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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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 

 

1 For 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 plaintiffparties’ 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 

 

4 Justice 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 costeffective 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” seventhgrader 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 ‘atrisk’ prospective enrollees, and that the State’s failings were contributing to the ‘atrisk’ 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 “atrisk” 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 atrisk 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 

 

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

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 postsecondary 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 atrisk 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 

 

13 However, “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 powers as being plenary within the judicial branch—

neither limited by our [C]onstitution nor subject to 

abridgment by the legislature. In fact, the inherent power 

of the judicial department is expressly protected by the 

constitution: “The General Assembly shall have no power 

to deprive the judicial department of any power or 

jurisdiction that rightfully pertains to it as a co-ordinate 

department of the government . . . . ” N.C. Const. art. IV, § 

1. Inherent powers are critical to the court’s autonomy and 

to its functional existence: if the courts could be deprived 

by the legislature of these powers, which are essential to 

the direct administration of justice, they would be 

destroyed for all efficient and useful purposes.

Generally speaking, the scope of a court’s inherent power 

is its authority to do all things that are reasonably 

necessary for the proper administration of justice. . . . This 

Court has upheld the application of the inherent powers 

doctrine to a wide range of circumstances, from dealing 

with its attorneys[ ] to punishing a party for contempt.

Alamance, 329 N.C. at 93–94 (1991) (cleaned up). 
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¶ 130 “Typically, . . . [due to the Separation of Powers,] the exercise of inherent power 

by courts of this state has been limited to matters discretely within the judicial 

branch.” Id. at 94. However, 

[t]he scope of the inherent power of a court does not, in 

reality, always stop neatly short of explicit, exclusive 

powers granted to the legislature, but occasionally must be 

exercised in the area of overlap between branches. The 

North Carolina Constitution provides: “The legislative, 

executive, and supreme judicial powers of the State 

government shall be forever separate and distinct from 

each other.” N.C. I. art. I, § 4. The perception of the 

separation of the three branches of government as 

inviolable, however, is an ideal not only unattainable but 

undesirable. An overlap of powers constitutes a check and 

preserves the tripartite balance, as two hundred years of 

constitutional commentary note. “Unless these [three 

branches of government] be so far connected and blended 

as to give each a constitutional control over the others, the 

degree of separation which the maxim requires, as 

essential to a free government, can never in practice be 

duly maintained.” The Federalist No. 48, at 308 (J. 

Madison) (Arlington House ed. 1966). This “constant check 

. . . preserving the mutual relations of one branch with the 

other . . . can best be accomplished, if not solely 

accomplished, by an occasional mixture of the powers of 

each department with that of the others, while the separate 

existence, and constitutional independence of each are 

fully provided for.” 2 J. Story, Commentaries on the 

Constitution of the United States 22 (1833). A 

contemporary view notes that this area of overlap is 

occupied not only by the doctrine of checks and its basis in 

maintaining the province of each power, but also by a 

functional component of pragmatic necessity—termed by 

some commentators “incidental powers”—whereby one 

branch exercises some activities usually belonging to one 

of the other two branches in order to fully and properly 

discharge its duties.
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Like the jealous checks by one branch upon the 

encroachments of another, which the Framers viewed 

positively as the basis for government’s critical balance, a 

functional overlap of powers should facilitate the tasks of 

each branch. . . . No less important to a functional balance 

of power is the notion of a working reciprocity and 

cooperativeness amongst the branches: “While the 

Constitution diffuses power the better to secure liberty, it 

also contemplates that practice will integrate the dispersed 

powers into a workable government. It enjoins upon its 

branches separateness but interdependence, autonomy but 

reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343 

U.S. 579, 635, 96 L. Ed. 1153, 1199 (1952) (Jackson, J., 

concurring).

Id. at 96–97 (cleaned up). 

¶ 131 “In the realm of appropriations,” this Court has noted, “some overlap of power 

between the legislative and the judicial branches is inevitable.” Id. at 97. Accordingly, 

this Court has “[held] that when inaction by those exercising legislative authority 

threatens fiscally to undermine the integrity of the judiciary, a court may invoke its 

inherent power to do what is reasonably necessary for the orderly and efficient 

administration of justice.” Id. at 99. Although “Article V prohibits the judiciary from 

taking public monies without statutory authorization[,]” when the exercise of 

remedial power “necessarily includes safeguarding the constitutional rights of the 

parties[,] . . . the court has the inherent authority to direct local authorities to perform 

that duty.” Id. 

¶ 132 However, even inherent power is not without limitation. For instance, 

doing what is reasonably necessary for the proper 
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administration of justice means doing no more than is 

reasonably necessary. The court’s exercise of its inherent 

power must be responsible—even cautious—and in the 

spirit of mutual cooperation among the three branches. The 

very genius of our tripartite Government is based upon the 

proper exercise of their respective powers together with 

harmonious cooperation between the three independent 

branches. However, if this cooperation breaks down, the 

Judiciary must exercise its inherent power to preserve the 

efficient and expeditious administration of Justice and 

protect it from being impaired or destroyed.

The inherent power of the court must be exercised with as 

much concern for its potential to usurp the powers of 

another branch as for the usurpation it is intended to 

correct. It is a tool to be utilized only where other means to 

rectify the threat . . . are unavailable or ineffectual, and its 

wielding must be no more forceful or invasive than the 

exigency of the circumstances requires.

The very conception of inherent power carries with it the 

implication that its use is for occasions not provided for by 

established methods. Only when established methods fail 

and the court shall determine that by observing them the 

assistance necessary . . . cannot be had, or when an 

emergency arises which the established methods cannot or 

do not instantly meet, then and not till then does occasion 

arise for the exercise of the inherent power.

Id. at 99–100 (cleaned up).

¶ 133 More specifically, 

the court’s judicious use of its inherent power to reach 

towards the public purse must recognize two [further] 

critical limitations: first, it must bow to established 

procedural methods where these provide an alternative to 

the extraordinary exercise of its inherent power. Second, in 

the interests of the future harmony of the branches, the 

court in exercising that power must minimize the 
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encroachment upon those with legislative authority in 

appearance and in fact. This includes not only recognizing 

any explicit, constitutional rights and duties belonging 

uniquely to the other branch, but also seeking the least 

intrusive remedy.

Id. at 100–101.

¶ 134 Here, the trial court concluded that given the extraordinary circumstance of 

this case, it was required to “provide a remedy [for the ongoing constitutional 

violation] through the exercise of its constitutional role.” “Otherwise,” the trial court 

concluded, “the State’s repeated failure to meet the minimum standards for 

effectuating the constitutional right to obtain a sound basic education will threaten 

the integrity and viability of the North Carolina Constitution.” By contrast, 

Legislative Defendants contend that the trial court’s remedy violated the doctrine of 

separation of powers because the power to appropriate state funds is vested 

exclusively with the legislative branch.

3. Harmonizing Judicial and Legislative Duties and Powers

¶ 135 Now, we must address the intersection of these legislative and judicial powers 

and duties. When considering the meaning of multiple constitutional provisions, this 

Court seeks to read the provisions in harmony. “It is axiomatic that the terms or 

requirements of a constitution cannot be in violation of the same constitution—a 

constitution cannot violate itself.” Leandro I, 346 N.C. at 352. Specifically, this case 

requires the interpretation of the General Assembly’s powers under the 
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Appropriations Clause in light of its duties under the Education Provisions. It 

likewise requires the interpretation of the judiciary’s inherent power in light of the 

Education Provisions, the Appropriations Clause, and the Separation of Powers 

Clause. We address each of these constitutional crossroads in turn.

¶ 136 First, this case requires this Court to harmonize the General Assembly’s 

powers under the Appropriations Clause in light of its duties under the Education 

Provisions. On the one hand, the General Assembly enjoys broad discretion over all 

legislative matters, including the appropriation of state funds. In conjunction with 

the Separation of Powers Clause, this Court has observed that “[i]n drafting the 

appropriations clause, the framers sought to ensure that the people, through their 

elected representatives in the General Assembly, had full and exclusive control over 

the allocation of the state’s expenditures.” Cooper, 376 N.C. at 37. On the other hand, 

this Court has repeatedly held that the General Assembly, as part of “the State,” has 

a constitutional duty to “guard and maintain” the fundamental right of North 

Carolina schoolchildren to the opportunity to a sound basic education, including 

adequately funding our system of free public schools such that this right is 

maintained. See generally Leandro I, 346 N.C. 33; Leandro II, 358 N.C. 605. 

¶ 137 In order to harmonize these principles, we hold that our Constitution requires 

the General Assembly to exercise its power under the Appropriations Clause in 

contemporaneous compliance with its duties under the Education Provisions. Under 
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Leandro I, this means that the General Assembly must exercise its appropriations 

powers such that every student receives the opportunity to obtain a sound basic 

education. In other words, the General Assembly is constitutionally required to 

appropriate at least enough funding to public education such that every child in every 

school in every district is provided with the opportunity to receive at least a sound 

basic education. When it does not, it violates both its own constitutional duties and 

the constitutional rights of North Carolina schoolchildren under the Education 

Provisions. To hold otherwise would allow the General Assembly to ignore these 

duties and rights, rendering them—and, in other contexts, other constitutional duties 

or fundamental rights—meaningless and not subject to judicial enforcement. This our 

Constitution does not allow. See Leandro I, 346 N.C. at 345 (concluding that plaintiffs’ 

educational adequacy claims are not nonjusticiable political questions and that “it is 

the duty of this Court to address [their] constitutional challenge to the state’s public 

education system.”).

¶ 138 This principle is not novel. Since 1787, the highest Court of our state has held 

that because our Constitution is “the fundamental law of the land,” the General 

Assembly may not exercise its legislative power in a manner that violates 

constitutional rights. Bayard v. Singleton, 1 N.C. (Mart.) 5, 7 (1787). Accordingly, in 

Bayard, the Court rejected a statute that abrogated the constitutional right to a trial 

by jury. Id.
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¶ 139 We have applied this same principle to voting rights. In Stephenson v. Bartlett, 

for instance, this Court stated that the principle of constitutional harmony “require[d] 

us to construe [the legislature’s power under] Article II, Sections 3(1) and 5(1) in 

conjunction with [the right to equal protection of the laws under] Article I, Section 19 

in such a manner as to avoid internal textual conflict.” 355 N.C. 354, 378 (2002). 

Accordingly, the Court held that 

[t]he General Assembly may consider partisan advantage 

and incumbency protection in the application of its 

discretionary redistricting decisions, but it must do so in 

conformity with the State Constitution. To hold otherwise 

would abrogate the constitutional limitations or “objective 

constraints” that the people of North Carolina have 

imposed on legislative redistricting and reapportionment 

in the State Constitution.

Id. at 371–72.

¶ 140 More recently, this Court reaffirmed this principle in Harper, 2022-NCSC-17. 

There we again noted that “[a]lthough the task of redistricting is primarily delegated 

to the legislature, it must be performed in conformity with the State Constitution.” 

Id. at ¶ 6 (cleaned up). Thus, we held that the General Assembly’s “redistricting 

authority is subject to limitations contained in the North Carolina Constitution, 

including both in the provisions allocating the initial redistricting responsibility to 

the General Assembly and in other provisions [in our Declaration of Rights].” Id. at 

¶ 12. In these cases and others, this Court has made clear that the General Assembly 
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may not exercise its broad legislative power in a manner that violates fundamental 

constitutional rights.

¶ 141 So too here. The Education Provisions obligate the General Assembly to fund 

a uniform system of free public schools in which every child has the opportunity to 

receive a sound basic education. N.C. Const. art. I, § 15; N.C. Const. art. IX, § 2; 

Leandro I, 346 N.C. at 345. The Appropriations Clause, among other provisions, 

establishes the General Assembly’s power to appropriate State funds. Therefore, in 

exercising its broad discretion within appropriations and other legislative powers, the 

General Assembly must fulfill its constitutional duty to maintain every child’s right 

to the opportunity to receive a sound basic education. 

¶ 142 Below, the dissent focuses exclusively on the legislature’s powers while 

ignoring its constitutional duties. Such an approach would allow the legislature to 

exercise its broad powers under the Appropriations Clause (or others) in a manner 

that indefinitely violates the fundamental constitutional rights of the people. This

interpretation would approve both constitutional dissonance and constitutional 

disregard in direct violation of this Court’s own constitutional duties. 

¶ 143 Second and accordingly, this case requires the interpretation of the judiciary’s 

inherent power to remedy constitutional violations in light of the Education 

Provisions, the Appropriations Clause, and the Separation of Powers Clause. On the 

one hand, the Appropriations Clause states that “[n]o money shall be drawn from the 
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State treasury but in consequence of appropriations made by law.” N.C. Const. art. 

V, § 7. The Separation of Powers Clause states that “[t]he legislative, executive, and 

supreme judicial powers of the State government shall be forever separate and 

distinct from each other.” N.C. Const. art. I, § 6. As applied to the Appropriations 

Clause, this Court has noted that the principle of separation of powers indicates “that 

the legislative power is supreme over the public purse.” State v. Davis, 270 N.C. 1, 14 

(1967). More recently, this Court has stated that “[i]n light of [the Appropriations 

Clause], the power of the purse is the exclusive prerogative of the General Assembly.” 

Cooper, 376 N.C. at 37.

¶ 144 On the other hand, the judicial branch derives inherent and inalienable 

authority to address the violation of constitutional rights from its very status as one 

of three separate and coordinate branches of our state government. See Ex Parte 

McCown, 139 N.C. 95, 105–06 (1905) (citing N.C. Const. art. I, § 4); Corum, 330 N.C. 

at 783 (“It is the state judiciary that has the responsibility to protect the state 

constitutional right of the citizens.”). As a coequal part of “the State,” the judiciary—

like the legislative and executive branches—is constitutionally bound by Article I, § 

15 to fulfill its own unique role in guarding and maintaining the right to a sound basic 

education. This role requires the judiciary to assess the constitutional compliance of 

the other branches and—if an offending branch proves unwilling or unable to remedy 

the deficiency—after showing due deference, invoke its inherent power to do what is 
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reasonably necessary to restore constitutional rights “by imposing a specific remedy 

and instructing the recalcitrant state actors to implement it.” Leandro II, 358 N.C. at 

642.

¶ 145 In order to harmonize these principles, we hold that because the Constitution 

itself requires the General Assembly to adequately fund the state’s system of public 

education, in exceedingly rare and extraordinary circumstances, a court may remedy 

an ongoing violation of the constitutional right to the opportunity to a sound basic 

education by ordering the transfer of adequate available state funds.

¶ 146 This holding is consistent with foundational constitutional principles. First, it 

upholds the will of the people. Above any statute or legislative prerogative, our 

Constitution “expresses the will of the people in this State and is, therefore, the 

supreme law of the land.” In re Martin, 295 N.C. 291, 299 (1978). Accordingly, just as 

the General Assembly’s authority over appropriations is grounded in its function as 

the elected voice of the people, see Cooper, 376 N.C. at 37, the requirement for 

adequate education funding embedded within the Education Provisions is fully 

consistent with the Framers’ intent to give the people ultimate control over the state’s 

expenditures. 

¶ 147 Second, this holding upholds constitutional integrity. Allowing the legislature 

to indefinitely violate the constitutional right of North Carolina schoolchildren to a 

sound basic education would threaten the integrity and viability of the Constitution 
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itself by nullifying its language without the people’s consent, thus rendering this 

right—and therefore, perhaps others—meaningless and unenforceable. This Court 

has already forsworn this possibility: in Leandro I, the Court squarely rejected the 

State’s contention that claims of education adequacy were judicially unenforceable. 

346 N.C. at 344–45.

¶ 148 Third, this holding upholds constitutional checks and balances and the 

separation of powers. The North Carolina Constitution “incorporates a system of 

checks and balances that gives each branch some control over the others.” State ex 

rel. McCroy v. Berger, 368 N.C. 633, 635 (2016). Simultaneously, “the separation of 

powers clause requires that, as the three branches of government carry out their 

duties, one branch will not prevent another branch from performing its core 

functions.” Id. at 636. Although at first glance these principles may appear to be in 

tension—one indicating flexibility and the other rigidity—a deeper look reveals that 

they both support a common democratic purpose: ensuring that no single person or 

branch may accumulate excessive power, and thus threaten the liberty and 

sovereignty of the people. See The Federalist No. 47 (James Madison) (“The 

accumulation of all powers, legislative, executive, and judiciary, in the same hands . 

. . may justly be pronounced the very definition of tyranny.”). As cases arise that probe 

the contours of these foundational constitutional principles, this Court “must look 

freshly at the separation of powers provision in the North Carolina Constitution, with 
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an eye to the actual constitutional, pragmatic, and philosophical limitations on the 

power granted therein.” Alamance, 329 N.C. at 96.

¶ 149 Our fresh look is informed by old sources. In The Federalist Papers, James 

Madison stated that the separation of powers between the three branches does “not 

mean that these departments ought to have no partial agency in, or no control over, 

the action of each other.” Federalist No. 47. Rather, the separation of powers properly 

dictates “that where the whole power of one department is exercised by the same 

hands which possess the whole power of another department, the fundamental 

principles of a free Constitution are subverted.” Id.

14 Indeed, Madison observed that 

“[i]f we look into the constitutions of the several states we find that, notwithstanding 

the emphasis and, in some instances, the unqualified terms in which [the separation 

of powers] has been laid down, there is not a single instance in which the several 

departments of power have been kept absolutely separate and distinct.” Id. This 

marginal intersection of certain powers is necessary because “unless these 

departments be so far connected and blended as to give each a constitutional control 

over the others, the degree of separation which the maxim requires, as essential to a 

free government, can never in practice be duly maintained.” Federalist No. 48 (James

 

14 See also 2 J. Story, Commentaries on the Constitution of the United States 22 (1833) 

(observing that that the “constant check . . . preserv[ing] the mutual relations of one [branch] 

with the other . . . can be best accomplished, if not solely accomplished, by an occasional 

mixture of the powers of each department with that of the others, which the separate 

existence, and constitutional independence are each fully provided for”). 
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Madison). In short, “the lesson the Founding Fathers drew was that separation of 

powers needed to be qualified by checks and balances lest one branch become 

overpowerful.” Orth at 4.

¶ 150 Specifically, the founders expressed concern about an overpowerful legislature. 

In The Federalist No. 48, Madison warned that because the constitutional powers of 

the legislative branch are “at once more extensive, and less susceptible of precise 

limits, it can, with greater facility, mask, under complicated and indirect measures, 

the encroachment which it makes on the co-ordinate departments.” Federalist No. 48. 

Accordingly, Alexander Hamilton observed in The Federalist No. 78 that “the courts 

were designed to be an intermediate body between the people and the legislature in 

order, among other things, to keep the latter within the [constitutional] limits 

assigned to their authority.” This role does not 

suppose a superiority of the judicial to the legislative 

power. It only supposes that the power of the people is 

superior to both, and that where the will of the legislature 

. . . stands in opposition to that of the people, declared in 

the Constitution, the judges ought to be governed by the 

later rather than the former. They ought to regulate their 

decisions by the fundamental laws rather than by those 

which are not fundamental.

Id.

¶ 151 Precedents from this Court align with these foundational authorities. This 

Court has long made clear that “[o]bedience to the Constitution on the part of the 

Legislature is no more necessary to orderly government than the exercise of the power 
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of the Court in requiring it when the Legislature inadvertently exceeds its 

limitations.” State v. Harris, 216 N.C. 746, 764 (1940). As such, for over two centuries 

our courts have faithfully checked legislative actions for constitutional compliance. 

See Bayard, 1 N.C. 5. “Like the jealous checks by one branch upon the encroachments 

of another, which the Framers viewed positively as the basis for government’s critical 

balance, a functional overlap of powers should facilitate the tasks of each branch.” 

Alamance, 329 N.C. at 97. 

¶ 152 In extraordinary circumstances, this Court has held that this “functional 

overlap of powers” may include directing the transfer of State funds. In Alamance, 

this Court held that even within “the realm of appropriations, some overlap of power 

between the legislative and the judicial branches is inevitable.” 329 N.C. at 97. There, 

the Court held “that when inaction by those exercising legislative authority threatens 

fiscally to undermine the integrity of the judiciary, a court may invoke its inherent 

power to do what is reasonably necessary for the orderly and efficient exercise of the 

administration of justice.” Id. at 99. Here, we invoke our inherent authority to protect 

against an equally grave threat of legislative inaction: the indefinite violation of the 

constitutional right to the opportunity to a sound basic education. 

¶ 153 Even standing apart from checks and balances, separation of power principles 

likewise support this holding. “[T]he separation of powers clause requires that, as the 

three branches of government carry out their duties, one branch will not prevent 
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another branch from performing its core functions.” McCrory, 368 N.C. at 636. Here, 

to allow the State to indefinitely fail to meet the minimum standards for effectuating 

the constitutional right to obtain a sound basic education would violate this maxim 

by preventing the judiciary from performing its core duty of interpreting our 

Constitution and “protecting the state constitutional rights of the citizens.” Corum, 

330 N.C. 761.

¶ 154 Below, the dissent would abandon all notions of checks and balances in favor 

of an absolutely rigid interpretation of the separation of powers. Such an approach 

would empower the legislative or executive branch to indefinitely violate the 

fundamental constitutional rights of the people without consequence in direct 

contravention of the judiciary’s own constitutional “responsibility to protect the state 

constitutional rights of the citizens.” Corum, 330 N.C. at 783. 

¶ 155 Finally, this holding aligns with precedent regarding equitable remedies. 

When extraordinary circumstances render it necessary and proper for a court to 

exercise its inherent authority, it is obligated and empowered to craft and order 

flexible equitable relief to remedy the violation of fundamental constitutional rights. 

“It is the unique role of the courts to fashion equitable remedies to protect and 

promote the principles of equity.” Lankford v. Wright, 347 N.C. 115, 120 (1997) “It is 

a long-standing principle that ‘when equitable relief is sought, courts claim the power 

to grant, deny, limit, or shape that relief as a matter of discretion.’ ” Sara Lee Corp. 
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v. Carter, 351 N.C. 27, 36 (1999) (quoting Roberts v. Madison County Realtors Ass’n, 

344 N.C. 394, 399 (1996)). “A court of equity traditionally has discretion to shape the 

relief in accord with its view of the equities or hardships of the case.” Roberts, 344 

N.C. at 401. “It is a fundamental premise of equitable relief that equity regards as 

done that which in fairness and good conscience ought to be done.” Thompson v. Sole, 

299 N.C. 484, 489 (1980). Intuitively, “[v]arious rights that are protected by our 

Declaration of Rights may require greater or lesser relief to rectify the violation of 

such rights, depending on the right violated and the facts of the particular case.” 

Corum, 330 N.C. at 784.

¶ 156 The equitable remedy considered within this case is extraordinary, but not 

unprecedented. Indeed, precedent for this broad and flexible equitable remedial 

power can be found within this very litigation, in other cases from this Court, and in 

related cases from federal courts and other state courts.

¶ 157 First, emphasis on this Court’s equitable remedial power can be found within 

the history of this very case. In Leandro I, after recognizing the constitutional right 

to a sound basic education, this Court summarized the process and standards through 

which a violation of that right may be established and how the judiciary may address 

such a violation. 346 N.C. at 357. Because “the administration of the public schools 

of the state is best left to the legislative and executive branches of government,” the 

Court emphasized that “the courts of the state must grant every reasonable deference 
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to [those] branches when considering whether they have established and are 

administering a system that provides the children of the various school districts of 

the state a sound basic education.” Id. 

A clear showing to the contrary must be made before the 

courts may conclude that they have not. Only such a clear 

showing will justify a judicial intrusion into an area so 

clearly the province, initially at least, of the legislative and 

executive branches as the determination of what course of 

action will lead to a sound basic education.

Id. 

¶ 158 However, immediately following the explanation of this procedure, this Court 

made expressly clear that

[l]ike the other branches of government, the judicial branch 

has its duty under the North Carolina Constitution. If on 

remand of this case to the trial court, that court makes 

findings and conclusions from competent evidence to the 

effect that defendants in this case are denying children of 

the state a sound basic education, a denial of a 

fundamental right will have been established. It will then 

become incumbent upon defendants to establish that their 

actions denying this fundamental right are necessary to 

promote a compelling governmental interest. If defendants 

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

enter a judgment granting declaratory relief and such other 

relief as necessary to correct the wrong while minimizing 

the encroachment upon the other branches of government.

Id. (emphasis added).
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¶ 159 In Leandro II, this Court was even more explicit. After holding that the trial 

court’s pre-kindergarten order was premature at that early stage of the remedial 

process, this Court cautioned:

[c]ertainly, when the State fails to live up to its 

constitutional duties, a court is empowered to order the 

deficiency remedied, and if the offending branch of 

government or its agents either fail to do so or have 

consistently shown an inability to do so, a court is 

empowered to provide relief by imposing a specific remedy 

and instructing the recalcitrant state actors to implement 

it.

Leandro II, 358 N.C. at 642 (emphasis added). Today, we confirm that we meant what 

we said in Leandro I and II.

¶ 160 Second, prior cases likewise affirm this Court’s broad equitable powers to 

remedy the violation of rights in a wide variety of substantive and procedural 

contexts. In Alamance, for instance, this Court addressed the inaction of county 

officials to adequately fund the county’s court facilities. 329 N.C. at 884. This Court 

held that “[a]lthough the statutes do not expressly pass the duty of providing 

adequate judicial facilities to the court in cases of default by local authorities, the 

court has the inherent authority [to remedy the violation by] direct[ing] local 

authorities to perform that duty.”15 329 N.C. at 99. Ultimately, the Court vacated the 

 

15 Here, by contrast, the General Assembly does have an express constitutional duty 

to “guard and maintain” the right to a sound basic education and to fund that right “by 

taxation and otherwise.” N.C. Const. art. I, § 15; N.C. Const. art. IX, § 2; see generally Leandro 

I, 346 N.C. 336; Leandro II, 358 N.C. 605.
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trial court’s order because “in form and in substance the order’s attempted remedy 

went beyond requiring the Alamance County Commissioners to do their 

constitutional and statutory duty” and therefore “exceeded what was reasonably 

necessary to the administration of justice under the circumstances of th[at] case, and 

in so doing strained at the rational limits of the court’s inherent power.” Id. at 106–

07. A more reasonable remedy, the Court explained, would be to “call attention to [the 

official’s] statutory duty and their apparent failure to perform that duty,” and “[i]f 

after a hearing it was determined that the commissioners had indeed failed to 

perform their duty, . . . the court could order the commissioners to respond with a 

[remedial] plan . . . to submit to the court within a reasonable time.”16 Id. at 107. If 

at that point the violation persisted, the Court implied, the trial court’s more invasive 

remedy would have been more appropriate. See id. at 106–07. 

