Note: This file contains the text of an article which appeared in Popular Government, vol. 63, no. 3, Spring 1998, 2–12. Delineations within the text indicating titles and headings are preserved. No attempt has been made to display graphic images or pagination of the typeset article. Footnotes appear in brackets at the reference point in the text. Figures and tables have been omitted. A printed copy of this article may be obtained for a photocopying fee of $.10 per page with a $2.00 minimum.

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The author is associate dean for academic affairs and professor of law at the School of Law of The University of North Carolina at Chapel Hill.

In July 1997, while many North Carolinians were packing their bags for summer vacations, the North Carolina Supreme Court quietly issued a path-breaking education decision in Leandro v. State of NorthCarolina,[1] announcing that the state constitution promises every North Carolina child the “opportunity to receive a sound basic education.” The court has entrusted the lower state courts with the initial responsibility of clarifying the details of this new right, although it has offered some general guidelines about the content.

Leandro imposes a new educational duty on the state and opens state courts to legal challenges from parents or schoolchildren who believe that the state is failing to meet that duty. Simultaneously, however, Leandro rejects the argument that school districts throughout North Carolina should be funded at substantially equal levels and offer substantially equal educational opportunities. This article addresses the potential significance of Leandro’s two principal holdings for the state, for local school districts, and for thousands of parents and children who may be affected in the coming decades.

Leandro has been described as a “school funding” lawsuit. [2] The label associates it with a reform movement launched some twenty-five years ago to challenge how most states funded their public elementary and secondary schools. Yet Leandro raises questions beyond whether North Carolina must revise its system of school finance. For reasons explored later, the plaintiffs’ legal theories and the supreme court’s broad holding may anchor an array of school improvement and reform efforts for a generation.

Origins of the Movement to Reform School Finance

The campaign to reform states’ methods of school finance emerged in the late 1960s with thoughtful criticisms of the prevalent practice of raising monies for public education through “ad valorem property taxation” (taxation according to the value of property). [3] Then, as now, most states were using general state revenues to provide a significant portion of the funding for public schools—typically distributed on a per-pupil basis. [4] However, most also permitted (or required) local school districts to raise anywhere from 25 to 75 percent of total school funds from locally imposed ad valorem taxes on real property within the school district. [5] Critics set out to demonstrate that, in practice, this apparently benign funding mechanism led to unacceptably large inequities in school funding across the districts in a state. Their charge was that the uneven pattern of residential and commercial growth in each state inevitably led to wide differences in local tax revenues, as the Supreme Court of the United States later observed in a Texas case:

Until recent times, Texas was a predominantly rural State and its population and property wealth were spread relatively evenly across the State. Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-to-urban population shifts became more pronounced. The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. The growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education. [6]

Differences between “low wealth” districts (those poor in taxable property) and their “high wealth” neighbors, critics charged, led to remarkable disparities in the overall revenue per student available for public education. Indeed, even when low-wealth districts adopted local property tax rates far higher than those of their high-wealth neighbors, they often fell farther and farther behind. [7]

Thoughtful analysts contended that such disparities violated the promise of equal protection of the laws, contained in both the federal constitution and the constitutions of many states. Relying on such analyses, reformers set out to challenge the disparities in the courts, arguing that any local school districts willing to exert equal “tax effort” (willing to tax themselves at a particular rate) should receive equal tax dollars, irrespective of their district’s overall property wealth. This campaign met with initial success in Serrano v. Priest, [8] a celebrated case in which the California Supreme Court accepted the reformers’ arguments under the Equal Protection Clause of both the federal and the state constitution.

However, when reformers moved confidently into the federal courts to challenge the school finance system of Texas, they suffered one of the most striking civil rights setbacks of the 1970s. In a five-to-four decision in San Antonio Independent School District v. Rodriguez, [9] the United States Supreme Court rejected the plaintiffs’ contentions. The federal constitution, the Court observed, contained no assurances of special protection for public education under the Equal Protection Clause. [10] Nor did the Fourteenth Amendment, in the Court’s view, afford any special protection for low-wealth districts, especially in the absence of any showing that the schoolchildren in those districts had been “absolutely deprived” of “basic minimal skills.” [11]

The Turn to State Courts and Constitutions

The Rodriguez decision seemed to signal the end of school finance litigation. Yet soon thereafter, in a handful of cases—and eventually in two dozen others over the succeeding twenty years—school finance reformers turned to state courts. Although the federal constitution contains no express guarantee of educational rights, nearly every state constitution does. Reformers based their new lawsuits either on education clauses in state constitutions or on other state-based equality theories. [12] The plaintiffs in Robinson v. Cahill (I), [13] for example, sought relief under New Jersey’s constitutional mandate of a “thorough and efficient” system of public schools.

