

of Rights was passed by the Constitutional Convention on 17 December 1776, the day

before the [state] Constitution itself was adopted, manifesting the primacy of the

Declaration in the minds of the framers.” Corum, 330 N.C. at 782. That original

“logical and chronological primacy is preserved in our present constitution, with the

Declaration of Rights now incorporated in the text of the [C]onstitution itself as

article I.” Harper, 2022-NCSC-17, ¶ 122. The fundamental purpose for the adoption

of the Declaration of Rights “was to provide citizens with protection from the State’s

encroachment upon these rights.” Corum, 330 N.C. at 782. It is no wonder, then, that

the Framers chose to enshrine the fundamental right to education within the

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Declaration; like the right to free elections, N.C. Const. art. I, § 10, the right to

religious liberty, N.C. Const. art. I, § 13, and the right to freedom of speech and press,

N.C. Const. art. I, § 14, the right to education inherently strengthens the ability of a

person and a community to safeguard their personal liberty and popular sovereignty

from infringement. See N.C. Const. art. IX, § 1 (“Religion, morality, and knowledge

being necessary to good government and the happiness of mankind, schools, libraries,

and the means of education shall forever be encouraged”); Brown v. Bd. of Educ., 347

U.S. 483, 493 (1954) (Brown I) (describing education as “the very foundation of good

citizenship.”).

¶ 106 Beyond the location of Article I, § 15, the structure of the North Carolina

Constitution further emphasizes the paramount importance of the right to education

by devoting an entire article to it: Article IX. For context, there are only fourteen

articles in our entire Constitution, including the Declaration of Rights and those

establishing our three branches of government. Within Article IX, the Constitution

contains ten sections enumerating certain principles and requirements for our state’s

system of public education, such as those establishing the State Board of Education,

N.C. Const. art. IX, § 4, and describing methods of education funding, N.C. Const.

art. IX, §§ 2, 6, 7. By comparison, the articles addressing local governments and

corporations contain three and two sections, respectively. See N.C. Const. art. VII;

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N.C. Const. art. VIII. In short, the Constitution’s structure makes clear that the right

to education is regarded with foremost significance.

¶ 107 Finally, constitutional history likewise supports this significance. See Comm.

to Elect Dan Forest v. Emps. Pol. Action Comm., 376 N.C. 558, 2021-NCSC-6, ¶ 15

(“Constitutional provisions should be construed in consonance with the objects and

purposes in contemplation at the time of their adoption.”). North Carolina

constitutional history illustrates both that our citizens have long valued public

education and that experience taught them the necessity of safeguarding it through

our Constitution, particularly to secure the fundamental rights of marginalized

communities.

¶ 108 “Throughout the colonial period, the provincial government accepted no

responsibility for education.” N.C. Dep’t of Public Instruction, The History of

Education in North Carolina, 5 (1993) (hereinafter DPI Report). Because of the

absence of State funding, what few educational opportunities that did exist were

largely private, religious, and limited to affluent white families. Id.

¶ 109 In 1776, North Carolina’s original Constitution provided “[t]hat a school or

schools shall be established by the Legislature, for the convenient instruction of

youth, with such salaries to the masters, paid by the public.” N.C. Const. of 1776 art.

XLI. Nevertheless, educational opportunities remained underfunded and exclusive,

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and “[m]any North Carolina citizens were dissatisfied with the deplorable state of

affairs and efforts were begun to remedy the situation.” DPI Report at 7.

¶ 110 The 1825 enactment of the Literary Fund was one such effort. Id. at 8. Over

time, the fund grew and, in conjunction with further legislative support, “ushered in

a period of expansion and progress for North Carolina public schools.” Id. at 9. “By

the time the Civil War erupted in 1861, it was generally recognized that North

Carolina had one of the best school systems in the South.” Id. Notably, though, this

system still expressly excluded Black children, who could only access educational

opportunities—if at all—at freedmen schools established and funded by private

groups such as the American Missionary Association. See John L. Bell, Samuel

Stanford Ashley, Carpetbagger and Educator, 72 N.C. Hist. Rev. 456, 459, 461 (1995)

(hereinafter Bell).

