PDF versions can be found at www.ncforum.org/archives.htm

 

Volume 4, Issue 42                                                                               June 6, 2003

 

Hoke Briefs Filed; Oral Arguments Scheduled for Fall

 

      Briefs were filed this spring and the state Supreme Court will hear oral arguments this September in the decade-long school finance lawsuit between Hoke County and the State of North Carolina.  Last April Wake County Superior Court Judge Howard Manning issued his fourth and final order in the case, which found that the state is ultimately responsible for ensuring children receive the opportunity for a “sound basic education.”  The state decided against seeking a stay of Manning’s order while it appealed.  The state Supreme Court bypassed the state Court of Appeals and took the case.  Briefs were due at the end of last month, and the Supreme Court will hear oral arguments this September‑six years after their Leandro ruling establishing the criteria for a sound basic education.  Below are excerpts from the state and plaintiff’s briefs that were filed with the Supreme Court.  Note that the quotations from the briefs appear in blue.

 

State’s Brief

 

      The state presented three questions in their brief: (1) “Did the trial court apply the wrong standards for determining when a student has obtained a sound basic education, for determining causation and for  determining defendants’ liability?” (2) “Did the trial court err when it held that pre-kindergarten programs are constitutionally required for at-risk students?”  (3) “Is the proper age at which children should be permitted to attend public schools a nonjusticable political question reserved to the General Assembly?”

 

Wrong Standards

 

      After presenting their argument about the current status of and the documented improvement of North Carolina’s public schools, the state attacks the trial court’s standard for determining whether children are receiving their opportunity to receive a sound basic education. 

 

      “Instead, plaintiff-parties advanced blanket claims that the system of public education is constitutionally flawed because it provides insufficient funding.  First, what is the measure of whether students have obtained the knowledge and skill that constitutes a sound basic education? This standard is essential because only a student who has not obtained a sound basic education can claim to have been denied his right to an opportunity to obtain that education. Second, what is the standard for determining whether a student who has failed to obtain a sound basic education failed because defendants denied him that opportunity?…The trial court’s answers to both questions are fundamentally flawed, violate Leandro I , and are contrary to other fundamental legal principles and precedents. Therefore, the judgment must be reversed” (page 12-13). 

 

One of the state’s main objections is the trial court’s reliance on end-of-grade (EOG) and end-of-course (EOC) test data as the sole standard of student performance.  The state’s contention rests on the assertion that the General Assembly has forbidden EOG and EOC scores to be used as the sole determinant for academic promotion. 

 

      “The trial court expressly rejected as proof that a person has obtained a sound basic education any other standard or measure, including grades, teacher evaluations or a high school diploma, unless supported by Level III test scores.  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, which has determined that critical academic decisions cannot be based on standardized test scores alone…Unquestionably, established law required the trial court to presume the all legislative determinations about administration of public schools, including determinations regarding the grading and classifying of students. However, contrary to law and the instructions of Leandro I , the trial court crossed the line separating law from policy, cast aside the legislative judgment that students should not be graded or classified by standardized tests alone” (page 14). 

 

      After decrying the trial court for over stepping its bounds and usurping legislative authority, the state castigates the trial court for its over reliance on Level III grade proficiency as the indicator of students receiving their opportunity to receive a sound basic education.  The state argues that too much of the onus for student success is placed on the state rather than on individual initiative.

 

      “The trial court’s conclusion that students’ failure to perform at Level III on standardized tests proves that defendants are denying them an opportunity to receive a sound basic education is logically flawed and effectively lifted the burden of proof from plaintiff-parties’ shoulders, contrary to Leandro I and other decisions” (pages 28-29). 

 

      The state continued detailing why it thought the trail court placed too much emphasis on the state’s responsibility and not enough upon the individual student. 

 

      “In this case, neither defendants nor public schools are the only entities that contribute to academic achievement. The trial court itself found that socio-economic factors such as poverty and low parental education and job skills are among the causes of low student test scores.  The trial court found also that parental involvement is a powerful force in a student’s educational experience. Further, one cannot ignore the fact that students themselves have a significant responsibility for their education. Every teacher who testified for plaintiffs agreed that students are substantially responsible for their own academic achievements. They stated that, while they provided their students with educational opportunities, it was up to students to study and learn” (page 25).

 

Pre-Kindergarten Programs

 

      The state has consistently rejected the trial court’s assertion that the court has the authority to authorize a pre-kindergarten program and that a pre-kindergarten program is an appropriate remedy.  The state argues that if pre-kindergarten programs are an appropriate remedy, it is the prerogative of the legislature not the court to enact.

 

“To the extent the trial court ordered early childhood education as a remedy for violation of the rights of plaintiffs or intervenors, that order should be reversed. The record in this case does not support any determination that defendants have violated the constitutional rights of any party, or of any student, or that defendants have denied local school boards the capacity to provide their students an opportunity to receive a sound basic education…The trial court had no power to order a remedy absent a proper determination that defendants are violating the Constitution” (page 37). 

 

“To the extent the trial court held that pre-kindergarten education is itself a separate or distinct constitutional right, the trial court also erred. Pre-kindergarten programs, such as those being implemented by the legislative and executive branches independent of this litigation, are intended to help at-risk children” (page 38).

