NEWBY, Chief Justice.

In this case we resolve whether the trial court lacked subject matter jurisdiction to enter its order of 17 April 2023. To do so, we must consider what happens to a case when the original claims have been transformed into claims very different than those in the pleadings. In other words, can a party completely change

* Pursuant to Rule 38(c) of the Rules of Appellate Procedure, “When a person is a party to an appeal in an official or representative capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the person’s successor is automatically substituted as a party.” N.C. R. App. P. 38(c). Timothy Moore is no longer the Speaker of the North Carolina House of Representatives; accordingly, his successor, Destin Hall, has been automatically substituted as a party in this appeal.

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the subject matter of its action without following the proper procedure for invoking the trial court’s subject matter jurisdiction over a new, very different claim? We conclude that the answer is no. Rather, litigants are required to properly invoke the trial court’s subject matter jurisdiction over claims they want resolved. If litigants do not do so, the trial court lacks subject matter jurisdiction to adjudicate the claims. In 1994, students from five low-wealth school districts, joined by their parents or guardians and their respective local school boards (plaintiffs), sued the State of North Carolina and State Board of Education (defendants), claiming that they had deprived the students in plaintiffs’ school districts of their education rights enshrined in the North Carolina Constitution. Plaintiffs were subsequently joined by students from six urban school districts, who were also joined by their parents or guardians and their respective local school boards (plaintiff-intervenors). Like plaintiffs, plaintiff-intervenors alleged that defendants were not providing students in plaintiff-intervenors’ school districts a constitutionally compliant education.^[1] Thus, in 1994 plaintiff parties’ complaints presented challenges to the

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administering the school system at the state and local levels. Although this Court ultimately rejected most of the claims raised in the 1994 complaints, we remanded some of the claims for resolution. Most pertinently to the case today, this Court remanded the case to the trial court to determine whether school children in each named school district were being denied their opportunity for a sound basic education and, if so, why. At the same time, this Court recognized the judiciary’s general lack of expertise in matters of education policy; observed that such policy determinations properly resided in the legislative and executive branches; and conceded that courts should give proper deference to those branches. Once the case had returned to the trial court in 1997, the judge assigned to the case directed plaintiff parties to amend their complaints to encompass claims concerning prekindergarten services. The judge then decided to begin with a trial on the as-applied claims of the Hoke County students, recognizing that there needed to be a district-by-district assessment of the plaintiff parties’ school districts. As a result of this year-long trial, the trial court acknowledged that the State’s education system was generally constitutionally compliant, including its curriculum and funding. It determined, however, that the State’s education system was unconstitutional as applied to at-risk students in the Hoke County school district because resource allocation issues at both the state and local levels were preventing those students from receiving an opportunity for a sound basic education. In Hoke County Board of Education v. State (Hoke County I), 358 N.C. 605, 599

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S.E.2d 365 (2004), this Court affirmed the trial court’s decision while further clarifying that the constitutional education rights belonged only to students. We remanded the case so that plaintiff parties’ other as-applied claims concerning the other named school districts could proceed to trial. Several procedural developments then occurred. In 2005, a group known as the “Penn Intervenors,” who were represented by current Justice Anita Earls, sued defendants and the Charlotte-Mecklenburg Board of Education and sought intervention in this lawsuit. The Penn Intervenors were students from the Charlotte-Mecklenburg school district; their parents or guardians; and, eventually, the Charlotte-Mecklenburg Branch of the National Association for the Advancement of Colored People (NAACP), which was added in an amended complaint. The trial court allowed the intervention only as to the issues raised in the Penn Intervenors’ complaint similar to those already before the court—i.e., as-applied claims. In 2006, five local school boards that had originally joined plaintiff-intervenors’ complaint voluntarily dismissed their claims. Over the next eleven years, none of the remaining as-applied claims were tried. The judge who presided over this case made numerous observations about his continuing belief that state and local education officials were not properly administering the school system. Then that judge retired, resulting in the appointment of a new judge. On 24 July 2017, the then-Attorney General of North Carolina filed a motion