¶ 111 The Civil War “brought this progressive period in education to an abrupt halt.”

DPI Report at 10. First, the Literary Fund was depleted due to wartime economic

instability. Bell at 476. Then, in 1866, due to this economic fallout and “fear[ ] that

the federal government would force integration of [B]lack pupils into the statewide

school system,” the General Assembly abolished North Carolina’s public school

system entirely, instead leaving county governments to establish schools “at their

discretion.” Id.

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¶ 112 Against this historical backdrop, North Carolina’s first ever multiracial cohort

of state leaders “met in the winter of 1868 to draft a new state constitution.” Id. at

473; see also Leonard Bernstein, The Participation of Negro Delegates in the

Constitutional Convention of 1868 in North Carolina, The Journal of Negro History,

Vol. 34, No. 4, 391, 394 (Oct. 1949) (describing the composition of the Constitutional

Convention of 1868) (hereinafter Bernstein); John V. Orth, The North Carolina State

Constitution 12 (1993) (same) (hereinafter Orth). The resulting 1868 Constitution

was markedly more progressive than its predecessor, including, for instance, the

expansion of property rights to women and elimination of property qualifications from

political participation. See Orth at 15; DPI Report at 10.

¶ 113 The 1868 Constitution likewise expanded educational rights. “Seeing that the

legislature could abolish the school system by law in 1866, [delegates] insisted that

the guarantee of a public school education for all children of North Carolina be

embedded in the [C]onstitution beyond the reach of legislative majorities.” Bell at

482–83. Thus, Article I, § 27 of the 1868 Constitution established the express positive

right of the people to the privilege of education and corresponding duty of the State

to guard and maintain that right. See Orth at 52 (“[T]he right to education was

intended to mark a new and more positive role for state government.”). The 1868

Constitution likewise established the General Assembly’s duty to fund the state’s

public education system, declaring that [t]he General Assembly shall provide by

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taxation and otherwise for a general and uniform system of Public Schools,” and

specified that certain funds “shall be faithfully appropriated for establishing and

perfecting in this State a system of Free Public Schools, and for no other purposes or

uses whatsoever.” N.C. Const. of 1868 art. IX, §§ 2, 4. Although conservative

legislators attempted “to add segregation amendments to the [Education

Provisions,]” these were rejected. Bernstein at 398. Instead, these constitutional

guarantees “made no mention of race.”13 Bell at 473. As noted above, our current

State Constitution, ratified in 1971, includes substantially similar or identical

language within its Education Provisions as its 1868 predecessor. See N.C. Const. art.

I, § 15; N.C. Const. art. IX, §§ 2, 6, 7. Cumulatively, this historical context

emphatically supports the paramount importance of the right to the opportunity to a

sound basic education within our Constitution and of the will of the people to

safeguard this right from legislative diminishment or abandonment.

¶ 114 These historical origins confirm what the text and structure make plain: that

our Constitution expressly establishes the fundamental right of the people to the

privilege of education, that it is the “sacred duty” of the State to safeguard that right,

and that the General Assembly is constitutionally obligated to provide for our system

13However, “a post-Reconstruction amendment in 1876 required segregated schooling

(‘separate but equal’) . . . [until] [o]utlawed in 1954 by the U.S. Supreme Court’s ruling in

Brown v. Board of Education [and subsequently] forbidden by the 1971 Constitution.” Orth

at 145.

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of free public schools by taxation and otherwise. Mebane, 221 N.C. at 223. More

specifically, the Education Provisions express a clear desire by the people to hold the

executive and legislative branches accountable for ensuring that our public school

system is properly maintained, financially and otherwise. Finally, “[w]e give our

Constitution a liberal interpretation in favor of its citizens with respect to those

provisions which were designed to safeguard the liberty and security of the citizens.”

