The judge overseeing North Carolina’s long-running Leandro school funding lawsuit signaled Friday that he will produce an order next week calling for additional state education spending.
“There are a lot of programs that — based on the charts that are before me — are seriously underfunded,” Special Superior Court Judge Michael Robinson said during a 45-minute online hearing.
Robinson scheduled the hearing after the N.C. Supreme Court gave him an additional week to determine how the state budget affects a $1.75 billion education funding order issued by another judge on Nov. 10. That order was designed to fund a court-ordered Comprehensive Remedial Plan. The CRP developed by San Francisco-based consultants aims to resolve the legal dispute over state constitutional education obligations.
Originally mandated by the state Supreme Court to act this Wednesday, Robinson now has until Wednesday, April 27, to submit his order. The case will then return to the state’s highest court. Supreme Court justices have agreed to address fresh constitutional disputes in the case that dates back to 1994.
Plaintiffs in the case, along with a separate group of funding advocates called the “Penn-Intervenors,” and N.C. Justice Department lawyers representing state government all agree on the course they believe Robinson should take. They want the judge to order $770 million in additional state education spending.
Each of these groups concedes that the two-year budget enacted last fall covers nearly $1 billion of the funding included in the original order.
On the other side of the argument, lawyers representing state legislative leaders have argued that the state budget mooted the $1.75 billion order entirely. If Robinson rejects that argument, legislative leaders contend the budget contains even more money that should be credited against the Nov. 10 order.
Robinson spent much of the hearing asking parties about issues related to “overfunding.” He presented a hypothetical case in which the CRP calls for a program to get $10 million of funding in two consecutive years, but the General Assembly included $20 million only in the first year of the budget.
“Are they permitted, under the budget, if they spend $10 million of that $20 million in the first year of the budget cycle, to use the remaining $10 million in year two?” the judge asked.
If the money comes from federal grants, it’s likely available for use through 2024, legislative attorney Matthew Tilley answered. If the funding comes from state tax dollars, the money would be available only in the first year. Robinson characterized the situation as “use it or lose it.”
“My general philosophy to calculate this for the order to go the Supreme Court is that overfunding, especially where it’s a ‘use it or lose it,’ doesn’t lessen underfunding for other programs,” Robinson said.
The judge heard support from other parties in the case for that approach. “We do feel that the good bright-line rule would be that overages … should not be taxed against the balance that’s outstanding,” said attorney David Hinojosa of the Lawyers’ Committee for Civil Rights Under Law.
“For the purpose of the court’s mission here, to get the numbers right for the amended order, it seems that the easiest thing to do is not to count the ‘overfunding.’ Rather, count the deficiencies,” added Senior Deputy N.C. Attorney General Amar Majmundar.
Robinson signaled that he will not give the state budget any extra credit for going beyond CRP provisions. “For purposes of the calculation, it is the court’s intention to not give credit for overfunding of programs but to count underfunding,” he said. “I don’t think it’s an issue of fairness or justice. It’s just a mathematical calculation.”
Next week’s order will note that total state education spending involves more than just the CRP. “Funding provided by the legislature in the budget act for the CRP programs is but a part of the funding provided by the legislature for the education of the children of North Carolina,” Robinson said. “It is not the sum total of funding.”
Robinson offered no clue about whether he will direct his order toward the General Assembly or toward state executive branch officials. Robinson’s predecessor, Judge David Lee, raised constitutional questions with the Nov. 10 order. Lee bypassed the General Assembly and directed the state controller, state treasurer, and Office of State Budget and Management to transfer money out of the treasury.
Controller Linda Combs secured a rare “writ of prohibition” from the N.C. Court of Appeals blocking Lee’s $1.75 billion order. She argued that the order would have forced her to choose between defying a judge and breaking state law. The law prevents her from transferring money without legislative authorization, according to her attorney, former state Supreme Court Justice Robert Hunter.
Just one statement during Friday’s hearing alluded to Combs’ constitutional complaint. “I recall Mr. Hunter indicating at our first get-together that his client, Ms. Combs, can’t just write a check when somebody asks,” Robinson said. “She actually has to match it up to an appropriation.”
As of Friday, Robinson has been dealing with the case for just 32 days. Nonetheless, he signaled he is unlikely to seek another extension to finish his work. “We’re going to do our level best not to ask the Supreme Court for a further indulgence and extension,” he said. “The order of this court ought to be out by next Wednesday.”