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for relief from the Hoke County trial judgment on the State Board’s behalf.^[3] In the motion and supporting documents, the Attorney General highlighted that the original claims, which were stated in the pleadings and refined by this Court’s decisions, were no longer the focus of this case. The subject of the original complaints—the education system of the 1990s and early 2000s—no longer existed. The litigation had instead become a statewide challenge to a “future school system,” exceeding the jurisdiction of the original pleadings. Therefore, the Attorney General argued that the trial court did not have jurisdiction to address this question. In this appeal, the General Assembly made similar arguments in support of its position that the trial court lacked subject matter jurisdiction to entertain a new, statewide claim. For example, the General Assembly argued that “[t]he trial court . . . exceeded its jurisdiction” by “purport[ing] to grant relief on a supposed ‘statewide’ claim that no party has ever asserted.” We agree. By 24 July 2017, the remaining participants in the litigation and the trial court officially transformed this case into one addressing matters never pled. Specifically, the trial court worked with the remaining parties in this case—while excluding the General Assembly—to enforce a statewide plan that overhauled the legislatively enacted educational system. What began as modest, as-applied challenges to the allocation of educational resources in the named school districts became a full-scale, facial assault on the entire educational system enacted by the

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General Assembly. When this case ceased to be about the as-applied claims raised in the complaints and refined by this Court’s decisions, the trial court’s authority to hear the case likewise ceased. No facial constitutional challenge was ever pled. What is more, this unpled facial challenge was not directed to the one tribunal empowered to address it: a three-judge panel of the Superior Court, Wake County. As a result, the trial court was without subject matter jurisdiction to consider that claim in the current case.^[4]

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following recitation of the facts and procedural history focuses on those aspects necessary to analyze the trial court’s subject matter jurisdiction as it existed on 17 April 2023. A. Backdrop to the Pleadings Before diving into this case’s long procedural history, a brief survey of the context in which plaintiffs filed their complaint is in order. ^[1]. 1971 Constitution The history of North Carolina reveals the State’s continually expanding commitment to providing children a free, beneficial public education. There have been setbacks to be sure, but undeniably, the long arc of history reveals this State’s commitment to enhancing the public education provided to the children within its borders. See William W. Peek, N.C. Dep’t of Pub. Instruction, The History of Education in North Carolina 5 (1993), https://digital.ncdcr.gov/Documents/Detail/ history-of-education-in-north-carolina/2533439?item=2555702 [hereinafter NCDPI, The History of Education]. Notably, a constant throughout this history has been “the precedent of school support from a combination of state and local funds.” Id. at 9. In 1971, the people ratified our current constitution, which carried over most of the education provisions first included in the constitution of 1868. Unlike the two versions that preceded it, the 1971 constitution “was not . . . a product of haste and social turmoil. It was instead a good-government measure, long matured and carefully crafted . . . to consolidate and conserve the best features of the past, not to

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break with it.” John V. Orth & Paul Martin Newby, The North Carolina State Constitution 32 (2d ed. 2013) [hereinafter State Constitution]; see also, e.g., McKinney v. Goins, 387 N.C. 35, 45 n.5, 911 S.E.2d 1, 10 n.5 (2025) (“The primary goal of the 1971 constitution was ‘editorial pruning, rearranging, rephrasing, and modest amendments,’ and ‘the great majority of the changes embraced in the 1971 constitution took the form of non-substantive deletions or contractions in language.’ ” (citation modified) (quoting State ex rel. McCrory v. Berger, 368 N.C. 633, 643, 781 S.E.2d 248, 254–55 (2016)); Sneed v. Greensboro City Bd. of Educ., 299 N.C. 609, 617, 264 S.E.2d 106, 112 (1980) (concluding that the 1971 constitution’s “reference . . . to ‘a general and uniform system of free public schools’ requires no substantive change in the [S]tate’s long standing policy of providing its citizens with a basic tuition[-]free education” (quoting N.C. Const. art. IX, § 2, cl. ^[1]) (emphasis omitted)). Like the 1868 constitution before it, the current constitution declares, “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. It echoes, “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged.” Id. art. IX, § 1. “These provisions . . . evince our State’s resolve to foster an upright, capable citizenry—even from youth.” State v. Tirado, 387 N.C. 104, 128 n.17, 911 S.E.2d 51, 69 n.17 (2025); see also State Constitution 62 (“Not a restriction on what the state may do, [Article I, Section 15] requires a commitment to social betterment. The