A number of difficult issues began to emerge in these cases, however. Theoretically, state courts could direct state legislatures to abandon local property taxation altogether and raise education revenues solely through statewide taxes, to be distributed to each school district on a per-pupil basis. Few state courts, though, were willing to forgo their states’ traditional and fiscally effective reliance on property taxation. [14] And even fewer were inclined to impose spending ceilings on wealthy districts, forbidding school boards and county commissioners to supplement state revenue with local tax dollars. [15]

Furthermore, as education experts looked closely at local school needs, they realized that dollar-for-dollar equality would not purchase identical educational resources. Urban districts, for example, are often saddled with “municipal overburdens”: a dollar simply buys less land, fewer bricks, and less insurance coverage on an urban street corner than it does in a rural community, and there are greater demands for public health, welfare, and police services in such districts. These experts began to stress the need, not for equal dollars, but for equal “inputs” to each school. In other words, each district should receive the same number of teachers per student, the same quality of school facilities, and the same number of books or computers per student—goals that might necessitate different expenditures for various locations.

Other observers responded that the challenge was even more complex. Some school districts might enroll disproportionately high percentages of children with special needs—for example, children who speak English as a second language and therefore require bilingual teachers and materials. Other districts might enroll unusually large numbers of children with slower physical or mental development, who might need special instruction, nurse’s aides, and social workers. To provide the same educational inputs in each district might be irrational because student populations across districts might have very different educational needs. The notion of what “equality” is and requires came under increasing scrutiny. [16]

In a series of major decisions in the late 1980s and early 1990s—among them, Abbott v. Burke in New Jersey [17] and Rose v. Council for Better Education, Inc. in Kentucky [18]—state supreme courts began to interpret their education clauses to require not educational “equality” but educational “adequacy.” An adequate education was to be judged not by a district’s educational inputs (per-pupil expenditures or educational resources) but by its educational outputs (each school’s substantive offerings or the actual performance of a district’s schoolchildren). In most of these decisions, the courts aimed to create a substantial educational “floor” that could be assured to all children within their state, irrespective of costs or of differences that might remain at the high end.

North Carolina’s Approach to School Finance

North Carolina has long been proud of its system of public education. In 1776 it was one of only two states whose constitutions called for a system of public education:

[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, as may enable them to instruct at low prices; and, all useful learning shall be duly encouraged and promoted in one or more universities. [19]

In 1838 the General Assembly established a Literary Fund, making North Carolina only the second state in the nation to provide a statewide fund for public education. [20] At the dawn of the twentieth century, the state inaugurated “perhaps the nation’s first significant equalizing [educational] grant ” program, [21] distributing the initial appropriation of $100,000 to school districts statewide on a per-pupil basis. Soon the state doubled that amount, with almost 50 percent of the funds going to districts on the basis of need. [22] State contributions to the program increased for the next thirty years. During the Great Depression, with many school districts teetering on the brink of bankruptcy, the state assumed complete responsibility for the operating expenses of every school district in North Carolina. [23] In his 1934 biennial report, the state superintendent of public instruction noted, “By abolishing the district as a unit of school support, a child’s education is no longer directly dependent on the wealth of the community itself. ”[24]

In 1984 the General Assembly adopted a comprehensive Basic Education Program (BEP) that reflects “the policy of the State . . . to provide from State revenue sources the instructional expenses for current operations of the public school system as defined in the standard course of study.” [25] Under the BEP legislation, schools must offer certain academic subjects. Also, the State Board of Education must develop standards for educational inputs, such as class size, staffing ratios, instructional materials, support services, and facilities, and educational outputs, such as student achievement and promotion. [26] Pursuant to the legislation, the board has promulgated standards and criteria in each of these areas. [27]

In the late 1980s, however, reformers charged that the BEP had several crucial gaps. First, they observed, the provisions pertaining to state funding addressed only local operating needs. With certain exceptions [28] the BEP does not make any financial provision for state support of the capital needs of school districts—new buildings, new classrooms, and renovations. This is not mere legislative oversight; the law expressly states that “the facilities requirements for a public education system will be met by county governments.” [29] Plainly, many low-wealth districts lack sufficient funds to meet their capital needs. Indeed, in 1993 State Superintendent Bobby Etheridge estimated that North Carolina’s school districts would require $5.6 billion to fulfill those needs, and the State Department of Public Instruction estimated that in the five Leandro plaintiff districts the cost of needed facilities was more than $280 million. [30]

Second, critics maintained, the BEP made little special financial provision for school districts with unusually high proportions of children with great educational needs. The BEP itself acknowledges that such districts need special services. Yet its formula for state funding contains no adjustment for a district’s percentage of students with special needs.

