By Rob Schofield
It’s a bedrock principle of American law that average people can vindicate their legal and constitutional rights in courts of law and have those courts compel or prevent acts of other branches of government.
From preventing the taking of private property without compensation, to ordering necessary services for, say, people living with disabilities, or even an incarcerated person, such action can take several forms.
Without such a rule, many basic rights would be rendered as effectively meaningless as they are in countries like Putin’s Russia and Xi’s China.
Although there are literally thousands of examples from American jurisprudential history that illustrate this basic premise, a classic example is the 1963 U.S. Supreme Court case of Gideon v. Wainwright. In that case, the Court ruled that an indigent criminal defendant has the fundamental right to have the assistance of counsel in order to have a fair trial, and that it is the state’s obligation to provide such counsel for free.
Or take the 1982 case of Plyler v. Doe, in which the court established the basic rule that states must provide free public education to all children – including those who are undocumented.
And then, as noted above, there are the scores of cases – some of them in my home state of North Carolina – in which courts have ordered governments to provide humane and adequate conditions in prisons, jails, and institutions that house people living with mental illness, substance abuse problems or developmental disabilities.
It’s true that the oversight process for enforcing such judgments frequently gets messy and contentious. But the basic premise – that courts have the fundamental power to compel government action (even when it requires the expenditure of public resources) – remains (and should remain) unassailable.
Without such a basic rule, states would be free to house prisoners in outdoor pens like farm animals, lock patients suffering from mental illness into windowless dungeons, or cram schoolchildren, 70-per classroom, into tiny, unheated, and overcrowded trailers that fail to meet fire or electrical codes. What’s more, the people forced to endure such torturous conditions would be out of luck and without a possible remedy.
Amazingly, however, this is the precise position that state Republican politicians say should prevail with respect to North Carolina’s landmark Leandro school funding case.
Despite multiple judicial determinations that the state’s K-12 schools are unconstitutionally deficient, the Republican politicians – including, last week, a pair of appellate court judges – say that no court can order the legislature to actually fix the problem.
According to the judges in question, state courts have “no authority to order the appropriation of monies to satisfy any execution of [the Leandro] judgment.”
In effect, they argue, 25-plus years of trials, expert witness testimony, findings, rulings, appeals and remedy planning were all just a meaningless exercise in pushing paper. When it gets right down to it, the power to decide whether to make our K-12 schools constitutional remains right where it’s always been – at the whim of state legislative leaders who are the chief authors of the current failed system.
And just in case anyone had any doubts about the complete power they claim to wield (or had any inkling to question it), GOP lawmakers are firing some unmistakable warning shots designed to intimidate naysayers.
In concert with right-wing allies, lawmakers have sent the clear and appalling message in recent days (see item #8 of the recently adopted adjournment resolution) that they are considering the extraordinary (and deeply treacherous) step of impeaching North Carolina Superior Court Judge David Lee – the visionary and courageous jurist who has been seeking to enforce the Leandro ruling and make it real.
The apparent grounds: They don’t like the idea of him telling them what to do.
It’s difficult to convey what a radical stance this represents. Indeed, the parallels to the infamous “Impeach Earl Warren” mantra voiced by mid-20th segregationists opposed to the Brown v. Board school integration case are unavoidable.
All that said, North Carolina state Senate President Pro Tempore Phil Berger has taken things a step further. Not only did he deny the power of courts to remedy the state’s unconstitutional education system, but last week he also blamed the situation in the state’s schools on the plaintiffs in the case – that is, low wealth counties and the kids unlucky enough to attend school therein.
No, that is not a misprint. In response to the court ruling authored by the GOP judges, Berger said: “Rather than accepting responsibility for lagging achievement and outright failure, the Leandro parties insist that the pathway to student improvement is always the simple application of more money.”
Talk about taking victim blaming to a new level.
The bottom line: If the position staked out by Berger and his pals somehow triumphs, it will set a potentially disastrous precedent that will almost certainly harm millions of schoolchildren and, quite conceivably, serve to undermine many other basic individual rights.
The state Supreme Court should stand up for all North Carolinians and definitively reject this absurd and extreme stance as quickly as possible.
Rob Schofield, an attorney, is the director of North Carolina Policy Watch, a sibling site of the Pennsylvania Capital-Star, where this column first appeared.
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