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details are spelled out in Article IX, wholly devoted to education.”); id. at 177 (“Article IX . . . lead[s] off with a general statement on the utility of knowledge (as well as religion and morality) . . . .”). The constitution’s General and Uniform System Clause specifically obligates the General Assembly to “provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students.” N.C. Const. art. IX, § 2, cl. ^[1]; see also id. art. IX, § 3 (requiring the General Assembly to enact a compulsory school attendance law for “every child of appropriate age and of sufficient mental and physical ability . . . unless educated by other means”). Concomitantly, the constitution establishes a “state school fund,” requiring certain income streams to “be paid into the State Treasury and, together with so much of the revenue of the State as may be set apart for that purpose, . . . faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.” Id. art. IX, § 6; see also State Constitution 181 (“The state school fund, the subject of Section 6, is funded principally from appropriations . . . .”). Nevertheless, consistent with the history of both state and local funding of education, the constitution allows for the General Assembly to “assign to units of local government such responsibility for the financial support of the free public schools as it may deem appropriate.” N.C. Const. art. IX, § 2, cl. ^[2]. In addition, local governments may “use local revenues to add to or supplement any public school or post-secondary

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school program.” Id. Furthermore, the constitution establishes “county school funds.” Id. art. IX, § 7, cl. a. The provision allowing county school funds stipulates that “[a]ll moneys, stocks, bonds, and other property belonging to a county school fund,” as well as “the clear proceeds of all penalties and forfeitures and of all fines collected in” a county “for any breach of the penal laws . . . , shall belong to and remain in” that county to be “faithfully appropriated and used exclusively for maintaining free public schools.” Id.6 The State Board is yet another aspect of the 1868 constitution carried over to the modern document, albeit with some modifications. See id. art. IX, § 4, cl. ^[1]. The constitution charges the State Board with “supervising and administering the free public school system and the educational funds provided for its support,” including the power to “make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly.” Id. art. IX, § 5. See generally State

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Constitution 180 (“The State Board . . . administers the state school fund but not the county school fund . . . .”). The Superintendent of Public Instruction, an executive branch official, N.C. Const. art. III, § 7, cl. ^[1], serves as the State Board’s secretary and chief administrative officer, id. art. IX, § 4, cl. ^[2]. 2. Chapter 115C and the State Education System in 1994 With the historical and constitutional framework set, we next address the school policy and funding in place when the complaints in this litigation were filed. Long before plaintiffs filed their complaint in May of 1994, the General Assembly had fulfilled its constitutional obligation to provide a system of elementary and secondary public education, both as to educational policy and funding. See NCDPI, The History of Education at 14. As of 1994, Chapter 115C governed elementary and secondary education (as it does today). N.C.G.S. §§ 115C-1 to -546.2 (1991 & 1993 Supp.). Consistent with the history recounted above, North Carolina’s education system operated on two levels: state and local. At the state level, the General Assembly, in accordance with the constitution, created an education system that set education policies and funded a public school system. The legislature vested the State Board, an executive agency, with “[t]he general supervision and administration of the free public school system.” N.C.G.S. § 115C-12 (1993 Supp.) (current version at N.C.G.S. § 115C-12 (2025)). Accordingly, the State Board was required to “establish policy for the system of free public schools, subject to laws enacted by the General Assembly.” Id. In turn, the Superintendent of Public Instruction and the Department