¶ 161 Similarly, this Court has long recognized the judiciary’s broad equitable 

powers to remedy constitutional violations through ordering the transfer of State 

funds by mandamus. In Wilson v. Jenkins, this Court declared that 

the [c]ourts have no power to compel, by mandamus, the 

Public Treasurer to pay a debt which the General Assembly 

has directed him not to pay, the Auditor to give a warrant 

upon the Treasurer which the General Assembly has 

directed him not to give, unless the act of the General 

Assembly be void as violating the Constitution of the United 

States of or this State.

 

16 Notably, this is exactly what the trial court has already done in this case.
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72 N.C. 5, 6 (1875) (emphasis added). 

¶ 162 So too in the context of ordering certain education funding. In Hickory v. 

Catawba County, this Court affirmed the trial court’s use of mandamus to compel the 

County and the Board of County Commissioners to assume payment of school 

buildings and the debt of the school district. 206 N.C. 165, 170–74 (1934). Because 

“[t]he defendants are public agencies charged with the performance of duties imposed 

by the Constitution and by statutes[,]” the Court held that “upon their failure or 

refusal to discharge the required duties resort may be had to the courts to compel 

performance by the writ of mandamus.” Id. at 173. In Mebane Graded School District 

v. Alamance County, this Court held the same. 211 N.C. 213 (1937). There, the Court 

stated that

[u]nder legal authority, the county of Alamance has 

assumed almost every school debt of every school district 

except the Mebane District. Having assumed part, it is the 

duty, under the facts in this case, to assume the 

indebtedness of the Mebane District, and from the findings 

of the jury mandamus will lie to compel them to do so. 

Technicalities and refinements should not be seriously 

considered in a case like this involving a constitutional 

mandate, but the record should be so interpreted that 

substantial justice should be done. Under the facts in this 

case and the findings of the jury, it would be inequitable 

and unconscionable for defendants to assume part and not 

all of the indebtedness of the school districts of Alamance 

and not assume the plaintiffs’ indebtedness and give them 

the relief demanded.

Id. at 226–27. 
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¶ 163 So too in a variety of other substantive and procedural contexts. In Lankford 

v. Wright, this Court concluded that in the adoption context, “a decree of equitable 

adoption should be granted where justice, equity, and good faith require it.” 347 N.C. 

115, 121 (1997). In Sara Lee Corp., this Court relied on flexible equitable remedial 

power to conclude that “the trial court properly exercised its discretion in ordering 

that defendant’s workers’ compensation benefits be placed in a constructive trust.” 

351 N.C. at 37. In White v. Worth, this Court affirmed the trial court’s mandamus 

ordering the State auditor and State treasurer to transfer state funds to pay the 

state’s chief inspector in order to uphold the inspector’s statutory right to such 

payment. 126 N.C. 570, 547–78 (1900). While the substantive and procedural context 

of these cases (and many others) are diverse, their foundational principle is unified: 

when addressing the violation of rights, our courts enjoy broad and flexible equitable 

power to ensure that the violation is justly remedied.

¶ 164 Third, federal precedents provide persuasive authority. Indeed, the Supreme 

Court of the United States has previously addressed the broad scope of judicial 

equitable remedial power in protecting the constitutional rights of marginalized 

students from executive and legislative violation and recalcitrance.

¶ 165 In 1954, the U.S. Supreme Court in Brown I declared that “in the field of public 

education, the doctrine of ‘separate but equal’ has no place.” 347 U.S. at 494. In ruling 

that racial segregation in public schools violated the equal protection rights of Black 
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students, the Court struck down perhaps the most visible and consequential pillar of 

white supremacy and racial subordination in American society. In its second ruling 

in the case, the Court expressly directed the federal district courts responsible for 

overseeing the enforcement of desegregation to engage in equitable principles:

In fashioning and effectuating the decrees, the courts will 

be guided by equitable principles. Traditionally, equity has 

been characterized by a practical flexibility in shaping its 

remedies and by a facility for adjusting and reconciling 

public and private needs. These cases call for the exercise 

of these traditional attributes of equity power. At stake is 

the personal interests of the plaintiffs in admission to 

public schools as soon as practicable on a 

nondiscriminatory basis. To effectuate this interest may 

call for elimination of a variety of obstacles in making the 

transition to school systems operated in accordance with 

the constitutional principles set forth in [Brown I]. Courts 

of equity may properly take into account the public interest 

in the elimination of such obstacles in a systemic and 

effective manner. But it should go without saying that the 

vitality of these constitutional principles cannot be allowed

to yield simply because of disagreement with them.

Brown v. Bd. of Educ., 349 U.S. 294, 300 (1955) (footnotes omitted) (Brown II).

¶ 166 Yet disagreement there was. Immediately following Brown I and Brown II, 

many white state officials vigorously resisted and defied the Court’s order to 

desegregate their public schools.17 For several years, the federal judiciary largely 

deferred to these state officials. But as resistance to Brown continued and intensified, 

 

17 See generally Mark Tushnet, Making Civil Rights Law 247–56 (1994) (documenting 

the “massive resistance” against Brown).
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the U.S. Supreme Court in a series of rulings exercised its inherent authority to 

protect the constitutional rights of marginalized students by ordering broad and 

flexible equitable remedies.

¶ 167 In 1958 in Cooper v. Aaron, the Court addressed resistance to desegregation 

by executive and legislative officials in Arkansas. 358 U.S. 1 (1958). “The 

constitutional rights of respondents[,]” the Court declared, “are not to be sacrificed or 

yielded to the violence and disorder which have followed upon the actions of the 

Governor and the Legislature.” Id. at 16. While it is “quite true that the responsibility

for public education is primarily the concern” of state officials, the Court noted that 

“it is equally true that such responsibilities, like all other state activity, must be 

exercised consistently with federal constitutional requirements.” Id. at 19. Only 

through compliance with these principles, the Court concluded, “[is] [o]ur 

constitutional ideal of equal justice under law . . . made a living truth.” Id. at 20. 

¶ 168 In 1964 in Griffin v. County School Board, the Court spoke more forcefully. 377 

U.S. 218. There, the Court addressed resistance to desegregation by state and local 

officials in Virginia, where “[t]he General Assembly . . . enacted legislation to close 

any public schools where white and colored children were enrolled together, to cut off 

state funds to such schools, [and] to pay tuition grants to children in nonsectarian 

private schools.” Id. at 221. In addressing “the question of the kind of decree 

necessary and appropriate to put an end to the racial discrimination practiced against 
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these petitioners under authority of the Virginia laws[,]” the Court noted that “all of 

[the state official defendants] have duties which relate directly or indirectly to the 

financing, supervision, or operation of the schools.” Id. at 232. Accordingly, the Court 

declared that “the District Court may, if necessary to prevent further racial 

discrimination, require the [applicable officials] to exercise the power that is theirs to 

levy taxes to raise funds adequate to reopen, operate, and maintain without racial 

discrimination a public school system.” Id. at 233 (emphasis added). “An order of this 

kind is within the court’s power if required to assure these petitioners that their 

constitutional rights will no longer be denied them.” Id. at 233–34.

¶ 169 Finally, in 1971 in Swann v. Charlotte-Mecklenburg Board of Education, the 

Court further emphasized its broad and flexible power to order equitable remedies. 

402 U.S. 1. There, after the district court deemed the school board’s initial 

desegregation plan unacceptable, it “appointed an expert in education 

administration, Dr. John Finger, to prepare a desegregation plan.” Id. at 8. When the 

district court ordered the school district to implement this plan, the school board 

challenged the district court’s equitable remedial powers, arguing that the court had 

gone too far in ordering the implementation of the plan. Id. at 16–17. 

¶ 170 On appeal, the U.S. Supreme Court unanimously affirmed the district court’s 

expansive and adaptable authority to enact equitable remedies in the face of an 

ongoing constitutional violation. Id. at 32. “Once a right and a violation have been 
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shown,” the Court declared, “the scope of a district court’s equitable powers to remedy 

past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” 

Id. at 15. Indeed, it was only “because of th[e] total failure of the school board that 

the District Court was obligated to turn to other qualified sources, and Dr. Finger 

was designated to assist the District Court to do what the board should have done.” 

Id. at 25 (emphasis added). “Thus the remedial techniques used in the District Court’s 

order were within that court’s power to provide equitable relief; implementation of 

the decree is well within the capacity of the school authority.” Id. at 30.

¶ 171 Of course, notable differences exist between the circumstance of the U.S. 

Supreme Court enforcing Brown and the circumstances here. Where the rights in 

Brown originate in the federal Constitution, the rights in this case originate in the 

North Carolina Constitution. Where Brown and its progeny remedied a denial of 

education access, this case remedies a denial of education adequacy. Where Brown

and its progeny considered issues of federalism, this case considers those of the 

separation of powers and checks and balances between coequal branches of state 

government. 

¶ 172 Nevertheless, the broader applicability of Brown and its progeny to our inquiry 

today arises from the fundamental alignment of the question at the heart of each 

case: what is the proper role of the judiciary in guarding and maintaining the 

constitutional rights of marginalized schoolchildren in the face of ongoing violations 
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by state legislative and executive powers? Because of the alignment of this 

fundamental question, the U.S. Supreme Court’s answer in the wake of Brown

informs our answer here.

¶ 173 Fourth, rulings from other state supreme courts lend support. Many other 

state supreme courts have exercised broad and flexible equitable remedial powers to 

address ongoing violations of state constitutional education rights. In 1989, the 

Supreme Court of Kentucky affirmed the trial court’s determination that the state’s 

school finance system was unconstitutional and ordered the state to completely 

redesign it to ensure adequate funding to meet the needs of marginalized students. 

See Rose v. Council for Better Educ., 790 S.W.2d 186, 215 (1989) (“Lest there be any 

doubt, the result of our decision is that Kentucky’s entire system of common schools 

is unconstitutional.”). In 2003, the Court of Appeals of New York (that state’s highest 

appellate court) ordered the state to reform its school finance system to provide for a 

comprehensive package of foundational educational resources identified by the court. 

See Campaign for Fiscal Equity, Inc. v. State, 100 N.Y.2d 893, 930 (2003) (ordering 

that the State “ascertain the actual cost of providing a sound basic education in New 

York City” and implement subsequent reforms to “address the shortcomings of the 

current system by ensuring . . . that every school in New York City would have the 

resources necessary for providing the opportunity for a sound basic education”). 
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¶ 174 Other supreme courts have likewise ordered the reallocation of state funds. In 

2011, the Supreme Court of New Jersey ordered the state to provide approximately 

$500 million in additional education funding after violating its constitutional duty.

See Abbott v. Burke, 206 N.J. 332, 376 (2011) (“We order that funding to the Abbott 

districts in FY 2012 must be calculated and provided in accordance with the SFRA 

formula.”). In 2017, the Supreme Court of Kansas determined the state’s education 

finance system was constitutionally noncompliant and ordered the legislature to 

enact legislation remedying the deficiency in “both adequacy and equity.” Gannon v. 

State, 306 Kan. 1170, 1173 (2017). The court emphasized that continued judicial 

deference to the legislature’s constitutional violation would “make[ ] the courts 

vulnerable to becoming complicit actors in the deprivation of those rights.” Id. at 

1174. Finally, the Supreme Court of Washington in 2017 affirmed the trial court’s 

order finding the state’s education funding system to be constitutionally deficient and

imposing a $100,000 daily contempt sanction on the state until compliance was 

achieved. See McCleary v. State, 2017 Wash. 2017 WL 11680212, *1 (2017) (“The court 

will retain jurisdiction, continue to impose daily sanctions, and reserve all 

enforcement options to compel compliance with its decision and orders.”).

¶ 175 Of course, these cases are not binding precedent upon this Court. They arise 

in different jurisdictions under different facts and different constitutional language. 
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Nevertheless, as with the federal cases noted above, they provide important national 

context and persuasive authority for this Court’s similar ruling today. 

¶ 176 Legislative Defendants and the Controller contend that declaratory relief 

constitutes the farthest reach of judicial power on this issue. Based on the 

intersection of the Appropriations Clause and the Separation of Powers Clause noted 

above, they argue that once a court issues such a decree, the matter is then 

exclusively in the hands of the voters to elect new legislators if they so choose. But 

compliance with our Constitution is not a mere policy choice in which legislators may 

align with one side or another. Indeed, the people of North Carolina have already 

spoken on this issue through the Constitution itself, which constitutes the supreme 

will of the people. There, they mandated that the State must guard and maintain the 

right to the opportunity to a sound basic education. See Leandro I, 346 N.C. 336.

* * * * *

¶ 177 In summary, constitutional violations demand a just remedy. N.C. Const. art. 

I, § 18. As the ultimate interpreter of our State Constitution, this Court “has the 

responsibility to protect the state constitutional rights of the citizens.” Corum, 330 

N.C. at 783. Correspondingly, the judiciary is empowered with “inherent 

constitutional power to fashion a common law remedy for a violation of a particular 

constitutional right.” Id. at 784. When necessary for the proper administration of 

justice based on the inaction of another branch, and within important limitations,
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that inherent judicial power may include the authority to craft a remedy “whereby 

one branch exercises some activities usually belonging to one of the other two 

branches in order to fully and properly discharge its duties.” Alamance, 329 N.C. at 

97. 

¶ 178 Here, our Constitution requires the General Assembly to exercise its power 

under the Appropriations Clause in contemporaneous compliance with its 

constitutional duties under the Education Provisions. Accordingly, in exceedingly 

rare and extraordinary circumstances, a court may remedy an ongoing violation of 

the constitutional right to a sound basic education by directing the transfer of 

adequate available state funds. However, a court may reach for such an extraordinary 

remedy “only when established methods fail,” and even then must “minimize the 

encroachment upon those with legislative authority in appearance and in fact.” Id.

This holding maintains the integrity of our Constitution, honors the principles of 

checks and balances and separation of powers, aligns with this Court’s precedent on 

equitable remedial power, and is supported by federal and state rulings in similar 

contexts. 

C. Application

¶ 179 Now, we must apply the constitutional analysis above to the two trial court 

orders in question on this appeal: the November 2021 Order and the April 2022 

Order. We address each in turn. This Court reviews constitutional issues de novo.
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1. November 2021 Order

¶ 180 We first review the trial court’s 10 November 2021 Order (November 2021 

Order). The November 2021 Order begins with thorough findings of fact regarding 

the long and extraordinary history of this case. These factual findings document the 

trial court’s previous repeated findings of a statewide constitutional violation, the 

State’s repeated failure to adequately remedy that violation, and the trial court’s 

repeated deference to the executive and legislative branches to do so. The Order finds 

that the CRP “is the only remedial plan that the State Defendants have presented to 

the [c]ourt,” and that “more than sufficient funds are available to execute the current 

need of the [CRP].” The Order’s factual findings conclude by observing: “[i]n the 

seventeen years since the Leandro II decision, a new generation of school children, 

especially those at-risk and socio-economically disadvantaged, were denied their 

constitutional right to a sound basic education. Further and continued damage is 

happening now, especially to at-risk children from impoverished backgrounds, and 

that cannot continue.”

¶ 181 The November 2021 Order subsequently makes several conclusions of law. The 

Order concludes that “[b]ecause the State has failed for more than seventeen years to 

remedy the constitutional violation as the Supreme Court ordered, this [c]ourt must 

provide a remedy through the exercise of its constitutional role.” To continue to defer, 

the Order concludes, “will threaten the integrity and viability of the North Carolina 
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Constitution by . . . nullifying [its] language without the people’s consent, . . . ignoring 

rulings of the Supreme Court of North Carolina[,] . . . and . . . violating separation of 

powers.” The Order further concludes that the Education Provisions constitute “an 

ongoing constitutional appropriation of funds sufficient to create and maintain a 

school system that provides each of our State’s students with the constitutional

minimum of a sound basic education. This constitutional provision may therefore be 

deemed an appropriation ‘made by law.’ ” Finally, the Order concludes that the trial 

court has “minimized its encroachment on legislative authority through the least 

intrusive remedy” through its seventeen years of unfettered deference in every aspect 

of the case, including allowing the State itself to create and implement the CRP. 

¶ 182 Based on these factual findings and legal conclusions, the November 2021 

Order orders the OSMB and the State Budget Director, the Office of the State 

Controller and the State Controller, and the Office of the State Treasurer and the 

State Treasurer to “take the necessary actions to transfer the total amount of funds 

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

within the General Funds to the state agents and state actors with fiscal 

responsibility for implementing the [CRP].” The Order then specifies the dollar 

amounts of three transfers to DHHS, DPI, and the UNC System. The Order directs 

these recipients, their agents, and all other involved State actors to administer those 

funds and take any other actions necessary “to guarantee the opportunity of a sound 
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basic education consistent with, and under the times frames set out in, the [CRP], 

including the Appendix thereto.” 

¶ 183 Today, this Court affirms the constitutionality of the November 2021 Order’s 

transfer directives. We reach this holding because, given the extraordinary 

circumstances of this case, the trial court acted within its inherent power to address 

ongoing constitutional violations through equitable remedies while minimizing its 

encroachment upon the legislative branch. 

¶ 184 In Leandro I, this Court established the procedure through which a court may 

identify and remedy a violation of the fundamental right to a sound basic education. 

The Court stated that

[T]he courts of this state must grant every reasonable 

deference to the legislative and executive branches when 

considering whether they have established and are 

administering a system that provides the children of the 

various school districts of the state a sound basic education. 

A clear showing to the contrary must be made before the 

courts may conclude that they have not. . . .

. . . . [If a] court makes findings and conclusions from 

competent evidence to the effect that defendants in this 

case are denying children of the state a sound basic 

education, a denial of a fundamental right will have been 

established. It will then become incumbent upon 

defendants to establish that their actions denying this 

fundamental right are “necessary to promote a compelling 

governmental interest.” If defendants are unable to do so, 

it will then be the duty of the court to enter a judgment 

granting declaratory relief and such other relief as 

necessary to correct the wrong while minimizing the 

encroachment upon the other branches of government.
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346 N.C. at 357 (citations omitted). 

¶ 185 In Leandro II, this Court further noted that

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

a court is empowered to order the deficiency remedied, and 

if the offending branch of government or its agents either 

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

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

specific remedy and instructing the recalcitrant state 

actors to implement it.

358 N.C. at 642.

¶ 186 As noted above, when the action or inaction of a coequal branch of government 

indefinitely violates the fundamental constitutional rights of the people, a court—

after showing appropriate deference—may invoke its inherent power to do what is 

reasonably necessary to remedy the violation. Under extraordinary circumstances, 

this may include directing state actors to transfer available state funds in order to 

guard and maintain the right of every child to the opportunity to a sound basic 

education. 

¶ 187 Even then, important limitations apply.

[A] court’s judicious use of its inherent power to reach 

towards the public purse must recognize two critical 

limitations: first, it must bow to established procedural 

methods where these provide an alternative to the 

extraordinary exercise of its inherent power. Second, in the 

interests of the future harmony of the branches, the court 

in exercising that power must minimize the encroachment

upon those branches with legislative authority in 

appearance and in fact . . . [by] seeking the least intrusive

remedy.
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Alamance, 329 N.C. at 100–01.

¶ 188 Here, the trial court faithfully complied with these procedures, powers, and 

limitations. First, after an extensive trial in which it granted every reasonable 

deference to the executive and legislative branches, it determined based on an 

abundance of clear and convincing evidence that the State was violating its 

constitutional obligation to guard and maintain the right of all North Carolina 

schoolchildren to the opportunity to a sound basic education as defined by Leandro I. 

While the trial court focused primarily on Hoke County as a representative district, 

it expressly and repeatedly made findings of fact and conclusions of law regarding a 

statewide violation that was not isolated to Hoke County.18 The State has never and 

does not contend that this statewide violation is necessary to promote a compelling 

governmental interest. 

¶ 189 In Leandro II, this Court affirmed the trial court’s conclusion. 358 N.C. 605. 

This Court’s opinion limited itself to Hoke County as a representative district but

directed the trial court on remand to conduct “further proceedings that include, but 

are not necessarily limited to, presentations of relevant evidence by the parties, and 

findings and conclusions of law by the trial court” regarding other districts. Id. at 613 

 

18 The State itself likewise emphasized that any remedial efforts must be directed 

statewide because “[t]he State . . . never understood the Supreme Court or [the trial] [c]ourt 

to have ordered the defendants to provide students in Hoke County or any of the other 

plaintiff or plaintiff-intervenor school districts special treatment, services or resources which 

were not available to at-risk students in other LEAs across the State.”
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n.5. Within these further proceedings, the Court emphasized, “a broader mandate 

may ultimately be required.” Id. at 633 n.15. Upon remand, this Court instructed the 

trial court to “proceed, as necessary, in a fashion that is consistent with the tenets 

outlined in this opinion.” Id. at 648.19

¶ 190 So the trial court did. For about fourteen years, the trial court presided over 

presentations of relevant evidence by the parties in open court and made volumes 

upon volumes of factual findings and conclusions of law. These repeatedly affirmed 

the same ultimate legal conclusion: that despite its piecemeal remedial efforts, the 

State remained in statewide violation of its constitutional duty to provide all students 

with the opportunity to receive a sound basic education.

¶ 191 True, these factual findings and legal conclusions were typically issued within 

documents titled “Notice of Hearing and Order” rather than just “Order.” But it is 

well within this Court’s ability and authority to properly identify factual findings and 

legal conclusions as such, regardless of how they are labeled by a trial court. See, e.g., 

In re J.O.D., 374 N.C. 797, 807 (2020) (identifying findings of fact and conclusions of 

law as such despite trial court labels). Further, this Court already articulated in 

Leandro II that

[i]n our view, the unique procedural posture and 

 

19 Contrary to the claim of the dissent below, this Court in Leandro II did not expressly 

direct the trial court to conduct additional trials. Rather, it instructed the trial court to 

“proceed, as necessary, in a fashion that is consistent with the tenets outlined in this opinion.” 

Id.
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substantive importance of this case compel us to adopt and 

apply the broadened parameters of a declaratory judgment 

action that is premised on issues of great public interest. 

The children of North Carolina are our state’s most 

valuable renewable resource. If inordinate numbers of 

them are wrongfully being denied their constitutional right 

to the opportunity for a sound basic education, our state 

courts cannot risk further and continued damage because 

the perfect civil action has proved elusive.

358 N.C. at 616. So too here regarding the perfectly formatted court paper.20

“Technicalities and refinements should not be seriously considered in a case like this 

involving a constitutional mandate, but the record should be so interpreted that 

substantial justice should be done.” Mebane, 211 N.C. at 227. Indeed, “[f]or well over 

a century, North Carolina courts have abided by the foundational principles that 

administering equity and justice prohibits the elevation of form over substance.” M.E. 

v. T.J., 380 N.C. 539, 2022-NCSC-23, ¶ 1. To cover our eyes and plug our ears to the 

trial court’s express and repeated findings and conclusions of a statewide Leandro

violation because of procedural imperfections would squarely violate that prohibition. 

Accordingly, this Court holds that the trial court, in alignment with this Court’s 

instructions in Leandro II, properly concluded based on an abundance of clear and 

convincing evidence that the State’s Leandro violation was statewide.21

 

20 In fact, this Court has already recognized and proven itself able to handle the “freewheeling nature” of the trial court’s various and voluminous orders in Leandro II. 358 N.C. 

at 621.

21 For a summary of this evidence, see the Factual and Procedural History above.
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¶ 192 Next, the November 2021 Order properly concluded that the trial court showed 

sufficient deference to the executive and legislative branches to remedy this violation.

As summarized above, this conclusion is grounded in eighteen years of clear and 

convincing evidence. Year after year, hearing after hearing, attempt after attempt, 

the trial court continued to provide the executive and legislative branches more time 

and space to fix the violation on their own terms. Yet year after year, hearing after 

hearing, attempt after attempt, they did not. 

¶ 193 Over these years, the trial court made clear its increasing frustration and 

decreasing patience with the State’s failure to remedy the violation despite its 

constitutional and court-ordered obligation to do so. In 2015, for instance, the trial 

court lamented that

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

of Hearings and Orders regarding unacceptable academic 

performance, and even after the North Carolina Supreme 

Court plainly stated that the mandates of Leandro remain 

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

education . . . still seem unable to understand that the 

constitutional right to have an equal opportunity to 

obtain a sound basic education is a right vested in 

each and every child in North Carolina regardless of 

their respective age or educational needs.

The court subsequently ordered the State to “propose a definite plan of action as to 

how the State of North Carolina intends to correct the educational deficiencies in the 

student population.” Three years later, the trial court expressly warned the State 

that
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[the] trial court has held status conference after status 

conference and continues to exercise tremendous judicial 

restraint. . . . The time is drawing nigh, however, when due 

deference to both the legislative and executive branches 

must yield to the court’s duty to adequately safeguard and 

actively enforce the constitutional mandate on which this 

case is premised. It is the sincere desire of this court that 

the legislative and executive branches heed the call.

(Emphasis added.) Three years after that, the trial court cautioned the State that “in 

the event the full funds necessary to implement the [CRP] are not secured . . . , the 

[c]ourt will hear and consider any proposals for how the [c]ourt may use its remedial 

powers to secure such funding.” Even in the November 2021 Order itself, the trial 

court showed continued deference by staying its order for thirty days “to permit the 

other branches of government to take further action consistent with the findings and 

conclusions of this Order.”

