No. 530 PA 02
TENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
HOKE COUNTY BOARD
OF EDUCATION, et al.,
Plaintiffs-Appellees,
and
CASSANDRA INGRAM, individually,
and as guardian ad litem of
Darrie Ingram, et al.,
Plaintiff-IntervenorsAppellees,
v.
STATE OF NORTH CAROLINA,
et al.,
Defendants-Appellants.
)
)
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)
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)
)
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From Wake County
No. 95-CVS-1158
********************************
BRIEF AMICI CURIAE OF
THE AMERICAN CIVIL LIBERTIES UNION
OF NORTH CAROLINA LEGAL FOUNDATION, INC.,
CAROLINA LEGAL ASSISTANCE, INC., THE NORTH CAROLINA
JUSTICE & COMMUNITY DEVELOPMENT CENTER,
THE NORTH CAROLINA NAACP,
THE RURAL SCHOOL & COMMUNITY TRUST, AND
THE UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW
CENTER FOR CIVIL RIGHTS
********************************
INDEX
TABLE OF AUTHORITIES……………………………………………………..
iv
STATEMENT OF THE CASE…………………………………………………...
1
ARGUMENT……………………………………………………………………….
8
I.
The Trial Court Relies Upon Well-Established Standards And
Overwhelming Evidence To Reach Two Reasonable Conclusions:
First, That Many North Carolina Children Are Presently Being Denied
The Sound Basic Education Promised By Leandro, And Second, That
The State Is Duty-Bound To Address And Remedy Those Denials………..
A.
The Trial Court Use Of EOG and EOC Test Scores
In Assessing Overall Student Performance Follows
The Lead Of The General Assembly And The Direct
Instructions Of This Court In Leandro………………………………
1.
9
The Trial Court’s Consideration Of EOG and EOC
Test Results Is Fully Consistent With Separation
Of Powers Principles…………………………………………
9
Any Allegation That The Trial Court Relies
Exclusively On EOG and EOC Scores Is Factually
Incorrect, As The State Implicitly Concedes………………..
11
N.C. Gen. Stat. § 115C-288(a)—A Statute That
Limits The Discretion Of School Principals When
Making Individual Student Promotion Decisions—
Has No Bearing Upon, And Thus Does Not Forbid,
The Trial Court’s Use Of EOG and EOC Results To
Assess School-Level and District-Level Compliance
With Leandro………………………………………………..
13
EOG and EOC Results Are Material And Highly
Probative Measures Of Whether Students Are Presently
Receiving A Sound Basic Education……….……………….
15
The Trial Court Correctly Concludes That The State Of North
Carolina—Which Has An Affirmative Duty Under Leandro To
Provide A Sound Basic Education—Has Not Met Its Duty To
Many North Carolina Children Most At Risk Of Academic Failure..
16
2.
3.
4.
B.
8
ii
II.
The Trial Court Properly Holds That The State—Not Local School
Boards— Must Bear The Ultimate Responsibility For Assuring That
All North Carolina Students Receive A Sound Basic Education……………
23
The Trial Court Does Not Declare That Pre-Kindergarten Education Is A
Constitutional Right. Instead, The Court Finds That Pre-Kindergarten
Education Is A Necessary Educational Remedy For Many Children
Who Would Otherwise Be At Great Risk Of Early Academic Failure……..
27
CONCLUSION……………………………………………………………………..
33
III.
iii
TABLE OF AUTHORITIES
Cases
Bazemore v. Friday, 478 U.S. 385 (1986)………………………………………….22
Bell v. Nationwide Ins. Co., 146 N.C. App. 725, 554 S.E.2d 399 (2001)………….15
Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992)…...26
In re Alamance Co. Ct. Facilities, 329 N.C. 84, 405 S.E.2d 125 (1991)….………..27
Leandro v. State, 346 N.C. 336, 488 S.E.2d 249 (1997)………………………passim
Lee v. Regen, 47 N.C. App. 554, 267 S.E.2d 909, disc. rev. denied,
301 N.C. 92, 273 S.E.2d 299 (1989)……………………………….19
McCleskey v. Kemp, 481 U.S. 279 (1987)………………………………………... 22
Poole v. Copland Inc. 348 N.C. 260, 498 S.E.2d 602 (1998)………………………19
White v. Pate, 308 N.C. 759, 304 S.E.2d 199 (1983)………………………………15
Young v. Hickory Bus. Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000)…………17
Constitutional Provisions
N.C. Const. art. I., § 15…………………………………………………………..3, 18
N.C. Const. art. IX, § 2…………………………………………………………..3, 18
N.C. Const. art. IX, § 3….………………………………………………………….30
Statutory Provisions
N.C. Gen. Stat. § 115C-1…………………………………………………………….6
N.C. Gen. Stat. § 115C-12…..……………………………………………………...24
N.C. Gen. Stat. § 115C-12 (9a)….……………………………………………….....24
N.C. Gen. Stat. § 115C-81.(a)…..………………………………………………..5, 19
N.C. Gen. Stat. § 115C-105.20 (a)……………………………………………...19, 24
N.C. Gen. Stat. § 115C-105.37……………………………………………………..24
iv
N.C. Gen. Stat. § 115C-105.37A…………………………………………………...25
N.C. Gen. Stat. § 115C-105.38……………………………………………………..25
N.C. Gen. Stat. § 115C-105.40……………………………………………………..25
N.C. Gen. Stat. § 115C-105.41……………………………………………………..20
N.C. Gen. Stat. § 115C-107………………………………………………………...19
N.C. Gen. Stat. § 115C-288 (a)……………………………………………ii, 9, 13, 14
N.C. Gen. Stat. § 115C-366………………………………………………………….6
Other Rules and Regulations
N.C. Admin. Code tit. 16, § 6D.0502 (a) (amended Aug. 1, 2002)………………...14
N.C. Admin. Code tit. 16, § 6D.0504………………………………………………16
N.C. Admin. Code tit. 16 § 6D.0505……………………………………………….16
N.C. R. App. P. 10 (b) (1)………………………………………………………….15
Other Authorities
John Charles Boger, Education’s ‘Perfect Storm’? Racial Resegregation
High Stakes Testing, and School Resource Inequities: The
Case of North Carolina, 81 N.C. L. Rev. 1375 (2003)……..…10, 14, 16
Laurie L. Mesibov, Changes Affecting Elementary and Secondary Education,
32 Sch. L. Bull. 1 (Fall, 2001) …………………………………….13
North Carolina Consolidated State Application May 1, 2003 Submission for
State Grants (last modified Apr. 30, 2003)
<http://www.ncpublicschools.org/nclb/030501_workbook.pdf…………………...21
John V. Orth, The North Carolina State Constitution with History &
Commentary (UNC Press, 1993)…………………………………….…….31
Restatement of Torts 2d, § 461 (1965)…………………………………………….19
v
No. 530 PA 02
TENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA
HOKE COUNTY BOARD
OF EDUCATION, et al.,
Plaintiffs-Appellees,
and
CASSANDRA INGRAM, individually,
and as guardian ad litem of
Darrie Ingram, et al.,
Plaintiff-IntervenorsAppellees,
v.