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of Public Instruction were charged with administering the policies the State Board adopted. See N.C.G.S. § 115C-19 (1991) (current version at N.C.G.S. § 115C-19 (2025)); N.C.G.S. § 115C-21(a)(1) (1993 Supp.) (current version at N.C.G.S. § 115C-21(a)(1) (2025)); id. § 115C-21(b)(1) (repealed 2017). The lion’s share of public-school administration, however, happened at the local level. Indeed, “[a]ll powers and duties conferred and imposed by law respecting public schools, which [were] not expressly conferred and imposed upon some other official, [were] conferred and imposed upon local boards of education.” N.C.G.S. § 115C-36 (1991). “Said boards of education . . . ha[d] general control and supervision of all matters pertaining to the public schools in their respective administrative units,” and they were to “enforce the school law in their respective units.” Id. The General Assembly endowed the local school boards with specific powers and duties as well, N.C.G.S. § 115C-47 (1993 Supp.) (current version at N.C.G.S. § 115C-47 (2025)), not the least of which was the duty to “provide adequate school systems within their respective local school administrative units, as directed by law,” id. § 115C-47(1) (current version at N.C.G.S. § 115C-47(1) (2025)). Chapter 115C was (and still is) a comprehensive and detailed statutory scheme covering education policy. Three aspects of public education are relevant to this litigation: (1) curriculum, (2) accountability systems, and (3) funding. a. Curriculum First, consider curriculum. The State Board’s duties included developing the

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curriculum for the instruction of public schoolchildren. Historically, the General Assembly had directed the State Board to design “Standard Courses of Study” for each grade. See, e.g., N.C.G.S. § 115C-81(a) (1981 Supp.) (repealed 2017); Elementary and Secondary School Reform Act of 1984, ch. 1103, § 2, 1984 N.C. Sess Laws 286, 286. The Standard Courses of Study “set forth what subjects [were to] be taught in each grade, and outline[d] the basal and supplementary books on each subject to be used in each grade.” N.C.G.S. § 115C-81(a) (1981 Supp.) (repealed 2017). The courses also provided “directions as to the best methods of teaching [subjects] as guidance for the teachers.” Id. “North Carolina ha[d] maintained a Standard Course of Study since the 1890[s]. . . . Every five to seven years since that time, the Standard Course of Study ha[d] been revised to reflect the needs of North Carolina students.” N.C. Dep’t of Pub. Instruction, North Carolina Standard Course of Study 7 (1999), https:// files.eric.ed.gov/fulltext/ED431211.pdf. Starting in 1985, however, the General Assembly required the State Board to “adopt a Basic Education Program [(BEP)] for the public schools of the State.” The Current Operations Appropriations Act of 1985, ch. 479, § 55, 1985 N.C. Sess. Laws 412, 448–57. The General Assembly intended the BEP to accomplish “the mission of the public school community”—namely, “to challenge with high expectations each child to learn, to achieve, and to fulfill his or her potential.” N.C.G.S. § 115C-81(a) (1993 Supp.) (repealed 2017). Therefore, the BEP’s basic purpose was to “describe the education program to be offered to every child in the public schools.” Id.

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§ 115C-81(a1). The BEP offered “[i]nstruction . . . in the areas of arts, communications skills, physical education and personal health and safety, mathematics, media and computer skills, science, second languages, social studies, and vocational education.” Id.; see also id. § 115C-81(g) (requiring instruction on “Civic Literacy,” focusing on “the [N]ation’s founding and related documents”). In Chapter 115C, the General Assembly required the BEP to “include course requirements and descriptions similar in format to materials previously contained in the [existing] [S]tandard [C]ourse of [S]tudy.”7 N.C.G.S. § 115C-81(b) (1993 Supp.)