¶ 194 In short, the trial court demonstrated an abundance of restraint and deference 

to its coequal branches in compliance with this Court’s instructions in Leandro I and 

II. Accordingly, this Court holds that the trial court’s November 2021 Order properly 

concluded based on an abundance of clear and convincing evidence that the trial court 

had shown sufficient deference to the executive and legislative branches.

¶ 195 When a constitutional violation persists after extended judicial deference, “a 

court is empowered to provide relief by imposing a specific remedy and instructing 

the recalcitrant state actors to implement it.” Leandro II, 358 N.C. at 642. As 

explained above, in exceedingly rare and extraordinary circumstances, a court’s 
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inherent power to remedy an ongoing violation of the constitutional right to a sound 

basic education includes the authority to direct the transfer of adequate available 

state funds to address that violation. Before doing so, however, the court must first 

exhaust all established alternative procedural methods. Alamance, 329 N.C. at 100–

01. Further, a court exercising such extraordinary authority must minimize its 

encroachment by seeking the least intrusive remedy. Id.

¶ 196 Here, we hold that the trial court properly exercised its remedial authority 

within these limitations. First, the circumstances of this case are exceedingly rare 

and extraordinary. For eighteen years, the executive and legislative branches have 

repeatedly failed to remedy an established statewide violation of the constitutional 

right to the opportunity to a sound basic education. As noted by the trial court, since 

Leandro II, an entire “new generation of school children, especially those at-risk and 

socio-economically disadvantaged, were denied their constitutional right to a sound 

basic education.” The court has repeatedly deferred. The State has repeatedly failed. 

All the while, North Carolina’s schoolchildren, their families, their communities, and 

the state itself have suffered the incalculable negative consequences. These 

extraordinary circumstances demand swift and decisive remedy.

¶ 197 Second, the trial court properly exhausted all established alternative methods 

before directing the transfer of available State funds. For the past eighteen years, the 

trial court allowed the State to craft and implement its own remedies, pass new 
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budgets, consult and engage with independent experts, establish commissions, and

create its own comprehensive remedial plan. During this time, the court has stuck to 

more traditional judicial procedures: issuing declaratory judgments and ordering the 

parties to remedy the violation on their own terms. They have not. Only after 

exhausting these more ordinary alternatives did the trial court reach for the 

extraordinary measure of ordering the transfer of available State funds. 

¶ 198 Third, in doing so, the trial court minimized its encroachment by seeking the 

least intrusive remedy that would still adequately address the constitutional 

violation. On its face, the November 2021 Order does not involve the legislative 

branch at all; it does not order the General Assembly to pass certain legislation, raise 

additional state funds through taxation, conduct certain legislative proceedings, or 

pay a daily contempt sanction, as other state courts have ordered under similar 

circumstances. Such remedies would have directly forced the General Assembly’s 

hand to take certain actions, thereby exerting a higher degree of judicial influence 

over legislative powers.

¶ 199 Instead, the November 2021 Order opted for a less intrusive measure: directing 

certain executive officials responsible for transferring State funds to make certain 

transfers as if the General Assembly had directed the same. This remedy minimizes 

encroachment by implicating legislative duties without directing any order toward 

the legislature itself. To be sure, it is safe to say that everyone involved in this 
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litigation—including this Court—would have preferred if the legislature had fulfilled 

these legislative duties. But it has not. That leaves the judiciary with the 

constitutional obligation to fulfill its own role in guarding and maintaining the right 

to a sound basic education by directing the transfer of remedial funds.22

¶ 200 The invasiveness of the November 2021 Order is further minimized because 

these funds are readily available. The trial court found based on clear, convincing, 

and undisputed evidence “that more than sufficient funds are available to execute the 

current needs of the [CRP].” Accordingly, the November 2021 Order did not require 

the State to raise additional funds or to reallocate funds that had previously been 

allocated for other uses, which could implicate policy choices. Rather, it directs the 

State actors to transfer the necessary funds “from the unappropriated balance with 

the General Fund.”23

¶ 201 Finally, the invasiveness of the November 2021 Order must be assessed within 

the broader history and context of the litigation that necessitated it. For instance, it 

is true that yet another declaratory judgment order—as later issued in the April 2022 

Order—would have been less invasive than the November 2021 Order’s transfer 

 

22 See Swann, 402 U.S. at 25 (“It was because of this total failure of the school board 

that the District Court was obligated to turn to other qualified sources, and Dr. Finger was 

designated to assist the District Court to do what the board should have done.”).

23 This is not to minimize the effort required by these State officials in properly 

executing the transfer of these funds, which the Court recognizes as a challenging 

administrative task. However, it does not implicate the same policy choices that would be 

involved in reallocating funds between different agencies or initiatives.
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directive. However, given the history of this case in which the trial court issued such 

declaratory judgments again and again and again to no avail, issuing the same 

judgment one more time with crossed fingers and bated breath cannot reasonably be 

considered a remedy at all. Instead, the State’s repeated and ongoing failure to 

remedy the constitutional violation after many prior such declaratory judgments 

required the trial court to this time do more.

¶ 202 Below, the dissent insists that affirming the November 2021 Order would allow 

this Court to invoke similar inherent authority in a wide variety of dissimilar 

contexts. This parade of horribles is—in a word—overstated. To be clear, today’s 

ruling creates precedent for the exercise of this type of judicial remedial power in 

exactly one circumstance: when the recalcitrant inaction of the legislative or 

executive branch indefinitely violates the fundamental constitutional rights of the 

people after years of judicial deference.

24

¶ 203 Finally, the dissent contends that affirming the November 2021 Order would 

violate the rights of the Controller. But as an executive branch official, the 

Controller’s interests have been adequately represented throughout this litigation. A 

court cannot reasonably add as a party to a case every state official who may be 

 

24 See Leandro II, 358 N.C. at 642 (“[W]hen the State fails to live up to its 

constitutional duties, a court is empowered to order deficiency remedied, and if the offending 

branch of government or its agents either fail to do so or have consistently shown an inability 

to do so, a court is empowered to provide relief by imposing a specific remedy and instructing 

the recalcitrant state actors to implement it.”).
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involved in implementing a remedy; instead, the interests of those officials are 

represented by that agency, branch, or the State as a whole. 

¶ 204 In summary, the trial court’s November 2021 Order complied with its 

constitutional authority and limitations. We therefore affirm and reinstate the trial 

court’s order directing certain State officials to transfer the funds required to 

implement years two and three of the CRP. To enable the trial court to comply with 

this ruling, we stay the Court of Appeals’ Writ prohibiting this transfer.

2. April 2022 Order 

¶ 205 We next review the trial court’s 26 April 2022 Order (April 2022 Order). The 

April 2022 Order recalculated the State’s CRP funding shortcomings in light of the 

2021 Budget Act but removed the transfer directive in favor of a declaratory 

judgment. 

¶ 206 First, April 2022 Order confirmed the State’s continued failure to fully fund 

the CRP. The trial court found “that significant necessary services for students, as 

identified in the CRP, remain unfunded and/or underfunded by the [2021] Budget 

Act.” Specifically, the court found “the Budget Act funds approximately 63% of the 

total cost of the programs to be conducted during year 2 and approximately 50% of 

the total cost of the programs to be conducted during year three.” Because the CRP 

remains the only comprehensive remedial plan submitted to and ordered by the trial 

court, this finding further confirms the present continuance of the State’s statewide 
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Leandro violation.

¶ 207 Next, the April 2022 Order confirmed that adequate State funds are available. 

The trial court found that “the total of unappropriated funds in the State’s Savings 

Reserve [will be] $4.25 billion after the fiscal year 2022-23 legislative-mandated 

transfer.” Accordingly, the trial court found that “the funds transferred on a 

discretionary basis to the State’s Saving Reserve and the State’s Capital and 

Infrastructure Reserve during the two-year budget cycle is substantially in excess of 

the amount necessary to fully fund the CRP during years 2 and 3 of the CRP.” 

¶ 208 Based on these factual findings, the trial court concluded that “the total 

underfunding of CRP programs during years 2 and 3 of the CRP is $785,106,248 in 

the aggregate.” The court concluded that “[t]aking the two-year budget as a whole, 

the General Fund does contain sufficient unappropriated monies to make the transfer 

anticipated by the 10 November Order and the lesser amount of underfunding 

identified above.” 

¶ 209 However, because the Court of Appeals’ writ of prohibition “determined that 

the trial court had no proper basis in law to direct the transfer by state officers or 

departments of funds to DHHS, DPI, and the UNC System,” the trial court removed 

those direct transfer provisions from its order. Instead, it issued a declaratory 

judgment by decreeing that DHHS, DPI, and the UNC System “have and recover from 

the State of North Carolina” the specified funds and that the funds are “owed by the 
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State to DHHS, DPI, and the UNC system.” 

¶ 210 Since the trial court’s April 2022 Order, the State has presented no argument 

that it has complied with this declaratory judgment by transferring these funds.

¶ 211 Today, we vacate in part and reverse in part the trial court’s April 2022 Order. 

First, we vacate the trial court’s calculation of the amount of funds by which each 

portion of the CRP is underfunded. This is not because the trial court erred in its 

calculations, which were diligent and precise. Rather, those calculations have been 

functionally mooted by the State’s subsequent enactment of the 2022 Budget Act. 

Accordingly, on remand, we direct the trial court to recalculate the appropriate 

transfer amounts required for compliance with years two and three of the CRP in 

light of the 2022 Budget Act. 

¶ 212 Second, we reverse the trial court’s conclusion that it lacked the legal authority 

to order certain State actors to transfer the available State funds to comply with years 

two and three of the CRP. In accordance with the principles described above, we hold 

that under the extraordinary circumstances of this case, the trial court was properly

empowered to do so. As such, the trial court’s contrary conclusion in its April 2022 

Order was grounded in an error of law and is therefore reversed. 

¶ 213 Accordingly, our order to the trial court on remand is threefold. First, we order 

the trial court to recalculate the funding required for full compliance with years two 

and three of the CRP in light of the 2022 Budget Act. Second, we order the trial court 
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to reinstate its November 2021 Order transfer directive instructing certain State 

actors to transfer those recalculated amounts from available State funds as an 

appropriation under law. To enable the trial court to do so, we stay the Court of 

Appeals’ 30 November 2021 Writ of Prohibition. Third, we order the trial court to 

retain jurisdiction over the case in order to monitor compliance with its order and 

with future years of the CRP. In future years, the General Assembly may—and is 

encouraged to—choose to moot the necessity for further transfer directives from the 

court by substantially complying with the terms of the CRP on its own accord.

¶ 214 We recognize that the remedy decreed by the trial court’s November 2021 

Order and reinstated by this Court today is extraordinary. It exercises powers at the 

outer bounds of the reach of the judiciary and encroaches into the traditional 

responsibilities of our coequal branches of government. We do not do so lightly. 

Nevertheless, years of continued judicial deference and legislative non-compliance 

render it our solemn constitutional duty to do so. For our Constitution to retain its 

integrity and legitimacy, the fundamental rights enshrined therein must be “guarded 

and maintained.” When other branches indefinitely abdicate this constitutional 

obligation, the judiciary must fill the void.

D. Legislative Defendants’ Assertions of Error

¶ 215 Finally, we address Legislative Defendants’ various assertions of error. On 

appeal, Legislative Defendants raise four primary claims of error in addition to the 
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foundational constitutional issues addressed above, most of which are also echoed by 

the dissent below. First, they argue that the trial court exceeded its jurisdiction and 

authority by imposing a statewide remedy because this case is properly “limited to 

just at-risk students in Hoke County.” Second, they argue that the trial court 

erroneously failed to presume that the 2021 Budget Act satisfied the State’s 

constitutional obligations under Leandro. Third, they argue that the trial court’s 

order engaged in a non-justiciable political question by deciding the amount of State 

funds to be transferred to certain State agencies. Fourth, they argue that “the trial 

court erred in making a constitutional determination in a friendly suit.” 

¶ 216 These claims unequivocally fail. As an initial matter, they are untimely. Since 

2004, and especially since the enactment of N.C.G.S. § 1-72.2 in 2013, Legislative 

Defendants have had any number of opportunities to intervene in this litigation and 

thereby earnestly engage with these important issues from within the arena where 

the parties and the trial court sought to solve the formidable problems facing our 

state. Besides their single Motion to Intervene regarding Pre-K issues in 2011, they 

have not. Instead, Legislative Defendants have largely opted to comment upon the 

proceedings from the sidelines, including by publicly disparaging the trial court itself. 

In doing so, Legislative Defendants functionally abdicated their constitutional duties 

and accordingly undermined their own credibility to raise these arguments at this 

eleventh hour.
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¶ 217 In any event, these arguments are meritless. At best, they reveal a 

fundamental misunderstanding of the history and present reality of this litigation. 

At worst, they suggest a desire for further obfuscation and recalcitrance in lieu of 

remedying this decades-old constitutional violation. Regardless, they will not prevent 

this Court from exercising its inherent authority to protect the constitutional right of 

North Carolina children to the opportunity to a sound basic education.

1. Scope of Violation

¶ 218 First, and most enthusiastically, Legislative Defendants assert this case is 

properly “limited to just at-risk students in Hoke County.” As such, they argue that 

the trial court erred by exceeding its jurisdiction and authority by imposing a 

statewide remedy. Legislative Defendants contend that because this Court’s ruling 

in Leandro II was expressly restricted to Hoke County, “there has never been a 

judgment finding a statewide violation of the right to a sound basic education.” The 

dissent below echoes this claim.

¶ 219 To be sure, it is true that this Court’s ruling in Leandro II was expressly limited 

to Hoke County as a representative district. See 358 N.C. at 613 n.5. However, on 

remand, this Court instructed the trial court to address other districts by conducting

“further proceedings that include, but are not necessarily limited to, presentations of 

relevant evidence by the parties, and findings and conclusions of law by the trial 

court.” Id. This Court further instructed the trial court to “proceed[ ] as necessary[ ] 
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in a fashion that is consistent with the tenets outlined in this opinion.” Id. at 648.25

¶ 220 On remand, the trial court did just that: it conducted further proceedings that 

included, but were not limited to, presentations of relevant evidence by the parties 

and findings and conclusions of law by the trial court regarding other districts in a 

fashion consistent with the tenets outlined in Leandro I and II. Based on an

abundance of clear and convincing evidence, the trial court repeatedly concluded that 

the State’s Leandro violation was not limited to Hoke County but was pervasive 

statewide. Time and time again, the trial court observed that the evidence 

“indicate[d] that in way too many school districts across the state, thousands of 

children in the public schools have failed to obtain, and are not now obtaining a sound 

basic education as defined by and required by the Leandro decisions.” 

¶ 221 As addressed above, the fact that the trial court’s filings were often titled 

“Notice of Hearing and Order” instead of just “Order” does not render this Court 

suddenly incapable of understanding the trial court’s express findings and 

conclusions. In any event, the trial court’s factual finding and legal conclusion of a 

continued statewide Leandro violation were most recently repeated in its November 

2021 Order, which was formally titled “Order” and formally enumerated “Findings of 

Fact” and “Conclusions of Law.” These findings and conclusions were neither 

 

25 As noted above, at no point did this Court instruct the trial court to formally conduct 

separate trials for all of the other school districts involved in this litigation and in the state.

See id.
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amended nor revoked—and indeed were functionally confirmed again—in the trial 

court’s subsequent April 2022 Order.

¶ 222 Further, the State itself has consistently proposed and advocated for a 

statewide remedy. This is because its constitutional obligation applies not just toward 

marginalized students in Hoke County, but to every student in every district in the 

state. As such, it strains both reason and judicial economy to contend that separate 

cases with identical facts and constitutional claims must be brought by plaintiffs in 

all 114 of North Carolina’s other school districts in order for the State to implement 

a remedy that applies to each of those districts. The paramount public interest of the 

constitutional rights at stake in this case demand a more reasonable and efficient 

resolution.26

¶ 223 Accordingly, to contend that there has never been a finding or conclusion of a 

Leandro violation beyond Hoke County reflects, at best, a fundamental 

misunderstanding of the history of this case and the State’s constitutional 

obligations. Legislative Defendants’ argument is unequivocally rejected. 

2. Impact of the Budget Act

 

26 “In declaratory actions involving issues of significant public interest, such as those 

addressing alleged violations of education rights under a state constitution, courts have often 

broadened both standing and evidentiary parameters to the extent that plaintiffs are 

permitted to proceed so long as the interest sought to be protected by the complainant is 

arguably within the ‘zone of interest’ to be protected by the constitutional guaranty in 

question.” Leandro II, 358 N.C. at 615.
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¶ 224 Second, Legislative Defendants assert that the trial court erroneously failed to 

presume that the 2021 Budget Act satisfied the State’s constitutional obligations 

under Leandro. They argue that “in reducing its assessment of the Budget to a 

mathematical exercise and assuming that the CRP was the only means to provide a 

Leandro-compliant education, the trial court got the analysis backwards” by 

“start[ing] with the assumption that the Budget was insufficient, and then skipp[ing] 

straight to asking whether the General Assembly had provided Plaintiffs with their 

chosen remedy.” The dissent below likewise echoes this claim.

¶ 225 This is wrong on several fronts. First, it is true that the CRP is by no means 

the only path toward constitutional compliance under Leandro. The executive and 

legislative branches are—and have been—granted broad deference in crafting a 

remedy on their own terms. However, as the trial court repeatedly observed, the CRP 

is currently the only remedial plan that the State has presented to the court in

response to its January 2020, September 2020, and June 2021 Orders. Indeed, no 

party in this litigation, including Legislative Defendants, have presented any 

alternative remedial plan. As such, the trial court did not erroneously “assum[e] that 

the CRP was the only means to provide a Leandro-compliant education.” Rather, it 

assessed the constitutional compliance of the Budget Act against the only 

comprehensive remedial plan that it has been presented with in the eighteen-year 

long remedial phase of this case.
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¶ 226 Second, the trial court did not erroneously fail to presume the constitutionality 

of the Budget Act. The constitutionality of the Budget Act was not the question before 

the trial court. Rather, the trial court’s task was to assess the constitutional 

compliance of the Budget Act against the only comprehensive remedial plan that had 

been presented to it by the State. 

¶ 227 In fact, a review of the record reveals that the trial court has already addressed 

and rejected this argument. In 2018, the State argued in a motion to dismiss “that 

legislation enacted by . . . [the] General Assembly now adequately addresses those 

criteria that our Supreme Court has decreed constitute a ‘sound basic education’ . . . 

[and] that these enactments must be presumed by this court to be constitutional.” In 

rejecting this argument, the trial court explained that

[t]his court indeed indulges in the presumption of 

constitutionality with respect to each and every one of the 

legislative enactments cited by the [State]. That these 

enactments are constitutional and seek to make available 

to children in this State better educational opportunities is 

not the issue before this court. The issue is whether the 

court should continue to exercise such remedial jurisdiction 

as may be necessary to safeguard and enforce the much 

more fundamental constitutional right of every child to 

have the opportunity to receive a sound basic education. 

Again, the evidence before this court upon the [State’s] 

motion is wholly inadequate to demonstrate that these 

enactments translate into substantial compliance with the 

constitutional mandate of Leandro measured by applicable 

educational standards.

¶ 228 So too here. Neither the Plaintiff-parties nor the State dispute the presumed 
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constitutionality of the passage of the 2021 Budget Act as a general procedural 

matter. But that was not the issue before the trial court and is not the issue before

this Court. The more specific question in the context of this case is the extent to which 

the 2021 Budget Act remedies the State’s longstanding statewide Leandro violation. 

As such, the Budget Act must be assessed against the terms of the only 

comprehensive remedial plan thus far presented by the parties to the court. The mere 

passage of a state budget—even one that enjoys a general presumption of 

constitutionality—is insufficient to meet that more specific burden. Accordingly, the 

trial court did not err in its evaluation of the 2021 Budget Act.27

¶ 229 Finally, it bears emphasizing that the CRP is not the “Plaintiffs[’] . . . chosen 

remedy.” The CRP was created by neither Plaintiff-parties nor the trial court, but by 

the State itself. It is therefore the State’s chosen remedy, and thus far the only viable 

remedy presented by any party in this litigation. 

3. Political Question

¶ 230 Third, Legislative Defendants argue that the trial court’s November 2021 and 

 

27 Relatedly, the dissent contends that the CRP—and thus the November 2021 Order 

enforcing it—unduly focuses on education funding when the real problem is implementation. 

To be sure, this case is not just about money; it is also about competent and qualified teachers 

and principals, support for high-poverty school districts, effective state assessment and 

accountability systems, and adequate and accessible early education opportunities, among 

many other programs outlined at length in the CRP. Of course, just as no one would 

reasonably expect the Department of Public Safety or Department of Transportation to 

implement their various programs and responsibilities without adequate funding, none of 

these educational priorities can be implemented and sustained with fidelity without adequate 

education funding. Minimally adequate funding is a necessary means to that end. 
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April 2022 Orders impermissibly engaged in a non-justiciable political question by 

deciding the amount of State funds to be transferred to certain State agencies. Doing 

so, Legislative Defendants contend, requires the trial court to engage in policy-based 

prioritization that “is precisely the type of determination the people must make 

through their elected representatives.” 

¶ 231 This argument likewise ignores the history and prior rulings of this case. In 

Leandro I, this Court squarely rejected the State’s threshold argument that courts 

may not assess issues of educational adequacy because they are non-justiciable 

political questions. 346 N.C. at 344–45. The Court held that “it is the duty of this 

Court to address plaintiff-parties’ constitutional challenge to the state’s public 

education system.” Id. at 345.

¶ 232 More specifically, the trial court did not err by assessing the adequacy of the 

2021 Budget Act. The court did not make its own policy determination. Rather, after 

concluding based on undisputed evidence that sufficient unappropriated State funds 

were available, it ordered that certain funds be transferred in order to comply with 

the terms of the only comprehensive plan for Leandro compliance presented to it by 

the State. Put differently, the court assessed the State’s compliance with the State’s 

own determination of constitutional educational adequacy, not the court’s. 

Constitutional compliance is not a policy choice; it is a mandate that this Court is 

obligated to protect. 
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4. Friendly Suit

¶ 233 Finally, Legislative Defendants argue that “the trial court erred in making a 

constitutional determination in a friendly suit.” They argue that there is no genuine 

controversy in this case because after the trial court’s 2018 order requiring the parties 

to craft a comprehensive remedial plan, “Plaintiffs, Plaintiff-Intervenors, and [the 

State] have worked together to obtain judicial orders mandating their desired 

policies.” The dissent below likewise echoes this claim. 

¶ 234 Again, this is wrong on several fronts. First, this argument ignores the decades 

of history summarized above in which this case was hotly contested and the State 

repeatedly asserted either that it had achieved constitutional compliance or that the 

trial court no longer had jurisdiction over the case. While Legislative Defendants’ 

Hoke County argument functionally disregards everything that occurred in this 

litigation after 2004, their friendly suit argument functionally disregards everything 

before 2018. Neither approach appreciates the complete past and present reality of 

this case, which provide vital context for the two trial court orders in question on this 

appeal.

¶ 235 Further, the State’s efforts to achieve constitutional compliance after 2018 do 

not render this suit friendly. Rather, they reflect the State’s commitment—at long 

last—to honor its constitutional duty to guard and maintain the right of North 

Carolina schoolchildren to a sound basic education. If the State’s Comprehensive 
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Remedial Plan aligns with the interests of Plaintiff-parties, it is because during the 

remedial phase this litigation—in which parties are encouraged to create a 

collaborative solution that will settle their respective rights and duties—both the 

State and Plaintiff-parties seek to align with the requirements of the Constitution. A 

shared commitment to constitutional compliance does not render this suit friendly. 

Legislative Defendants’ argument to the contrary is rejected.

III. Conclusion

¶ 236 The ultimate wisdom of Leandro, whispered through the ages from the 

Framers’ vision in 1868 to the Plaintiffs’ Complaint in 1994 to the untold and 

untapped potential of our schoolchildren today, is that public education is a public 

good. That is, when the State ensures that a child has the opportunity to receive a 

sound basic education, it is not only that child who benefits. It is not only that child’s 

family that benefits. It is not only that child’s community that benefits. Rather, when 

a child receives a sound basic education—one that prepares her “to participate fully 

in society as it exist[s] in . . . her lifetime”—we all benefit. Leandro I, 346 N.C. at 348.

¶ 237 Accordingly, our Constitution not only guarantees all children the right to the 

opportunity to a sound basic education, it establishes that “it is the duty of the State

to guard and maintain that right.” N.C. Const. art. I, § 15 (emphasis added). 

“[I]nitially, at least,” it is the responsibility of the executive and legislative branches 

to fulfill that constitutional obligation. Leandro I, 346 N.C. at 357. But when those 
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branches indefinitely “fail[ ] to live up to [their] constitutional duties . . . or have 

consistently shown an inability to do so, a court is empowered to provide relief by 

imposing a specific remedy and instructing the recalcitrant state actors to implement 

it.” Leandro II, 358 N.C. at 642.

¶ 238 For a quarter-century, the judiciary has deferred to the executive and 

legislative branches to remedy this statewide constitutional violation. Yet 

overwhelming evidence clearly demonstrates that it persists today. In 2004, the 

Leandro II Court lamented that “the instant case commenced ten years ago,” and that 

“[i]f in the end it yields a clearly demonstrated constitutional violation, ten classes of 

students . . . will have already passed through our state’s school system without 

benefit of relief. We cannot similarly imperil one more class unnecessarily.” Id. at 616

(emphasis added). Today, that figure is twenty-eight years, and twenty-eight classes 

of students. The children of the original Leandro plaintiffs could well have entered or 

graduated from high school by now, all under a well-established constitutionally 

inadequate education system. As noted in Plaintiffs’ original 1994 Complaint, this 

cycle “entails enormous losses, both in dollars and in human potential, to the State 

and its citizens.” All the while, the judiciary has continued—patiently but with 

increasing concern—to defer.

