This post appears here courtesy of the Carolina Journal
. The author of this post is Mitch Kokai
The original judge in North Carolina's long-running Leandro school funding lawsuit disputes the notion that a judge can force other government actors to spend more money on education.
Retired Wake County Judge Howard Manning offers that assessment in the form of a newly released memorandum. It's addressed to the General Assembly, governor, attorney general, and state superintendent of public instruction. The Nov. 9 document, little more than one page long, also targets Judge David Lee, who succeeded Manning in 2016 as the judge handling the now 27-year-old court case.
Manning urges his audience to read from the state Supreme Court opinion in a 1995 case, Able Outdoor Inc. v. Harrelson.
"In Smith v. State (1976), we held that...if a plaintiff is successful in establishing his claim, he cannot obtain execution to enforce the judgment,"
Democratic Justice John Webb wrote in the Able Outdoor case. "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."
Manning suggests readers "should also read"
decisions attached to his 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."
Away from the Leandro case for five years, Manning nonetheless declares, "I have every right to continue to observe the case and read data about our schools that is public record, and furthermore to comment on the law and this case.
"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,"
Manning writes. "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."
Manning has more to say about the "educational establishment."
"Leandro requires that the children, not the educational establishment, have the Constitutional right to the equal opportunity to obtain a sound, basic education,"
the retired judge writes. "This has not and is not happening now as the little children are not being taught to read and write because of a failure in classroom instruction as required by Leandro.
"This is not happening now,"
Manning adds. "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 shows as it did years ago and up to now the educational establishment has not produced results,"
Manning ends the memo with a promise to provide an updated report on "the reading problem"
within the next three weeks.
The memo arrived one day before a hearing before Lee. Critics expect the judge to order as much as $1.7 billion to be transferred from the state treasury to address recommendations from a San Francisco-based education consultant's report.
"Sixteen years ago, Judge Manning coined the term 'academic genocide' to describe the appalling education provided to many of North Carolina's most vulnerable high school students,"
said Terry Stoops, director of the Center for Effective Education at the John Locke Foundation. "Today, many expect Judge Lee to commit 'constitutional genocide' by adopting a proposed court order that blatantly violates the state constitution."
"Judge Lee should heed his colleague's advice rather than capitulate to the unreasonable demands of the Leandro mob,"
Stoops added. "Judge Lee would be unwise to discount Judge Manning's counsel. Regrettably, Judge Lee has failed to acknowledge Manning's important contributions to the case."
The governor, attorney general, state education officials, and Leandro plaintiffs all have supported the implementation of the consultant's recommendations, including the new spending. The General Assembly has not been part of the lawsuit and has had no substantive role in the negotiations over settling the Leandro lawsuit.
A top legislative education leader, Sen. Deanna Ballard, R-Watauga, criticized Attorney General Josh Stein's role in the process earlier this week.