STATE OF NORTH CAROLINA,
et al.,
Defendants-Appellants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
From Wake County
No. 95-CVS-1158
********************************
BRIEF AMICI CURIAE OF
THE AMERICAN CIVIL LIBERTIES UNION
OF NORTH CAROLINA LEGAL FOUNDATION, INC.,
CAROLINA LEGAL ASSISTANCE, INC., THE NORTH CAROLINA
JUSTICE & COMMUNITY DEVELOPMENT CENTER,
THE NORTH CAROLINA NAACP,
THE RURAL SCHOOL & COMMUNITY TRUST, AND
THE UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW
CENTER FOR CIVIL RIGHTS
********************************
STATEMENT OF THE CASE
This brief is being submitted by the American Civil Liberties Union of North
Carolina Legal Foundation, Carolina Legal Assistance, Inc., the North Carolina Justice &
Community Development Center, the North Carolina NAACP, the Rural School &
Community Trust, Inc., and the University of North Carolina School of Law Center for
Civil Rights (together, “amici curiae”), by leave of this Court, granted April 4, 2003.1
We are grateful for this opportunity to be heard. Present amici have closely
followed the Leandro case since its inception nearly a decade ago. Our special concern
has been to safeguard the educational interests of the more than forty percent of North
Carolina’s school children—many of them poor, some in need of special educational
services, often from single parent families, from families where English is not spoken at
home, or from racial and ethnic minority families—who are at greatest risk of academic
failure.
As the trial court found, these young children enter school burdened by profound
educational and social challenges that, if not addressed, will undermine their ability to
learn and severely impede their progress through school. (R. pp. 1418- 20). Yet the trial
court has also found that virtually all of these children can learn; they possess the
inherent capacity to succeed and obtain the sound basic education promised by Leandro.
(R. pp. 1428, 1444- 45). To ensure a meaningful opportunity for these children, however,
North Carolina schools must reach out with programs and teaching methods that meet
their special needs and provide them with necessary educational resources: “As the
educators and educational experts for all parties unanimously agreed at trial, given proper
resources, the educational needs of at-risk children . . . can be met.” (R. p. 1432).
In 1997, this Court’s path breaking opinion in Leandro v. State, 346 N.C. 336,
488 S.E.2d 249 (1997) made a crucial promise to these children. Drawing upon
1
By order of the Court dated April 25, 2003, the Court granted amici curiae up to and including June 24,
2003 to file and serve their brief.
2
Article I, § 15 and Article IX, § 2 of the North Carolina Constitution,2 the Court
identified both an individual right and a corresponding State duty: that every North
Carolina child has “a right to a sound basic education,” 346 N.C. at 345, 488 S.E.2d at
254, and that “the General Assembly has the duty of providing the children of every
school district with access to a sound basic education.” 346 N.C. at 353, 488 S.E.2d at
258.
Since the 1997 Leandro decision was a pre-trial ruling, this Court remanded the
case to a specially designated trial court, “for its determination as to whether any of the
state’s children are [in fact] being denied their right to a sound basic education.” 346 N.C.
at 355, 488 S.E.2d at 259. The Court specifically invited the trial court, when measuring
for a possible Leandro violation, to consider both the “[e]ducational goals and standards
adopted by the legislature,” and “the level of performance of the children of the state and
its various districts on standard achievement tests,” together with other factors. 346 N.C.
at 355, 488 S.E.2d at 259-60.
In the six years since 1997, the trial court has devoted itself to this task—
assessing whether North Carolina children are receiving a sound basic education and
whether the State is fully meeting its constitutional duty. After first allowing extensive
discovery by the parties, the trial court held lengthy hearings. It has now issued four
comprehensive opinions. While the trial court has found much to commend in the State’s
educational efforts during the past decades—its creation of a uniform statewide
curriculum for every grade (the “standard course of study”), its system for teacher
2
N.C. Const. art. I. § 15 provides: “The people have a right to the privilege of education, and it is the duty
of the State to guard and maintain that right.” N.C. Const. art. IX, § 2 provides: “The General Assembly
shall provide by taxation and otherwise for a general and uniform system of free public schools, which
3
licensure and certification, its statewide accountability system, the “ABC’s of education”
(R. pp. 1414-16)—it has nonetheless concluded that “there are children at-risk of
educational failure who are not being provided the equal opportunity for a sound basic
education,” (R. pp. 1718) and that “the State of North Carolina is ultimately responsible
for providing each child with access to a sound basic education.” Finally, it has
concluded that “this ultimate responsibility cannot be abdicated by transferring
responsibility to local boards of education.” (R. pp. 1718).
It is from this judgment that the State now appeals to this Court. The State does
not appeal from many important legal conclusions of the trial court, including its
judgment that the Leandro right under the North Carolina Constitution
“requires that each child be afforded the opportunity to attend a public school
which has the following educational resources, at a minimum:
First, that every classroom be staffed with a competent, certified, well-trained
teacher who is teaching the standard course of study by implementing effective
educational methods that provide differentiated, individualized instruction,
assessment and remediation to the students in that classroom.
Second, that every school be led by a well-trained competent Principal with the
leadership skills and the ability to hire and retain competent, certified and welltrained teachers who can implement an effective and cost-effective instructional
program. . .
Third, that every school be provided, in the most cost effective manner, the
resources necessary to support the effective instructional program within that
school so that the educational needs of all children, including at-risk children, to
have the equal opportunity to obtain a sound basic education, can be met.”
(R. pp. 1717-18).
The State’s legal positions on those issues it does appeal, however, are curious
and self-contradictory. Although the State is appropriately proud of, and takes credit for,
shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided
for all students.”
4
every positive accomplishment made by public educators in North Carolina—“North
Carolina schools are good and getting better,” (St. Br. 9); “North Carolina has one of the
strongest accountability programs in the country” (St. Br. 10); “North Carolina students
are learning more than they ever have before” (id.); “North Carolina is headed in the right
direction” (St. Br. 11); “[r]ecent improvements in public education are directly
attributable to [the State’s] efforts to incorporate these principles [of high standards and
flexibility] in its accountability systems” (St. Br. 11)—it simultaneously disclaims legal
responsibility for the shortcomings and deficiencies that have been uncovered by the trial
court.3
Moreover, while North Carolina’s Governors, General Assembly, State Board of
Education, and Department of Public Instruction have joined to affirm for more than 20
years that “all children can learn,” see N.C. Gen. Stat. § 115C-81.(a), and have warmly
embraced, as fundamental State policy, the “mission. . . to challenge with high
expectations each child to learn, to achieve, and to fulfill his or her potential,” id., the
State on this appeal voices the worst fears of an educational cynic—doubtful that North
Carolina can educate successfully any but those most favored children who arrive at the
schoolhouse door ready to learn, eager to succeed, already blessed by strong parental
backgrounds. Those students who do not succeed, “‘flunked themselves,’” the State’s
brief suggests, invoking its own view of “common sense” and “fundamental American
3
All references to the Brief for Defendants-Appellants, dated February 20, 2003 and filed in the North
Carolina Court of Appeals will be indicated by the abbreviation “St. Br.” followed by the number of the
page on which the reference may be found. (The Clerk of the North Carolina Supreme Court has informed
amici curiae that no additional brief has been filed by the State in this Court as of June 24, 2003).
References to the Plaintiffs-Appellee’s Brief, dated March 25, 2003, will be indicated by the abbreviation
“Pl.-App. Br.” References to Appellee’s Brief of Plaintiff-Intervenors, dated April 24, 2003, will be
indicated by the abbreviation “Pl.-Interv. Br.”
5
principles of freedom and self-determination” to insist that North Carolina students’
academic failures are largely attributable to “their own efforts and abilities.” (St. Br. 25).