¶ 239 Today, that deference expires. At this point, to continue to condone delay and 

evasion would render this Court complicit in the constitutional violation. Ultimately, 
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“[i]t is the state judiciary that has the responsibility to protect the state constitutional 

rights of the citizens; this obligation to protect the fundamental rights of individuals 

is as old as the State.” Corum, 330 N.C. at 783.

¶ 240 Today, we must fulfill that obligation. To do so, this Court exercises its power 

“to provide relief by imposing a specific remedy and instructing the recalcitrant state 

actors to implement it.” Leandro II, 358 N.C. at 642. Specifically, we reinstate the 

trial court’s November 2021 Order directing certain State officials to transfer 

available state funds to implement years two and three of the Comprehensive 

Remedial Plan. On remand, we narrowly direct the trial court to recalculate the 

appropriate distributions in light of the State’s 2022 Budget. Once that calculation is 

complete, we instruct the trial court to order the applicable State officials to transfer 

these funds as an appropriation under law. Accordingly, we stay the Court of Appeals’ 

30 November 2021 Writ of Prohibition. Finally, we order the trial court to retain 

jurisdiction over this matter to ensure the implementation of this order and to 

monitor continued constitutional compliance.

¶ 241 Given these remand instructions, this ruling will not be the final page in the 

Leandro litigation. Nevertheless, it is the sincere hope of this Court that it will serve 

as the start of a new chapter—one in which the parties lay down old divisions and 

distrust to forge a spirit of collaboration in good faith toward a common goal:

constitutional compliance. The same recalcitrant approach would only yield the same 
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inadequate outcomes. Instead, this Court calls upon the parties to imagine a future 

in which all North Carolina children receive the opportunity to a sound basic 

education, then honor their constitutional oaths by working together to make that 

future real. Indeed, our Constitution’s Declarations of Rights is neither aspirational 

nor advisory; it is a mandate. 

¶ 242 Until that mandate is fulfilled, the judiciary will stand ready to carry out its 

constitutional duties. We too comprise “the State,” and we too must honor our 

constitutional obligations. While we recognize the primacy of the executive and 

legislative branches in creating and implementing our system of public education, we 

cannot and will not tolerate the ongoing violation of constitutional rights.

¶ 243 “Today, education is perhaps the most important function of state and local 

governments. . . . It is the very foundation of good citizenship.” Brown I, 347 U.S. at 

493. “Assuring that our children are afforded the chance to become contributing, 

constructive members of society is paramount. Whether the State meets this 

challenge remains to be determined.” Leandro II, 358 N.C. at 649. Accordingly, this 

Court once more “remands to the lower court[,] and ultimately into the hands of the 

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

to provide an education to the children of North Carolina.” Id. We do so with hope 

that the parties will chart a new course, firmness in our resolve to uphold our 
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Constitution, and faith that the brightest days for our schoolchildren and our state 

lie still ahead. 

IT IS SO ORDERED.
Justice BERGER dissenting.

¶ 244 “Frequently an issue of this sort will come before the Court clad, so to speak, 

in sheep’s clothing: the potential of the asserted principle to effect important change 

in the equilibrium of power is not immediately evident, and must be discerned by a 

careful and perceptive analysis. But this wolf comes as a wolf.” Morrison v. Olson, 

487 U.S. 654, 699, 108 S. Ct. 2597, 2623 (1988) (Scalia, J., dissenting). 

¶ 245 “The accumulation of all powers, legislative, executive, and judiciary, in the 

same hands, whether of one, a few, or many, and whether hereditary, selfappointed, 

or elective, may justly be pronounced the very definition of tyranny.” The Federalist

No. 47 (James Madison). “By tyranny, . . . [Madison] means arbitrary, capricious, 

and oppressive rule by those possessing any two of these powers.” George W. Carey 

& James McClellan, Reader’s Guide to The Federalist, The Federalist, at lxx (George 

W. Carey & James McClellan, eds., Gideon ed. 2001). We see in this opinion the 

arbitrary usurpation of purely legislative power by four justices. The majority affirms 

the trial court order which strips the General Assembly of its constitutional power to 

make education policy and provide for its funding. Indeed, this wolf comes as a wolf.

¶ 246 “The legislative, executive, and supreme judicial powers of the State 

government shall be forever separate and distinct from each other.” N.C. Const. art. 

I, § 6. This clear and unambiguous principle “is the rock upon which rests the fabric 

of our government. Indeed, the whole theory of constitutional government in this 
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State and in the United States is characterized by the care with which the separation 

of the departments has been preserved and by a marked jealousy [against]

encroachment” by another branch. Pers. v. Bd. of State Tax Comm’rs, 184 N.C. 499, 

502, 115 S.E. 336, 339 (1922). 

¶ 247 Without question, the General Assembly, in which our constitution vests the 

legislative power of the State, N.C. Const. art. II, § 1, is “the policy making agency of 

our government[.]” Rhyne v. K-Mart Corp., 358 N.C. 160, 169, 594 S.E.2d 1, 8 (2004). 

The General Assembly is the policymaking agency because “[a]ll political power is 

vested in and derived from the people,” N.C. Const. art I, § 2, and the people act 

through the General Assembly, State ex rel. Ewart v. Jones, 116 N.C. 570, 570, 21 

S.E. 787, 787 (1895); see also Pope v. Easley, 354 N.C. 544, 546, 556 S.E.2d 265, 267 

(2001) (per curiam) (“[P]ower remains with the people and is exercised through the 

General Assembly, which functions as the arm of the electorate.”). The General 

Assembly possesses both plenary and express lawmaking authority, and, as provided 

by the text of the state constitution, the legislative branch enacts policy through 

statutory directives and appropriations. 

¶ 248 Relevant here, the Declaration of Rights in our constitution provides that “[t]he 

people have a right to the privilege of education, and it is the duty of the State to 

guard and maintain that right.” N.C. Const. art. I, § 15. This provision within the 

Declaration of Rights must be considered with the related, more specific provisions 
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in Article IX that outline the General Assembly’s responsibilities with regard to 

public education. Placed in the working articles of the constitution, Article IX, 

entitled “Education,” see id. art. IX, actually “implements the right to education as 

provided in Article I,” Demenski ex rel. C.E.D. v. State Bd. of Educ., 377 N.C. 406, 

2021-NCSC-58, ¶ 14. This Court has explained that “these two provisions work in 

tandem,” id., to “guarantee every child in the state an opportunity to receive a sound 

basic education[.]” Silver v. Halifax Cnty. Bd. of Comm’rs, 371 N.C. 855, 862, 821 

S.E.2d 755, 760 (2018) (emphasis added). 

¶ 249 The state constitution explicitly recognizes that it is for the General Assembly

to develop educational policy and to provide for its funding in keeping with its 

legislative authority. Article IX, section 2 requires that “[t]he General Assembly shall 

provide by taxation and otherwise for a general and uniform system of free public 

schools, which shall be maintained at least nine months in every year, and wherein 

equal opportunities shall be provided for all students.” N.C. Const. art. IX, § 2. The 

General Assembly creates the system through policy and funds it through taxation 

and appropriations. The text then tasks the State Board of Education with 

“supervis[ing] and administer[ing]” that system with “needed rules and regulations”

that remain “subject to laws enacted by the General Assembly.” N.C. Const. art. IX, 

§ 5. 
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¶ 250 The “power of the purse,” or the legislative authority to direct or deny 

appropriations, represents policy decisions made solely by the General Assembly. For 

that reason, our constitution provides that “[n]o money shall be drawn from the State 

treasury but in consequence of appropriations made by law[.]” N.C. Const. art. V, 

§ 7(1). 

¶ 251 As this Court unanimously noted just two years ago, “the appropriations clause 

states in language no man can misunderstand that the legislative power is supreme 

over the public purse.” Cooper v. Berger, 376 N.C. 22, 36–37, 852 S.E.2d 46, 58 (2020) 

(emphasis added); see also Wilson v. Jenkins, 72 N.C. 5, 6 (1875) (“The General 

Assembly has absolute control over the finances of the State.”). By way of historical 

explanation, this Court stated:

In light of this constitutional provision, the power of the 

purse is the exclusive prerogative of the General Assembly, 

with the origin of the appropriations clause dating back to 

the time that the original state constitution was ratified in 

1776. In drafting the appropriations clause, the framers 

sought to ensure that the people, through their elected 

representatives in the General Assembly, had full and 

exclusive control over the allocation of the state’s 

expenditures. 

Cooper, 376 N.C. at 36–37, 852 S.E.2d at 58 (cleaned up). These constitutional 

principles remain true when the legislative branch enacts educational policy through 

appropriations. 
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¶ 252 If legislative power over appropriations is absolute, then the judicial branch 

has no role in this endeavor. Clear and unambiguous language that “no man can 

misunderstand,” id., should yield results that no reasonable person can question. 

¶ 253 As set out in the constitutional text and this Court’s precedent, the General 

Assembly determines and develops educational policy through statutes and 

appropriations. However, a review of this case’s lengthy litigation reveals that the 

General Assembly was notably excluded. Due process requires notice and an 

opportunity to be heard—legislative defendants have been denied the protection of 

this fundamental fairness.

¶ 254 From the filing of the initial complaint until January 2011, the Attorney 

General represented the executive and legislative branches (the State). In 2011, the 

majority party of General Assembly, both House and Senate, changed. The Attorney 

General, then asserting a purported conflict of interest, ceased to represent the 

General Assembly at that time. The Attorney General noted that executive branch 

defendants refused to waive this conflict. The General Assembly attempted to 

intervene in the case, but the trial court rejected intervention because the issue in 

the case was not the legislature’s education policy or funding, but the implementation 

of that policy by the executive branch. 
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¶ 255 Judge Howard Manning, perhaps the one individual most familiar with this 

case, later stated in a memorandum that educational shortcomings did not result 

from legislative failures:

Our children that cannot read by the third grade are by and 

large doomed not to succeed by the time they get to high 

school. As shown by the record in this case, that is a failure 

of classroom instruction. 

. . . 

Reduced to essentials, in my opinion the children are not 

being provided the opportunity because after all the 

millions spent, 90% of school costs are for adult salaries 

and benefits, and the data show as it did years ago and up 

to now the educational establishment has not produced 

results.

In other words, Judge Manning clearly understood that the problem is not with 

education policy or funding; rather, the problem is with implementation and delivery 

by the education establishment.

¶ 256 Moreover, the focus of this litigation post-Leandro has been the general 

implementation and delivery of educational opportunities to the “at risk” children in 

plaintiffs’ counties. See Hoke Cnty. Bd. of Educ. v. State, 358 N.C. 605, 612 n.1, 599 

S.E.2d 365, 375 n.1 (2004) (the only issue which “faces scrutiny in the instant appeal

[is] whether the State has failed in its constitutional duty to provide Hoke County 
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school children with the opportunity to receive a sound basic education.”).1 Despite 

the express directive of this Court in Hoke County, the trial court failed to conduct 

any other trial. Furthermore, given that the education statutes and policy changed 

significantly through the years, the original Leandro claims and resulting decision 

have become stale.

¶ 257 When Judge Manning withdrew for health reasons in 2016, a new judge, in 

collaboration with executive branch defendants and plaintiffs, dramatically changed 

the direction of this litigation to focus on policy and funding statewide, rather than 

problems with implementation and delivery in plaintiffs’ counties as originally pled. 

In November 2021, the new judge entered an order stripping the General Assembly 

of its constitutional authority, setting educational policy, and judicially appropriating 

taxpayer monies to fund his chosen policy. Only then did the legislative defendants 

receive the opportunity to intervene as they sought appellate review of this judicial 

invasion into their constitutional powers. 

¶ 258 Because of the collusive nature of this litigation, the majority today now joins 

in denying legislative defendants due process, the fundamental fairness owed to any 

party, and usurps the legislative power by crafting policy and directly appropriating 

funds. Further, this Court approves the deprivation of due process to other non-

 

1 Because the distinction is meaningful, we refer to Hoke County Board of Education 

v. State as Hoke County, not Leandro II. See discussion at Hoke County Board of Education 

v State, 367 N.C. 156, 158 n.2, 749 S.E.2d 451, 453 n.2 (2013). 
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parties by affirming the trial court order which required certain state officials to 

violate their oaths and circumvent the constitutionally and statutorily required 

lawful method of appropriating monies from the general fund.

¶ 259 In addition, the majority takes it upon itself to resolve issues in this case 

without notice and in the face of this Court’s order to the contrary. In March 2022, 

this Court entered a special order holding “in abeyance [certain issues] with no other 

action, including the filing of briefs, to be taken until further order of the Court.” 

Despite the fact that no notice has been provided to any party, and briefing has not 

been done, this Court exerts its will by summarily deciding the matter. In so doing, 

the majority ignores due process. 

¶ 260 Fundamentally, and contrary to what plaintiffs, executive branch defendants, 

and the majority would have the public believe, this case is not about North Carolina’s 

failure to afford its children with the opportunity to receive a sound basic education. 

The essence of this case is power—who has the power to craft educational policy and 

who has the authority to fund that policy. 

¶ 261 While a properly restrained judiciary has “neither FORCE nor WILL, but 

merely judgment,” The Federalist No. 78 (Alexander Hamilton), we once again 

address the pernicious extension of judicial power by this Court at the expense of the 

constitutionally prescribed power of the legislature. Once again, the subversion of 

constitutional order is engineered by a bare majority through unprecedented and 
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dangerous reasoning. Couched this time as its “inherent authority,” the majority 

once again “unilaterally reassigns constitutional duties.” N.C. State Conf. of Nat’l 

Ass’n for the Advancement of Colored People v. Moore, 2022-NCSC-99, ¶ 77 (Berger, 

J., dissenting). 

¶ 262 Relying on a gross misapplication of our caselaw, the majority’s Oppenheimeresque reshaping of the appropriations clause and usurpation of legislative function 

has no apparent concern for constitutional strictures or the limits of this Court’s 

power. The judicial branch now assumes boundless inherent authority to reach any 

desired result, ignoring the express boundaries set by the explicit language of our 

constitution and this Court’s precedent. Because “[t]his power in the judicia[ry] will 

enable [judges] to mold the government into almost any shape they please,” Brutus, 

Essay XI, The Essential Anti-Federalist 190 (W. B. Allen and Gordon Lloyd, eds., 2nd

ed. 2002), I respectfully dissent.

I. Factual and Procedural Background

¶ 263 The issues in this case are neither unprecedented nor extraordinary. Had the 

trial court below, and the majority here, understood precisely what this Court held in 

Leandro and Hoke County, much litigation would have been avoided. As this case is 

the latest chapter of a dispute this Court first considered more than twenty-four years 

ago, our prior decisions constitute the law of the case and are binding on the courts. 

See Hayes v. City of Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 681–82 (1956)
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(“[W]hen an appellate court passes on a question and remands the cause for further 

proceedings, the questions there settled become the law of the case, both in 

subsequent proceedings in the trial court and on subsequent appeal[.]”).

A. Leandro

¶ 264 In Leandro v. State of North Carolina, 346 N.C. 336, 342, 488 S.E.2d 249, 252 

(1997) (Leandro), plaintiffs brought an action against the State and the State Board 

of Education seeking declaratory and injunctive relief, alleging that children in their 

school districts were not “receiving a sufficient education to meet the minimal 

standard for a constitutionally adequate education.” The original plaintiffs were 

“students and their parents or guardians from the relatively poor school systems in 

Cumberland, Halifax, Hoke, Robeson, and Vance Counties and the boards of 

educations for those counties.” Id. at 342, 488 S.E.2d at 252. Those plaintiffs were 

joined by plaintiff-intervenors, “students and their parents or guardians from the 

relatively large and wealthy school systems of the City of Asheville and of Buncombe, 

Wake, Forsyth, Mecklenburg, and Durham counties and the boards of education for 

those systems.” Id. at 342, 488 S.E.2d at 252. 

¶ 265 Although plaintiffs’ and plaintiff-intervenors’ claims differed, they were 

similar in one significant respect:

Both plaintiffs and plaintiff-intervenors (hereinafter 

“plaintiff-parties” when referred to collectively) allege in 

their complaints in the case resulting in this appeal that 

they have a right to adequate educational opportunities 
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which is being denied them by defendants under the 

current school funding system. Plaintiff-parties also allege 

that the North Carolina Constitution not only creates a 

fundamental right to an education, but it also guarantees 

that every child, no matter where he or she resides, is 

entitled to equal educational opportunities.

Id. at 342, 488 S.E.2d at 252.

¶ 266 Defendants responded to plaintiff-parties’ complaints by filing a motion to 

dismiss, contending in part that “plaintiff-parties had failed to state any claim upon 

which relief could be granted.” Id. at 344, 488 S.E.2d at 253. The trial court denied 

defendants’ motion, and defendants timely appealed. Id. at 344, 488 S.E.2d at 253. 

The Court of Appeals reversed the trial court and dismissed all of plaintiffs’ claims. 

Id. at 344, 488 S.E.2d at 253. It concluded that “the right to education guaranteed 

by the North Carolina Constitution is limited to one of equal access to the existing 

system of education and does not embrace a qualitative standard.” Id. at 344, 488 

S.E.2d at 253 (citing Leandro v. North Carolina, 122 N.C. App. 1, 11, 468 S.E.2d 543, 

550 (1996)). 

¶ 267 Plaintiff-parties petitioned this Court for discretionary review. We granted the 

petition to address “whether the people’s constitutional right to education has any 

qualitative content, that is, whether the state is required to provide children with an 

education that meets some minimum standard of quality.” Id. at 345, 488 S.E.2d at 

254. In answering that question in the affirmative, this Court stated:

We conclude that Article I, Section 15, and Article IX, 
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Section 2 of the North Carolina Constitution combine to 

guarantee every child of this state an opportunity to receive 

a sound basic education in our public schools. For purposes 

of our Constitution, a “sound basic education” is one that 

will provide the student with at least: (1) sufficient ability 

to read, write, and speak the English language and a 

sufficient knowledge of fundamental mathematics and 

physical science to enable the student to function in a 

complex and rapidly changing society; (2) sufficient 

fundamental knowledge of geography, history, and basic 

economic and political systems to enable the student to 

make informed choices with regard to issues that affect the 

student personally or affect the student’s community, 

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

skills to enable the student to successfully engage in postsecondary education or vocational training; and (4) 

sufficient academic and vocational skills to enable the 

student to compete on an equal basis with others in further 

formal education or gainful employment in contemporary 

society.

Id. at 347, 488 S.E.2d at 255 (emphasis added). 

¶ 268 Plaintiff-parties also argued that “Article IX, Section 2(1), requiring a ‘general 

and uniform system’ in which ‘equal opportunities shall be provided for all students,’ 

mandates equality in the educational programs and resources offered the children in 

all school districts in North Carolina.” Id. at 348, 488 S.E.2d at 255. This Court 

expressly rejected this argument, stating “we are convinced that the equal 

opportunities clause of Article IX, Section 2(1) does not require substantially equal 

funding or educational advantages in all school districts.” Id. at 349, 488 S.E.2d at 

256. Thus, we affirmed the Court of Appeals’ decision to dismiss this claim. 

¶ 269 As is especially relevant here, this Court made it clear that plaintiff-parties’ 
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proposed constitutional requirement of “substantial equality of educational 

opportunities in every one of the various school districts of the state would almost 

certainly ensure that no matter how much money was spent on the schools of the state, 

at any given time some of those districts would be out of compliance.” Id. at 350, 488 

S.E.2d at 256–57 (emphasis added). Thus, this Court delineated between (1) a 

requirement for the state to provide all students with the opportunity to receive a 

sound basic education, and (2) a requirement for the state to provide the same 

opportunities to all students statewide. 

¶ 270 Further, we drew a sharp distinction between the right to a sound basic 

education and the right to the opportunity to receive a sound basic education. This 

Court discussed at length the “[s]ubstantial problems [that] have been experienced 

in those states in which the courts have held that the state constitution guaranteed 

the right to a sound basic education.” Id. at 350–51, 488 S.E.2d at 257 (emphasis 

added). We listed multiple cases from various jurisdictions involving, as is 

particularly relevant here, decisions of divided courts “striking down the most recent 

efforts of the [state] legislature and for the third time declaring a funding system for 

the schools of that state to be in violation of the state constitution.” Id. (citing Abbot 

v. Burke, 149 N.J. 145, 693 A.2d 417 (1997)).2 In addition to referencing the flood of 

 

2 The majority cites to a continuation of Abbott v. Burke as an example to justify its 

“extraordinary” remedy. It is extraordinary that the majority cites to cases and theories that 

have been expressly disavowed by this Court. Further, the citations to cases from Kansas and 
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litigation brought forth in states that guarantee a right to a sound basic education, 

this Court also noted law review articles which described “the difficulty in 

understanding and implementing the mandates of the courts” and “the lack of an 

adequate remedy” in these states. Id. (citing William E. Thro, The Third Wave: The 

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

Finance Reform Litigation, 19 J.L. & Legal Educ. 219 (1990); Note, Unfulfilled 

Promises: School Finance Remedies and State Courts, 104 Harv. L. Rev. 1072, 1075–

78 (1991)). 

¶ 271 This Court “conclude[d] that the framers of our Constitution did not intend to 

set such an impractical or unattainable goal.” Id. at 351, 488 S.E.2d at 257. 

Accordingly, we held that “Article IX, Section 2(1) of the North Carolina Constitution 

requires that all children have the opportunity for a sound basic education, but it does 

not require that equal educational opportunities be afforded students in all of the 

school districts of the state.” Id. (emphasis added). 

¶ 272 This Court was acutely aware of the potential dangers of its holding in 

Leandro. We defined the opportunity to receive a sound basic education with “some 

trepidation[ ]” because “judges are not experts in education and are not particularly 

able to identify in detail those curricula best designed to ensure that a child receives 

 

Washington make little sense as neither of those cases involve the judicial exercise of 

legislative authority over the public purse. 
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a sound basic education.” Id. at 354, 488 S.E.2d at 259. Recognizing the General 

Assembly’s crucial role in this issue, this Court stated:

We acknowledge that the legislative process provides a 

better forum than the courts for discussing and 

determining what educational programs and resources are 

most likely to ensure that each child of the state receives a 

sound basic education. The members of the General 

Assembly are popularly elected to represent the public for 

the purpose of making just such decisions. The legislature, 

unlike the courts, is not limited to addressing only cases 

and controversies brought before it by litigants. The 

legislature can properly conduct public hearings and 

committee meetings at which it can hear and consider the 

views of the general public as well as educational experts 

and permit the full expression of all points of view as to 

what curricula will best ensure that every child of the state 

has the opportunity to receive a sound basic education.

Id. at 355, 488 S.E.2d at 259. 

¶ 273 As is clear from our opinion, this Court was well aware of the murky waters it 

entered in Leandro. We took care to provide examples of what factors should be 

considered by trial courts and what weight should be given to such factors. This 

Court held that “[e]ducational goals and standards adopted by the legislature,” “the 

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

achievement tests[,]” and “the level of the state’s general educational expenditures 

and per-pupil expenditures[ ]” were all relevant factors. Id. at 355, 488 S.E.2d at 

259–60. We noted that one factor alone was not determinative. 

¶ 274 Additionally, we directly addressed the basis of the trial court’s order at issue 
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before us today—whether courts of this state may rely solely on expenditures as a 

remedy to an alleged violation of this right. In answering no, the Court stated:

We agree with the observation of the United States 

Supreme Court that

The very complexity of the problems of financing and 

managing a statewide public school system suggests that 

there will be more than one constitutionally permissible 

method of solving them, and that within the limits of 

rationality, the legislature’s efforts to tackle the problems 

should be entitled to respect. On even the most basic 

questions in this area the scholars and educational experts 

are divided. Indeed, one of the major sources of controversy 

concerns the extent to which there is a demonstrable 

correlation between educational expenditures and the 

quality of education . . . .

Id. at 355–56, 488 S.E.2d at 260 (cleaned up) (quoting San Antonio Indep. Sch. Dist. 

v. Rodriguez, 411 U.S. 1, 42–43, 93 S. Ct. 1278, 1301–02 (1973)). 

¶ 275 This Court went further regarding the flawed notion of any reliable causal 

relationship between increased expenditures and educational outcomes:

More recently, one commentator has concluded that 

“available evidence suggests that substantial increases in 

funding produce only modest gains in most schools.” The 

Supreme Court of the United States recently found such 

suggestions to be supported by the actual experience of the 

Kansas City, Missouri schools over several decades. The 

Supreme Court expressly noted that despite massive courtordered expenditures in the Kansas City schools which had 

provided students there with school “facilities and 

opportunities not available anywhere else in the county,” 

the Kansas City students had not come close to reaching 

their potential, and “learner outcomes” of those students 

were “at or below national norms at many grade levels.”
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Id. (quoting William H. Clune, New Answers to Hard Questions Posed by Rodriguez: 

Ending the Separation of School Finance and Educational Policy by Bridging the Gap 

Between Wrong and Remedy, 24 Conn. L. Rev. 721, 726 (1992) and Missouri v. 

Jenkins, 515 U.S. 70, 70 115 S. Ct. 2038, 2040 (1995)).

¶ 276 This Court was gravely concerned with preventing judicial interference in the 

legislative realm. To that end, before reversing the decision of the Court of Appeals 

and remanding the case to Wake County Superior Court, we provided guidance to 

future courts:

In conclusion, we reemphasize our recognition of the fact 

that the administration of the public schools of the state is 

best left to the legislative and executive branches of 

government. Therefore, the courts of the state must grant 

every reasonable deference to the legislative and executive 

branches when considering whether they have established 

and are administering a system that provides the children 

of the various school districts of the state a sound basic 

education. A clear showing to the contrary must be made 

before the courts conclude that they have not. Only such a 

clear showing will justify a judicial intrusion into an area 

so clearly the province, initially at least, of the legislative 

and executive branches as the determination of what 

course of action will lead to a sound basic education.

Id. at 357, 488 S.E.2d at 261 (emphasis added). 

¶ 277 Thus, this Court in Leandro explicitly stated that: (1) there are multiple 

methods of ensuring children’s opportunity to receive a sound basic education; (2) the 

legislature’s efforts to do so are entitled to great deference; (3) any reliance on a 

correlation between educational spending and education quality is suspect at best; 
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and (4) a clear showing that children’s opportunity to receive a sound basic education 

has been violated must be made before a court takes any action. 