Third and most important, critics argued, the BEP, which was designed to provide the minimum educational program needed by every North Carolina child, had never been fully funded by the General Assembly. Indeed, it has lagged hundreds of millions of dollars behind the levels projected as necessary to meet all district operating needs. In the absence of funds from the General Assembly, local districts currently rely on ad valorem taxation to raise some 25 percent of their operating expenses. [31] Recognizing that low-wealth districts have difficulty in raising sufficient local funds to meet basic BEP standards, the General Assembly established the Low Wealth Supplemental Funding Program in 1991. [32] Yet, although the state’s low-wealth districts needed an estimated $200 million in the 1992–93 school year to meet BEP goals, for example, the General Assembly allocated only $9 million in supplemental funding that year. [33] The legislature did allocate significant additional capital funds in subsequent years, but the pattern of underfunding has continued.

Origins of the Leandro Litigation

The Leandro lawsuit took shape in the early 1990s as interested groups began to voice concern about the sharp fiscal disparities among school districts in North Carolina [34] Both official and unofficial accounts at the time documented the plight of property-poor districts. Bertie County, for example, with a high school built for 600 students, was struggling to accommodate 1,200 students using house trailers. [35] Beyond reports of decrepit, leaking buildings were stories of schools struggling without basic resources such as textbooks, supplies, adequate libraries, or simple laboratory equipment. Still other schools were forced to limit their offerings, forgoing advanced placement classes, foreign language and higher mathematics instruction, as well as music, art, and drama courses. [36]

The plaintiffs who eventually came forward in the Leandro case represent an unusual alliance: two parents and two schoolchildren from each of five low-wealth counties—Cumberland, Halifax, Hoke, Robeson, and Vance—and the school boards of those counties. [37] Their complaint, filed in May 1994, told of the physical deterioration in their schools: “peeling paint, cracked plaster, and rusting exposed pipes. . . . erratic heating and air conditioning systems and outdated electrical systems. . . . [s]ome [with] no sewer connections and problematic waste water disposal.” [38] The litany of problems included a lack of basic supplies and essential teaching equipment, not only scientific equipment such as “microscopes, charts, models, lab stations, measuring devices, sinks, and safety equipment,” but also the rudiments of instruction, such as “adequate blackboards, desks and textbooks.” [39]

Of equal or more serious import, the plaintiff school districts stressed, they were often unable to attract high-quality teachers because they could not offer salaries that competed with those of wealthier school districts. For example, they pointed out, “the average salary supplement in 1993–94 for teachers in Chapel Hill School District was $3,310, while that in Halifax was $208.” [40] Also, they stated, the funding disparities kept them from hiring many additional teachers with local funds. Again they gave an example: In 1992–93 Chapel Hill had sufficient local funds to hire eighty-six extra teachers, while Robeson County (whose student population is over three times as large) could afford to hire only two extra teachers. [41]

The Leandro plaintiffs alleged that these fiscal deficiencies had led directly to diminished academic performance by their students, whether measured by end-of-year state proficiency tests, [42] Scholastic Aptitude Tests for college admissions, or the need for remedial college course work among local students who gained entry to North Carolina’s public colleges and universities. [43]

Having set forth this factual account of their circumstances, the Leandro plaintiffs drew on various provisions in the state constitution to contend, alternatively, that the documented disparities deprived children in their districts of an equal education, an adequate education, or even a minimum education. Their complaint relied chiefly on two provisions of the North Carolina Constitution that appear to make several educational commitments to the state’s citizens:

Article I, Section 15
The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.

Article IX, Section 2(1)
The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools . . . wherein equal opportunities shall be provided for all students.

This promising language was far from an assured source of relief, however. A school finance lawsuit filed in Robeson County in 1987, Britt v. North Carolina State Board of Education, had relied on the same phrases, and the North Carolina Court of Appeals had rejected the plaintiffs’ interpretation of them. [44] In fact, the court in Britt had interpreted the two provisions to offer little more than bare access to some school, no matter how substantively inferior. North Carolina’s education right, the court of appeals held, was limited to one of equal access to education, and it did not embrace a qualitative standard. [45]

Soon after the Leandro plaintiffs filed their suit, six parents and schoolchildren and six school boards from large, urbanized districts in the state—Asheville, Buncombe County, Charlotte-Mecklenburg, Durham, Wake, and Winston-Salem/Forsyth—joined the lawsuit as “plaintiff intervenors” (parties with full status to participate in the case). They brought to the lawsuit the perspective of “property rich” school districts that nonetheless suffered under many of the special burdens described earlier in this article—higher-than-average educational costs and disproportionate numbers of children with limited English proficiency and other special needs. The intervenors agreed with the original plaintiffs that the state should allocate more of its monies to North Carolina’s schoolchildren, but they urged that property-poor districts not be granted funds at the expense of urban districts that were struggling to meet pressing educational demands. [46] Indeed, they alleged that the distribution of funds exclusively to poor rural districts under the Low Wealth Supplemental Funding Program was “arbitrary and irrational” in light of their own need for additional funds.

