By David Bass, Carolina Journal

A Democrat-controlled N.C. Supreme Court could end up deciding the constitutionality of a $1.7-billion transfer ordered by the presiding judge in the long-running Leandro school funding lawsuit.

That outcome could be in the cards after plaintiffs in the case filed an appeal Dec. 15 challenging a Court of Appeals that blocked enforcement of the order by State Superior Court Judge David Lee.

The action by Lee set off a constitutional firestorm in November when the retired Union County judge ordered the transfer from the state’s coffers. By letter of the state constitution, only the General Assembly has the power to appropriate funds.

“The children of North Carolina have waited long enough for the vindication of their constitutional right to the opportunity for a sound basic education and deserve no less,” Melanie Dubis, an attorney for the plaintiffs, in the appeal.

The state Supreme Court is controlled by a 4-3 Democratic majority, meaning a ruling on the constitutionality of the $1.7 billion could touch off fresh tensions between the judiciary and the Republican-controlled General Assembly.

For their part, GOP legislative leaders have filed their own intervention in the case. Last week, Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, filed paperwork arguing that Lee’s order “contravenes the doctrine of Separation of Powers reflected in Article I, Section 6 of the State Constitution.”

“The makeup of the N.C. Supreme Court appears to favor the Leandro parties, so this appeal is not surprising,” said Dr. Terry Stoops, director of the Center for Effective Education at the John Locke Foundation. “The Leandro parties and the education establishment do not care that a favorable ruling from their political allies on the state Supreme Court would subvert our state’s constitutional order. They only care about increasing the flow of taxpayer money to a public school system already flush with cash.”

The Leandro lawsuit dates to 1994, when five rural school districts sued the state over education funding. The state Supreme Court has ruled twice since then — in 1997 and again in 2004 — that the state has a constitutional obligation to provide a “sound, basic education” to all students.

The budget for the new biennium — passed by a bipartisan majority of the General Assembly and signed into law by Gov. Roy Cooper — funds several key parts of the Leandro plan but stops well short of bankrolling every line item.