B. Hoke County

¶ 278 Seven years after deciding Leandro, we again addressed children’s opportunity 

to receive a sound basic education in Hoke County Board of Education v. State, 358 

N.C. 605, 599 S.E.2d 365 (2004) (Hoke County). At the conclusion of Leandro, this 

Court had remanded the case to Wake County Superior Court to decide the following 

claims:

(1) [W]hether the State ha[d] failed to meet its 

constitutional obligation to provide an opportunity 

for a sound basic education to plaintiff parties; (2) 

whether the State has failed to meet its statutory 

obligation, pursuant to Chapter 115C of the 

General Statutes, to provide the opportunity for a 

sound basic education to plaintiff parties; and (3) 

whether the State’s supplemental school funding 

system is unrelated to legitimate educational 

objectives and, as a consequence, is arbitrary and 

capricious, resulting in a denial of equal protection 

of the laws for plaintiff-intervenors. 

Id. at 612, 599 S.E.2d at 374–75. This Court noted the issues were further refined 

because “[t]he issue of whether the State has failed in its statutory duty to provide 

Hoke County school children with a sound basic education has been subsumed . . . by 

the constitutional question[,]” and the supplemental funding issue was not ripe. Id. 

In so stating, we recognized that education policy as set forth in the relevant statutes 

was consistent with the constitution.
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¶ 279 Upon remand, “two of the trial court’s initial decisions limited the scope of the 

case[.]” Id. at 613, 599 S.E.2d at 375. First, the trial court, with the consent of the 

parties, bifurcated the case into two separate actions—one addressing the claims of 

the plaintiffs from rural school districts and one addressing the claims of the plaintiffintervenors from larger urban districts. Id. Because of this bifurcation, and because 

plaintiff-intervenors’ trial had not yet been held, “our consideration of the case [wa]s 

properly limited to those issues raised in the rural districts’ trial.” Id. Second, “the 

trial court ruled that the evidence presented in the rural districts’ trial should be 

further limited to claims as they pertain to a single district.” Id. Hoke County was 

“designated as the representative plaintiff district,” and the “evidence in the case 

w[as] restricted to its effect on Hoke County.” Id. 

¶ 280 Then, to determine the Hoke County claims, the trial court held a trial which 

“lasted approximately fourteen months and resulted in over fifty boxes of exhibits 

and transcripts, an eight-volume record on appeal, and a memorandum of decision 

that exceeds 400 pages.” Id. at 610, 599 S.E.2d at 373.

¶ 281 This procedural posture had a significant effect on the impact of our holdings 

in Hoke County. As this Court made abundantly clear at the outset, “our 

consideration of this case is properly limited to the issues relating solely to Hoke 

County as raised at trial.” Id. (emphasis added). As the case before us today is a 

continuation of Hoke County, and because Hoke County constitutes the law of this 
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case, we are bound by this Court’s previous language:

[B]ecause this Court’s examination of the case is premised 

on evidence as it pertains to Hoke County in particular, our 

holding mandates cannot be construed to extend to the other 

four rural districts named in the complaint. With regard to 

the claims of named plaintiffs from the other four rural 

districts, the case is remanded to the trial court for further 

proceedings that include, but are not necessarily limited to, 

presentation of relevant evidence by the parties, and 

findings and conclusions of law by the trial court. 

Id. n.5 (emphasis added). 

¶ 282 What this means in plain language is that our decision in Hoke County

concerned only Hoke County and that no part of that decision attempted to determine 

whether any other county was failing to provide students with the opportunity to a 

sound basic education. Consistent with our holding in Leandro, a “judicial intrusion” 

into any other county’s system would require an adversarial hearing complete with 

the presentation of relevant evidence and findings of fact. The evidence and factual 

findings would then need to support the conclusion of law that a “clear showing” had 

been made that the county was denying children the opportunity to a sound basic 

education. See Leandro, 346 N.C. at 357, 488 S.E.2d at 261. Absent any separate 

trial for another county, the assertion that the trial court’s order reviewed in Hoke 

County addressed any county other than Hoke County is plainly wrong and blatantly 

contradicts the clear language of this Court. 

¶ 283 Not only did our decision in Hoke County only address the Hoke County claims, 
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but we also noted that the trial court’s order was limited to claims involving “at-risk” 

students in Hoke County. Accordingly, we stated that: 

As a consequence, while we must limit our review of the 

trial court’s order to its conclusions concerning ‘at-risk’ 

students, we cannot and do not offer any opinion as to 

whether non ‘at-risk’ students in Hoke County are either 

obtaining a sound basic education or being afforded their 

rightful opportunity by the State to obtain such an 

education.

Hoke County, 358 N.C. at 634, 599 S.E.2d at 388.

¶ 284 After these express limitations, we first examined whether the evidence 

established “a clear showing” supporting “the trial court’s conclusion that the 

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

System . . . .” Id. at 623, 599 S.E.2d at 381 (cleaned up). We next reviewed two 

categories of evidence presented at trial. 

¶ 285 First, we reviewed the trial court’s consideration of evidence of “comparative 

standardized test score data[,] . . . student graduation rates, employment potential, 

[and] post-secondary education success” for Hoke County and its comparison of that 

data to data regarding North Carolina students statewide. Id. We determined that 

evidence of this type fell “under the umbrella term of ‘outputs,’ a term used by 

educators that, in sum, measures student performance.” Id. Second, we reviewed 

the trial court’s use of evidence of “deficiencies pertaining to the educational offerings 

in Hoke County schools” and “deficiencies pertaining to the educational 
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administration of Hoke County schools.” Id. We determined that evidence of this 

type fell “under the umbrella term of ‘inputs,’ a term used by educators that, in sum, 

describes what the State and local boards provide to students attending public 

schools.” Id. 

¶ 286 This Court examined: (1) whether these types of evidence were relevant in 

determining Hoke County’s Leandro compliance; and, if so, (2) whether the evidence 

presented supported the trial court’s determination that Leandro’s mandate was 

being violated in Hoke County. 

¶ 287 We first determined that the trial court was correct in using various 

standardized test scores to compare the proficiency of Hoke County students to that 

of other students in North Carolina. The trial court determined that the comparison 

“clearly show[ed] Hoke County students are failing to achieve [grade-level] 

proficiency in numbers far beyond the state average.” Id. at 625, 599 S.E.2d at 383. 

Further, 

[i]n analyzing the test score data and the opinions of those 

who testified about them, the trial court noted that the 

score statistics showed that throughout the 1990s, Hoke 

County students in all grades trailed their statewide 

counterparts for proficiency by a considerable margin. For 

example, in 1997–98, only 46.9% of Hoke students scored 

at Level III or above in algebra while the state average was 

61.6%. Similar disparities occurred in other high school 

subjects such as Biology, English, and American History. 

Other test data reflected commensurate results in lower 

grades. For example, in grades 3–8, Hoke County students 

trailed the state average in each grade, with gaps ranging 
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from 11.7% to 15.1%.

Id. at 625–26, 599 S.E.2d at 383.

¶ 288 A wide range of tests confirmed that Hoke County students were deficient 

when compared to statewide averages. The trial court made extensive detailed 

findings of fact that this deficiency was confirmed by evidence regarding Hoke County 

graduation rates, dropout rates, employment rates and prospects, and post-secondary 

education performance. Id. at 625–30, 599 S.E.2d at 382–386. We stated that 

[i]n the realm of “outputs” evidence, we hold that the trial 

court properly concluded that the evidence demonstrates 

that over the past decade, an inordinate number of Hoke 

County students have consistently failed to match the 

academic performance of their statewide public school 

counterparts and that such failure, measured by their 

performance while attending Hoke County schools, their 

dropout rates, their graduation rates, their need for 

remedial help, their inability to compete in the job markets, 

and their inability to compete in collegiate ranks, 

constitute a clear showing that they have failed to obtain a 

Leandro-comporting education.

Id. at 630, 599 S.E.2d at 386. 

¶ 289 We then addressed “inputs,” asking whether the evidence supported the trial 

court’s conclusion that the defendants were responsible for the deficiency of Hoke 

County students in comparison to other students statewide. First, and most relevant 

to the current appeal, this Court affirmed the trial court’s conclusion that the 

statewide education policy and funding were constitutionally sound. 

In sum, the trial court found that the State’s general 
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curriculum, teacher certifying standards, funding 

allocation systems, and education accountability standards 

met the basic requirements for providing students with an 

opportunity to receive a sound basic education. As a 

consequence, the trial court concluded that “the bulk of the 

core” of the State’s “Educational Delivery System ... is 

sound, valid and meets the constitutional standards 

enumerated by Leandro.”

Id. at 632, 599 S.E.2d at 387. Simply stated, we held that the General Assembly’s 

statutory schemes creating and funding our education system complied with our state 

constitution as interpreted in Leandro.

¶ 290 Despite the trial court’s conclusion on this issue, it determined that neither the 

State, nor the Hoke County School System, were “strategically allocating the 

available resources to see that at-risk children have the equal opportunity to obtain 

a sound basic education.” Id. at 635, 599 S.E.2d at 388.3 We summarized the trial 

court’s remedial action as such:

Although the trial court explained that it was leaving the 

“nuts and bolts” of the educational resources assessment in 

Hoke County to the other branches of government, it 

ultimately provided general guidelines for a Leandrocompliant resource allocation system, including the 

requirements: (1) that “every classroom be staffed with a 

competent, well-trained teacher”; (2) “that every school be 

 

3 The “available resources” are the funds appropriated by the General Assembly in the 

State Budget. The failure to “strategically allocate[]” these available funds is a failure on the 

part of the State Board of Education—not the General Assembly. See N.C.G.S. § 115C-408(a) 

(“The [State] Board shall have general supervision and administration of the educational 

funds provided by the State . . . .”). As the trial court stated, “the funds presently appropriated 

and otherwise available are not being effectively and strategically applied so as to meet the 

[ ] principles from Leandro.” (emphasis added). 
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led by a well-trained competent principal”; and (3) “that 

every school be provided, in the most cost effective manner,

the resources necessary to support the effective 

instructional program within that school so that the 

educational needs of all children, including at-risk 

children, to have the equal opportunity to obtain a sound 

basic education, can be met.” Finally, the trial court 

ordered the State to keep the court advised of its remedial 

actions through written reports filed with the trial court 

every ninety days.

Id. at 636, 599 S.E.2d at 389 (emphasis added). 

¶ 291 Notably, the trial court “refused to step in and direct the ‘nuts and bolts’ of the 

reassessment effort.” Id. at 638, 599 S.E.2d at 390. The trial court “deferred to the 

expertise of the executive and legislative branches” because it “acknowledg[ed] that 

the state’s courts are ill-equipped to conduct, or even to participate directly in, any 

reassessment effort.” Id. This Court explicitly approved of such deference in 

affirming the trial court’s order:

[W]e note that the trial court also demonstrated admirable 

restraint by refusing to dictate how existing problems 

should be approached and resolved. Recognizing that 

education concerns were the shared province of the 

legislative and executive branches, the trial court instead 

afforded the two branches an unimpeded chance, “initially 

at least,” to correct constitutional deficiencies revealed at 

trial. In our view, the trial court’s approach to the issue was 

sound and its order reflects both findings of fact that were 

supported by the evidence and conclusions that were 

supported by ample and adequate findings of fact. As a 

consequence, we affirm those portions of the trial court’s 

order that conclude that there has been a clear showing of 

the denial of the established right of Hoke County students 

to gain their opportunity for a sound basic education and 
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those portions of the order that require the State to assess 

its education-related allocations to the county’s schools so 

as to correct any deficiencies that presently prevent the 

county from offering its students the opportunity to obtain 

a Leandro-conforming education. 

Id. at 638, 599 S.E.2d at 390–91 (emphasis added). 

¶ 292 This Court entered two additional holdings. First, we reversed the trial court’s 

decision that it could specifically determine the age for school eligibility. This Court 

held the issue was nonjusticiable, stating that “[o]ur reading of the constitutional and 

statutory provisions leads us to conclude that the determination of the proper age for 

school children has indeed been squarely placed in the hands of the General 

Assembly.” Id. at 639, 599 S.E.2d at 391. We noted that an issue is nonjusticiable 

when either “the Constitution commits an issue, as here, to one branch of 

government,” or “satisfactory and manageable criteria or standards do not exist for 

judicial determination of the issue.” Id. (citing Baker v. Carr, 369 U.S. 186, 210, 82 

S. Ct. 691, 706 (1962)). This Court determined that the issue of the proper age for 

school children met both tests for nonjusticiability. Id. In addition, we affirmed the 

trial court’s decision to consider all available resources, including those provided by 

the federal government, when evaluating our state’s educational system. Id. at 645–

47, 599 S.E.2d at 395–96.

¶ 293 This Court’s clear and deliberate language established several crucial points 

that should control our determination of the instant case. First and foremost,
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education policy and funding are legislative responsibilities, while the executive is 

tasked with administration of the education system. Id. at 643, 599 S.E.2d at 393. 

Second, our holding in Hoke County was based on review of a 400-page, detailed order, 

which resulted from the trial court receiving evidence over a fourteen-month period 

on whether at-risk students in Hoke County were receiving the opportunity to a 

sound basic education. The trial court determined that the educational opportunities 

provided by Hoke County were deficient when it compared Hoke County to their 

contemporaries across the state. Finally, our holding in Hoke County was expressly 

limited to Hoke County. 

¶ 294 We concluded our opinion by directing the trial court to conduct proceedings, 

consistent with the strictures above, monitoring Hoke County compliance and 

holding trials. Executive branch agencies were required to propose methods to 

reallocate existing resources to address the deficiencies in Hoke County. In addition, 

the trial court was to hold trials “involving either other rural school districts or [the 

five] urban school districts, . . . in a fashion that is consistent with the tenets outlined 

in this opinion.” Id. at 648, 599 S.E.2d at 397. 

¶ 295 Thus, this case as refined by our opinions in Leandro and Hoke County did not 

present a statewide claim that the education system in North Carolina was deficient, 

and there has never been any such holding. To the contrary, the Court approved the 

use of statewide averages to help determine if students in a particular county were 
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underperforming.4

C. Post-Hoke County

¶ 296 Following our decision in Hoke County, this matter was remanded to Wake 

County Superior Court for further proceedings under Judge Howard E. Manning, Jr. 

Unfortunately, none of the trials required by this Court’s decision occurred between 

July 2004 and October 7, 2016, when Judge Manning had to withdraw. While no trial 

occurred and no formal order was rendered—unlike the trial that led to Hoke 

County—there were various hearings and reports during this twelve-year period 

which the majority erroneously claims amounted to a trial and order. A careful 

reading of the record reveals that there was no trial and the trial court made no 

findings of fact or conclusions of law amounting to an appealable order. We address 

the four trial court filings highlighted by the majority. 

¶ 297 On September 9, 2004, the trial court entered one of several filings entitled 

“Notice of Hearing and Order Re: Hearings.” In that filing, the Court “noticed” 

 

4 In reviewing the trial court’s conclusion that at-risk students in Hoke County were 

denied the opportunity to a sound basic education, this Court explicitly approved of Judge 

Manning’s use of a comparative analysis in which Hoke County was measured against other 

counties in this state. This use of better-performing counties as measuring sticks was only 

possible because students in these other counties were receiving a Leandro conforming 

education, and this fact is reflected in Judge Manning’s determinations regarding funding 

adequacy and implementation inadequacy. 

No such analysis could conceivably support Judge Lee and the education 

establishment’s assertion that students in all counties in this state are being denied the 

opportunity to a sound basic education—without at least one Leandro compliant county, the 

measuring stick evaporates. Put another way, the existence of Leandro compliant counties 

for which comparison is possible defeats any suggestion that there is a statewide violation.
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hearings to occur on October 7 and 25, 2004, and “ordered” the parties to attend. The 

trial court recounted some of the history of the case, including excerpts from this 

Court’s then recent Hoke County decision. In reviewing certain data, the trial court 

made the following observation:

This Court believes that DPI and the State Board of Public 

Instruction are heading down the right track towards 

assessing problems, developing common sense solutions 

and providing LEAS with guidance and assistance in 

developing cost-effective, targeted solutions that can be 

measured for success and accountability.

Now that the appeal is over and Leandro II is in full force 

and effect, it is time for the DPI and State Board to outline 

and present its plans as to how it will continue to proceed 

to ensure that the children of North Carolina will be 

afforded the opportunity to a sound basic education.

¶ 298 On February 9, 2005, certain Mecklenburg County parents and students (Penn 

Intervenors), represented by current Justice Anita Earls, filed a complaint seeking to 

intervene and raising education and race-based claims. On August 19, 2005, the trial 

court allowed intervention solely for the education claim and denied participation 

concerning any race-based claims.

¶ 299 Thereafter, on September 30, 2005, Justice Earls filed an amended complaint 

on behalf of the Penn Intervenors, which further developed the education claim 
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allowed by the trial court and sought to add additional plaintiffs.5 On May 4, 2006, 

all of the original intervening parties, except the Charlotte-Mecklenburg Board of 

Education, voluntarily dismissed their claims.

¶ 300 The next trial court filing referenced by the majority was again entitled “Notice 

of Hearing Order Re: Hearing.” The “order” again simply ordered the parties to 

appear at the noticed hearing. The trial court noted that the hearing was “nonadversarial” and explained its purpose was to provide executive branch defendants 

the “opportunity to report to the court concerning the actions that the Executive 

Branch will take with regard to the Halifax County Public School system.” The trial 

court made the following observations concerning Halifax County Schools:

The bottom line is that Halifax County Public School 

children are suffering from a breakdown in system 

leadership, school leadership and a breakdown in 

classroom instruction by and large from elementary school 

through high school.

. . . 

Financial data furnished by DPI shows that the cost to the 

taxpayers to provide school level expenditures, the 

majority of which are salaries and benefits, has exceeded 

$75,000,000.00 for the past three years.

. . . 

With all of this expense being paid to the adults whose 

responsibility it is to provide an equal opportunity to obtain 

 

5 That claim remains part of this case, and Justice Earls’ former clients participated 

in this appeal. 
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a sound basic education to each and every child in the 

Halifax County Public School system, there seems to be 

little trickle down benefit to the children entrusted to the 

adults in these schools.

. . .

[I]t is time for the State to exert itself and exercise 

command and control over the Halifax County Public 

Schools beginning in the school year 2009-2010, nothing 

more and nothing less.

. . .

[T]he Court is providing the Executive Branch the 

opportunity, initially at least, to exercise its constitutional 

authority over the Halifax County School system to remedy 

the academic disaster which is occurring there[.]

. . .

The Court will entertain no excuses or whining by the 

adults in the educational establishment in Halifax County 

about how it’s the children’s fault, not theirs, for failing to 

provide the academic environment where children can 

obtain a sound basic education. If these children had 

Leandro compliant school leadership and teachers, they 

could learn and obtain a sound basic education rather than 

fail and drop out of school doomed to a lifetime of poverty 

and its multiple damages.

¶ 301 Subsequently, on May 5, 2014, the trial court entered a filing entitled “Report 

from the Court Re: The Reading Problem.” In it, the trial court observed that the goal 

of N.C.G.S. § 115C-83.1 et. seq. was “on all fours with the Leandro I definition of a

sound basic education.” After citing with approval the legislative enhancements to 

education, the trial court placed the blame for students’ reading shortfalls squarely 
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on principals and teachers. 

The bottom line is that the principals that sit in the office, 

fail to analyze the assessment data a[t] their fingertips and 

do not become proactive in seeing the K-3 assessment 

system is being properly and effectively used by all 

teachers to drive individualized instruction in literacy, are 

not performing at a level that is expected to provide their 

students and faculty with the leadership needed to be 

successful and have all children obtain a sound basic 

education and proficiency in reading. This principal is not 

a Leandro compliant principal.

Similarly, teachers who fail to utilize the assessment tools properly “are not Leandro 

compliant.” 

¶ 302 The trial court issued this summary observation directed to school principals 

and teachers:

Bottom line requirement: Do the formative assessment and 

use the information to meet the needs of the individual 

child. Do not put the data in the folder and continue on with 

the instruction for the entire class on one level. (What 

about this do you not understand?)

¶ 303 The final trial court filing relied on by the majority was another “Notice of 

Hearing and Order Re: Hearing” dated March 17, 2015. In that filing, the trial court 

expressed concern that the State Board of Education and the Department of Public 

Instruction were diminishing educational standards.

Regardless of whatever excuse or reason reducing or 

eliminating academic standards and assessments may be 

based on, including education leaders and parent pressure, 

politics or an unconditional desire to reduce children’s 

equal opportunities to obtain a sound basic education, the 
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reduction of academic standards and elimination of 

assessments and EOC and EOG tests would be a direct 

violation of the Leandro mandate regarding assessments 

and testing to determine whether each child is obtaining a 

sound basic education.

The bottom line is that in 2014, the SBE and DPI through 

their actions in redefining achievement levels, has begun 

to nibble away at accountability and academic standards[.] 

¶ 304 Judge Manning further noted: 

As a result of today’s heightened awareness and available 

data relating to individual school and student academic 

achievement in each classroom, the natural reaction by the 

affected adults who are in education, is to seek a way to 

eliminate the source of the data that holds them 

accountable. The only way out from under the microscope 

of accountability is to eliminate the assessments and the 

tests themselves. 

Helping non[-]Leandro compliant teachers and principals 

escape from public scrutiny and accountability by 

eliminating is invalid, simply wrong and in violation of the 

children’s rights[.]

Teaching to the test is a “red herring’ phrase to draw 

attention away from the real problem – a failure of basic 

classroom instruction. 

¶ 305 Judge Manning’s filings reflect his summary of the proceedings in the trial 

court. Notably, in a memorandum he provided the trial court judge who succeeded 

him, Judge Manning stated:

Our children that cannot read by the third grade are by and 

large doomed not to succeed by the time they get to high 

school. As shown by the record in this case, that is a failure 

of classroom instruction. 
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. . . 

Reduced to essentials, in my opinion the children are not 

being provided the opportunity because after all the 

millions spent, 90% of school costs are for adult salaries

and benefits, and the data show as it did years ago and up 

to now the educational establishment has not produced 

results.

¶ 306 Judge Manning, who presided over this case for almost 20 years, reiterated 

time and time again that the problem is not education policy or funding. The problem 

is a failure of the educational establishment and classroom instruction, i.e., 

implementation and delivery.

¶ 307 During the twelve years between this Court’s decision in Hoke County and the 

case’s reassignment to Judge Lee, the record reveals that Judge Manning entered 

sixteen Notices of Hearings and Orders re: Hearings, four Court Memos Confirming 

Hearing Date and Time, one Memorandum of Decision and Order Re: PreKindergarten Services for At-Risk Four Year Olds,6 and one Report from the Court 

Re: The Reading Problems. The record demonstrates that, contrary to this Court’s 

express direction, no trials were conducted for any other school districts or counties, 

and the parties have failed to point this Court to anything in the record indicating 

that any such trials ever occurred. Moreover, at oral argument in this case, the 

 

6 This amounted to the only actual court order, and it was vacated on appeal as 

discussed herein. See Hoke Cnty. Bd. of Educ. v. State, 367 N.C. 156, 749 S.E.2d 451 (2013).
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parties were unable to direct this Court to any order finding a statewide violation. 

See Oral Argument at 36:20, Hoke Cnty. Bd. of Educ. v. State of North Carolina, No. 

425A21-2, https://www.youtube.com/watch?v=NOuFCf2rYdY. 

¶ 308 Significant to a proper analysis by this Court of the current appeal, on August 

15, 2011, the General Assembly sought to intervene in this action. Prior to 2011, the 

General Assembly, the Governor, and other executive branch entities involved in 

formulating education policy were all of the same political party. However, as a result 

of the 2010 midterm elections, the majority in the State House and Senate changed 

parties. 

¶ 309 The Attorney General notified the legislature that it would no longer represent 

the General Assembly’s interests in the case. The Attorney General noted a conflict 

of interest between the General Assembly and the remaining State defendants, and 

that neither the Governor nor the Department of Public Instruction would waive the 

conflict. Thereafter, the General Assembly moved to intervene. 

¶ 310 In denying the General Assembly’s motion to intervene, the trial court 

acknowledged that the “obligation[ ] to establish and maintain public schools is the 

‘shared province of the executive and legislative branches,’ ” but specifically declined 

to “put[ ] itself, or the judiciary, in the middle of this political dispute.” The trial court 

denied the motion to intervene, in part because it recognized that the case concerned 

implementation of policy, and, therefore, focused on executive branch defendants. 
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Thus, the legislative defendants were denied an opportunity to participate in this 

litigation.

¶ 311 This case again reached this Court in 2013. See Hoke Cnty. Bd. of Educ. v. 

State, 367 N.C. 156, 749 S.E.2d 451 (2013). There, we vacated an actual order entered 

by the trial court finding unconstitutional certain limitations on access to early 

childhood education. Id. at 159–60, 749 S.E.2d at 454–55. Because the General 

Assembly had revised the contested statute, we held the case should be dismissed as 

moot with the orders of the Court of Appeals and the trial court vacated. Id. at 160, 

749 S.E.2d at 455. 

¶ 312 Of note, Justice Earls filed an amicus brief in this matter on behalf of an 

organization she had founded, the Southern Coalition for Social Justice. Justice Earls 

argued that the trial court had the constitutional authority to order remedial relief 

by the legislative branch, just as the majority holds today. See New Brief of Amici 

Curiae, at 11, Hoke Cnty. Bd. of Educ. v. State, 367 N.C. 156 (2013) (No. 5PA12-2). 

In the brief, she contended that when “the other branches refuse to fulfill 

[constitutional] obligations, our state courts are not only empowered, but are 

obligated, to act to ensure the constitutional rights of North Carolinians are not 

compromised.” Interestingly, she made various arguments in the brief similar to 

those now adopted by the majority, citing many of the same cases and using some of 

the same quotes. Compare New Brief of Amici Curiae, at 11–13, Hoke Cnty., 367 N.C. 
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156 (No. 5PA12-2) and supra ¶¶ 162–71.7

¶ 313 At the time of Judge Manning’s medical retirement, the remaining plaintiffs 

in this matter were the original five rural counties, the Charlotte-Mecklenburg Board 

of Education, and certain students from Mecklenburg County (the Penn Intervenors). 

