Advocates for public schools have found success in court by using state constitutional claims to increase unacceptably low funding levels from state legislatures. But in North Carolina, a recent state supreme court victory could be short-lived because of the latest election.
Twenty-five years ago, the North Carolina Supreme Court ruled that the state’s constitution guarantees “a right to a sound basic education.” Soon after, the court ruled that the state was failing to fulfill that promise. Last fall, after decades of continued litigation and state noncompliance, the court took matters into its own hands and ordered North Carolina to transfer hundreds of millions of dollars from state budget reserves to state education agencies.
Despite the long-delayed victory for North Carolina students, changes on the state’s high court immediately put the status of this funding into question. As in 38 states, North Carolina’s justices are elected, creating the possibility of shifts in court composition every two years with potentially significant effects on the court’s willingness to vindicate state constitutional rights. The funding ruling was a 4–3 decision along partisan lines, with Democrats in the majority. Just four days later, two Republican candidates won elections to fill the seats of two of those Democratic justices. This has prompted calls from Republican legislators to ignore the court’s order and get the case in front of the newly configured court.
All told, the ongoing funding fight in North Carolina illustrates both the potential for state constitutions to advance equity in public education and the political challenges of vindicating state constitutional rights that require government expenditures.
State constitutional litigation over public school funding has been a feature of state court systems since 1973. That year, the U. S. Supreme Court ruled in San Antonio Independent School District v. Rodriguez that education is not a fundamental right, effectively foreclosing federal litigation as a path to achieving greater fairness in public school funding. Since Rodriguez, courts in 48 states have issued over 300 state constitutional decisions on public school funding.
Every state constitution contains provisions pertaining to public education. At a minimum, a state’s constitution requires that the state maintain a public school system, and 38 state constitutions impose additional requirements, such as mandating that states provide education of a certain quality.
Most state court systems have ruled that state constitutional provisions pertaining to public school financing are judicially enforceable. Plaintiffs that have challenged a state’s method for determining public school funding or the amount of that funding have often succeeded in getting a court to find the state is violating its constitution. According to one study, plaintiffs prevailed in 68 percent of all cases concerning constitutionally inadequate public school funding between 1989 and 2008. Plaintiffs had less success in the wake of the Great Recession as courts became more sensitive to state funding shortfalls.
But as in North Carolina, the remedial phase of education funding litigation — the process of figuring out how to right the wrong the court identified — has frequently spanned decades as courts struggle to compel recalcitrant legislatures to provide additional funding. In New Jersey, for example, after finding that the state had violated the state constitution by failing to provide sufficient funding for its public schools, the New Jersey Supreme Court spent years overseeing failed attempts by the state to satisfy its constitutional duties before finally issuing a ruling ordering the state to provide hundreds of millions of dollars of funding.
But because of the challenge of identifying and enforcing a remedy, few courts have been as bold as those in New Jersey and North Carolina in ordering the reallocation of state funds, leaving public school students with limited means to get the resources they are entitled to. This was the fate of Ohio schoolchildren. Beginning in 1997, the Ohio Supreme Court issued a series of landmark rulings, finding that Ohio’s public school financing system violated Ohio’s constitution. The state initially responded by appropriating additional funding, which was significant but not enough to comply with its constitution.
Rather than ordering the legislature to transfer the shortfall, or continuing to oversee the state’s compliance efforts, the court directed the lower court to dismiss the action, declaring that “the duty now lies with the General Assembly to remedy an educational system that has been found . . . to still be unconstitutional.” While some believe that additional funding eventually brought Ohio’s school system into constitutional compliance, others maintain that it remains unconstitutional, with Ohio schoolchildren effectively unable to vindicate their state constitutional right to a “thorough and efficient” public education.
As for North Carolina, the high court’s ideological shift makes it unlikely the issue has been settled for good. Because the state legislature passed a new budget shortly before the North Carolina Supreme Court ordered the state to reallocate the funds, the court sent the case back to the lower court. It directed the trial court to calculate the state’s shortfall in light of its new budget and order state officials to appropriate this amount of funding. The case will probably return to the state high court.
If the newly constituted court does reverse course, the case will serve as an important reminder of both the powerful potential of state constitutions to enforce rights like education and the barriers litigants face in realizing that potential.