Beyond this attempt to fault the children themselves (or their parents), the State
points a finger of blame at local educational authorities, asserting that “[c]learly, some
teachers, principals, superintendents and school boards sometimes fail to perform their
duties, but the issue is whether defendants [the State] are denying students an opportunity
to receive a sound basic education by granting significant discretion and authority to local
educators.” (St. Br. 35-36). In sum, if anything is amiss in the State’s educational system,
the fault lies with others, not the State itself.
Moreover, even when forced to acknowledge its own non-delegable duties under
Leandro, the State seeks what amounts to a seventeen-year “pass” before being judged
for its own educational neglect, even if North Carolina school children are presently
failing in earlier grades:
Clearly, the Court did not intend to impose upon the State a duty to impart those
skills [in reading, writing, mathematics, science, geography, history and
vocational skills] or that knowledge by the end of kindergarten or, indeed, any
time prior to the end of the student’s right to attend public school, i.e., twenty-one
years of age or graduation. G.S. §§ 115C-1 and 366 (2002).
(St. Br. 41) (emphasis added). This sweeping argument is built upon a single sentence
drawn from this Court’s Leandro opinion—one in which the Court observes (quite
reasonably) that a sound basic education is one that “prepares students to participate and
compete in the society in which they live and work.” The State insists that the Court
intended, by this sentence, to grant the State a blanket exemption from legal
responsibility until it becomes clear, after twelve years of schooling, whether individual
students are prepared for their life’s work. (St. Br. 41). Under this strained reading, the
State could not be held accountable even in schools or districts full of children, all failing
6
their third, fourth, fifth, sixth, seventh, and eighth grade EOG tests in succession. Only
after these hapless students finally emerges as educationally hopeless unemployables at
eighteen or twenty-one would the State’s constitutional responsibility accrue. Such a
twisted reading would, of course, turn Leandro into a meaningless symbol rather than a
substantive educational promise.
The State’s pattern of twisting and turning away from its constitutional duty
continues throughout its brief. The State, for example, urges this Court to reopen issues
already fully litigated and decisively resolved in Leandro in 1997, including: (1) the
justiciability of plaintiffs’ educational claims;4 (2) the limited but important role of the
judiciary in enforcing state constitutional imperatives;5 and (3) the propriety of using
statewide proficiency tests in measuring Leandro compliance.6 When not working to
reopen these settled principles, the State accuses the trial court of violating other
principles that, in truth, it has neither questioned nor transgressed. Rather, it is the State’s
arguments that are often inconsistent and scattershot, marred by recurrent
mischaracterizations of the trial court’s opinions and by a relentless effort to displace
responsibility onto other actors.
In our brief, we propose first to address the State’s liability arguments by
showing: (1) that the trial court employs the correct legal standards and relied on reliable
evidence—particularly North Carolina’s end-of-grade (EOG) and end-of-course (EOC)
test results—to conclude that many North Carolina students are not receiving a sound
basic education; (2) the State has an affirmative duty to address children’s educational
4
See St. Br. at 43-45; but see our response at 29-32 infra.
See St. Br. at 11, 16, 17, 19, 33, 39, 43; but see our response at 17-22, 29-32 infra.
6
See St. Br. at 14-17; but see our response at 9-16 infra.
5
7
needs; and (3) that the State, not local school districts, bears the ultimate legal
responsibility for assuring a sound basic education.
Second, we will address the State’s remedial challenge to a key portion of the trial
court’s decree—the provision of pre-kindergarten education to children who, as the
record evidence overwhelmingly demonstrates, enter kindergarten already plagued by
serious cognitive and/or social disadvantages and are thus at grave risk of educational
failure.
ARGUMENT
I.
THE TRIAL COURT RELIES UPON WELL-ESTABLISHED
STANDARDS AND OVERWHELMING EVIDENCE TO REACH
TWO REASONABLE CONCLUSIONS: FIRST, THAT MANY
NORTH CAROLINA CHILDREN ARE PRESENTLY BEING
DENIED THE SOUND BASIC EDUCATION PROMISED BY
LEANDRO, AND SECOND, THAT THE STATE IS DUTY-BOUND
TO ADDRESS AND REMEDY THOSE DENIALS
The State has framed “two essential questions” to this Court on appeal. (St. Br.
12). The first is one of evidence: How should the courts measure whether the State is
delivering, and students receiving, the sound basic education promised by Leandro. (St.
Br. 12-13). The second is one of responsibility or liability: Even if some North Carolina
children are clearly not receiving a sound basic education, is the State to blame? (St. Br.
13). The State insists that the trial court has erred by employing inappropriate principles
and standards as it addresses each of these two questions.
8
A.
The Trial Court’s Use Of EOG and EOC Test Scores
In Assessing Overall Student Performance Follows
The Clear Lead Of The General Assembly And The
Direct Instructions Of This Court In Leandro
The State offers a remarkably bold but inaccurate attack on the trial court’s
careful use of student performance on North Carolina’s standardized tests in measuring
State compliance with Leandro. The attack begins with an assertion framed in separationof- powers terms: That the trial court’s reliance on EOG and EOC scores “improperly
substituted its judgment for that of the legislative and executive branches.” (St. Br. 14)
(bold typeface and initial capitals omitted). The State adds that use of EOG and EOC
results violated a specific North Carolina statute, N.C. Gen. Stat. §115C-288. (St. Br. 1415, 18). Finally, the State dismisses EOG and EOC results as “not the material data” for
determining whether the students are receiving their Leandro rights, since these results
“do not reflect the benefits of all the additional or remedial educational opportunities
which th[e] system provides to students who scored below Level III.” (St. Br. 21-22). We
will address each of these contentions in turn
1.
The Trial Court’s Consideration Of EOG and EOC
Test Results Is Fully Consistent With Separation Of
Powers Principles
The first of these contentions—that the trial court “improperly substituted its
judgment for that of the legislative and executive branches”— tells the story backwards.
It is the North Carolina General Assembly that in 1989 first mandated that statewide
achievement tests and standards be developed. The State Department of Public
Instruction then crafted the tests in the early 1990s, with guidance from the State Board
of Education. In 1995, the General Assembly enacted the ABC’s of Education Act,
making these measures mandatory statewide. They are now mainstays of the State’s
9
entire accountability approach to public education.7 In short, rather than “substituting its
judgment” for that of the other branches, the trial court has carefully looked to, and relied
upon, educational measures that were authorized, fashioned, and imposed on all North
Carolina school children by the executive and legislative branches of North Carolina
government.
Moreover, the trial court’s decision to consider these measures has been prompted
not by whim or caprice; instead, it was directed by this Court. After declaring the right to
a sound basic education in Leandro v. State, the Court offered preliminary guidance on
how to measure whether that education is being adequately delivered to North Carolina
school children:
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. . . . They will not be determinative on this issue,
however.
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.
It must be recognized, however, that the value of standardized tests is the
subject of much debate. Therefore, they may not be treated as absolutely
authoritative on this issue.
346 N.C. at 355, 488 S.E.2d at 259-60 (emphasis added) (citations omitted).
In sum, in its use of statewide student performance results, the trial court
follows a path long ago blazed by the General Assembly, the State Board of
7
See generally, John Charles Boger, Education’s ‘Perfect Storm?’? Racial Resegregation, High Stakes
Testing, and School Resource Inequities: The Case of North Carolina, 81 N.C. L. Rev. 1375, 1428-30 and
nn. 185-93 (2003) (describing in detail the development and promulgation of these tests by the General
Assembly, the State Board of Education, and the State Department of Public Instruction between 1989 and
1995).