The state defendants were executive branch defendants who were represented by the 

Attorney General. The General Assembly was not represented and was not a 

participant in the action due to the prior denial of its motion to intervene.

¶ 314 After being appointed, Judge David Lee took the litigation in a far different 

direction, appointing a third-party consultant to make education policy and funding 

decisions. This was done despite this Court’s explicit holding in Hoke County that 

the state’s education policy and its funding met constitutional standards. See Hoke 

County, 358 N.C. at 387, 599 S.E.2d at 632. The trial court did not limit its directives 

to the specific plaintiffs or their specific claims; rather, the trial court greatly 

expanded the scope of this litigation while knowing that the branch designated by the 

constitution to make education policy and funding decisions was not a party to the 

proceedings.

 

7 Justice Earls also signed an amicus brief in this case in December 2004 while 

representing the UNC School of Law Center for Civil Rights. See Memorandum of Law as 

Amici Curiae, at 15, Hoke Cnty. Bd. of Educ. v. State, No. 95-CVS-1158 (N.C. Wake County 

Sup. Ct. Dec 3, 2004). There, her brief criticized executive branch defendants for not seeking 

significantly more money from the General Assembly and urging immediate court action. 

Subsequently, the Center for Civil Rights moved to participate as if it represented a party 

and also began to represent new plaintiffs seeking to intervene in this action.
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¶ 315 The following occurred after Judge Lee was assigned to preside over this case 

on October 7, 2016:

(1) July 24, 2017: The State Board of Education filed a Motion for Relief 

from Judge Manning’s 2002 Judgment, based on its assertion that “the 

factual and legal landscapes have significantly changed,” and that “the 

original claims, as well as the resultant trial court findings and 

conclusions, are divorced from the current laws and circumstances.”

(2) February 1, 2018: Judge Lee entered a Case Management and 

Scheduling Order noting that “the Plaintiff parties [including PennIntervenors] and the State have jointly nominated, for the Court’s 

consideration and appointment, an independent, non-party consultant 

to develop detailed, comprehensive, written recommendations for 

specific actions necessary to achieve sustained compliance with 

constitutional mandates articulated in this case.”

(3) March 13, 2018: Judge Lee denied the State Board of Education’s Motion 

for Relief from Judgment.

(4) March 13, 2018: Judge Lee entered a consent order appointing WestEd 

as an “independent, non-party consultant” to assist with the case.

(5) December 2019: WestEd submits its plan for North Carolina.

(6) January 21, 2020: The parties, including the State Board of Education, 

enter a consent order that “[b]ased upon WestEd’s findings, research, 

and recommendations and the evidence of record in this case, the Court 

and parties conclude that a definite plan of action for the provision of 

the constitutional Leandro rights must ensure a system of education,” 

that, at a minimum, included seven components described in the order. 

The order required the parties to submit a status report on the “specific 

actions that State Defendants must implement in 2020 to begin to 

address the issues identified by WestEd.”

(7) June 15, 2020: Parties submitted a Joint Report to the Court on 

remedial steps the State planned to take in the next year. 
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(8) September 1, 2020: Judge Lee entered a consent order, noting that the 

parties agreed that the steps outlined in the June 15, 2020 Joint Report 

“are the necessary and appropriate actions needed in Fiscal Year 2021 

to begin to adequately address the constitutional violations in providing 

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

Carolina.” The Court ordered defendants to implement the remedial 

actions in the Joint Plan by June 30, 2021, and required the parties to 

develop a Comprehensive Remedial Plan (CRP) by December 31, 2020.

(9) March 15, 2021: State defendants submitted a Comprehensive Remedial 

Plan to the Court.

(10) June 11, 2021: Judge Lee entered an order providing that the “actions, 

programs, policies, and resources propounded by and agreed to [by] the 

State Defendants, and described in the Comprehensive Remedial Plan 

are necessary to remedy the continuing constitutional violations and to 

provide the opportunity for a sound basic education . . . .” Judge Lee 

ordered that the “Comprehensive Remedial Plan shall be implemented 

in full” and set forth deadlines for doing so. 

(11) August 6, 2021: The State filed its first progress report on the status of 

implementing the Comprehensive Remedial Plan.

(12) September 8, 2021: Judge Lee held a hearing on the status of 

implementing the Comprehensive Remedial Plan.

(13) September 22, 2021: Judge Lee entered an order on the First Progress 

report filed by the State. He noted that the parties had not yet secured 

full funding for the first two years of the Comprehensive Remedial Plan 

but noted that the State “has available fiscal resources needed to 

implement Years 2 and 3 of the” Plan. Judge Lee ordered that another 

hearing be held on October 18, 2021 “to inform the Court of the State’s 

progress in securing the full funds necessary to implement the” CRP. 

Judge Lee noted that “in the event full funds necessary to implement 

the CRP are not secured by that date, the Court will hear and consider 

any proposals for how the Court may use its remedial powers to secure 

funding.”

(14) October 18, 2021: Judge Lee entered an order finding that the CRP had 

not, as of that date, been fully funded by “an appropriations bill.” Judge 
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Lee gave the parties until November 8, 2021, to submit memoranda of 

law what on remedial steps the court could take.

(15) November 10, 2021: Judge Lee entered the order requiring relevant 

State actors to transfer over a billion dollars from the General Fund to 

appropriate State agencies to fund years 2 and 3 of the CRP. Judge Lee 

stayed the order for 30 days.

(16) November 18, 2021: The General Assembly passed the Budget Act of 

2021. The budget appropriated $10.6 billion in FY 2021-2022 and $10.9 

billion in FY 2022-2023 for K-12 education. These figures do not include 

over $3.6 billion dollars in federal coronavirus funding for North 

Carolina school districts. The budget was signed by the Governor.

(17) November 30, 2021: Judge Lee entered an order noticing a hearing for 

December 13, 2021, for the State “to inform the Court of the specific 

components of the Comprehensive Remedial Plan for years 2 & 3 that 

are funded by the Appropriations Act and those that are not.” Judge Lee 

also ordered that his November 10, 2021 transfer order be stayed for ten 

days after the December 13, 2021 hearing.

(18) December 7, 2021: The State appealed from the November 10, 2021 

order.

(19) December 8, 2021: The intervening legislative defendants filed a notice 

of appeal from the November 10, 2021 order.

¶ 316 As is evident from the timeline above, after the case was reassigned to Judge 

Lee, no trials or adversarial hearings took place to determine whether a statewide 

violation of Leandro existed. The State Board of Education raised this exact issue 

before the trial court as part of its Motion for Relief filed July 10, 2017. The State 

Board of Education requested that the trial court “relinquish [remedial] jurisdiction,” 

in part because “[f]or over a decade, the Superior Court has retained and exercised 

jurisdiction in this case, [but] this Superior Court has not [ ] held a trial as to any 
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other plaintiff school board.” Further, the State Board of Education noted the current 

direction of the case far 

“exceed[ed] the jurisdiction established by the original 

pleadings in this action.” The State Board of Education 

recognized numerous statutory and administrative 

changes since the Hoke County decision. It stated that 

“[t]he cumulative effect of these changes is that the State’s 

current educational system is so far removed from the 

factual landscape giving rise to the complaint, trial, and 

2002 Judgment that the superior court is now retaining 

jurisdiction over a ‘future school system’ which was not the 

subject of the original action.”

¶ 317 On March 13, 2018, eight months after the State Board filed its motion, Judge 

Lee denied the motion without addressing these crucial issues. In a footnote to the 

order, Judge Lee indicated that all of the parties were now working together; the 

proceedings were now taking on a radically different character. The record reflects 

that the parties entered into three consent orders, with the first occurring on March 

13, 2018.8 In this first consent order, the trial court, upon the parties’ request, 

appointed a San Francisco-based consulting company, WestEd, to serve as an 

“independent non-party consultant.” According to a Case Management and 

Scheduling Order dated February 1, 2018, WestEd’s role was to recommend “specific 

actions” that the state should take:

 

8 Notably, as discussed further below, the legislature was not a party to the case at 

this point because its motion to intervene was denied in 2011. Therefore, both its interests 

and, commensurately, the interests of the taxpayers, voters, and people of this State, were 

not represented. 
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a. To provide a competent, well-trained teacher in every 

classroom in every public school in North Carolina;

b. To provide a well-trained, competent principal for every 

public school in North Carolina; and

c. To identify the resources necessary to ensure that all 

children in public school, including those at risk, have 

an equal opportunity to obtain a sound basic education, 

as defined in Leandro I.

9 (emphasis added).

¶ 318 In December 2019, WestEd released its “Action Plan for North Carolina.”10

This report became the basis for two further consent orders between the parties—a 

Consent Order Regarding Need for Remedial, Systemic Actions for the Achievement 

of Leandro compliance, filed January 21, 2020, and a Consent Order on Leandro 

Remedial Action for Fiscal Year 2021, filed September 11, 2020. 

¶ 319 In addition, WestEd’s report formed the basis for the “Comprehensive 

Remedial Plan.” The CRP resulted from the trial court’s order for “State Defendants, 

in consultation with Plaintiffs to develop and present a Comprehensive Remedial 

 

9 It is notable that the trial court misconstrued our holding in Leandro. As discussed 

above, this Court expressly rejected the contention that our constitution requires all students 

to have “an equal opportunity to obtain a sound basic education.” See Leandro, 346 N.C. at 

350, 488 S.E.2d at 256–57 (emphasis added) (“A constitutional requirement to provide 

substantial equality of educational opportunities . . . would almost certainly ensure that no 

matter how much money was spent on the schools of the state, at any given time some of 

those districts would be out of compliance.”). 

10 On the first page of its report, WestEd wrongly asserted that this Court’s decision 

in Leandro “affirmed that the state has a constitutional responsibility to provide every 

student with an equal opportunity for a sound basic education and that the state was failing 

to meet that responsibility.” (Emphasis added.) This is simply wrong. This Court has never 

affirmed a Leandro violation outside of Hoke County, let alone a violation occurring on a 

statewide basis. 
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Plan to be fully implemented by the end of 2028 . . . .” There is no doubt that the CRP 

was crafted by the parties, as “State Defendants ha[d] regularly consulted with the 

plaintiff-parties in the development of the Comprehensive Remedial Plan.” The CRP 

contains hundreds of action steps for the state to complete over the course of eight 

years, which would require billions of dollars in taxpayer money to fund. On June 7, 

2021, the trial court entered its Order on Comprehensive Remedial Plan and directed 

that “the Comprehensive Remedial Plan shall be implemented in full and in 

accordance with the timelines set forth therein . . . .” 

¶ 320 The CRP includes definitions of “responsible parties” who must implement the 

plan’s “action steps.” While our state constitution provides that the General 

Assembly has exclusive authority to allocate taxpayer money, the General Assembly 

is consistently identified by WestEd as a responsible party for each of these action 

steps. However, the General Assembly was never joined as a necessary party by the 

trial court, nor was it consulted during the development of the CRP. As previously 

noted, the legislature had moved to intervene in this case in 2011, but the trial court 

denied its motion to intervene. 

¶ 321 Following the trial court’s June 7 2021 order directing that the CRP be 

implemented in full, the trial court entered an order on November 10, 2021, in which 

it ordered that:

The Office of State Budget and Management and the 

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

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

current State Treasurer (“Treasurer”) shall take the 

necessary actions to transfer the total amount of funds 

necessary to effectuate years 2 & 3 of the Comprehensive 

Remedial Plan, from the unappropriated balance within 

the General Fund to the state agents and state actors with 

fiscal responsibility for implementing the Comprehensive 

Remedial Plan as follows:

(a) Department of Health and Human Services (“DHHS”): 

$189,800,000.00

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

$1,522,053,000.00

(c) University of North Carolina System: $41,300,000.00

¶ 322 In addition to ordering the transfer of more than $1.7 billion in state funds, the 

trial court also ordered that “OSBM, the Controller, and the Treasurer, are directed 

to treat the foregoing funds as an appropriation from the General Fund . . . .” 

¶ 323 The day before Judge Lee entered the November 10 order, Judge Manning sent 

a memorandum to the General Assembly, the Governor, and the Superintendent of 

Public Instruction. Judge Lee was copied on the memorandum, which stated:

At the present time there is a media-induced frenzy about 

the Leandro judge proposing to enter an order requiring 

the General Assembly to appropriate over $1 billion for the 

educational establishment. As the press is licking its lips 

for 15 minutes on the 6:00 news, I will refer all to the 

following decisions from our Supreme Court and other 

decisions relating specifically to the power of the Judicial 

Branch.

You might enjoy reading Able Outdoor, Inc. v. Harrelson 

341 N.C. 167 (1995) by Justice Webb (a Democrat) as 
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follows:

We hold, however, that the Court of Appeals erred in 

affirming Judge Cashwell’s orders allowing execution 

against the State. In Smith v. State, 289 NC 303 (1976), we 

held that . . . if a plaintiff is successful in establishing his 

claim, he cannot obtain execution to enforce the judgment. 

We said ‘[t]he judiciary will have performed its function to 

the limit of its constitutional powers. Satisfaction will 

depend upon the manner in which the General Assembly 

discharges its constitutional duties.’ Pursuant to Smith, we 

do not believe the Judicial Branch of our State government 

has the power to enforce an execution against the Executive 

Branch.

You should also read the following decisions attached to 

this memorandum, which also declare the limits of the 

Court’s power to execute or require the Legislative and 

Executive branches of government to appropriate money. 

Finally, Leandro requires that the children, not the 

educational establishment, have the Constitutional right 

to the equal opportunity to obtain a sound, basic education. 

This has not and is not happening now as the little children 

are not being taught to read and write because of a failure 

in classroom instruction as required by Leandro. 358 NC 

624, 625, 626 (“First, that every classroom be staffed with

a competent, certified, well-trained teacher who is teaching 

the standard course of study by implementing effective 

educational methods that provide differentiated 

individualized instruction, assessment and remediation to 

the students in that classroom.”).

This is not happening now.

Our children that cannot read by the third grade are by and 

large doomed not to succeed by the time they get to high 

school. As shown by the record in this case, that is a failure 

of classroom instruction. This conclusion is supported 

further by the Report from the Court: The Reading 

Problem (2014) as well as annual statewide academic 
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performance data, including ACT statewide results for 

2020–21 and several years before. 

Reduced to essentials, in my opinion the children are not

being provided the opportunity because after all the 

millions spent, 90% of school costs are for adult salaries 

and benefits, and the data shows as it did years ago and up 

to now the educational establishment has not produced 

results. 

‘A Failure of Classroom Instruction.’ Read Retired Judge’s Memo on NC School 

Funding, The News & Observer (Nov. 10, 2021, 6:36 PM), 

https://www.newsobserver.com/news/local/education/article255713686.html.

11

¶ 324 Eight days after the trial court entered the November 10 order, the General 

Assembly passed, and the Governor signed, the Current Operations and 

Appropriations Act of 2021, 2021 N.C. Sess. L. 180 (State Budget). 

¶ 325 The State appealed to the Court of Appeals.12 It was at this point that 

Legislative Intervenors intervened as of right pursuant to N.C.G.S. § 1-72.2(b) and 

 

11 History and common sense tell us that increased funding alone is not a silver bullet. 

By way of example, a young baseball player can have the best bat, glove, batting gloves, 

cleats, and helmet money can buy. Mom and dad can fork out a fortune for top-notch hitting 

and pitching coaches, showcase teams, and field time. But, if these coaches prioritize teaching 

the young player to cook or play a musical instrument, you will see little improvement in the 

sport of baseball.

The same is true with educating children. Schools can have the best teachers along 

with state-of-the-art programs, equipment, and materials, but educational outcomes will not 

improve if use of available resources does not prioritize reading, writing, and arithmetic.

12 This appeal is curious, as the November 10 order attempted to fund a plan that the 

State defendants crafted. Counsel for the State could not provide an answer when asked why 

the State had appealed and stated “I don’t think the State disagreed with the adoption of 

that plan.” 
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also filed a Notice of Appeal.13

¶ 326 The State Controller, who was not a party to this action, also petitioned the 

Court of Appeals for a writ of prohibition, temporary stay, and writ of supersedeas, 

arguing that the trial court lacked jurisdiction over the Controller and that the 

November 10 order violated our state constitution. On November 30, 2021, the Court 

of Appeals issued a writ of prohibition restraining the trial court from enforcing the 

transfer provisions of its November 10 order and stated that “[u]nder our 

Constitutional system, that trial court lacks the power to impose that judicial order.” 

¶ 327 Following the Court of Appeals’ issuance of the writ of prohibition, multiple 

parties, including the State, filed petitions and notices of appeal in this Court, seeking 

review of the decision of the Court of Appeals and bypass review of issues arising from 

the November 10 order. On March 21, 2022, this Court allowed defendant State of

North Carolina’s and plaintiffs’ petitions for bypass review (425A21-2) but held in 

abeyance the direct appeal of review of the writ of prohibition (425A21-1). However, 

this matter was first remanded to Wake County Superior Court “for the purpose of 

allowing the trial court to determine what effect, if any, the enactment of the State 

Budget has upon the nature and extent of the relief that the trial court granted . . . .” 

Judge Michael Robinson was assigned the task of overseeing the proceedings on 

 

13 It is notable that not only could the legislative defendants not intervene as of right 

prior to the passage of the State Budget, but their prior motion to intervene was denied in 

2011. 
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remand.14 

¶ 328 On remand, Judge Robinson concluded “that the 10 November order should be 

amended to remove a directive that State officers or employees transfer funds from 

the State Treasury to fully fund the CRP” but also concluded that “the State of North 

Carolina has failed to comply with the trial court’s prior order to fully fund years 2 

and 3 of the CRP.” In addition, Judge Robinson concluded that because the State 

Budget in fact funded portions of CRP programs:

The Order should be further amended to determine 

specifically that the additional amounts that are due to 

DHHS, DPI, and the UNC System for undertaking the 

programs called for in years 2 and 3 of the CRP should be 

modified and amended as follows:

a. The amount to be provided to DHHS should be reduced 

from $189,800,000 to $142,900,000

b. The amount to be provided to DPI should be reduced 

from $1,522,053,000 to [$]608,006,248

c. The amount to be provided to the UNC System should 

be reduced from $41,300,000 to $34,200,000.

¶ 329 With a proper understanding of the history and current posture of this case, 

our analysis is set forth below.

II. Analysis

A. Collusion

 

14 The matter was assigned to Judge Robinson because Judge Lee “had reached the 

mandatory retirement age for judges in January.” David Lee, Judge who Oversaw School 

Funding Case, Dies at 72, North State Journal, Oct. 12, 2022, at A5. 
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¶ 330 The courts of this state “have no jurisdiction to determine matters purely 

speculative, enter anticipatory judgments, declare social status, [or] deal with 

theoretical problems . . . .” Little v. Wachovia Bank & Trust Co., 252 N.C. 229, 243, 

113 S.E.2d 689, 700 (1960), overruled on other grounds by Citizens Nat’l Bank v. 

Grandfather Home for Children, Inc., 280 N.C. 354, 185 S.E.2d 836 (1972). When an 

issue has not been “drawn into focus by [court] proceedings,” any decision of our 

courts would “be to render an unnecessary advisory opinion.” Wise v. Harrington 

Grove Cmty. Ass’n, Inc., 357 N.C. 396, 408, 584 S.E.2d 731, 740 (2003) (citing City of 

Greensboro v. Wall, 247 N.C. 516, 519, 101 S.E.2d 413, 416 (1958)). “It is no part of 

the function of the courts, in the exercise of the judicial power vested in them by the 

Constitution, to give advisory opinions . . . .” Poore v. Poore, 201 N.C. 791, 792, 161 

S.E. 532, 533 (1931). 

¶ 331 Because “[c]lear and sound judicial decisions” can only be reached when 

adverse parties and their legal theories “are tested by fire in the crucible of actual 

controversy,” suits lacking adversity are properly barred from our courts. State ex rel. 

Edmisten v. Tucker, 312 N.C. 326, 345, 323 S.E.2d 294, 307 (1984) (emphasis in 

original) (quoting City of Greensboro v. Wall, 247 N.C. at 520, 101 S.E.2d at 416). “Socalled friendly suits, where, regardless of form, all parties seek the same result, are 

quicksands of the law.” City of Greensboro v. Wall, 247 N.C. at 520, 101 S.E.2d at 

416. 
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¶ 332 Our State’s long-standing judicial policy to decline consideration of issues not 

drawn into focus by adversarial court proceedings is in harmony with the approach 

of the Supreme Court of the United States. “[F]ederal courts will not entertain 

friendly suits, or those which are feigned or collusive in nature.” Flast v. Cohen, 392 

U.S. 83, 100, 88 S. Ct. 1942, 1953 (1968) (cleaned up). As stated by the Supreme 

Court in 1850 when voiding a judgment of the Circuit Court of the United States for 

the District of Maine:

The court is satisfied, upon examining the record in this 

case . . . that there is no real dispute between the plaintiff 

and defendant. On the contrary, it is evident that their 

interest in question brought here for decision is one and the 

same, and not adverse; and that in these proceedings the 

plaintiff and defendant are attempting to procure the 

opinion of this court upon a question of law, in the decision 

of which they have a common interest opposed to that of 

other persons, who are not parties to this suit, who had no 

knowledge of it while it was pending in the Circuit Court, 

and no opportunity of being heard there in defence of their 

rights. And their conduct is the more objectionable, because 

they have brought up the question upon a statement of 

facts agreed on between themselves, without the 

knowledge of the parties with whom they were in truth in 

dispute, and upon a judgment pro forma entered by their 

mutual consent, without any actual judicial decision by the 

court. 

Lord v. Veazie, 49 U.S. 251, 254 (1850). 

¶ 333 As stated by Justice Brewer for the Supreme Court in 1892:

Whenever, in pursuance of an honest and actual 

antagonistic assertion of rights by one individual against 

another, there is presented a question involving the 
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validity of any act of any legislature, state or federal, and 

the decision necessarily rests on the competency of the 

legislature to so enact, the court must, in the exercise of its 

solemn duties, determine whether the act be constitutional 

or not; but such an exercise of power is the ultimate and 

supreme function of courts. It is legitimate only in the last 

resort, and as a necessity in the determination of real, 

earnest, and vital controversy between individuals. It 

never was the thought that, by means of a friendly suit, a 

party beaten in the legislature could transfer to the courts 

an inquiry as to the constitutionality of the legislative act.

Chicago & G.T. Ry. Co. v. Wellman, 143 U.S. 339, 345, 12 S. Ct. 400, 402 (1892).

¶ 334 As stated by the Supreme Court per curiam in 1943:

Such a suit is collusive because it is not in any real sense 

adversary. It does not assume the honest and actual 

antagonistic assertion of rights to be adjudicated—a 

safeguard essential to the integrity of the judicial process, 

and one which we have held to be indispensable to 

adjudication of constitutional questions by this Court. 

Whenever in the course of litigation such a defect in the 

proceedings is brought to the court’s attention, it may set 

aside any adjudication thus procured and dismiss the cause 

without entering judgment on the merits. It is the court’s 

duty to do so where, as here, the public interest has been 

placed at hazard by the amenities of parties to a suit 

conducted under the domination of only one of them. 

U.S. v. Johnson, 319 U.S. 302, 305, 63 S. Ct. 1075, 1076–77 (1943) (cleaned up). 

¶ 335 Here, the trial court disregarded both this Court’s precedent and the longstanding guidance of the Supreme Court of the United States by judicially 

sanctioning a collusive suit between friendly parties. While this case originally “was 

filed as a declaratory judgment action pursuant to section 1-253 of the General 
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Statutes,” Hoke County, 358 N.C. at 617, 599 S.E.2d at 378, the Uniform Declaratory 

Judgment Act nevertheless “preserves inviolate the ancient and sound juridic concept 

that the inherent function of judicial tribunals is to adjudicate genuine controversies 

between antagonistic litigants . . . .” Lide v. Mears, 231 N.C. 111, 118, 56 S.E.2d 404, 

409 (1949). Further, “an action for a declaratory judgment will lie only in a case in 

which there is an actual or real existing controversy between parties having adverse 

interests in the matter in dispute.” Id. (emphasis added). 

¶ 336 An examination of the record in this case leaves no doubt that although the 

parties’ interests may have once been adverse, any such adversity dissipated years 

ago. As early as February 1, 2018, the trial court’s Case Management and Scheduling 

Order noted that “[t]he Plaintiff Parties and the State have jointly nominated . . . an 

independent, non-party consultant,” i.e., WestEd, “to develop detailed, 

comprehensive, written recommendations for specific actions” to remedy the 

purported statewide violations of Leandro. 

¶ 337 This Case Management and Scheduling Order was followed by multiple 

consent orders, including a Consent Order Regarding Need for Remedial, Systematic 

Actions For the Achievement of Leandro Compliance. In this consent order, the trial 

court stated “the parties to this case . . . are in agreement that the time has come” to 

proceed with WestEd’s recommendations. This consent order also reveals that, 

despite executive branch defendants’ alignment with plaintiff-parties, the trial court 
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was only “hopeful that the parties, with the help of the Governor, can obtain the 

support necessary from the General Assembly.” 

¶ 338 This was all done to the exclusion of the one entity that controlled what the 

parties wanted to accomplish—the General Assembly. Put another way, executive 

branch bureaucrats and government actors, sanctioned by the court, agreed to a 

process that called for the expenditure of taxpayer money without consultation from 

the branch of government to which that duty is constitutionally committed. The trial 

court’s denial of the General Assembly’s motion to intervene in 2011, and the 

majority’s dismissal of legislative defendants’ arguments today, raise the grave 

specter of executive and judicial collusion designed to subvert our constitutional 

framework and, by extension, the will of the people. It is only when “the judiciary 

remains truly distinct from both the legislature and the Executive” that liberty is 

safeguarded. The Federalist No. 78 (Alexander Hamilton).15

 

15 It appears that the majority attempts to support its plundering of legislative 

authority by arguing that our Founding Fathers contemplated an ephemeral separation of 

powers. Such an interpretation is not just revisionist history; it is plainly wrong. We could 

spend much time discussing the majority’s misuse of selections from the Federalist Papers to 

justify judicial intrusion into the legislative arena. Discussion here, however, is intentionally 

limited.