The twin defendants in Leandro, the State of North Carolina and the State Board of Education, moved for dismissal of the lawsuit without a trial, relying on both (1) the holding in Britt that the North Carolina Constitution does not guarantee any substantive standard of educational quality and (2) the argument that school finance and educational standards present “nonjusticiable political questions”—matters to be debated and resolved exclusively by the General Assembly, without interference from the judicial branch. The superior court rejected the motion, however, and ordered the state to prepare for trial. Instead, the state appealed. It met with a friendly reception in the North Carolina Court of Appeals. In March 1996 Chief Justice Gerald Arnold, writing for the court, agreed that the Leandro lawsuit should be dismissed, reaffirming the court’s own earlier reasoning in Britt. [47]

The North Carolina Supreme Court, however, decided that it should review the lower courts’ handiwork. It accepted written briefs from the parties, heard oral arguments in fall 1996, and pondered the matter for nine months before announcing its decision in July 1997.

The Supreme Court’s Holding

In an opinion written by Chief Justice Burley Mitchell, the supreme court held that North Carolina children do possess something more substantial than the bare “right of access” to public schooling suggested by the court of appeals in Britt. Indeed, they may claim a substantive right to “some minimum standard of quality.” The court described this standard as “a sound basic education.” But the court expressly declined to interpret the standard to mean that every child may claim “a right to equal educational opportunities” or that every school district may claim a right to equal funding. The court thus rejected an “equality” approach to school finance reform: The North Carolina Constitution, the court held, does not “require substantially equal funding or educational advantages in all school districts.” [48]

Instead, the court pursued an “adequacy” approach, reasoning that, under the North Carolina Constitution, each child is entitled to an opportunity to receive certain substantive educational benefits. Drawing on the pioneering decision of the Kentucky Supreme Court in Rose,[49] the North Carolina Supreme Court specified four constitutionally indispensable requisites of a sound basic education:

(1) sufficient ability to read, write and speak the English language and a 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 post-secondary education or vocational training; and (4) sufficient academic and vocational skills to enable the student to compete on an equal basis with others in formal education or gainful employment in contemporary society. [50]

The court did not designate these requisites mere goals. Rather, it pointedly declared that each child’s right implies a corresponding duty of the General Assembly to “provid[e] the children of every school district with access to a sound basic education.” [51] The court acknowledged that “the administration of the public schools of the state is best left to the legislative and executive branches of government” and that “the courts of the state must grant every reasonable deference to the legislative and executive branches” [52] (for further discussion of this point, see “The Evidentiary Burden” below). However, it made clear its determination to safeguard the new right:

[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 . . . 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. [53]

Implications of Leandro

Does Leandro promise real changes for children in low-wealth counties like Halifax and Robeson or for school boards in high-wealth but educationally burdened districts like Charlotte-Mecklenburg? Leandro itself provides no final answers. Although the supreme court’s decision saved the Leandro lawsuit from dismissal, it did not resolve the case. Rather, it returned the case to the superior court for a full trial on the merits.

Yet the plaintiffs already have won a considerable victory on one of their two principal contentions: that North Carolina’s children have substantive educational rights that the General Assembly must honor and the judicial branch will protect if necessary. To this extent, Leandro has permanently altered the landscape of educational policy in this state.

On the other hand, Leandro represents a major defeat for wholesale reform of school finance, for an end to reliance on local ad valorem property taxation, and for the cause of substantial equality among all North Carolina school districts. It was on this last point that the one dissenting justice, Robert Orr, made a stand. With considerable passion he argued that Article IX, Section 2(1)—which, as noted earlier, promises “a general and uniform system of free public schools . . . wherein equal opportunities shall be provided for all students”—means just what it says, and that “students residing in a poorer district are still entitled to substantially equal educational opportunities as students in wealthier districts.” [54] The majority rejected this argument, looking to other provisions of the North Carolina Constitution, as well as to considerations of practicality. [55]

Standard of Review of Future Leandro Claims

As the Leandro lawsuit goes back to trial, the immediate question for the superior court is what standard to employ in determining whether Cumberland, Halifax, Vance, or any other school district is offering a sound basic education. Although the supreme court set forth four broad requisites for such an education, it declined to give further details about those requisites or to prescribe any single measurement for assessing whether a particular district’s educational program satisfies the requisites. Instead, the court tentatively put forward three very different alternatives as measures: legislative goals and standards for education, standardized achievement tests, and state expenditures.