10
Education, and the State Department of Public Instruction—and a path expressly
prescribed by this Court as well.
2.
Any Allegation That The Trial Court Relies
Exclusively On EOG and EOC Scores Is Factually
Incorrect, As The State Implicitly Concedes
Unable to dodge this chorus of approval from every branch of state government,
the State shifts ground, insisting that the real error of the trial court is not its reliance on
EOG and EOC testing results, but its exclusive reliance on these measures. (e.g., “In
relying on standardized tests as the exclusive measure of a constitutionally adequate
education, the trial court improperly substituted its judgment for that of the legislature”
(St. Br. 14) (emphasis added) ; “[T]he trial court decided that scores on standardized tests
are the sole measure of a constitutionally adequate education. . . This was error.” (St. Br.
17) (emphasis added)).
The fatal weakness of this contention is that it is false. As plaintiff-appellees
document thoroughly in their brief, the trial court looks not only at EOG and EOC
results. Instead it has considered a wide variety of measures before concluding that many
North Carolina children are not receiving a sound basic education. Among those
additional measures are: (1) the results of other standardized tests such as the SAT and
the ASSET tests, which are relied upon by college and community college admissions
officials (R. pp. 1395, 469-70, 467); (2) data concerning the large number of North
Carolina students who drop out of public schools (R. p. 1482-85); (3) data and anecdotal
testimony on the need for remediation among many North Carolina high school graduates
unready for community college and other higher educational opportunities (R. pp. 149195); and (4) testimony concerning the inadequate preparation of many high school
11
graduates for employment with local businesses and manufacturers. (R. pp. 478-81,
1485-95). North Carolina’s disappointing EOG and EOC test results are quite consistent
with the evidence derived from these other measures; the trial court has found serious
educational deficiencies under all of its alternative measures. (See generally, Pl.-App. Br.
23-26; Pl.-Interv. Br. 8-11).
Moreover, when offering its own “bottom line” assessment of the evidentiary
value of the EOG and EOC tests, the trial court clearly describes them not as dispositive,
but rather as “highly probative”:
[A] student in a public school in the State of North Carolina who is
performing below grade level (as defined by Level I or Level II on the End
of Grade and End of Course tests) is not on track to obtain a sound
education under the Leandro standard and that a student in a public school
in North Carolina who is performing at or above grade level (as defined by
Level III or Level IV on the End of Grade and End of Course tests) is on
track to obtain a sound basic education under the Leandro standard. The
bottom line is that the End of Grade and End of Course test results under
the ABCs provide highly probative evidence of the extent to which NC
students are (or are not) receiving the opportunity to obtain a sound basic
education.
(R. p. 1416-17) (emphasis added).
Indeed, the State implicitly recognizes elsewhere in its brief that the trial court has
described standardized tests as no more than “‘approximate measures of a student’s
knowledge and skill;’” indeed, the State quotes the trial court’s statement, acknowledging
that assessment of a student by “‘a qualified and competent teacher is a more accurate
measure of a student’s actual knowledge and ability than any other single measure.’” (See
St. Br. 16) (citing the trial court’s opinion at R. p. 1393-94). The State also notes that “the
trial court expressly found that student test scores ‘combined with the other credible
evidence in the record’ constitute strong evidence that an equal opportunity to receive a
12
sound basic education is not being provided to at-risk children.” (St. Br. 31-32) (emphasis
added) (citing R. p. 1686).
Why then does the State here insist that the trial court has relied exclusively on
EOG and EOC tests? Apparently to set up one final, highly strained version of its
separation-of-powers argument, to which we now turn.
3.
N.C. Gen. Stat. §115C-288(a)—A Statute That Limits
The Discretion Of School Principals When Making
Individual Student Promotion Decisions—Has No
Bearing Upon The Trial Court’s Use Of EOG and EOC
Results To Assess School-Level And District-Level
Compliance With Leandro
The State’s alternative separation-of-powers argument accuses the trial court of
ignoring a state statute providing that “critical academic decisions cannot be based on
standardized test scores alone.” (St. Br. 14). The foundation for the State’s argument is
the text of N.C. Gen. Stat. § 115C-288 (a), which has historically vested almost absolute
discretion in school principals to determine whether their students will be promoted to a
higher grade. That statute was amended in 2001; it now instructs school principals not to
rely solely upon state standardized test scores when making their traditional, end-of-year
promotion decisions.8
That amendment followed new administrative regulations, drafted by the State
Board of Education in 2000, strongly suggesting that individual students would be
required to score at Level III or above on their EOG or EOC tests before being promoted,
even if their academic performances and grades on other schoolwork throughout the year
8
See generally, Laurie L. Mesibov, Changes Affecting Elementary and Secondary Education, 32 Sch. L.
Bull. 1 (Fall, 2001).
13
had been outstanding.9 In crafting this amendment, the General Assembly clearly did not
wish principals to deny promotion to otherwise good students based solely upon one
day’s sub-par performance on state EOG tests. It therefore amended §115c-288 (a) to
clarify that principals should weigh other factors before denying promotion to an
individual student.
This amendment in no way modified the General Assembly’s commitment to
EOGs and EOCs as measures of the overall performance of schools and districts in
meeting state educational goals. Indeed, the executive branch continues to employ EOG
and EOC test results as its central measures in assessing the performance of schools and
school districts throughout the State. These EOG and EOC results are used to determine
the performance levels of every superintendent, principal, and teacher in the State, and to
allocate millions of dollars in tangible financial rewards to teachers in those schools
where students have performed well upon these tests.10
Therefore, to suggest that this § 115C-288 (a) forbids the use of EOGs and EOCs
to measure district or school-level compliance with Leandro is far-fetched. Moreover,
even if this amendment had been fashioned to govern the resolution of Leandro issues,
the trial court here would have observed its terms, for it considered SAT and other test
scores, dropout-statistics, college readiness, employability and other indicators of student
performance, in addition to EOG and EOC results, before reaching its conclusion that
some children are being short-changed under Leandro.
9
Boger, supra note 9, 81 N.C. L. Rev. at 1434 (citing N.C. Admin. Code tit. 16, § 6D.0502 (a) (June 2000)
(amended Aug. 1, 2002)).
10
Id. at 1431-34 & nn. 198-206 (describing the ABCs system under which all North Carolina schools,
districts, and the personnel therein are annually evaluated and rewarded).
14
4.
EOG and EOC Test Results Are Material And
Highly Probative Measures Of Whether Students Are
Presently Receiving A Sound Basic Education
The State’s final attack charges that EOG and EOC measures are “not the material
data,” since “schools have provided students with significant additional educational
opportunities,” (St. Br. 20), including “focused remediation and academic interventions
to students who score below Level III.” (St. Br. 21). The suggestion, in other words, is
that since failing students are entitled to receive remedial services and retake the EOG or
EOC tests if they initially fail, the trial court’s use of EOG results alone is “akin to
deciding a basketball game based on the score at half-time.” (St. Br. 22).
It should suffice, of course, to point out that the State never objected to use of
these measures at any point during six years of pre-trial and trial proceedings in this case,
and therefore it has waived its opportunity to object on appeal. See Pl.-App. Br. 31-33;
see also Pl.-Interv. Br. 14 (citing White v. Pate, 308 N.C. 759, 765, 304 S.E.2d 199, 203
(1983); Bell v. Nationwide Ins. Co., 146 N.C. App. 725, 728, 554 S.E.2d 399, 402 (2001)
and N.C. R. App. P. 10(b)(1) for the proposition that North Carolina appellate courts
“will not decide questions which have not been presented in the courts below”).