The Founding Fathers understood that “maintaining in practice the necessary 

partition of power among the several departments” was the primary protection against 

tyranny. The Federalist No. 51 (James Madison). To more clearly understand the founders’ 

view of separation of powers, however, one must also appreciate the concern expressed by 

anti-federalist writers, to which the federalists responded, over the blending of functions in 

the Constitution. See The Dissent of the Minority of the Convention of Pennsylvania, The 

Essential Anti-Federalist, Allen and Lloyed (2002) at 43. For example, the United States 

Constitution explicitly provides for the Senate’s involvement in executive appointments and 
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¶ 339 Here, counsel for executive branch defendants admitted at oral argument that 

the General Assembly had no “insight” into the crafting of the remedy because “the 

General Assembly was not a party.” Oral Argument at 58:24, Hoke Cnty. Bd. of Educ. 

v. State of North Carolina, No. 425A21-2, 

https://www.youtube.com/watch?v=NOuFCf2rYdY. Further, counsel readily 

admitted that executive branch defendants “certainly wanted plaintiffs to be involved 

in th[e] process” of crafting the remedy because executive branch defendants “wanted 

to have dominion16 over the issue . . . and so getting sign-off from plaintiffs ensured 

that the trial court would adopt this program.” Oral Argument at 59:15, Hoke Cnty. 

Bd. of Educ. v. State of North Carolina, No. 425A21-2, 

https://www.youtube.com/watch?v=NOuFCf2rYdY. (emphasis added). 

 

treaties, and its role in the trial of impeachments. Any encroachment upon the power of 

another branch was expressly granted by the Constitution, and, as Hamilton stated in The 

Federalist Nos. 65 and 66, involved not separation of powers concerns, but essential checks

on power. See George W. Carey & James McClellan, Reader’s Guide to The Federalist, The 

Federalist, at lxxvii (George W. Carey & James McClellan, eds., Gideon ed. 2001). 

Commandeering the appropriations clause through the judiciary’s supposed “inherent 

authority” is a usurpation of a constitutionally committed function, not an essential check on 

power expressly granted by the constitution. As Madison stated in The Federalist No. 51, “[i]n 

framing a government which is to be administered by men over men, the great difficulty lies 

in this: You must first enable the government to controul the governed; and in the next place, 

oblige it to controul itself.” There can be no rational argument that our Founding Fathers, 

the Constitution of the United States, or the Constitution of the State of North Carolina 

contemplated meaningless barriers which permit the aggrandizement of judicial power as 

accomplished by this Court’s lack of restraint and control. After all, “the judiciary is beyond 

comparison the weakest of the three departments of power.” The Federalist No. 78 (Alexander 

Hamilton). 

16 Dominion is defined by Webster’s Dictionary as “supreme authority” or “absolute 

ownership.”
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¶ 340 Thus, this case presents a situation in which the parties’ interests are aligned, 

and “[s]uch a suit is collusive because it is not in any real sense adversary.” U.S. v. 

Johnson, 319 U.S. at 305, 63 S. Ct. at 1076–77. The legal issues involved in this case 

have been “determined” through entry of consent orders by outcome-aligned parties, 

not “tested by fire in the crucible of actual controversy.” City of Greensboro v. Wall, 

247 N.C. at 520, 101 S.E.2d at 417. The colluding parties agreed upon a remedy, one 

which directly involved the General Assembly, without ever seeking input from that 

third party. In so doing, they have attempted to “procure the opinion of” this Court 

“in the decision of which they have a common interest opposed to that of other 

persons, who are not parties to this suit,” and based upon “a statement of facts agreed 

on between themselves . . . upon a judgment pro forma entered by their mutual 

consent.” Lord v. Veazie, 49 U.S. 251, 254 (1850). 

¶ 341 Further, it bears repeating that these collusive orders were entered without a 

trial on the merits to determine the validity of the actual plaintiffs’ claims. A 

statewide violation was simply assumed without a trial or final order. The trial court 

erred in permitting this suit to continue after it became clear that the parties were 

working in concert to bypass the General Assembly and achieve their mutual goals 

via consent orders. As discussed further below, this collusion between plaintiffs, 

executive branch defendants, and the trial court grossly violated the General 

Assembly’s due process rights. In addition, the trial court further erred in attempting 
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to achieve the parties’ collusive efforts by imposing an unconstitutional remedy in its 

November 10 order.

B. Separation of Powers

1. The Trial Court

¶ 342 Even if this case had not been transformed into a friendly suit, the trial court 

would still lack authority to impose its chosen remedy for four clear reasons. First, 

the trial court ignored this Court’s explicit holdings that a remedy may be imposed 

only after the evidence establishes a clear showing of a Leandro violation. Second, 

the trial court violated the legislative defendants’ right to due process, which requires 

that the General Assembly be joined as a necessary party when the essence of the 

case is whether the current education policy and funding are constitutionally 

adequate. Third, even if the trial court had properly held a trial with all parties in 

which such a clear showing established a statewide violation of Leandro, any judicial 

remedy ordering the transfer of state funds violates our constitution. Finally, even if 

a proper trial had been conducted, and even if the trial court’s order did not otherwise 

offend our constitution, the trial court lacked jurisdiction to enter an order against 

the State Controller who was not a party. 

a. A Remedy Without a Violation

¶ 343 As we made clear in Hoke County, our “examination of the case [wa]s premised 

on evidence as it pertain[ed] to Hoke County in particular.” Hoke County, 358 N.C. 
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at 613 n.5, 599 S.E.2d at 375 n.5. “[O]ur holding mandates” in that case “cannot be 

construed to extend to the other four rural districts named in the complaint.” Id. 

Thus, the establishment of alleged Leandro violations in any other district beyond 

Hoke County would require further proceedings that must include “presentation of 

relevant evidence by the parties, and findings and conclusions of law by the trial 

court.” Id. 

¶ 344 Further, the trial court’s remedy goes far beyond that justified by the pleadings 

in this case. The remaining plaintiffs are the five Boards of Education in Hoke, 

Halifax, Robeson, Cumberland, and Vance counties and students from each county. 

The remaining intervening plaintiffs are the Charlotte-Mecklenburg Board of 

Education and some Mecklenburg County students and parents. In none of their 

surviving pleadings do they purport to represent all of the students of the State, or 

even all counties. To the contrary, they allege that they represent children in their 

own counties. This Court’s decision in Leandro, affirming the dismissal of most of 

the original claims, significantly narrowed the remaining issue. As we said: 

This litigation started primarily as a challenge to the 

educational funding mechanism imposed by the General 

Assembly that resulted in disparate funding outlays among 

low wealth counties and their more affluent counterparts. 

With the Leandro decision, however, the thrust of this 

litigation turned from a funding issue to one requiring the 

analysis of the qualitative educational services provided to 

the respective plaintiffs and plaintiff-intervenors. 
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Hoke County, 358 N.C. at 609, 599 S.E.2d at 373. In other words, the issue became 

the methods chosen by school administrators to provide the classroom instruction 

that was needed should a deficiency be shown as to students in a particular county. 

¶ 345 The proper standards for proving such alleged violations have been twice 

stated by this Court. First, the trial court “must grant every reasonable deference to 

the legislative and executive branches when considering whether they have 

established and are administering a system that provides . . . a sound basic 

education.” Id. at 622–23, 599 S.E.2d at 381 (quoting Leandro, 346 N.C. at 357, 488 

S.E.2d at 261). Second, plaintiffs must prove their allegations by making “a clear 

showing to the contrary,” i.e., plaintiffs must make a clear showing that the strictures 

of Leandro are being violated in their districts. Id. (quoting Leandro, 346 N.C. at 357, 

488 S.E.2d at 261). Finally, the imposition of a remedy is expressly barred absent 

such a clear showing, as “[o]nly such a clear showing will justify a judicial intrusion[.]” 

Id. (quoting Leandro, 346 N.C. at 357, 488 S.E.2d at 261). 

¶ 346 It is notable that, in Hoke County, the trial court’s determination that at-risk 

students were not receiving the opportunity to a sound basic education was premised 

on fourteen months of adversarial hearings. That ultimate determination was 

reached in a 400-page Order that recounted these hearings. 

¶ 347 Here, the record is devoid of any proceedings in which the trial court concluded 

as a matter of law that plaintiffs had presented relevant evidence establishing a clear 
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showing of Leandro violations in other districts beyond Hoke County. There was no 

trial establishing a violation in any other county and certainly no trial establishing a 

statewide violation. If it took the trial court fourteen months and a 400-page Order 

to determine that a subsection of students in one county were not receiving the 

opportunity to a sound basic education, then surely a clear showing of a statewide 

violation would require exponentially more. The fact that the record below fails to 

establish a similar in-depth adversarial hearing for any other county, and contains 

no trace of the kind of monumental undertaking needed to demonstrate a statewide 

violation, speaks volumes. Absent such a clear showing of a statewide violation, the 

trial court lacked authority to impose any remedy.17 

¶ 348 The majority ignores this. By failing to hold an actual trial for any other county 

in the last fourteen years, the trial court judges failed to abide by this Court’s express 

directions in Hoke County. The majority apparently imagines the existence of trial 

court orders from nonexistent trials. The majority’s focus on the title of the trial 

court’s routine scheduling “Notice of Hearing and Orders” completely misses the 

mark. A trial is required for appellate review of this extremely fact-intensive issue 

 

17 One could argue that this Court’s finding of a statewide violation, despite the failure 

of any party to plead such a claim, raises jurisdictional concerns. There has never been a 

finding in the trial court that violations through implementation and delivery occurred 

outside of Hoke or Halifax counties. Without the presence of the other unrepresented 

counties, the remaining plaintiffs and plaintiff intervenors may lack standing to plead a 

statewide violation, and the trial court therefore may lack jurisdiction to consider such a 

claim. 
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because an appellate court requires a record from which it may meaningfully review 

the trial court’s findings and conclusions. Certainly, given the significance of the 

subject matter of this case and the separation of powers concerns, this Court should 

require at least a standard record of a trial and a final order.

¶ 349 The record in this case is not the record of an adversarial trial. It is the record 

of trial court judges accepting studies and statistics, taking them at face value 

without any real inquiry into their veracity, and then opining about the condition of 

this State’s education system.18 If the General Assembly had been allowed to 

intervene, then perhaps there would be a record which reflects facts derived from the 

crucible of an adversarial trial. 

¶ 350 It is judicial malpractice for the majority to suddenly ignore the importance of 

court orders when it comes to appellate review. The majority simply declares that 

the trial court “properly concluded based on an abundance of clear and convincing 

evidence that the State’s Leandro violation was statewide.” The majority declines to 

 

18 Each year, U.S. News ranks “how well states are educating their students.” North 

Carolina is ranked seventh out of fifty states overall and fifteenth out of fifty states with 

respect to Pre-K to 12th grade education. Brett Ziegler, Education Rankings, U.S. News, 

https://www.usnews.com/news/best-states/rankings/education (last visited Oct. 24, 2022). 

One wonders how the trial court and the San Francisco based consulting firm’s diminished 

view of our education system can be so inconsistent. U.S. News, whose rankings of North 

Carolina’s universities are celebrated, concludes that North Carolina has one of the best K12 education systems in the country. A cynic could argue that WestEd’s mercenary report 

only utilized data from 44 of North Carolina’s one hundred counties. But, this is the type of 

information that is best tested in an actual trial instead of blindly accepted by the parties 

and court that hired the consultant. 
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explain what this evidence was, when it was produced, or how the majority knows it 

is reliable enough to form the basis of an explosive change in constitutional order and 

massive transfer of taxpayer monies to fund a program crafted by a San Francisco 

based consulting firm. Fundamentally, this Court cannot determine whether a “clear 

showing” has been made establishing a statewide Leandro violation because the lack 

of an adversarial trial renders our review purely speculative.

¶ 351 As but one example, it would have been inconceivable for this Court to review 

the proceedings in Harper v. Hall, 380 N.C. 317, 2022-NCSC-17, if the trial court had 

failed to hold an adversarial hearing and instead merely accepted at face value the

arguments and evidence presented by the legislative defendants in that case. So too 

here. Issues of constitutional magnitude require facts and arguments to be “tested 

by fire in the crucible of actual controversy.” City of Greensboro v. Wall, 247 N.C. at 

520, 101 S.E.2d at 417. These requirements cannot be cast aside for political or 

judicial expediency.

¶ 352 However, even if the trial court had properly conducted a trial in which a 

statewide violation of Leandro had been established, the trial court would still lack 

the authority to impose this remedy. The problem arises not only because the trial 

court imposed a remedy without first establishing a violation, but because the chosen 

remedy clearly violates our constitution. 

b. The Limitation on Judicial Power 
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¶ 353 Separation of powers is fundamental to our republican system of selfgovernance, and our constitution accordingly provides that “[t]he legislative, 

executive, and supreme judicial powers of the State government shall be forever 

separate and distinct from each other.” N.C. Const. art. I, § 6. This division of 

governmental power acknowledges that “[t]he accumulation of all powers, legislative, 

executive, and judiciary, in the same hands, whether of one, a few, or many, and 

whether hereditary, selfappointed, or elective, may justly be pronounced the very 

definition of tyranny.” The Federalist No. 47 (James Madison). 

¶ 354 In Hoke County, this Court acknowledged the separation of these various 

powers and recognized the outer boundaries of our judicial power. We stated:

The state’s legislative and executive branches have been 

endowed by their creators, the people of North Carolina, 

with the authority to establish and maintain a public 

school system that ensures all the state’s children will be 

given their chance to get a proper, that is, a Leandroconforming, education. As a consequence of such 

empowerment, those two branches have developed a 

shared history and expertise in the field that dwarfs that 

of this and any other Court. While we remain the ultimate 

arbiters of our state’s Constitution, and vigorously attend 

to our duty of protecting the citizenry from abridgments 

and infringements of its provisions, we simultaneously 

recognize our limitations in providing specific remedies for 

violations committed by other government branches in 

service to a subject matter, such as public school education, 

that is within their primary domain.

358 N.C. at 644–45, 599 S.E.2d at 395 (emphasis added). 

¶ 355 “The legislative power of the State shall be vested in the General Assembly[.]” 
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N.C. Const. art. II, § 1. This Court has long acknowledged that one of the many 

powers designated exclusively to the legislative branch is the power to spend public 

funds. See Wilson v. Jenkins, 72 N.C. 5, 6 (1875) (“The General Assembly has 

absolute control over the finances of the State.”); see also Shaffer v. Jenkins, 72 N.C. 

275, 279 (1875) (“[T]he money in the Treasury is within the exclusive control of the 

General Assembly.”). 

¶ 356 “No money shall be drawn from the State Treasury but in consequence of 

appropriations made by law[.]” N.C. Const. art. V, § 7. The interpretation of this 

clause has never before been a matter of debate in this Court. In fact, Justice Ervin 

recently stated for the Court that:

In light of this constitutional provision, the power of the 

purse is the exclusive prerogative of the General Assembly, 

with the origin of the appropriations clause dating back to 

the time that the original state constitution was ratified in 

1776. In drafting the appropriations clause, the framers 

sought to ensure that the people, through their elected 

representatives in the General Assembly, had full and 

exclusive control over the allocation of the state’s 

expenditures. As a result, the appropriations clause states 

in language no man can misunderstand that the legislative 

power is supreme over the public purse. 

Cooper v. Berger, 376 N.C. 22, 37, 852 S.E.2d 46, 58 (2020) (cleaned up). 

¶ 357 In the realm of educational funding, the constitution is even more explicit. 

“The General Assembly shall provide by taxation and otherwise for a general and 

uniform system of free public school . . . .” N.C. Const. art. IX, § 2(1). The constitution 
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provides two funding mechanisms to supplement state tax revenue on a county level. 

¶ 358 County school funds are supplied by “the clear proceeds of all penalties and 

forfeitures and of all fines collected in the several counties for any breach of the penal 

laws of the State, [which] shall belong to and remain in the several counties, and shall 

be faithfully appropriated and used exclusively for maintaining free public schools.” 

N.C. Const. art IX, § 7(a). In addition, “the clear proceeds of all civil penalties, 

forfeitures, and fines which are collected by State agencies . . . shall be faithfully 

appropriated by the General Assembly, on a per pupil basis, to the counties, to be 

used exclusively for maintaining public schools.” N.C. Const. art. IX, § 7(b). In 

contrast, the “State school fund” is ultimately funded by “so much of the revenue of 

the State as may be set apart for that purpose . . . [and] faithfully appropriated and 

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

schools.” N.C. Const. art. IX, § 6.19

¶ 359 Of course, the “revenue” contemplated by Article IX’s funding provisions must 

primarily be “provided by taxation . . . .” N.C. Const. art. IX, § 2(1). On this point, 

the constitution is clear. “Only the General Assembly shall have the power to classify

 

19 The constitution also provides that the State school fund shall be funded by “the 

proceeds of all lands that have been or hereafter may be granted by the United States to this 

State . . . ; all moneys, stocks, bonds, and other property belonging to the State for purpose of 

public education; the net proceeds of all sales of the swamp lands belonging to the State; and 

all other grants, gifts, and devises that have been or hereafter may be made to the State [ ] 

and not otherwise appropriated by the State . . . .” N.C. Const. art. IX, § 6. 
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property for taxation, which power shall be exercised only on a State-wide basis and 

shall not be delegated.” N.C. Const. art. V, § 2(2). 

¶ 360 The constitution commits these dual powers—the power to raise state funds 

for education, and the power to spend state funds on education—exclusively to the 

General Assembly.20 That is why this Court recognized its “limitations in providing 

specific remedies for violations committed by other government branches in service 

to a subject matter, such as public school education, that is within their primary 

domain.” Hoke County, 358 N.C. at 645, 599 S.E.2d at 395. Such limitations are a 

necessary consequence of our constitutional structure that separates government 

functions to preserve government by the people. 

¶ 361 Without such limitations, there would be no conceivable constraints to this 

Court’s power. Consider the situation in which the state found itself in 2009, when 

Governor Perdue “ordered a half-percent pay cut for all state employees and teachers” 

to try and reduce a “$3 billion-plus shortfall for the [ ] fiscal year.” Governor Cuts 

Pay, Calls for Furloughs for State Employees, WRAL News (Apr. 28, 2009, 7:02 PM), 

https://www.wral.com/news/local/story/5037937/. If this Court had determined that 

such a pay cut violated children’s right to the opportunity to a sound basic education, 

could this Court have exercised its power to increase education funding by raising 

 

20 While the General Assembly is primarily responsible for funding education, the 

State Board of Education “ha[s] general supervision and administration of the educational 

funds provided by the State . . . .” N.C.G.S. § 115C-408(a). 
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taxes? Could this Court rewrite the State Budget and reappropriate funds from other 

programs to fund education? 

¶ 362 No, our constitution says. The constitution commands all branches of our 

government to stay within their spheres of power, and this command must be heeded 

with extreme obedience by the judiciary. As this Court is the final arbiter on what 

our constitution says, the people of this state must be ever wary of a court which 

declares “rare” or “extraordinary” the repeated usurpation of constitutional power. 

¶ 363 Here, the trial court ignored both the clear language of the appropriations 

clause and this Court’s binding precedent establishing the General Assembly’s 

exclusive power to draw funds from the State Treasury. Rather than following our 

constitution, the trial court invented two novel theories to justify its unconstitutional 

exercise of legislative power. 

¶ 364 First, the trial court determined that assumption of legislative duties was not 

barred by the appropriations clause because “Article I, Section 15 of the North 

Carolina Constitution represents an ongoing constitutional appropriation of funds” 

and constitutes an appropriation “made by law.” This conclusion is a legal fiction 

created out of whole cloth and has no support in either our constitution or our directly 

on-point precedent. As discussed in more detail further below, the separation of 

powers clause and the legislative powers clause do not provide for any exceptions. 

These constitutional provisions do not merely encompass “some” or “most” of the 
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legislative powers—they encompass all legislative powers. 

¶ 365 The entire text of Article I, section 15 provides that “[t]he people have a right 

to the privilege of education, and it is the duty of the State to guard and maintain 

that right.” The plain language of this section makes no mention of educational 

funding, and to read in such non-existent language is an amendment of our 

constitution by judicial fiat. 

¶ 366 “Our constitution clearly states that amending the constitution is a duty 

designated to the General Assembly and the people of this State.” Moore, 2022-

NCSC-99, ¶ 152 (Berger, J., dissenting). A trial court may not exercise this power. 

Neither may a trial court judge choose to “interpret” a constitutional provision in a 

manner that contradicts this Court’s holdings. 

¶ 367 In addition to its unconstitutional interpretation of Article I, section 15, the 

trial court stated that it could order the transfer of state funds as an exercise of its 

“inherent and equitable powers.” This is nonsense. This usurpation of legislative 

authority is blatantly unconstitutional and threatens the very foundation of our 

republican form of self-governance. 

It is the proud boast of our democracy that we have “a 

government of laws and not of men.” Many Americans are 

familiar with that phrase; not many know its derivation. It 

comes from Part the First, Article XXX, of the 

Massachusetts Constitution of 1870, which reads in full as 

follows:

“In the government of this Commonwealth, the legislative 
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department shall never exercise the executive and judicial 

powers, or either of them: The executive shall never 

exercise the legislative and judicial powers, or either of 

them: The judicial shall never exercise the legislative and 

executive powers, or either of them: to the end it may be a 

government of laws and not of men.” 

Morrison v. Olson, 487 U.S. 654, 697, 108 S. Ct. 2597, 2622 (1988) (Scalia, J., 

dissenting). 

¶ 368 The majority’s response to our adherence to this fundamental requirement is 

simply that we have a “rigid interpretation of separation of powers.” Indeed, we do, 

because separation of powers is not a suggestion. It is an inexorable command upon 

which the entire notion of government by the people either stands or falls. As this 

Court has stated:

[T]he relief sought could not be obtained in any event 

without the exercise of legislative functions, and the 

plaintiff’s fatal error is found in the assumption that such 

functions may be exercised by the courts, notwithstanding 

the constitutional separation of the several departments of 

the government. The Declaration of Rights provides: “The 

legislative, executive, and supreme judicial powers of the 

government ought to be forever separate and distinct from 

each other.”

As to the wisdom of this provision there is practically no 

divergence of opinion—it is the rock upon which rests the 

fabric of our government. Indeed, the whole theory of 

constitutional government in this state and in the United 

States is characterized by the care with which the 

separation of the departments has been preserved and by 

a marked jealousy of encroachment by one upon the other. 

. . . 
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The courts have absolutely no authority to control or 

supervise the power vested by the Constitution in the 

General Assembly as a co-ordinate branch of government. 

They concede . . . that their jurisdiction is limited to 

interpreting and declaring the law as it is written. It is only 

when the Legislature transcends the bounds prescribed by 

the Constitution, and the question of the constitutionality 

of a law is directly and necessarily involved, that the courts 

may say, “Hitherto thou shalt come, but no further.” 

Pers. v. Bd. of State Tax Comm’rs, 184 N.C. 499, 502–04, 115 S.E. 336, 339 (1922). 

¶ 369 The majority justifies its assault on legislative authority in part by purporting 

to rely on In re Alamance County Court Facilities, 329 N.C. 84, 405 S.E.2d 125 (1991). 

It is clear, however, this case does not support the majority’s position; it undermines 

it. Alamance County’s discussion of inherent judicial power destroys the majority’s 

own argument. A thorough discussion of this case is warranted. 

¶ 370 The Alamance County Superior Court convened a grand jury to inspect the 

Alamance County court facilities and jail. Id. at 89, 405 S.E.2d at 126. The grand 

jury reported that there were “numerous courthouse and jail defects” and 

recommended that the courthouse, which was constructed in 1924, be “remodeled and 

converted to other uses, [and] that a new courthouse be built[.]” Id. Following the 

grand jury’s report, the trial court scheduled a hearing “to make inquiry as to the 

adequacy of the Court Facilities” in Alamance County, and the sheriff served the five 

Alamance County Commissioners with notice of the hearing. Id. Four of the 

Commissioners made various motions to either dismiss the case or demand a jury 
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trial. Id. at 89, 405 S.E.2d at 127. However, the trial court “struck these motions, 

stating that the movants were not parties to the action and thus were without 

standing.” Id. 

¶ 371 At the hearing, the trial court reiterated the grand jury’s findings regarding 

the Alamance County court facilities, which included:

[C]itation to the statutory duties of the Clerk of Court to 

secure and preserve court documents, to statutory 

provisions requiring secrecy of grand jury proceedings, to 

statutory requisites that counties in which a district court 

has been established provide courtrooms and judicial 

facilities, and to the open courts provision—all of which 

were potentially violated by the condition of pertinent 

facilities in Alamance County. In addition, the findings 

stated that the right to a jury trial assured in Article I, §§ 

24 and 25 of the N.C. Constitution was jeopardized where 

jury and grand jury deliberations were not dependably 

private and secure and that litigants’ due process rights 

were similarly at risk for lack of areas where they could 

confer confidentiality with their attorneys. 

Id. at 89–90, 405 S.E.2d at 127. 

¶ 372 Additionally, the trial court stated that the county’s failure to provide adequate 

court facilities violated the constitutional limitation under Article IV, section 1 of the 

North Carolina Constitution, which prohibits the General Assembly from “depriving 

the judicial department of any power or jurisdiction rightfully pertaining to it as a 

coordinate department of government.” Id. at 90, 405 S.E.2d at 127. This prohibition 

extended to Alamance County, since it was delegated the legislative responsibility of 

providing adequate court facilities. See id.
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¶ 373 The trial court determined that it possessed jurisdiction over the matter, in 

part, because of its “inherent power necessary for the existence of the Court, 

necessary to the orderly and efficient exercise of its jurisdiction, and necessary for 

this Court to do justice.” Id. at 90, 405 S.E.2d at 127. In its order, the court concluded 

that the inadequacies of the court facilities “thwart[ed] the effective assistance of 

counsel to litigants in violation of the law of the land, jeopardize[ed] the right to trial 

by jury in civil and criminal cases, and . . . constituted a clear and present danger to 

persons present at criminal judicial proceedings as well as the public at large.” Id. 

