Equal On Paper

At the beginning of April, the conservative-dominated North Carolina Supreme Court put the final nail in the coffin of equitable education funding in the state. In a reversal of the Court’s 2022 decision in the so-called Leandro school funding case, a new decision from Chief Justice Paul Newby dismissed the case and held that the judiciary may not interfere in the legislature’s statewide funding decisions not addressed in the original complaint from 1994, even if they violate the state constitution.

For almost 32 years, multiple students, parents, and school districts have participated in the Leandro lawsuit seeking equitable funding for low-income North Carolina public school districts. Because all school capital expenses and 25 percent of operating expenses were borne by local governments, there were—and still are—large funding disparities between schools in low- and high-income districts, with schools in majority-Black communities disproportionately underfunded. In 1997, the North Carolina Supreme Court held that the underfunding of low-income schools violated the state constitution’s requirement that all children have an “opportunity to receive a sound basic education.”

In response, the legislature has slightly changed its state education funding scheme, providing slightly more funding to low-income areas. However, litigation over the subsequent decades has argued that funding is still unconstitutionally low and pushed for the courts to order the legislature to increase it. In 2021, Judge David Lee ordered the state to fill a $1.75 billion gap in funding required to honor the state’s right to education. When the legislature challenged the ruling as a violation of the separation of powers, the North Carolina Supreme Court held that judges have the authority to compel the state legislature to act when it violates constitutional rights.

Shortly after retaking the Court in the November 2022 elections, the Republican majority ordered a halt to any payments under the trial court order, and in October 2023 agreed to rehear the case entirely. Now almost two years after oral argument, the Court has finally put an end to the lawsuit. The opinion stated that the trial court lacked jurisdiction to hear a case based on outdated pleadings, and plaintiffs should instead take their concerns to the Blue Ribbon Commission on Public Education established by Governor Josh Stein, Senate leader Phil Berger, and House Speaker Destin Hall to provide recommendations for the future of public school funding. 

Considering that according to the Education Law Center, North Carolina currently ranks fiftieth in the nation for school funding in total dollars per pupil and spending as a percentage of economic activity, this kind of appeal to the legislature seems unlikely to achieve much. But perhaps that is the point. Across the country, conservative interests have been attacking similar judicial interventions into school funding in order to reduce education spending in an effort that echoes earlier resistance to desegregation following Brown v. Board of Education.

In the years after Brown prohibited “separate but equal” public education, most states did not openly violate the ruling. Instead, they pursued what became known as “massive resistance” by closing public schools, redirecting funds to private institutions, and advancing legal theories designed to limit federal court authority. Today’s litigation over school funding reflects a modern analogue. Rather than directly contesting the idea that states must provide public education, conservative lawmakers and litigants are increasingly targeting the enforceability of constitutional guarantees—arguing that courts lack the authority to define or mandate what an “adequate” education requires.

This strategy is most explicit in New Hampshire, where the state is currently asking its high court to overturn the foundational rulings in Claremont School District v. Governor of New Hampshire. Those decisions, dating back to the 1990s, established that the state has a constitutional duty to both define and fund an adequate education. Now, state officials argue that such questions are “nonjusticiable” and seek to remove school funding from judicial oversight altogether. In this way, New Hampshire seeks to go beyond even the recent North Carolina decision, where only Justice Phil Berger Jr. (son of Senate leader Phil Berger) would have entirely foreclosed a judicial remedy.

This strict separation-of-powers approach mirrors arguments long advanced by the conservative legal movement asserting that courts cannot compel appropriations, even when constitutional rights are at stake. This reasoning reframes education funding not as a constitutional obligation subject to judicial enforcement, but as a discretionary legislative function—placing it beyond meaningful legal challenge.

Other states illustrate earlier stages of the same trajectory. In Pennsylvania, following the landmark 2023 ruling in William Penn School District v. Pennsylvania Department of Education, which found the state’s funding system unconstitutional, legislative leaders have resisted calls for large-scale funding increases, emphasizing fiscal constraints and legislative prerogatives. In Kansas, long-running litigation under Gannon v. Kansas has repeatedly returned to the courts as lawmakers push back against judicially mandated funding levels, often invoking similar separation-of-powers concerns.

Earlier school finance litigation—much like desegregation cases—focused on expanding substantive rights like equal access to education, adequate resources, and meaningful educational opportunity. The current wave of conservative challenges, by contrast, focuses on legislative prerogatives to find workarounds avoiding consideration of those rights. By narrowing or eliminating the role of courts, these efforts aim to ensure that even if constitutional guarantees formally remain in place, they become practically unenforceable.

The parallels to post-Brown resistance are difficult to ignore. Then, as now, opponents of equity-driven reforms rarely argued openly against the underlying principle. Instead, they contested the mechanisms of enforcement, limiting courts’ jurisdiction and allowable remedies when the legislature violates the constitution. The result, in both eras, is a legal landscape where rights exist on paper but depend on political will for their realization. In that sense, the end of Leandro may mark not just the conclusion of a single case, but a turning point in the national struggle over educational equity from battles over what the Constitution requires, to battles over whether those requirements can be enforced at all.

Featured image is "State Constitution of 1868," edited.