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function as a member of society; (ii) to provide a means of identifying strengths and weaknesses in the education process; and (iii) to establish additional means for making the education system accountable to the public. N.C.G.S. § 115C-174.10 (1991) (current version at N.C.G.S. § 115C-174.10 (2025)). The testing program’s first component, the “Annual Testing Program,” called for “developmentally appropriate individualized assessment instruments consistent with the [BEP] for the first and second grades, rather than standardized tests.” Id. § 115C-174.11(a) (current version at N.C.G.S. § 115C-174.11(a) (2025)).9 The second component, the “Competency Testing Program,” required the evaluation of tenth graders “to assure that graduates of the public high schools . . . possess[ed] the skills and knowledge necessary to function independently and successfully in assuming the responsibilities of citizenship.” Id. § 115C-174.11(b) (repealed 2009). The third testing component was “End-of-course and End-of-grade Tests,” which were required for “grades three through [twelve]” and “designed to measure progress toward selected competencies, especially core academic competencies, described in the Standard Course of Study for appropriate grade levels.” Id. § 115C-174.11(c) (current version at N.C.G.S. § 115C-11(c) (2025)). The statutes also provided a method for identifying “low performing school units” for state intervention and assistance. See id. §§ 115C-64.1 to -64.5 (repealed 1996). In addition to these generally applicable accountability programs, in Chapter

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115C the General Assembly tasked the State Board with developing and implementing a “Performance-based Accountability Program,” which was aimed primarily at improving student performance. N.C.G.S. §§ 115C-238.1 to -238.8 (1994) (repealed 1996 and recodified, as amended, at N.C.G.S. §§ 115C-105.20 to -105.35 (1997) (current version at N.C.G.S. §§ 115C-105.20 to -105.35 (2025))). Although participation in this program was optional, id. § 115C-238.2(a), participating local school boards received benefits, such as “increased flexibility in the expenditure of [s]tate funds,” id. § 115C-238.2(b)(4). In exchange, participants were required to develop “local plans” that, among other things, set out a roadmap for improving their local school administrative units and strategies for achieving “specific, measurable” student performance goals. Id. § 115C-238.3(a)–(b1). c. Funding Finally, consider funding. In Chapter 115C, the General Assembly provided, “It [was] the policy of the State of North Carolina to create a public school system that graduate[d] good citizens with the skills demanded in the marketplace, and the skills necessary to cope with contemporary society, using [s]tate, local and other funds in the most cost-effective manner.” N.C.G.S. § 115C-408(a) (1991) (emphasis added) (current version at N.C.G.S. § 115C-408(a) (2025)). Accordingly, “[t]o insure a quality education for every child in North Carolina, and to assure that the necessary resources are provided, . . . the State of North Carolina [was] to provide from [s]tate revenue sources the instructional expenses for [then-]current operations of the public

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school system.” Id. § 115C-408(b) (emphasis added) (current version at N.C.G.S. § 115C-408(b) (2025)). To that end, the State Board possessed “general supervision and administration of the education funds provided by the [s]tate and federal governments, except those mentioned in Section 7 of Article IX . . . , and also excepting such local funds as may be provided by a county, city, or district.” Id. § 115C-408(a). As had traditionally been the case, local governments played a supplemental financial role. For instance, in Chapter 115C the General Assembly provided that “the facilities requirements for a public education system [were to] be met by county governments.” Id. § 115C-408(b) (emphasis added). The General Assembly also created a “Critical School Facility Needs Fund,” id. § 115C-489.1(a) (repealed 1996), which was administered by the State Board and allowed local governments to apply for grants “to meet . . . particular critical need[s] in the local school administrative unit[s],” id. § 115C-489.2(a) (repealed 1996). With this overview of the education system as it existed in 1994, we turn to the pleadings that commenced this litigation more than three decades ago. As we relay the procedural history of this case, we will note relevant changes to the public education system. B. The Pleadings This case commenced nearly thirty-two years ago on 25 May 1994 when plaintiffs filed their complaint in the Superior Court, Halifax County. The named