¶ 374 Based upon these inadequacies and their effects, the trial court directed the 

county, “acting through its commissioners,” to provide new facilities and modify the 

existing courthouse. Id. at 91, 405 S.E.2d at 128. Specifically, the trial court found 

that the county “was financially able to provide adequate judicial facilities” because 

there were “undesignated unreserved funds of $15,655,778.00 . . . with which the 

commissioners could begin construction of a new courthouse.” Id. The trial court 

then ordered the county to “immediately” provide adequate facilities that met the 

Court’s approved design features. Id. at 91−92, 405 S.E.2d at 128. 

¶ 375 For example, the trial court determined that the adequate facilities must 

include a Superior Court courtroom of at least 1600 square feet with a minimum of 

two bathrooms, a Superior Court jury deliberation room of at least 300 square feet, a 

room for the Superior Court Court Reporter that was at least 80 square feet, and a 
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Superior Court Judge’s Chambers “consisting of a conference area of at least 160 

square feet, minimum, and a toilet of 40 square feet, minimum,” among other similar 

requirements. Id. at 91, 405 S.E.2d at 128. 

¶ 376 Members of the Alamance County Board of Commissioners petitioned this 

Court for a writ of supersedeas, which this Court granted. Id. at 92, 405 S.E.2d at 

128. In reviewing the superior court’s order, this Court described the issues 

presented as “whether this case presents the circumstances under which a court’s 

‘inherent power’ may be invoked and whether the superior court here followed proper 

procedures in the exercise of its power.” Id. at 93, 405 S.E.2d at 128–29. 

¶ 377 The majority’s “analysis” of Alamance County quotes most of this Court’s 

discussion of inherent power, and all of it need not be repeated here. However, some 

of this Court’s precise language is ignored by the majority. This language clearly 

recognizes the constitutional limits of a court’s inherent authority and is worthy of 

emphasis. 

¶ 378 The judiciary’s “inherent power” is “plenary within the judicial branch,” which 

means that constitutional provisions—like the Apportionments Clause at issue here, 

“do not curtail the inherent power of the judiciary, plenary within its branch, but 

serve to delineate the boundary between the branches, beyond which each is 

powerless to act.” Id. at 93, 95, 405 S.E.2d at 129–30 (emphasis added). 

¶ 379 However, this Court noted that in the specific circumstances of Alamance 
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County, where the superior court was literally unable to properly fulfill its 

constitutional duties within the judicial branch, that boundary may be stretched to 

protect the judiciary’s ability to exercise its own constitutionally committed powers. 

“In the realm of appropriations, some overlap of power between the legislative and 

the judicial branches is inevitable, for one branch is exclusively responsible for raising 

the funds that sustain the other and preserve its autonomy.” Id. at 97, 405 S.E.2d at 

131 (emphasis added). 

¶ 380 Thus, this Court announced its limited holding that “when inaction by those 

exercising legislative authority threatens fiscally to undermine the integrity of the 

judiciary, a court may invoke its inherent power to do what is reasonably necessary 

for ‘the orderly and efficient exercise of the administration of justice.’ ” Id. at 99, 405 

S.E.2d at 132 (emphasis added) (quoting Beard v. N.C. State Bar, 320 N.C. 126, 129, 

357 S.E.2d 694, 696 (1987)). In other words, when legislative inaction renders judicial 

branch facilities inadequate “to serve the functioning of the judiciary within the 

borders of those political subdivisions,” the judiciary may take limited action only to 

ensure that the facilities are adequate to perform the court’s constitutional duties. 

Id. 

¶ 381 And, in part of this Court’s holding the majority selectively omits, “[e]ven in 

the name of its inherent power, the judiciary may not arrogate a duty reserved by the 

constitution exclusively to another body.” Id. 
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¶ 382 Moreover, following its general discussion of inherent power, this Court asked 

whether, “[u]nder the circumstances, [ ] an ex parte order implicitly mandating the 

expenditure of public funds for judicial facilities [was] reasonably necessary for the 

proper administration of justice?” Id. at 103, 405 S.E.2d at 135 (emphasis added). 

¶ 383 In answering this question in the negative, this Court first noted that:

The means chosen by a court to compel county 

commissioners to furnish suitable court facilities is of 

critical importance to the question whether the court has 

unreasonably exercised its inherent power, for it signals 

the extent of the judiciary’s intrusion on the county’s 

legislative authority. The efficacy of mandatory writs or 

injunctions, unlike ex parte orders and contempt 

proceedings, rests less on the expansive exercise of judicial 

power than on the statutory and constitutional duties of 

those against whom they are issued. Their use thus avoids 

to some extent the arrogance of power palpable in an ex 

parte order. Moreover, they compel the performance of the 

ministerial duty imposed by law, but give the defaulting 

officials room to exercise discretionary decisions regarding 

how that duty may best be fulfilled. 

Id. at 104–05, 405 S.E.2d at 135–36. 

¶ 384 This Court also emphasized that because the superior court’s order in 

Alamance County “stopped short of ordering the commissioners to release funds,” it 

also stopped short of “leaving the constitutional sphere of its inherent powers.” Id. 

at 106, 405 S.E.2d at 137. Nevertheless, the “ex parte nature of the order overreached 

the minimal encroachment onto the powers of the legislative branch that must mark 

a court’s judicious use of its inherent power,” because “[n]o procedure or practice of 
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the courts, however, even those exercised pursuant to their inherent powers, may 

abridge a person’s substantive rights.” Id. at 106–07, 405 S.E.2d at 137. This remedy 

was a misuse of the judiciary’s inherent authority. Thus, this Court held that the 

superior court’s order “must be, and is VACATED.” Id. at 108, 405 S.E.2d at 138. 

¶ 385 Thus, Alamance County does not support the unconstitutional judicial 

assumption of the legislative spending power.21 Alamance County instead reaffirms 

the following fundamental principles: 

¶ 386 First, the judiciary’s “inherent power” applies only to matters within the 

judicial branch. Second, a legislative failure to fiscally support the judicial branch, 

when such failure threatens the judiciary’s existence, may justify a limited exercise 

of “inherent power” to preserve the judiciary. Third, even under such circumstances, 

 

21 As with Alamance County, the other cases on which the majority relies do not justify 

its extreme remedy. See Wilson v. Jenkins, 72 N.C. 5, 10 (1875) (affirming a trial court’s 

denial of the plaintiff’s request for a writ of mandamus to compel the State Treasurer to pay 

certain coupons on state bonds because “[t]he General Assembly has absolute control over 

the finances of the State” and “[t]he Public Treasurer and Auditor are mere ministerial 

officers, bound to obey the orders of the General Assembly”); White v. Worth, 126 N.C. 570, 

36 S.E. 132, 136 (1900) (relying heavily on Hoke v. Henderson, 15 N.C. 1 (1833), a case that 

was expressly overruled in 1903 by Mial v. Ellington, 134 N.C. 131, 46 S.E.2d 961 (1903)). 

See also Hickory v. Catawba Cnty., 206 N.C. 165, 173–74, 173 S.E. 56, 60–61 (1934) (affirming 

a trial court’s writ of mandamus that required Catawba County to assume payment for a 

local school building as required by the constitution and General Statutes but did not require 

the spending of specific funds for specific expenditures), Mebane Graded Sch. Dist. v. 

Alamance Cnty., 211 N.C. 213, 226–27, 189 S.E.2d 873, 882 (1937) (affirming a trial court’s 

writ of mandamus that required Alamance County to assume the debt of its local school 

district but did not direct the spending of specific funds for specific expenditures). These cases

in no way support the majority’s proposition that this Court’s precedent sanctions the judicial 

exercise of legislative power. 
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that limited exercise of “inherent power” may not assume legislative powers, such as 

the spending power, as doing so would depart from the court’s “constitutional sphere 

of its inherent powers.” Finally, even if the exercise of limited inherent power is 

justified by such a threatened underfunding of the judiciary, and even if the court 

does not order a state actor to spend funds, any such court action must be vacated if 

the action is carried out via an ex parte order, as such an order violates the 

substantive rights of the relevant state actor. 

¶ 387 Thus, faithfully applying Alamance County to this case renders the decision a 

simple one. The trial court’s order must be vacated because: (1) its exercise of 

“inherent power” does not relate to matters within the judicial branch; (2) its exercise 

of “inherent power” is not justified by a legislative failure which threatens the 

judiciary’s existence; (3) its exercise of “inherent power” departs from the judiciary’s 

“constitutional sphere” because it assumes the legislative spending power; and (4) its 

exercise of “inherent power” was carried out via an ex parte order that violated the 

substantive rights of the State Controller and the General Assembly. 

¶ 388 This straightforward analysis did not make its way in the majority’s nearly 

one-hundred-and-forty-page opinion, and the majority summarily dismisses the State 

Controller’s arguments with a conclusory statement that his rights were not violated. 

The trial court’s order must be vacated for violating the Controller’s substantive 

rights, and the failure to properly discuss the Controller’s arguments demonstrates a 
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hastily crafted opinion by the majority. 

¶ 389 As this Court has stated, the power to transfer state funds is a power 

designated exclusively to the legislative branch. See Cooper v. Berger, 376 N.C. at 37, 

852 S.E.2d at 58 (“[T]he appropriations clause states in language no man can 

misunderstand that the legislative power is supreme over the public purse.”). In fact, 

we announced this fundamental truth nearly one hundred and fifty years ago:

If the Legislature by way of contract, has specifically 

appropriated a certain fund, to a certain debt, or to a 

certain individual, or class of individuals, and the State 

Treasurer having that fund in his hands, refuses to apply 

it according to the law, he may be compelled to do so by 

judicial process.

If any case goes farther than this, we conceive that it 

cannot be supported on principal, and that it oversteps the 

just line of demarcation between the legislative and judicial 

powers.

Shaffer v. Jenkins, 72 N.C. 275, 280 (1875) (emphasis added).

¶ 390 The inherent remedial and equitable powers of our courts may be vast, but 

“[e]ven in the name of its inherent power, the judiciary may not arrogate a duty 

reserved by the constitution exclusively to another body,” nor may the judiciary 

“abridge a person’s substantive rights.” Alamance County, 329 N.C. at 99, 107, 405 

S.E.2d at 133, 137.22

 

22 While the majority attempts to cabin its exercise of “inherent authority” as an 

“extraordinary remedy,” supra ¶ 178, this newfound power may be wielded by any future 

majority of this Court. Moving forward, now that the constitutional boundaries enshrining 

separation of powers are demolished, any four members of this Court could invoke “inherent 
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c. Due Process

¶ 391 “No rule of procedure or practice shall abridge substantive rights or abrogate 

or limit the right of trial by jury.” N.C. Const. art. IX, § 13(2). One of the substantive 

rights enjoyed by the people of this state is found in Article I, section 19 of our 

constitution, which provides in relevant part that “[n]o person shall be taken . . . in 

any manner deprived of his life, liberty, or property, but by the law of the land.”

¶ 392 “Procedural due process restricts governmental actions and decisions which 

‘deprive individuals of “liberty” or “property” interests within the meaning of the Due 

Process Clause of the Fifth or Fourteenth Amendment.’ ” Peace v. Emp’t Sec. Comm’n, 

349 N.C. 315, 321, 507 S.E.2d 272, 277 (1998) (quoting Matthews v. Eldridge, 424 

U.S. 319, 322, 96 S. Ct. 893, 901 (1976)). “The fundamental premise of procedural 

due process protection is notice and the opportunity to be heard.” Id. at 322, 507 

S.E.2d at 278 (citing Cleveland Bd. of Educ. V. Loudermill, 470 U.S. 532, 542, 105 S. 

Ct. 1487, 1493 (1985)). 

¶ 393 The State Controller’s authority to transfer or spend funds is set forth in 

Chapter 143C of our General Statutes, which ensures that “[i]n accordance with 

 

authority” to exercise powers constitutionally committed to other branches as they desire. If 

this Court can exercise power under the appropriations clause, it could also invoke its 

“inherent authority” to deem ratified a vetoed budget or increase statutory court fines 

because they fund the education system under Article IX, section 7. Further, any majority 

could increase judicial branch salaries The abuse of such power is exactly why our 

constitution demands that the legislative, executive, and judicial powers “shall be forever 

separate and distinct from each other.” N.C. Const. art. I, § 6. 
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Section 7 of Article V of the North Carolina Constitution, no money shall be drawn 

from the State treasury but in consequence of appropriations made by law.” N.C.G.S. 

§ 143C-1-2(a) (2021). “This Chapter establishes procedures for the following: (1) 

[p]reparing the recommended State budget[;] (2) [e]nacting the State budget[;] [and] 

(3) [a]dministering the State budget.” N.C.G.S. § 143C-1-1(c).

¶ 394 Chapter 143C includes penalties for violating the procedures contained 

therein. In relevant part, “[i]t is a Class 1 misdemeanor for a person to knowingly 

and willfully . . . (1) [w]ithdraw funds from the State treasury for any purpose not 

authorized by an act of appropriation.” N.C.G.S. § 143C-10-1(a). Further, “[a]n 

appointed officer or employee of the State . . . forfeits his office or employment upon 

conviction of an offense under this section.” N.C.G.S. § 143C-10-1(c). 

¶ 395 Here, as is evident from Chapter 143C of our General Statutes, the State 

Controller would be subject both to a Class 1 misdemeanor and termination of 

employment were he to comply with the November 10 order. As the State Controller 

was never made a party to the proceedings in the trial court, was never given notice 

of the proceedings, and was never afforded an opportunity to be heard in these 

proceedings, the trial court had no jurisdiction to enter an order that affected the 

State Controller’s substantive rights in this manner. As the Court of Appeals 

correctly noted in its order granting the State Controller’s petition for a writ of 

prohibition, “the trial court’s conclusion that it may order petitioner to pay 
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unappropriated funds from the State Treasury is constitutionally impermissible and 

beyond the power of the trial court.” 

¶ 396 In addition to violating the State Controller’s due process rights, the trial court 

also violated the due process rights of the General Assembly.23 The majority makes 

much of the fact that the General Assembly was not represented in this suit until 

after the Nov. 10 order—but rather than recognizing the obvious due process 

concerns, the majority insists that the General Assembly itself is to blame. Such an 

interpretation ignores factual and legal realities. 

¶ 397 As discussed in much detail above, neither the proceedings under Judge 

Manning that led to our decision in Hoke County, nor the proceedings under Judge 

Manning that followed, implicated the General Assembly or its constitutionally 

committed functions. Judge Manning consistently found, and this Court agreed, that 

the legislative funding mechanisms and education policies were sound and complied 

with our constitution. In fact, when the General Assembly did move to intervene in 

this case because it was no longer represented by the Attorney General, Judge 

Manning denied its motion specifically because the issue was never that the General 

Assembly’s funding mechanisms or education policies were inadequate—the issue 

was, and remains, the implementation and delivery of these policies and the 

 

23 In addition, it is arguable the trial court also violated the due process rights of all 

counties not represented in this suit, yet nonetheless responsible for any implementation or 

funding under WestEd’s CRP. 
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application of these funds by the education establishment. 

¶ 398 The majority would apparently prefer that the General Assembly renewed its 

motion to intervene on a regular basis, despite Judge Manning’s denial and despite 

the absence of any issue implicating the General Assembly’s authority or actions. 

However, the status quo was radically altered once Judge Lee took over the case and 

this became a collusive suit. The consent order entered by Judge Lee appointing 

WestEd fundamentally changed the nature of the proceedings. This was an egregious 

error that necessitated input from the General Assembly. 

¶ 399 At this point, or, at the very latest, when he received the WestEd report naming 

the General Assembly as the primary “responsible party,” Judge Lee erred by failing 

to join the General Assembly as a necessary party. See N.C.G.S. §1A-1, Rule 19(a) 

and (d); see also Gaither Corp. v. Skinner, 238 N.C. 254, 256, 77 S.E.2d 659, 661 

(1953) (“Necessary or indispensable parties are those whose interests are such that 

no decree can be rendered which will not affect them, and therefore the court cannot 

proceed until they are brought in.”).

¶ 400 The trial court’s failure to join the General Assembly in this matter created a 

situation where the people of this State, acting through their elected representatives, 

were not afforded notice and the opportunity to be heard. Rather than allow the 

General Assembly, which is the policymaking branch of our government, to defend 

its heretofore adjudged adequate educational funding policies, Judge Lee delegated 
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the task of policymaking to an out-of-state third party. In delegating this crucial task 

to WestEd, Judge Lee effectively usurped legislative authority by appointing a special 

master—not unlike the special masters appointed in redistricting. To delegate such 

authority to an out-of-state third party, to fail to join the General Assembly as an 

obviously necessary party, and to attempt to enforce what was, in essence, an ex parte 

order that exercises a power constitutionally committed exclusively to the General 

Assembly, is to abandon all pretense of judicial propriety. 

¶ 401 Thus, the trial court erred in multiple ways. Because the trial court never 

conducted a trial and never concluded as a matter of law that plaintiffs had made a 

clear showing of a statewide Leandro violation, the trial court never had jurisdiction 

to impose any remedy in this case. Further, even if such a conclusion had been 

reached after a trial, the trial court’s chosen remedy far exceeds the judiciary’s 

inherent power and violates our constitution. Finally, the transfer provisions of the 

November 10 order cannot be permitted to stand because they violated the State 

Controller’s substantive rights and arguably denied the General Assembly due 

process of law. 

¶ 402 Accordingly, the transfer provisions of the trial court’s November 10 order were 

properly struck by Judge Robinson on remand. However, Judge Robinson 

nevertheless also erred on remand.

¶ 403 Although the trial court on remand properly considered the Court of Appeals’ 
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writ of prohibition and properly struck the transfer provisions, it nevertheless erred 

in upholding the CRP as an appropriate remedy.

2. The Trial Court on Remand

¶ 404 After granting the State’s bypass petition, this Court remanded this case to 

Judge Robinson “for the purpose of allowing the trial court to determine what effect, 

if any, the enactment of the State Budget ha[d] upon the nature and effect of the relief 

that the trial court granted.” Thus, the trial court’s proper role on remand was to 

consider how the passage of the State Budget, a valid law passed by the General 

Assembly, affected the trial court’s conclusion that the CRP was the appropriate 

remedy for the alleged statewide violation of Leandro. Because the trial court on 

remand failed to properly analyze the effect of this valid legislative act, it erred in 

concluding that the CRP was an appropriate remedy.

¶ 405 When reviewing whether a valid legislative act violates a constitutional right, 

“we presume that laws enacted by the General Assembly are constitutional, and we 

will not declare a law invalid unless we determine that it is unconstitutional beyond 

a reasonable doubt.” Cooper, 376 N.C. at 33, 852 S.E.2d at 56. “All power which is 

not expressly limited by the people in our State Constitution remains with the people, 

and an act of the people through their representatives in the legislature is valid 

unless prohibited by that Constitution.” State ex rel. Martin v. Preston, 325 N.C. 438, 

448–49, 385 S.E.2d 473, 478 (1989) (citing McIntyre v. Clarkson, 254 N.C. 510, 515, 
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119 S.E.2d 888, 891 (1961)). 

¶ 406 Thus, to comport with our precedent, the trial court on remand was required 

to afford the State Budget a presumption of constitutionality. In this context, that 

required the trial court to presume the State Budget comported with Leandro and 

provided students statewide an opportunity to receive a sound basic education. Only 

a clear showing by plaintiffs that the State Budget and the programs within failed to 

provide this opportunity would trigger the trial court’s consideration of the CRP as a 

remedy as directed by this Court. 

¶ 407 Instead of following established framework for analyzing constitutional 

challenges to legislative acts, the trial court on remand stated:

The Court also declines to determine, as Legislative 

Intervenors urge, that the Budget Act as passed 

presumptively comports with the constitutional guarantee 

for a sound basic education. To make a determination on 

the compliance of the Budget Act with the constitutional 

right to a sound basic education would involve extensive 

expert discovery and evidentiary hearings. This Court does 

not believe that the Supreme Court’s Remand Order 

intended the undersigned, in a period of 30 days, or, as 

extended, 37 days, to perform such a massive undertaking.

In other words, the haste with which this Court was determined to act prevented 

proper consideration and resolution of the issues by the trial court.

¶ 408 Setting aside the fact the trial court on remand mischaracterized the right 

announced in Leandro, which was the right to the opportunity to receive a sound basic 

education, the trial court on remand got the analysis backwards. Affording the State 
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Budget the presumption of Leandro conformity requires no extensive expert discovery 

and evidentiary hearings—hence the word “presumption.” The need for expert 

discovery, evidentiary hearings, findings of fact, and conclusions of law arises 

precisely to overcome this presumption. The “massive undertaking” required is the 

burden plaintiffs bear to make a clear showing that the State Budget resulted in a 

statewide violation of Leandro. As plaintiffs have not yet met this burden, the trial 

court on remand should have vacated the November 10 order and allowed plaintiffs 

to bring claims actually challenging the State Budget. 

¶ 409 Instead, the trial court on remand erred by seemingly affording the CRP, not 

the State Budget, this presumption of Leandro conformity. The trial court on remand

used the CRP as a Leandro benchmark and analyzed whether the State Budget 

funded each of the CRP’s measures. In so doing, it not only got the analysis 

backwards but also ignored our guidance in Leandro that “there will be more than 

one constitutionally permissible method of solving” statewide public school issues, 

346 N.C. at 356, 488 S.E.2d at 260, and our holding in Hoke County that any remedy 

for an alleged violation must “correct the failure with minimal encroachment on the 

other branches of government.” 358 N.C. at 373–74, 588 S.E.2d at 610. 

¶ 410 The majority merely brushes away this Court’s directly on point and wellestablished precedent. Bafflingly, the majority states that “[n]either the Plaintiffparties nor the State dispute the presumed constitutionality of the passage of the 
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2021 Budget Act as a general procedural matter.” Supra ¶ 228. What then, is this 

case about? Surely the majority must concede, at the very least, that if the State 

Budget is constitutional, then it does not violate the constitutional right of children 

to have the opportunity to receive a sound basic education. The majority simply 

cannot have its cake and eat it too. Either the State Budget is constitutional, and 

there is no statewide violation of Leandro, or there is a statewide violation of Leandro 

because the State Budget fails to afford children the opportunity to a sound basic 

education. 

¶ 411 This case, when boiled down to its irreducible core, must be about the state 

failing to provide Leandro conforming expenditures. That is why the CRP requires 

the transfer of such vast amounts of taxpayer dollars. The only way for the state to 

provide educational expenditures is through the State Budget. Thus, plaintiff-parties 

challenge must be related to the adequacy of the State Budget’s ability to provide 

constitutional, i.e., Leandro conforming, educational expenditures. 

¶ 412 However, according to the majority, “that was not the issue before the trial 

court and is not the issue before this Court.” Supra ¶ 228. Rather than analyzing 

the State Budget in accordance with our long-standing precedent of presumptive 

constitutionality, i.e., Leandro conformity, the majority decrees that “the Budget Act 

must be assessed against the terms of the only comprehensive remedial plan thus far 

presented by the parties to the court.” Supra ¶ 229. 
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¶ 413 Again, nonsense. Shall every legislative act now be compared not to our 

constitution, but to whatever “plan” or “standard” that friendly parties agree to and 

present to a trial court? The majority’s position is a perversion of this Court’s proper 

role. Because the trial court on remand failed to afford the State Budget the 

presumption of Leandro conformity, its analysis and decision were error. 

¶ 414 Finally, this Court not only sanctions due process violations but exacerbates 

the error by, on its own initiative, deciding the appeal in 425A21-1. The Court had 

previously held this direct appeal in abeyance while we considered discretionary 

review in 425A21-2. Now, without briefing or argument, the majority summarily 

decides the issue it had previously held in abeyance, and for which there exists a right 

to appeal based upon the dissent in the Court of Appeals. See N.C.G.S. § 7A-30. Once 

again, the majority wields its unbounded power in the face of fundamental fairness 

and basic legal tenets. 

¶ 415 As stated only a few months ago:

The majority restructures power constitutionally 

designated to the legislature, plainly violates the principles 

of non-justiciability, and wrests popular sovereignty from 

the people.

When does judicial activism undermine our republican 

form of government guaranteed in Article IV, Section 4 of 

the United States Constitution such that the people are no 

longer the fountain of power? At what point does a court, 

operating without any color of constitutional authority, 

implicate a deprivation of rights and liberties secured 

under the Fourteenth Amendment?
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Moore, 2022-NCSC-99, ¶¶ 153–54 (Berger, J., dissenting).

III. Conclusion

¶ 416 Today’s decision is based on a process that was grossly deficient. Hearings 

were not held as required by our decision in Hoke County. The rush to find a 

statewide violation in the absence of input by the legislature, the collusive nature of 

this case, the ordering of relief not requested by the parties in their pleadings or 

permitted by our prior decisions, and the blatant usurpation of legislative power by 

this Court is violative of any notion of republican government and fundamental 

fairness. The trial court orders dated November 10, 2021 and April 26, 2022 should 

be vacated, and this matter should be remanded for a remedial hearing on the Hoke 

County claims as required by our decision in Hoke County. In addition, because there 

have never been hearings held or orders entered as to any other county, those matters 

must be addressed separately as per our decision in Hoke County. 

¶ 417 Under no circumstance, however, should this Court take the astonishing step 

of proclaiming that “inherent authority” permits the judiciary to ordain itself as 

super-legislators. This action is contrary to our system of government, destructive of 

separation of powers, and the very definition of tyranny as understood by our 

Founding Fathers.

Chief Justice NEWBY and Justice BARRINGER join in this dissenting

opinion.