In North Carolina, a judge has ruled that the Republican-controlled legislature is violating the state constitutional right to an education, but lawmakers have pledged to defy the court — with some floating the idea of impeaching the judge. A similar suit goes to trial in Tennessee next year. And state lawmakers have repeatedly trimmed back the right to education in Mississippi, where a federal court will soon decide if they're violating a Reconstruction-era law.
Most state constitutions require lawmakers to offer a decent education to all students. Because public schools in the U.S. are funded primarily by local property taxes, schools in wealthy areas usually receive more money. Courts in many states have ordered more equal school funding to satisfy constitutional mandates to offer a "uniform" education system.
The Mississippi legislature has amended the state constitution several times since the Civil War to minimize its obligation to fund schools. But when the state re-entered the Union after the war, the federal Readmission Act of 1870 mandated that its constitution "shall never be amended" to deprive citizens of certain rights, including voting and "school rights."
Four Black mothers represented by the Southern Poverty Law Center sued Mississippi in federal court in 2017 on behalf of their children, alleging a violation of the Readmission Act. The child of one plaintiff, Dorothy Haymer, goes to a school in the Jackson school system, which the state graded an "F." The lawsuit noted disparities in educational outcomes between mostly Black and mostly white school districts.
The case was dismissed in 2019, but the conservative 5th U.S. Circuit Court of Appeals in New Orleans revived it last year. The U.S. Supreme Court declined to intervene, and the case should go to trial soon. Judge Henry Wingate, who is Black, will preside over the trial. President Ronald Reagan appointed Wingate in 1985, after a Democratic-led Congress passed a bill creating new judicial seats.
Mississippi's post-Civil War constitution required a "uniform system of free public schools," echoing language used in other state constitutions. Black officials were elected and helped establish the new school system. Similar education mandates led to new public school systems across the South.
In 1890, after years of violent voter suppression, white supremacists gained control of Mississippi's state government and adopted a new constitution. The framers of the new document explicitly required racially segregated schools and created a new funding system that benefited wealthy, white schools.
Lawmakers weakened the Mississippi Constitution's education mandate again in 1960, six years after Brown v. Board of Education. The new language allowed the state "in its discretion" to provide for free public schools "as the legislature may prescribe."
In 2015 Mississippi voters rejected a constitutional amendment that would have expanded the right to education. Florida voters, by contrast, approved a ballot measure in 1998 to strengthen the state education mandate, but the state Supreme Court — stacked with Republican appointees approved by the conservative Federalist Society — threw out a lawsuit challenging unequal school funding two years ago. The all-Republican Texas Supreme Court tossed out a similar lawsuit in 2016.
Lawmakers defy N.C. court
The Leandro v. North Carolina case has been working its way through the courts for decades. In 1997, the state Supreme Court interpreted the constitution as requiring the state to provide a "sound basic education," and in 2004 the justices found the legislature in violation of this mandate. The legislature increased school funding by $1 billion over the next five years, but over the past decade per-pupil spending has declined by 6%. As of this year North Carolina ranked 39th among the states for spending per pupil.
Earlier this year, Judge David Lee ruled again that North Carolina's system of school funding violated the constitution. He gave lawmakers until Oct. 18 to remedy the problem. An expert had recommended $1.7 billion more in education funding over the next two years to comply with the constitution.
The legislature refused to provide more than a fraction of that funding, despite a $6 billion surplus in the current state budget. The court is working with the plaintiffs to come up with a specific plan by Nov. 8.
Instead of complying with the court's order, Republican legislators responded with outrage. Senate Leader Phil Berger said the ruling was "yet another example of why the founders were right to divide power among the branches of government, giving power to create law and spend money with the legislature."
Dallas Woodhouse, a writer for the conservative Carolina Journal and former head of the state GOP, recently reported that legislators are "openly advocating" impeachment if the courts continue to order more equal education funding. However, his story didn't quote a single state legislator calling for impeaching judges who ruled against them.
Woodhouse suggested that the North Carolina House could vote to impeach the justices, who would then be suspended until the Senate votes. He noted that Republicans in the state Senate, who don't have enough votes to remove the justices, could then "slow-walk any trial possibly past the 2022 elections, when Republicans have a strong chance at retaking a state Supreme Court majority." Such use of impeachment power would be unprecedented in North Carolina and the U.S.
Across the country, courts have come under fire from Republican legislators for ordering more equally funded schools. Republicans in Kansas, New Jersey, and Washington state lashed out at state supreme courts that ordered more equal funding. They also tried to change how judges are chosen. Kansas Republicans considered a bill that allowed legislators to impeach justices who "usurp" their role.
Woodhouse's article discussed judicial impeachment as a potential response to another court decision. The North Carolina Supreme Court is now deciding whether to disqualify two Republican justices from hearing a voting rights case due to conflicts of interest. One justice is a former legislator who voted for the legislation at issue in the case. The other is Phil Berger Jr., the son of the state Senate leader who is a defendant in the lawsuit. Woodhouse suggested impeaching any justices who vote to enforce the court's ethics rules, which prohibit judges from ruling on lawsuits involving their relatives.
In Tennessee, where a school funding lawsuit goes to trial next year, Republican legislators considered impeaching a judge who expanded access to mail-in voting during last year's pandemic-affected election.
The North Carolina Supreme Court may have to intervene if legislators continue to defy Judge Lee. The high court ruled in June that the right to education protects a student's right to learn without facing bullying or harassment. In a unanimous decision written by the Republican chief justice, the court said the constitution requires the state to offer "a safe environment where learning can take place." The court noted that the state constitution, in addition to conferring a right to education, imposes a duty on the state "to guard and maintain that right."