Corum, 330 N.C. at 783.

¶ 115 In accordance with these principles, this Court has held that the Education

Provisions “combine to guarantee every child of this state an opportunity to receive a

sound basic education in our public schools.” Leandro I, 346 N.C. at 345. This Court

has further concluded that this right is substantive, robust, and paramount. Id.;

Leandro II, 358 N.C. at 649. Today, we expressly and emphatically reaffirm the

inherent substance, broad scope, and paramount importance of the fundamental right

to the opportunity to a sound basic education enshrined in our Constitution as first

recognized by this Court in Leandro I and II.

B. Legislative and Judicial Duties and Powers

¶ 116 When rights are violated, justice requires a remedy. N.C. Const. art. I, § 18

(“[E]very person for an injury done him . . . shall have remedy by due course of law.”);

see also Marbury v. Madison, 5 U.S. 137, 163 (1803) (“[E]very right, when withheld,

must have a remedy, and every injury its proper redress.”). The nature of the right

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and the extent of the violation dictate the appropriate nature and extent of the

corresponding remedy. Corum, 330 N.C. at 784. Accordingly, a longstanding violation

of a fundamental constitutional right demands a remedy of equivalent magnitude.

¶ 117 Here, as summarized above, the trial court repeatedly concluded based on an

abundance of clear and convincing evidence that the State—for many years—has

continued to violate the fundamental constitutional rights of North Carolina

schoolchildren across the state by failing to guard and maintain their right to the

opportunity of a sound basic education. The trial court likewise repeatedly concluded

that this violation disproportionately impacts historically marginalized students such

as students from economically disadvantaged families, English language learners,

students with learning differences, and students of color. The trial court emphasized

these conclusions most recently within the November 2021 Order before us on this

appeal.

¶ 118 Now, this Court must consider the scope of its authority to appropriately

remedy this violation. To do so, we first analyze the constitutional duties and powers

of the legislative branch as they relate to guarding and maintaining the fundamental

right to a sound basic education. Second, we analyze the constitutional duties and

powers of the judicial branch relating to that right. Third, we harmonize these

constitutional duties and powers in light of the principles of separation of powers and

checks and balances within our tripartite system of democratic governance.

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1. Legislative Duties and Powers

¶ 119 Because this case primarily involves the boundaries between the legislative

and judicial branches, we begin by considering the constitutional duties and powers

of the legislative branch.

¶ 120 Our Constitution assigns certain positive and negative duties to the legislative

branch. Positive duties are those the Constitution mandates that the legislative

branch fulfill. For instance, Article II, §§ 3 and 5 respectively mandate that “[t]he

General Assembly, at the first regular session convening after the return of every

decennial census of population taken by order of Congress, shall revise the senate

[and representative] districts and the apportionment of Senators [and

Representatives] among those districts.” (emphasis added). Likewise, Article II, § 20

establishes that each house of the General Assembly “shall prepare bills to be enacted

into laws.” (emphasis added). Contrastingly, negative duties prohibit certain

legislative action. For instance, Article II, § 24 dictates that “[t]he General Assembly

shall not enact any local private, or special act or resolution” relating to certain

subjects, such as “changing the names of cities, towns, and townships.” N.C. Const.

art. II, § 24(b) (emphasis added).

¶ 121 This case considers the legislature’s duties under the Education Provisions. As

summarized above, these provisions create a positive duty for the legislature to fulfill

its role (as part of “the State”) in maintaining the people’s right to education by

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providing by taxation and otherwise for a general and uniform system of free public

schools. N.C. Const. art. I, § 15; N.C. Const. art. IX, §§ 2, 6. As established by Leandro

I, this constitutional guarantee is not one of mere education access, but of education

adequacy. 346 N.C. at 345–46. Put differently, the General Assembly is not merely

responsible for ensuring that there is an operational school building in each district

that lets students in its front doors, but for ensuring that once a student enters those

doors, she has the opportunity to receive—at minimum—a sound basic education. See

id. at 345 (“An education that does not serve the purpose of preparing students to

participate and compete in the society in which they live and work is devoid of

substance and is constitutionally inadequate.”). The history of this case has

established that this duty is both substantive (for instance, ensuring through

education statutes and policies that there is a competent, well-trained teacher in

every classroom) and financial (ensuring that state funding is distributed in a manner

that allows every school district to provide all students with the opportunity to receive

a sound basic education).