Legislative goals and standards for education. The first of these three measures appears to invite the superior court to assess a school district’s program by reference to the BEP (or a legislative alternative):

Educational goals and standards adopted by the legislature are factors which may be considered on remand to the trial court for its determination as to whether any of the state’s children are being denied their right to a sound basic education. [56]

The supreme court carefully noted, however, that the General Assembly’s standards should “not be determinative.” What did the supreme court mean? I offer this interpretation: If (1) a school district’s educational program can be shown to comply (2) with state legislative and regulatory standards (3) that are consistent with the four major requisites set forth in Leandro, then that district’s system is presumptively constitutional. However, if a district’s program does not meet state standards or if the General Assembly’s standards do not adequately address each of the four Leandro requisites, the judicial branch will exercise its authority to declare unconstitutional the substandard education being provided in the district, the program prescribed by the General Assembly, or both.

In other words, this measure appears to contemplate (1) a set of statewide, legislatively prescribed educational standards that are responsive to each of the four Leandro requisites and (2) district-by-district compliance with those standards. Under this alternative the Leandro plaintiffs might argue that the BEP is inadequate on its face because it does not address one or more of the Leandro requisites or that the BEP is perfectly adequate but the state has not given their district the financial means to attain the BEP standard.

Note that the four Leandro requisites have a qualitative dimension as well: They demand not merely various curricular subjects but an educational program that ensures satisfactory student progress toward mastery of those subjects—that is, not just educational inputs but also educational outputs. Specifically the court reiterated that North Carolina’s sound basic education must be sufficient “to enable the student to function in a complex and rapidly changing society” and “to successfully engage in post-secondary education or vocational training.” These phrases suggest that if courses in advanced science, higher mathematics, or foreign language are essential to gain entry to the state’s colleges or universities or to secure employment in local high-tech industries, all school districts—including those now too property poor to offer such subjects or training—are henceforth under a duty to provide them. In addition, the court’s language implies that students must be sufficiently well educated not merely to gain entrance to the state’s public colleges and universities and employment markets but to succeed in them. Thus a district whose program otherwise meets all BEP standards might be found in violation of Leandro if a disproportionate number of its students regularly need remedial course work or drop out of college for academic failure—in other words, if its students do not “successfully engage in post-secondary education.”

Standardized achievement tests. A skeptical reader might think that my view interprets the supreme court’s emphasis on educational outcomes too broadly. Yet the court’s second alternative measure relies even more explicitly on indicators of output:

Another factor which may properly be considered in this determination is the level of performance of the children of the state and its various districts on standard achievement
tests. . . . In fact, such “output” measurements may be more reliable than measurements of “input” such as per-pupil funding or general educational funding provided by the state. [57]

Under this measure, parents of children in low-performing schools might sue to prod state and local officials into devising and implementing educational methods that would improve the chronically low performance of their own and other children in the district. [58]

State expenditures. The third measure proposed by the supreme court seems the most traditional in school finance terms, for it looks to “the level of the state’s general educational expenditures and per-pupil expenditures.” [59] Yet the tenor of the court’s opinion forecloses the possibility that this standard encourages district-by-district comparisons, much less requires full equality in school funding. [60] Rather, the court seems to be inviting superior courts to assess a district’s program in light of the state’s overall level of educational spending—perhaps with an eye to directing the General Assembly to increase its financial commitment to the public schools if achievement of a sound basic education seems remote at current levels of funding.

The supreme court appears to view this measure with considerable skepticism, however. Scholarly evidence, the court noted, suggests that “ ‘substantial increases in funding produce only modest gains in most schools,’ ” [61] and fashioning any statewide financing system is complex. For those reasons the court instructed lower courts “not [to] rely upon the single factor of school funding levels in determining whether a state is failing in its constitutional obligation to provide a sound basic education to its children.” [62] Indeed, the court stated that factors beyond those it set forth in the Leandro opinion may be relevant in resolving a plaintiff’s claim, and the court implied that some of the factors it discussed may not have weight in all cases.