 

      “Quality pre-kindergarten education can affect academic achievement, but the decision to provide pre-kindergarten programs as opposed to other effective educational programs is clearly a nonjusticiable political question reserved to the legislature…Whether to provide at-risk students with the opportunity for pre-kindergarten education, however, is not a question of what is constitutionally required, but a question of when educational opportunities must be provided” [emphasis added] (page 42). 

 

Plaintiff’s Brief

 

      The plaintiffs presented three counter arguments to the state’s claims: (1) “The trial court’s consideration of test scores data was in accordance with this court’s directions and the state’s own policies.”  (2)  “The State has a constitutional duty to provide the opportunity for a sound basic education to all children, and it cannot evade this duty by blaming educational inadequacies on children or local officials.”  (3) “The trial court’s determination regarding the need for pre-kindergarten accords with the state’s own position outside this litigation, and does not impinge on any executive or legislative prerogative.”

 

Test Score Data

 

      The plaintiffs contend that the state cannot ignore the very data that it using to tout the success of the state’s accountability and education system.  The state does not solely rely on EOG and EOC test scores.

 

      “His ultimate conclusion – that the State was in violation of its duty to provide an opportunity for a sound basic education for all students – rested in substantial part on the State’s own standards and data, as well as expert studies, factual testimony, and documents regarding all aspects of the education process…The State’s challenge to this evidence is ironic, both because this same data is the foundation of the State’s system for improving schools and because the data was repeatedly relied upon by the State’s experts, witnesses, and attorneys at trial” (page 19). 

 

      “The decision below accordingly does not take standardized tests as the sole measure of the State’s performance, but rather rests on an extensive body of evidence of both educational inputs and outputs besides EOG and EOC test scores. For example, the trial court cited extensive evidence that Hoke high school graduates were not well-qualified even for low-level jobs with local employers” (page 23). 

 

      The plaintiffs address the state’s assertion that the trial court relied too heavily on standardized test scores in express violation of a legislative mandate not to use EOG and EOC scores as the sole determinant.

 

      “The trial court’s consideration of the standardized test scores is consistent with the State’s own reliance on the same tests to evaluate the performance of school districts, schools, and students. In this appeal, however, the State has sought to minimize the significance of this evidence. The State’s attempt here is based largely on a statute that deals with an entirely separate subject – student grade level determinations made by principals”(page 27).

 

State’s constitutional duty

 

      The plaintiffs’ contend that the state has the constitutional duty to provide children with the opportunity to receive and sound basic education and that they cannot avoid that responsibility by blaming local school systems, teachers, or students. 

 

            “That is, a low-performing school cannot excuse itself by claiming that its students performed poorly because many of them lived in poverty or were from poorly educated families. Similarly, such a school cannot excuse itself by claiming that its students watched too much television or chose not to do their homework. The reason such excuses are not allowed is that they run counter to the basic premise of our State’ s education system that all children can learn” (page 35). 

 

      The state’s contention that local officials are responsible for failing students not receiving their opportunity to receive a sound basic education is soundly rejected by the plaintiffs.  Local control has long been a feature of North Carolina public schools but it is not proscribed or required by the Constitution.  The plaintiffs point in their brief that the General Assembly has suspended local control and has occasionally assumed authority. 

 

      “Nevertheless, as the State admits, ‘[t]he legislative and executive branches of State government are ultimately responsible [emphasis added] under the Constitution for establishing a system of public schools in which all students have an opportunity to receive a sound basic education.’  Despite this admission, the State also contends that the plaintiff districts are the ‘root causes’ of students failing to receive a sound basic education, and thus the State should not be held liable. Here, just as with its effort to blame school children, it seeks to avoid liability by finding another scapegoat. This effort to blame local school districts is, however, foreclosed by the Constitution. The Constitution does not impose a duty on local school districts. Rather, it imposes a duty on the State ‘to guard and maintain’ the right to education” (pages 42-43).

 

“The Constitution permits the State flexibility, and it may use a system of local control as long as that system is providing students with the required opportunity for a sound basic education. [emphasis added] Where, as here, students are not receiving the opportunity for a sound basic education, the State cannot excuse its failure by reference to local control, or refuse to remedy the problem out of deference to local school officials. Otherwise the State’ s constitutional duty as defined in Leandro would be meaningless” (page 44).

 

 

Pre-Kindergarten

 

      The state’s argument that the trial court overstepped its authority by requiring a pre-kindergarten program for at-risk children is countered by the plaintiffs’ contention that the trial court did not rule that pre-kindergarten program were a “distinct constitutional right.”  The plaintiffs assert that the trial judge left the “nuts and bolts” of a pre-kindergarten program up the legislative and executive branches. 

 

      “Furthermore, the State’ s attack on the concept of special assistance for children who are at-risk of educational failure is inconsistent with the testimony of the State’ s own witnesses and with its policies. Witnesses for all parties recognized that children from economically disadvantaged backgrounds have particular difficulties in gaining proficiency in school…In sum, the State’ s challenge to the trial court’ s determination regarding pre-kindergarten is unfounded. The trial court never found the separate constitutional right that the State proposes to challenge. The State’ s own witnesses and policies, as well as other evidence, establish the need for and effectiveness of such programs in providing a sound basic education” (page 49).

 

For copies of these briefs plus the plaintiff-intervenor’s brief, go to www.ncforum.org