Furthermore, in its own proposed findings of fact in this case, the State expressly
designates EOG and EOC measures as “a valid measure of the student’s knowledge of
the objectives in the Standard Course of Study,” and as “more probative on the critical
issue in this case than any other standardized test” (See Pl.-App. Br. 32) (citing R. pp.
1061-62).
Moreover, even if the State were now permitted to reframe the evidentiary record
on appeal—despite its prior failure to object and its express endorsement of these test—
15
its arguments would still fail. While North Carolina has adopted an array of statutes and
regulations to offer some additional assistance to students who fail their initial EOG
and/or EOC tests, see N.C. Admin. Code tit. 16 §6D.0504- 05, sufficient funds have not
been forthcoming from the General Assembly to assure that these promised procedures
are a meaningful reality for most failing students. The State Department of Public
Instruction has acknowledged that, upon full implementation of the ABC’s of Education
Act in all grades, retentions may soon triple, apparently despite “focused interventions”
or other last-minute remedial assistance.11 In 2000-2001, according to the State’s own
figures, only 82.7% of the State’s fifth graders performed at Level III or above on the
EOG reading test, while 17.3% performed below that level. Among African American
children, the figures were 69.2% passing, 30.8% failing the fifth grade reading test.12
These rates of failure are plainly high enough to justify the trial court’s conclusion that
far too many North Carolina children are not receiving the sound basic education
promised by Leandro.
B.
The Trial Court Correctly Concludes That The State Of North
Carolina—Which Has An Affirmative Duty Under Leandro To
Provide A Sound Basic Education—Has Not Met Its Duty To
Many North Carolina Children Most At Risk Of Academic Failure
As its second major line of defense, the State contends that even if many North
Carolina children are not receiving a sound basic education, the fault lies not with State
actors but with failing students themselves or with their families.
The State frames its argument in several alternative ways. First, it suggests that
the trial court has drawn too sweeping a set of inferences from the record facts. (St. Br.
11
Boger, Education’s ‘Perfect Storm?’, supra , 81 N.C. L. Rev. at 1436 (noting that the State Board of
Education’s assumptions suggest that the number of children likely to be retained under the ABCs will
increase from 6,446 to 20,837—a 323% rise—by 2003.
16
19). Next, the State suggests that the trial court improperly allocated the burden of proof.
(St. Br. 20, 23). Alternatively, the State says that the trial court ignored “Leandro I’s
instructions to defer to legislative and executive judgments regarding educational
policies.” (St. Br. 23).
These are all little more than “sufficiency of the evidence” laments common to
any party who is unhappy with adverse fact-findings below. The trial court plainly has
imposed a burden of proof, a heavy one, on the plaintiffs. They met it. The trial court has
not drawn unwarranted inferences; instead, after hearing volumes of expert and lay
testimony on these issues—and after authoring a four-part decision that devotes several
hundred pages to careful fact-finding—the trial court has found the plaintiffs’ evidence
“clear and convincing.” The State’s arguments, in sum, attempt to clothe in legal
language their disappointment at losing contested factual issues on the merits.
The State launches a more serious version of this argument, however, when it
insists that the trial court has made a crucial legal error about causation. One form of that
error, the State argues, is to make inappropriate use of the “‘post hoc, ergo propter hoc’
reasoning that students who attend public schools and do not acquire a sound basic
education fail . . . because they did not have sufficient opportunity.” (St. Br. 23). This
conclusion, the State asserts, “‘confuse[es] sequence with consequence,’ and assumes a
false connection between causation and temporal sequence.’” (St. Br. 23-24) (quoting
Young v. Hickory Bus. Furniture, 353 N.C. 227, 232, 538 S.E. 2d 912, 916 (2000).
The State alternatively analogizes the trial court’s causation error to a misuse of
res ipsa loquitur principles that sometimes permit a fact-finder to assume a cause from an
effect. (St. Br. 24). Where multiple actors are involved, the State suggests, it is
12
Id. at 1436-37.
17
inappropriate simply to ascribe the cause to any one defendant. (St. Br. 24-25). To fortify
that conclusion, the State points to decisions from state courts that have been unwilling to
entertain “educational malpractice” claims because of the inherent collaboration between
teacher and student that is part of the educational process. (St. Br. 25-27).
What the State omits from these causation arguments, however, is its own
distinctive and inescapable educational duty prescribed by the North Carolina
Constitution:
The people have a right to the privilege of education, and it is the duty of
the State to guard and maintain that right.
N.C. Const. art. I, § 15 (emphasis added).
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.
N.C. Const. art. IX, § 2 (emphasis added). These constitutional obligations have full
vitality in 2003. In fact, they were explicitly reaffirmed by this Court in Leandro, which
held:
[W]e conclude that the General Assembly, under Article IX, Section 2(1),
has the duty of providing the children of every school district with access
to a sound basic education, [and] we also conclude that it has inherent
power to do those things reasonably related to meeting that
constitutionally prescribed duty.
Leandro, 346 N.C. at 353, 488 S.E.2d at 258.
It is this affirmative duty that changes the whole calculus of causation and
responsibility. The State cannot claim the status of a mere bystander when North
Carolina’s school children are failing. It has the affirmative constitutional obligation to
reach out to all of those children, in whatever condition it finds them—some poor, others
with limited English proficiency, still others with special educational needs, many with
18
poorly educated single parents who are struggling economically.13 It must embrace these
children as they are, bring them within its schoolhouse doors, assess their educational
needs, roll up its sleeves, and work to educate each of them.
The State’s shameful approach in this brief instead blames these children or their
parents for their educational failures. While a private industry may refuse to work with
raw materials it deems imperfect, a ‘production line’ mentality is the antithesis of North
Carolina’s educational policy. Our educators believe that all children who come to
school, from whatever difficult homes or backgrounds, can learn and progress toward
competency. There are no defective educational goods. The State is obligated to identify
and employ the appropriate educational tools and methods to reach every child.
The General Assembly has many times recommitted itself to undertake this
constitutionally obligatory task. See, e.g., N.C. Gen. Stat. § 115C-81. (a) (“[t]he General
Assembly believes that all children can learn. It is the intent of the General Assembly that
the mission of the public school community is to challenge with high expectations each
child to learn, to achieve, and to fulfill his or her potential”); N.C. Gen. Stat. § 115C105.20 (a) (same); N.C. Gen. Stat. § 115C-107 (“[t]he General Assembly finds that all
children with special needs are capable of benefiting from appropriate programs of
special education and training and that they have the ability to be educated and trained
and to learn and develop. Accordingly, the State has a duty to provide them with a free
appropriate public education”). See also N.C. Gen. Stat. § 115C-105.41 (obligating local
13
Even under traditional North Carolina tort principles, courts have recognized the “peculiar susceptibility”
doctrine, which obligates a defendant to accept responsibility for harm to a plaintiff that comes from a
condition of the plaintiff even if neither known to, nor the direct responsibility of, the defendant. See, e.g.,
Lee v. Regan, 47 N.C. App. 544, 550, 267 S.E. 2d 909, 912, disc. rev. denied, 301 N.C. 92, 273 S.E.2d 299
(1989) (citing Restatement of Torts 2d, § 461 (1965)); Poole v. Copland, Inc., 348 N.C. 260, 498 S.E. 2d
602 (1998).
19
school administrators to develop a personal education plan for every student who appears
at risk of educational failure, with “focused intervention and performance benchmarks,”
including “research-based practices that meet the needs of students”).