¶ 122 To fulfill these constitutional duties, the legislature is granted broad powers.

For instance, Article II, § 1 provides that “[t]he legislative power of the State shall be

vested in the General Assembly[.]” As such, the General Assembly is broadly

empowered to enact legislation to advance its policy goals, including in the realm of

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education. Other constitutional provisions, such as Article II, § 22, describe the

procedures that the General Assembly must follow in exercising its legislative power.

¶ 123 More specifically, our Constitution grants the General Assembly extensive

financial authority. For instance, Article II, § 23 provides for the General Assembly’s

power to enact revenue bills. Likewise, Article III, § 5(3) “defines the manner in which

th[e] three-branch governmental structure should operate in the budgetary context

by providing that . . . ‘[t]he budget as enacted by the General Assembly shall be

administered by the Governor.’ ” Cooper v. Berger, 376 N.C. 22, 37 (2020). Article V §

2 delineates the General Assembly’s taxation power. Finally, Article V, § 7 notes that

“[n]o money shall be drawn from the State treasury but in consequence of

appropriations made by law[.]” The Appropriations Clause is further operationalized

by statute in N.C.G.S. § 143C-1-2 of the State Budget Act, which states that “[a] law

enacted by the General Assembly that expressly appropriates funds from the State

treasury is an appropriation.”

¶ 124 Here, the trial court’s November 2021 Order concluded that Article I, § 15

“represents an ongoing constitutional appropriation of funds sufficient to create and

maintain a school system that provides each of our State’s students with the

constitutional minimum of a sound basic education[,] . . . [and] may therefore be

deemed an appropriation ‘made by law.’ ” By contrast, Legislative Defendants and

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the State Controller contend that the Appropriations Clause and the Separation of

Powers Clause indicate that the trial court’s subsequent transfer order is prohibited.

2. Judicial Duties and Powers

¶ 125 Next, we must likewise consider the duties and powers of the judicial branch

in addressing the violation of constitutional rights.

¶ 126 Article I, § 18 of our Constitution establishes that “every person for an injury

done him in his lands, goods, person, or reputation shall have remedy by due course

of law; and right and justice shall be administered without favor, denial, or delay.”

In accordance with this constitutional promise, this Court has expressed a

“longstanding emphasis on ensuring redress for every constitutional injury.” Craig ex

rel. Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 342 (2009).

¶ 127 The duty to ensure such redress belongs to the courts. Because the judicial

branch “is the ultimate interpreter of our State Constitution[,] [i]t is the state

judiciary that has the responsibility to protect the state constitutional rights of the

citizens; this obligation to protect the fundamental rights of individuals is as old as

the State.” Corum, 330 N.C. at 783.

¶ 128 With this constitutional duty comes constitutional powers. Generally, judicial

power arises from Article IV, § 1 of our Constitution, which establishes that “[t]he

judicial power of the State shall . . . be vested in a Court for the Trial of Impeachments

and in a General Court of Justice.” The Constitution further establishes that “[t]he

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General Assembly shall have no power to deprive the judicial department of any

power or jurisdiction that rightfully pertains to it as a co-ordinate department of

government.” N.C. Const. art. IV, § 1.

¶ 129 More specifically, the judiciary is endowed with certain inherent power. In

1991, Chief Justice Exum, writing unanimously on behalf of this Court, observed that

[a] court’s inherent power is that belonging to it by virtue

of its being one of three separate, coordinate branches of

government. For over a century this Court has recognized

such po

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