How the lower courts resolve these questions about the pertinent Leandro standards may well determine how profound Leandro’s effect will be in practice. Interpreted loosely, Leandro might become little more than a warning shot across the bow of the General Assembly, a well-meaning plea for the legislature to take its educational responsibilities more seriously. Interpreted with appropriate judicial seriousness, however, Leandro should impel the General Assembly—independently of any further litigation—to reflect on the adequacy of the BEP in today’s “complex and rapidly changing society,” to fulfill its earlier promise to fund the BEP fully, and to provide sufficient tax dollars for a meaningful Low Wealth Supplemental Funding Program. In other words, although the Leandro court rejected the plaintiffs’ plea for straightforward school finance reform and declined to end local supplemental funding, it has placed weighty educational responsibilities on the state and given individual parents new authority to go to court to demand fulfillment of those responsibilities. If the General Assembly does not turn its attention promptly to the plight of inadequately funded and underperforming school districts, state courts may preempt the General Assembly’s customary role and mandate legislative action.

Eligibility to Claim Benefits

One additional question that has emerged in Leandro is who may claim the benefits promised by the supreme court. As noted earlier, the plaintiffs in Leandro are parents, schoolchildren, and school boards from five low-wealth districts, and the plaintiff intervenors are parents, schoolchildren, and school boards from six high-wealth districts. On the return of the case to the superior court for further proceedings, the state moved for dismissal of the school boards, reasoning that

[t]he constitutional right to the opportunity for a “sound basic education” established by the supreme court in this case belongs solely to children attending the public schools. That right does not belong to the . . . school boards. Indeed, those boards have the duty to protect that right for all students enrolled in their local schools. [63]

The superior court denied the state’s motion but left open the prospect of revisiting the issue later in the litigation. [64] There is some plausibility in the state’s position. Individuals, not government bodies, normally possess constitutional rights, and no school board can logically claim a right to a sound basic education. Yet the boards in both the low-wealth and the high-wealth districts can plausibly contend that they cannot carry out Leandro’ s mandate to deliver constitutionally adequate education to North Carolina schoolchildren without additional assistance from the General Assembly or the State Board of Education. Moreover, given that school boards risk administrative takeover of low-performing schools within their district if their students perform poorly on end-of-year state tests, they have an immediate institutional interest in ensuring that all children receive a sound basic education. Yet that may depend on factors over which they have little control, such as financial resources.

All these questions await resolution in Leandro and others cases sure to be engendered by the announcement of this important new right.

1. Leandro v. State of North Carolina, 346 N.C. 336, 488 S.E.2d 249 (1997). I submitted an amicus curiae brief to the North Carolina Supreme Court in the Leandro case, as co-counsel for the North Carolina Civil Liberties Union. The views expressed in this article are solely mine and do not represent the views of the North Carolina Civil Liberties Union, the UNC–CH School of Law, or any other organization.

2. See, e.g.,“No Reason to Wait,” News & Observer (Raleigh, N.C.), Aug. 5, 1997, p. A8; Tim Simmons, “Poorer School Districts Unable to Catch Up,” News & Observer (Raleigh, N.C.), July 22, 1997, p. A3; Tim Simmons and Joseph Neff, “School Equity Loses in State Court,” News & Observer (Raleigh, N.C.), March 20, 1996, p. A1.

3. Charles Benson, The Cheerful Prospect: A Statement on the Future of Public Education (Boston: Houghton Mifflin, 1965); John E. Coons, William H. Clune III, and Stephen D. Sugarman, Private Wealth and Public Education (Cambridge: Harvard University Press, Belknap Press, 1970); Francis Keppel, The Necessary Revolution in American Education (New York: Harper & Row, 1966); Arthur E. Wise, Rich Schools, Poor Schools: The Promise of Equal Educational Opportunity (Chicago: University of Chicago Press, 1968); John Silard and Sharon White, “Intrastate Inequalities in Public Education: The Case for Judicial Relief under the Equal Protection Clause,” Wisconsin Law Review 1970, no. 1: 7–34.

4. Silard and White, “Intrastate Inequalities,” 8–9.

5. A brief but useful history of various federal funding programs for public education appears in Richard A. Rossmiller, “Federal Funds: A Shifting Balance?” in The Impacts of Litigation and Legislation on Public School Finance: Adequacy, Equity, and Excellence, ed. Julie K. Underwood and Deborah A. Verstegen (New York: Ballinger Publishing Co., 1990), 3–25; see also Title I of the Elementary and Secondary Education Act of 1965, Pub. L. No. 89–10, 79 Stat. 27, 27–36 (1965), codified as 20 U.S.C. §§ 236–41 (1976), now appearing as ch. 1 of the Education Consolidation & Improvement Act of 1981, 20 U.S.C. § 3801 (1982).

6. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 7–8 (1973).