Moreover, the State’s allusion to “educational malpractice” cases is inapposite.
State courts might justifiably conclude that awarding individual money damages to
unhappy scholars would constitute a misuse of the state’s limited fiscal resources, and
therefore might craft a suitably narrow legal rule to exclude most such legal claims. Yet
this lawsuit clearly stands on different ground and has a different aim. The plaintiffs here
seek no individual damages for particular students; what they seek and have won is
declaratory relief requiring the State to address the educational needs of tens of thousands
of at-risk children who fail every year to demonstrate academic proficiency.
The trial court does not order the State to do the impossible. The State’s
own expert, Dr. Triplett, testified that “every school in North Carolina is capable
of having 90 percent of its students score at proficient levels (ie, Level III or IV)
on EOG and EOC tests (except for students with disabilities or LEP who are
excused from the tests).” (R. pp. 1312-13). After hearing similar expert and lay
testimony about reasonable educational goals and the likely causes of student
failure, the trial court concluded:
The prima facie burden of proof that children are not obtaining a sound
basic education . . . has been met when the ABC scores are published and
show that children are at-risk of academic failure by failing to perform at
grade level or above on the EOG and EOC tests. The ABC scores for Hoke
County, as well as the many other LEAs . . . clearly and convincingly
demonstrate that there are way too many at-risk children not obtaining a
sound basic education in this State. . . .
As convincing evidence of the reliability and importance the State of
North Carolina places on the ABC scores and data, consider the
20
undisputed fact that the State has, and still relies on, the ABC system to
pay millions of dollars in teacher bonuses each year, to publicly report the
success or failure of student performance in every single school, and to
determine when a school is so “low performing” to the point it requires
state intervention.
(R. pp. 1703-04).
Speaking directly to the question of causation, the trial court added:
The State of North Carolina has clearly and repeatedly demonstrated
through legislation and otherwise that the State knows what steps should
be taken and how local resources should be allocated to improve at-risk
academic performance in an LEA or in an individual school where
students are failing to obtain a sound basic education.
There is no question that the State of North Carolina has the educational
expertise and fiscal know-how to be able to analyze and evaluate the
instructional strategies in an LEA that has a number of low performing atrisk students and individual schools that are having problems with
academic performance as shown through the ABC’s data each year.
(R. p. 1708; see also R. p. 1714 (“The clear, convincing and credible evidence presented
in this case . . . demonstrates that the State of North Carolina knows full well what needs
to be done to effectively provide each child with an equal opportunity to obtain a sound
basic education.” (boldface typeset omitted)).
Additionally, we note that while the State has protested both its responsibility and
its incapacity to meet such goals on this appeal, it has almost simultaneously committed
itself to meet similar educational goals in its recent submission to the United States
Department of Education, assuring the Department that:
By 2013-2014 all students will reach high standards, at a minimum by attaining
proficiency or better in reading/language arts and mathematics.” (emphasis
added).
North Carolina Consolidated State Application May 1,2003 Submission for State Grants
(last modified Apr. 30, 2003)
21
<http://www.ncpublicschools.org/nclb/030501_workbook.pdf> (setting forth
performance goals adopted by the State Board of Education in its application for Federal
funds to implement the No Child Left Behind provisions (the Elementary & Secondary
Education Act of 2001).
In its final causation argument, the State turns to the language and logic of
multiple regression analysis, citing McCleskey v. Kemp, 481 U.S. 279, 297 (1987) for the
proposition that “[w]here different individuals contribute to an event, the law requires
‘exceptionally clear proof’ before the existence of an unconstitutional cause may be
inferred; statistical studies alone are ‘clearly insufficient’ for that purpose.” (St. Br. 2930). “When litigants rely on statistical evidence, their analyses must include major factors
that may account for disparities in the data before they can be accepted as probative on
the issue of causation. Bazemore v. Friday, 478 U.S. 385, 400 (1986).” (St. Br. 30).
Yet the State’s attempt to draw support from these cases fails on two grounds.
Most obviously, plaintiffs here did not rely exclusively or even chiefly on statistical
proof, instead offering comprehensive lay and expert testimony that thoroughly explored
all factors contributing to educational failure in Hoke County and other North Carolina
school districts. Hence, the dicta about multiple regression methods drawn from
McCleskey and Bazemore are simply not on point. However, were those cases relevant,
they do not hold that liability is impossible to prove in multi-actor settings, but only that a
plaintiff must first demonstrate that the defendant’s actions were substantially responsible
for the plaintiff’s injury. Here, that is precisely what the plaintiffs have succeeded in
showing, by clear and convincing evidence, as the trial court has repeatedly found.
22
In sum, once the constitutional duty is clear, once the educational need has been
amply demonstrated, once it is clear that North Carolina’s children can meet these goals,
once educational means for attaining those goals are at hand, no more should be
necessary to justify the trial court’s conclusion. Under the clear command of Leandro, the
State must harness its “educational expertise and fiscal know-how” to address the unmet
educational needs of those thousand of North Carolina children who have not yet
mastered reading, writing, and arithmetic at their respective grade levels.
II.
THE TRIAL COURT PROPERLY HOLDS THAT
THE STATE—NOT LOCAL SCHOOL BOARDS—
MUST BEAR THE ULTIMATE RESPONSIBILITY
FOR ASSURING THAT ALL NORTH CAROLINA
STUDENTS RECEIVE A SOUND BASIC EDUCATION
Throughout the proceedings below, the State insisted that educational
responsibility for failing students lies, if not with the students or their parents themselves,
then entirely with local educational authorities. The State reasons that statutes delegating
significant discretion over educational choices to local boards and superintendents
necessarily delegate ultimate constitutional responsibility as well. (St. Br. 33-34).
On this appeal, the State repeats these arguments, citing cases and other precedent
that extol the value of flexibility and local control. (St. Br. 35). The State complains that
the trial court's decree will destroy all local control of public education in North Carolina
and laments that the consequences will be dire:
The trial court nevertheless has decided to kill the goose that lays the
golden eggs. By holding [the State] liable for plaintiff-parties'
education-related decisions and those of superintendents, principals and
teachers, the trial court intends to force [the State] to 'step in with an
iron hand and get the mess straight' by intervening in local employment,
instructional and administrative decisions.
23
(St. Br. 35).
This account is a caricature of the trial court's holding. To be sure, the trial court
does conclude that the State of North Carolina is, and ultimately must be, held
responsible. In doing so, however, the trial court acts pursuant to the guidance of this
Court in Leandro (which in turn rested its judgment squarely upon the language and logic
of the North Carolina Constitution):
[W]ho is responsible for seeing that these basic educational needs of all
children are met in each classroom and school in North Carolina? The
answer is found in Leandro. . . The State of North Carolina is ultimately
responsible to ensure that the constitutional guarantee to each child of
the opportunity to receive a sound basic education is met. The State of
North Carolina also has the inherent power to do those things reasonably
related to meeting that constitutional duty.
(R. p. 1689) (boldface type and capitalizations omitted).
