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POINT OF VIEW

Published: Aug 20, 2004
Modified A, Aug 20, 2004 8:18 AM

A satisfying tale of two judges

By GENE NICHOL
CHAPEL HILL -- After a decade of litigation in the Leandro-Hoke County cases, North Carolina has developed -- and is prepared to enforce -- one of the most demanding sets of constitutional norms in the country. Our highest court has charged the state to step forward "boldly and decisively" to guarantee the essentials of a "sound basic education." While federal courts have made a mockery of the obviously fundamental right to education, our state judiciary has resoundingly answered equality's call. If Frank Porter Graham were alive today, he'd be immensely heartened. He might also be modestly surprised.

Surprised because North Carolina's demand for "competent, certified teachers," "well-trained principals" and "effective instructional programs" has come not from the legislature or from state educational leaders, but from judges interpreting our constitution. And the jurists who have led the recent charge are not great liberals -- such as Hugo Black or William 0. Douglas of Dr. Graham's day. The marked changes soon to unfold in North Carolina public education will come at the hands of two remarkably unlikely activists.

The first, of course, is Superior Court Judge Howard Manning Jr. -- the able, tough, nonideological and occasionally testy trial judge appointed by Chief Justice Burley Mitchell to handle the "extraordinary" trial. The first Republican elected statewide in the 20th century to the N.C. Superior Court bench, Manning issued a remarkable series of rulings. He determined that "at-risk" students are often "harder to educate and require more resources and attention" than their colleagues. Manning defied tradition by suggesting that schools might actually have to spend more on those lodged at the bottom than those at the top.

Annoying the governor, the Department of Public Instruction and the General Assembly in turn, Manning essentially used the state's vaunted standardized testing program to prove constitutional transgression. He expressed impatience with state officials' decision to "fight tooth and nail" to avoid bolstered accountability. Nor did he succumb to a proffered "shell game" -- shifting responsibility from local school districts to the state and back again. North Carolina, Manning concluded, "has the ultimate responsibility to ensure that the constitutional guarantee is met." And the state had disserved the students of Hoke County.

But Manning's holdings, alone, weren't enough. The state moved, predictably, to appeal the decision. The state Supreme Court was asked, in pointed terms, to put Manning in his place.

But retiring Justice Robert Orr apparently wouldn't have it. Issuing his last opinion as a member of the court three weeks ago, Orr embraced all of Manning's factual findings, all of his decisional framework and almost all of his conclusions of law. Producing a second unanimous, bipartisan Leandro ruling, Orr pronounced the evidence "overwhelming" that a "disproportionate number of Hoke County schoolchildren are failing to obtain a sound, basic education." He broadened the reach of the Leandro ruling and left no doubt that it remains the state's job to fulfill it.

Orr also didn't hide his aversion to the recalcitrance of other branches of government: "The time and financial resources devoted to litigating these issues over the past 10 years have cost the taxpayers an incalculable sum. .... One can only wonder how many teachers, books, classrooms and programs could have been provided by that money."

Bob Orr's final opinion became his most important. Leandro is settled. Stronger today than when the principle was announced seven years ago.
newsobserver.com

What I find surprising -- and hugely encouraging -- about these rulings is that they came from Manning and Orr. These are hardly wide-eyed social engineers or Warren Court enthusiasts. They don't believe in government by judiciary or in updating the constitution to serve the "felt needs" of the day. They aren't softies or whiners. Not liberals or bleeding hearts. They aren't ideologues or utopians. They aren't even Democrats.

They are, instead, old-fashioned craftsmen who followed where the cases led. They faced the facts of our educational disparity and refused to flinch. They determined that our constitutional mandates are to be taken seriously, not ignored. They realized that we define ourselves by the opportunity that we provide. And they reminded us that our most fundamental value is that we're all in this together.

Not bad for a couple of conservatives. Perhaps somewhere they read that all children are equal in the eyes of God.

(Gene R. Nichol is dean and the Burton Craige professor of law at the UNC School of Law.)




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