7. For example, a school district with $200 million in taxable property would generate $1 million a year in school revenues by taxing itself at the rate of $ .50 per $100 of assessable real property. To generate the same total revenue, a district with only $50 million in taxable property would have to tax itself at four times that rate—$2.00 per $100 of property.

8. Serrano v. Priest, 487 P.2d 1241 (Cal. 1971).

9. Rodriguez, 411 U.S. at 1.

10. Rodriguez, 411 U.S. at 33–34.

11. Rodriguez, 411 U.S. at 36–37.

12. Molly McUsic, “The Use of Education Clauses in Litigation,” Harvard Journal of Legislation 28 (1991): 309–11; Gerald Ratner, “A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills,” Texas Law Review 63 (1985): 787, 814 n. 138.

13. Robinson v. Cahill (I), 303 A.2d 273 (N.J. 1973).

14. McUsic recently suggested why taxpayers may support locally imposed taxes for education more willingly than they support taxes for education imposed statewide. See Molly S. McUsic, “The Ghost of Lochner: Modern Takings Doctrine and Its Impact on Economic Legislation,” Boston University Law Review 76 (1997): 605–67.

15. See, e.g.,Leandro, 346 N.C. at 349–50, 488 S.E.2d at 256.

16. See Julie K. Underwood and William E. Sparkman, “School Finance Litigation: A New Wave of Reform,” Harvard Journal of Law and Public Policy 14 (1991): 517–74.

17. Abbott v. Burke, 575 A.2d 359 (N.J. 1990).

18. Rose v. Council for Better Education, Inc., 790 S.W.2d 205 (Ky. 1989).

19. N.C. Const. of 1776, art. XLI.

20. Charles D. Liner, “Financing of North Carolina’s Public Schools,” School Law Bulletin 18 (Summer 1987): 30–31.

21. Liner, “Financing,” 31.

22. William Plemmons, The Development of State Administration of Public Education in North Carolina (1943) (unpublished Ph.D. dissertation, The University of North Carolina at Chapel Hill), 9–10.

23. The funding covered operating expenses for a six-month school term. Capital expenditures were not covered. 1931 N.C. Pub. Laws ch. 430; 1933 N.C. Pub. Laws ch. 562.

24. State Superintendent of Public Instruction, Biennial Report, 1932–34 (Raleigh, N.C.), 15–16.

25. N.C. Gen. Stat. [hereinafter G.S.] § 115C-408(b).

26. G.S. 115C-81(a1), (b).

27. North Carolina State Board of Education, The Basic Education Program for North Carolina’s Public Schools (Raleigh, N.C.: Feb. 1988).

28. The state has a Critical School Facility Needs Fund and a Public School Building Capital Fund under G.S. 115C-489.1 through -489.2 and G.S. 115C-546.1 through -546.2.

29. G.S. 115C-408(b).

30. Amended Complaint, Leandro v. State of North Carolina, No. 94 CVS 520 (Super. Ct., Halifax Co. filed Sept. 28, 1994) [hereinafter Leandro Complaint], at 15, ¦ 56; 16, ¦ 57. Liner has shown that North Carolina spent more than $3 billion on school construction and other capital needs between 1981 and 1993, so local districts clearly were not abandoned by the state. Nonetheless, the 1993 estimate of total school construction needs stood at $5.6 billion. Charles D. Liner, “School Construction Spending in North Carolina,” School Law Bulletin 26 (Winter 1995): 1–15.

31. North Carolina Department of Public Instruction, North Carolina Public School Statistical Profile 1990 (Raleigh, N.C.), 1–41.

32. Supplemental Funding Act, 1991 N.C. Sess. Laws ch. 689, § 201.2(a).

33. Leandro Complaint at 14.

34. See Atlantic Center for Research in Education, No Other Choice: Inequities in School Funding in North Carolina (Raleigh, N.C.: Grassroots Press, 1988); North Carolina Civil Liberties Union, A Right Denied: Educational Inequality in North Carolina’s Schools (New York: American Civil Liberties Union, 1991); Public School Forum of North Carolina, Local School Finance in North Carolina: A Status Report (Raleigh, N.C.: the Forum, 1990); Ran Coble, “Presentation to the 1990 Summer Institute for North Carolina School Administrators” (Chapel Hill, N.C.: July 17, 1990); Liner, “Financing”; see also “Rich School, Poor School,” North Carolina Independent, March 26, 1987, 11–15.

35. “Rich School, Poor School,” 13.

36. “Rich School, Poor School,” 13.