To fortify its conclusion, the trial court has examined dozens of statutes passed by
the General Assembly, each of which expressly vests broad powers in the State
(including the State Board and State Department of Public Instruction) not only to
establish, but also to oversee, and if need be, to intervene directly to assure in the delivery
of high-quality public schooling. Those statutes give to the State: “[t]he general
supervision and administration of the free public school system,” (R. p. 1690) (citing
N.C. Gen Stat. § 115C-12); the power to develop “a comprehensive plan to review
content standards and the standard course of study” (citing N.C. Gen. Stat. § 115C-12
(9a)); the power to develop a school-based management and accountability system (citing
N.C. Gen. Stat. § 115C-105.20 (a)); the power to identify low-performing schools (citing
N.C. Gen. Stat. § 115C-105.37); the power to send state assistance teams into lowperforming schools to correct their continuing educational and administrative problems
24
(citing N.C. Gen. Stat. § 115C-105.37A- 38); and the authority to develop “rigorous
student academic performance standard for kindergarten through eighth grade and student
academic performance standards for courses in grades 9-12” (citing N.C. Gen. Stat. §
115C-105.40).
The trial court has thus refused to accept the stalemate that would follow from the
State’s arguments—under which the State could stand by blamelessly, even after
deficiencies are identified by statewide accountability measures, and even if local
districts cannot, or perversely will not, make necessary improvements to assure Leandro
rights for all children. Summarizing the State’s position, the trial court observed: “The
State of North Carolina, while acknowledging its constitutional obligation, has denied
any liability for the poor academic performance of at-risk students. Instead, the State has
continually engaged in placing the blame for at-risk children . . . on the individual LEA
[local educational agency], its central office staff, finance officer, teachers, and
principals.” (R. p. 1701).
Exasperated by this finger-pointing and constant shifting of responsibility—which
it described as “a shell game between the LEAs and the State of North Carolina as to
which governmental unit is at fault,” (R. p. 1704)—the trial court cuts the Gordian knot
by returning to the basic issue:
Whatever the particular root cause or causes are in a particular LEA is
irrelevant to the fact that at-risk children, black, white, Hispanic or
Native American, are not being provided with an effective, targeted
educational program that reaches those children and helps them obtain
grade level proficiency.
What is important is that whatever the cause, the failure of the State of
North Carolina's educational establishment to provide such an effective,
targeted educational program is a violation of those children's
constitutional right to the equal opportunity to obtain a sound basic
25
education. The violation of those rights must be remedied by the State of
North Carolina. That is not an impossible task.
The State of North Carolina has clearly and repeatedly demonstrated
through legislation and otherwise, that the State knows what steps should
be taken and how local resources should be allocated to improve at-risk
academic performance in an LEA or in an individual school where
students are failing to obtain a sound basic education.
(R. p. 1708).
Although the trial court holds the State responsible, it has not intruded
impermissibly to specify the precise steps the State must take to remedy the Leandro
wrongs, nor has it required discrete actions that would override local educational choices.
Instead, the trial court has declared that “[t]he solution to this problem is properly left to
the State, working with its LEAs, including the plaintiff-parties.” (R. p. 1713). Careful to
observe separation of powers principles, the trial court, while ordering the State “to
remedy the Constitutional deficiency,” leaves “[t]he nuts and bolts of how this task
should be accomplished . . . to the Executive and Legislative Branches of Government”
and has “allow[ed] them, initially at least, to use their informed judgment as to how best
to remedy the identified constitutional deficiencies.” (R. p. 1719).
The trial court’s approach is sanctioned by clear constitutional principles of North
Carolina law. See Leandro, 346 N.C. at 357, 488 S.E.2d at 261(if the plaintiffs prevail on
remand, “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”) (emphasis added); see generally,
Corum v. University of North Carolina, 330 N.C. 761, 784, 413 S.E.2d 276, 291 (1992)
(recognizing the “inherent constitutional power” of a trial court to fashion remedies to
redress a constitutional violation, while minimizing encroachment on other branches); cf.
26
In re Alamance Co. Ct. Facilities, 329 N.C. 84, 99,106-07, 405 S.E.2d 125, 132, 137
(1991) (recognizing the “inherent power” of the judicial branch to do “‘all things that are
reasonably necessary for the proper administration of justice,’” including entry of an
order directing county commissioners to present a plan for costly structural
improvements to a local courthouse, after the commissioners defaulted in their duty to
provide for its adequate maintenance and upkeep).
In short, local control is safe under the trial court’s decree, unless local authorities
act with indifference to students’ educational fortunes and stubbornly refuse to cooperate
with the State Board of Education and Department of Public Instruction on how best to
remedy Leandro problems. Local control that could free both State and local school
officials from meeting their duties under Leandro— by allowing each simply to blame
the other, leaving North Carolina’s school children to watch helplessly from the
sidelines—would come only at the price of forfeiting all meaningful relief for the
children of North Carolina. This the trial court, following Leandro itself, simply could
not countenance.
III.
THE TRIAL COURT DOES NOT DECLARE THAT PREKINDERGARTEN EDUCATION IS A CONSTITUTIONAL RIGHT
FOR ALL NORTH CAROLINA CHILDREN. INSTEAD, THE
COURT FINDS THAT PRE-KINDERGARTEN EDUCATION
IS A NECESSARY EDUCATIONAL REMEDY FOR MANY
CHILDREN WHO WOULD OTHERWISE BE AT GREAT RISK
OF EARLY ACADEMIC FAILURE
The State has not contested many of the basic remedies ordered by the trial
court—requirements that “every classroom be staffed with a competent, certified, welltrained teacher who is teaching the standard course of study by implementing effective
27
educational methods,” (R. p. 1718); that “every school be led by a well-trained competent
Principal with the leadership skills and the ability to hire and retain competent, certified,
and well-trained teachers,” (id.); and that “every school be provided, in the most cost
effective manner, the resources necessary to support the effective instructional program
within that school so that the educational needs of all children, including at-risk children
. . . can be met.” (Id.).
However, the State does object (St. Br. 37-45) to the trial court’s direction that
“pre-kindergarten educational programs for at-risk children . . . be expanded to serve all
of the at-risk children in North Carolina that qualify for such programs,” even though the
trial court has expressly left “the nuts and bolts and implementation for the expansion of
[these programs] . . . to be taken up by the Executive and Legislative Branches of
Government.” (See R. p. 1613).
The State contends that “there is substantial question” whether this prekindergarten order is predicated on the recognition of a new and “separate constitutional
right to pre-kindergarten education,” or alternatively, whether the trial court has merely
ordered pre-kindergarten education for at risk children “as a remedy for a violation of
[their] rights” under Leandro. (St. Br. 37). The State reasons that if the trial court is
purporting to announce a new right, it has proceeded without the sanction of Leandro (St.
Br. 38) and is acting in conflict with other provisions of the North Carolina Constitution.
(St. Br. 38-40).
These arguments need no closer examination however, since the trial court plainly
does not announce a new general right. (See R. p. 1458.) Indeed, the trial court goes out
of its way to dispel any misimpression that its remedial order might amount to a broad
28
declaration of a new right. In its closing discussion of the issue, the court includes the
following unmistakable “caveat”:
CAVEAT. The Court’s decision does not require the State of North Carolina to
provide every four-year-old child with a pre-kindergarten program at state
expense. A universal four year old pre-kindergarten program is not required to
meet the sound basic education standard of Leandro because, fortunately, the
majority of four year olds are not at-risk and are able to enter the kindergarten at
age five ready to learn.
(R. p. 1458).
Pre-kindergarten education for at-risk children, therefore, is the trial court’s
carefully chosen remedy—adopted only after careful consideration of the plight of at-risk
children and of the proven value of pre-kindergarten education in overcoming the
profound disadvantages that some North Carolina children carry with them to
kindergarten, disadvantages that doom them to early failure if not addressed. (R. p. 1445).
The State does not dispute the educational value of pre-kindergarten as a remedy:
“Quality pre-kindergarten can affect academic achievement.” (St. Br. 42). Nonetheless, it
insists that “the decision to provide pre-kindergarten programs as opposed to other
effective educational programs is clearly a nonjusticiable political question reserved to
the legislature.” (Id.). Aware that this Court in Leandro dismissed a virtually identical
justiciability argument in 1997, the State rushes to distinguish the trial court’s decision
here, which it denominates “not a question of what is constitutionally required, but a
question of when educational opportunities must be provided.” (Id.) (boldface in
original). Its “what/when” distinction, the State suggests, should be afforded
constitutional significance, since decisions about “when” education is afforded are
expressly by the North Carolina Constitution to the General Assembly, and because there
29
are no manageable standards to guide judicial decision-making in this area. (St. Br. 4345).
Yet a close examination reveals that the North Carolina Constitution does not
reserve the “when” question for the General Assembly. Instead it simply provides: “The
General Assembly shall provide that every child of appropriate age . . shall attend the
public schools, unless educated by other means.” N.C. Const. art. IX, § 3. Plainly the core
purpose of this modest provision to require the State to institute some system for
mandatory public schooling.14 Although the Constitution provides that its mandatory
schooling requirement is limited to children of “appropriate age,” Article IX, § 3 does not
unmistakably commit the judgment about “when” to the exclusive discretion of the
General Assembly.
Moreover, the trial court’s decision to order pre-kindergarten education begins by
accepting, rather than rejecting, the General Assembly’s general designation of age 5
(and kindergarten) as the appropriate age for the commencement of public education.
What has moved the trial court to order pre-kindergarten education for some at-risk
children is powerful evidence from the plaintiff-parties demonstrating that at-risk
children too often arrive at kindergarten not remotely ready for learning. Some do not
know their numbers or letters; others do not know colors; still others cannot sit quietly
and draw, or stand in line, or engage in basic social play, because of a variety of
disadvantages that have faced them in their home situations. (See generally R. p. 1440,
1434).
14
See John V. Orth, The North Carolina State Constitution with History and Commentary 145-46 (UNC
Press, 1993) (interpreting the provision to provide that “[t]he General Assembly must enact a compulsory
school law”).
30
The good news, the trial court found, is that meaningful, cost-effective
educational programs are presently available that can address these cognitive and social
deficiencies if they are provided to these children before kindergarten. (R. p. 1445-47).
Thus, all children really can learn, not merely in some ideal sense, but in real schools in
North Carolina, in the year 2003. All children—even poor children, those from nonEnglish-speaking homes, those from single-parent families where a father or mother is
working two jobs, from a wide variety of other challenging and difficult circumstances—
can come to kindergarten ready to learn if they receive a year of tailored pre-kindergarten
education.
The trial court, in short, does not arbitrarily choose some new date for
commencement of public education, guided by no manageable standards. Instead, the
trial court follows the judgment of the very finest public educators from North Carolina
and throughout the nation, who have persuaded the trial court, with carefully
documented, peer-tested findings, that these pre-kindergarten programs, presently
available and already in use in many North Carolina counties, can increase the likelihood
that the public education now mandated by the General Assembly at age five will go
forward successfully, even for at-risk children. The trial court—drawing upon evidence
from the North Carolina State Department of Human Resources, from the Frank Porter
Graham Center, as well as from the former chair of the State Board of Education—finds
that
effective and appropriate pre-school programs can materially assist at-risk
children to be able to come to kindergarten and be able to have an equal
opportunity to receive a sound basic education from the start. The absence
of such pre-school intervention for at-risk children materially affects their
being able to have the equal opportunity to obtain a sound basic education
from the start of their academic ladder.
31
The Court finds that there are programs in existence that provide at-risk
children with the opportunity to reach kindergarten with sufficient preschool intervention so that they can have the equal opportunity to obtain a
sound basic education.
(R. p. 1445-46).
The trial court’s decision relies on manageable standards and is thus fully
justiciable. This Court in Leandro in 1997 began with the bedrock school accountability
measures the General Assembly had already instituted, listened to the best available
educational evidence, and outlined a substantive educational right plainly suggested by
the North Carolina Constitution. The trial court here has acted even more modestly. It
began with the General Assembly’s designation of age five as the normal year for
commencement of public education, listened to the best evidence, and has concluded that
North Carolina’s most disadvantaged children needed some readily available, costeffective pre-school preparation. Without that extra help, they will not be ready or able to
take advantage of the education they encounter when their kindergarten years begin.
The trial court’s factual judgment on the value of this pre-kindergarten education
is uncontested, even by the State. Ordering such education is therefore well within the
remedial power of the judicial branch as a means of implementing the Leandro decision
rendered by this Court.
32
CONCLUSION
For the foregoing reasons, amici curiae respectfully urge the Court to affirm the
judgment below.
Respectfully submitted this 24th day of June, 2003.
THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.
By:
__________________________________________________
Seth H. Jaffe
N.C. State Bar No. 27261
P.O. Box 28004
Raleigh, NC 27611
(919) 834-3466
Email address: aclusjaffe@z-wave.net
CAROLINA LEGAL ASSISTANCE, INC.
By:
__________________________________________________
Deborah Greenblatt
N.C. State Bar No. 2847
P.O. Box 2446
Raleigh, NC 27602
(919) 856-2195
Email address: debgcla@mindspring.com
NORTH CAROLINA JUSTICE & COMMUNITY DEVELOPMENT
CENTER
By:
__________________________________________________
Sheria Reid
N.C. State Bar No. 24477
Carlene McNulty
N.C. State Bar No. 12488
P.O. Box 28068
Raleigh, NC 27611
(919) 856-3192
Email address: sheria@ncjustice.org
33
THE RURAL SCHOOL & COMMUNITY TRUST
By:
__________________________________________________
Gregory C. Malhoit
N.C. State Bar No. 6275
3344 Hillsborough St., Suite 302
Raleigh, NC 27602
(919) 833-4541
Email address: gmalhoit@bellsouth.net
THE UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW
CENTER FOR CIVIL RIGHTS
By:
__________________________________________________
John Charles Boger
Member of the New York Bar
School of Law, CB# 3380
University of North Carolina
Chapel Hill, NC 27599
(919) 843-9288
Email address: jcboger@email.unc.edu
34
CERTIFICATE OF SERVICE
A copy of the foregoing Brief Amici Curiae was this day placed in the United
States mail, postage prepaid and addressed to:
COUNSEL FOR THE DEFENDANTS:
Roy A. Cooper, III, Esquire
Edwin M. Speas, Jr., Esquire
Grayson G. Kelley, Esquire
Thomas J. Ziko, Esquire
Laura Crumpler, Esquire
Office of the Attorney General
North Carolina Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629
COUNSEL FOR THE PLAINTIFFS:
Robert W. Spearman, Esquire
Robert H. Tiller, Esquire
Parker, Poe, Adams & Bernstein, LLP
P.O. Box 389
Raleigh, NC 27602
COUNSEL FOR PLAINTIFFS-INTERVENORS
Ann L. Majestic, Esquire
Tharrington, Smith, LLP
209 Fayetteville Street Mall
P.O. Box 1151
Raleigh, NC 27602-1151
Audrey J. Anderson, Esquire
Kevin J. Lanigan, Esquire
Hogan & Hartsen, LLP
555 Thirteenth Street, N.W.
Washington, DC 20004
This 24th day of June, 2003
__________________________________
Seth H. Jaffe
35