37. Leandro Complaint at 2–5.

38. Leandro Complaint at 17.

39. Leandro Complaint at 18.

40. Leandro Complaint at 19.

41. Leandro Complaint at 20.

42. For example, the plaintiffs noted as follows:

[I]n the Halifax County system in 1993, the percentages of secondary school students failing to demonstrate proficiency in end-of-course tests were: for physical science, 79 percent; for biology, 90 percent; for chemistry, 86 percent; for physics, 79 percent; for algebra I, 88 percent; for geometry, 82 percent; for algebra II, 90 percent; for economic, legal, and political systems, 83 percent; for U.S. history, 89 percent; and [for] English I, 82 percent.

Leandro Complaint at 21–22.

43. For example, the plaintiffs reported the following:

[T]he percentage of U.N.C. freshmen for all N.C. public schools recommended for remedial English was 8.09 percent. The number for Halifax [School District] freshmen was 21.9 percent; for Cumberland, 16.9 percent; and for Hoke, 23.3 percent.

Leandro Complaint at 23.

44. Britt v. North Carolina State Board of Education, 86 N.C. App. 282, 357 S.E.2d 432, disc. rev. denied and appeal dismissed, 320 N.C. 790, 361 S.E.2d 71 (1987).

45. Britt, 86 N.C. App. at 289, 357 S.E.2d at 436.

46. Plaintiff-Intervenors’ Complaint, Leandro v. State of North Carolina, No. 94 CVS 520 (Super. Ct., Halifax Co. filed Oct. 17, 1994).

47. Leandro, 122 N.C. App. 1, 468 S.E.2d 543 (1996).

48. Leandro, 346 N.C. at 349, 488 S.E.2d at 256.

49. Rose, 790 S.W.2d 186, 212 (Ky. 1989). The Rose court held that the “efficient” system of common schools guaranteed by the Kentucky constitution included the following:

(i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.

50. Leandro, 346 N.C. at 347, 488 S.E.2d at 255.

51. Leandro, 346 N.C. at 353, 488 S.E.2d at 258.

52. Leandro, 346 N.C. at 357, 488 S.E.2d at 261.

53. Leandro, 346 N.C. at 357, 488 S.E.2d at 261.

54. Leandro, 346 N.C. at 359–60, 488 S.E.2d at 262.

55. In essence the Leandro majority reasoned as follows: Article IX, Section 2(2), of the state constitution expressly declares that the General Assembly “may assign to units of local government such responsibility for the financial support of the free public schools as they may deem appropriate.” Further, it “expressly provides that local governments may add to or supplement their school programs as much as they wish.” So the constitution’s framers must have contemplated that different districts would spend different amounts on public education, leading to substantial disparities. Such disparities are therefore constitutionally permissible. Leandro, 346 N.C. at 349, 488 S.E.2d at 256.

56. Leandro, 346 N.C. at 355, 488 S.E.2d at 259.

57. Leandro, 346 N.C. at 355, 488 S.E.2d at 259.

58. In fact, the ABC’s of Education Act and the new Excellent Schools Act, which impose sanctions on principals and teachers who do not “meet the minimum growth standards,” including attainment of goals for raising students’ test scores, might become crucial levers to lift sagging scores in some districts. See G.S. 115C-105.20 through -105.40, -325q.

In Leandro, however, the supreme court itself asked whether output standards were appropriate in light of the national debate over the “value of standardized tests.” Leandro, 346 N.C. at 355, 488 S.E.2d at 260. In addition, a large body of scholarly literature suggests that factors beyond the control of school authorities, such as the socio-economic background of schoolchildren and their families, may have a major effect on student performance. See, e.g., James S. Coleman et al., Equality of Educational Opportunity (Washington, D.C.: U.S. Department of Health, Education, and Welfare, 1966); Frederick Mosteller and Daniel P. Moynihan, eds., On Equality of Educational Opportunity (New York: Vintage Books, 1972).

59. Leandro, 346 N.C. at 355, 488 S.E.2d at 260.

60. As noted earlier, this is the point on which Justice Orr disagrees with the majority. He reads the “equal opportunities” language of Article IX, Section 2(1), of the North Carolina Constitution as obligating the state to provide “substantial equality” in educational opportunities for every child in every school district. Leandro, 346 N.C. at 361, 488 S.E.2d at 263.

61. Leandro, 346 N.C. at 356, 488 S.E.2d at 260, quoting William H. Clune, “New Answers to Hard Questions Posed by Rodriguez,” Connecticut Law Review 24 (1992): 726.

62. Leandro, 346 N.C. at 357, 488 S.E.2d at 260.

63. Defendants’ Motion to Dismiss, Leandro, No. 95 CVS 1158 (Super. Ct., Wake Co. filed Oct. 10, 1997), at 1.

64. Order, Leandro, No. 95 CVS 1158 (Super. Ct., Wake Co. filed Nov. 24, 1997).