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plaintiffs were “students and their parents or guardians from the relatively [low-wealth] school systems in Cumberland, Halifax, Hoke, Robeson, and Vance Counties [(plaintiff students)] and the boards of education for those counties” (the low-wealth school boards). Leandro, 346 N.C. at 342, 488 S.E.2d at 252. Plaintiffs’ amended complaint complained of the State’s alleged failure to timely fund the BEP by the 1995 deadline and its “reli[ance] upon local governments to fill the gaps” in funding instructional expenses. Plaintiffs claimed this amounted to “an irrational, unfair, and unconstitutional funding system” resulting in adequate and equitable educational “opportunities . . . [being] denied to children in some of the poorest school districts in this State.” Plaintiffs’ factual allegations focused specifically on challenges unique to their low-wealth school districts. For example, “[b]ecause of their limited capacities to raise funds for education” due to circumstances like lower tax bases and low per capita income, plaintiffs asserted that “the county governments of [the low-wealth school] districts c[ould not] and d[id] not provide as much local funding per student for . . . schools as . . . counties with substantially greater tax bases per pupil.” Plaintiffs further alleged that the supplemental funding program for low-wealth counties did not provide sufficient resources to the low-wealth school boards to cover the deficiencies in the BEP’s funding. According to plaintiffs, these shortcomings led to many troubling results in the low-wealth school districts: the inability to provide certain courses and programs; insufficient facilities; lack of essential equipment; the

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inability to hire and retain high quality teachers; the identification as “low performing” districts or placement on warning status; the inability to satisfy the Performance-based Accountability Program’s standards; and poor standardized test performances, to name a few. Based on their allegations, plaintiffs presented five claims for relief. In Count I, plaintiffs claimed “[p]laintiff [students] ha[d] not received the [adequate] educational opportunities guaranteed by the . . . [c]onstitution[ ] because the State ha[d] failed to provide the necessary funds” and “substantially ignore[d] the poverty of [the low-wealth school] districts.” In Count II, plaintiffs alleged that “the State’s system of funding education, which allocate[d] substantially less money for the education of schoolchildren in [the low-wealth school] districts than it d[id] for schoolchildren in wealthy school districts,” was arbitrary and irrational in violation of the constitution’s Equal Protection Clause. In Count III, plaintiffs asserted that “wide disparities in educational opportunities available to the schoolchildren in [the low-wealth school] districts and those available to the schoolchildren in wealthy districts” meant that “[d]efendants ha[d] violated plaintiffs’ rights” to a general and uniform system of public schools under Article IX, Section 2. Count IV claimed that “[d]efendants ha[d] violated the law of the land under the . . . [c]onstitution by failing to provide adequate educational opportunities.” And in Count V, plaintiffs submitted that defendants had violated Chapter 115C “by failing to provide plaintiff [students] with equal access to the [BEP], and by failing to assure that plaintiffs receive

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necessary resources for instructional purposes on an equitable basis.” In their prayer for relief, plaintiffs sought declaratory judgments consistent with their claims. On 18 October 1994, plaintiff-intervenors, another group animated by the State’s delay in fully funding the BEP, filed their own complaint. Plaintiff-intervenors were “students and their parents or guardians from the relatively large and wealthy school systems of the City of Asheville and of Buncombe, Wake, Forsyth, Mecklenburg, and Durham Counties [(plaintiff-intervenor students)] and the boards of education for those systems” (the urban school boards). Leandro, 346 N.C. at 342, 488 S.E.2d at 252. In their complaint, plaintiff-intervenors acknowledged that state law charged the urban school boards, like all local school boards, with a “responsibility to maintain adequate school systems within their districts,” citing subsection 115C-47(1) of the General Statutes. But like plaintiffs, plaintiff-intervenors alleged that “[t]he [then-]current [s]tate educational funding system d[id] not sufficiently take into consideration the burdens faced by urban school districts that must educate large numbers of students with extraordinary educational needs.” These included circumstances like students “living in or near poverty” or “requiring special education, English-as-a-second-language, or academically gifted services.” Plaintiff-intervenors also claimed the State’s educational funding system ignored “the high costs and ‘municipal overburden’ that characterize[d] the urban school districts.” According to plaintiff-intervenors, in 1994 the State’s educational funding system

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“shifted virtually the entire burden of capital funding to local authorities that [were] unable to meet the urban school districts’ capital needs.” Thus, given the “disproportionately high” cost of educating students in their districts, plaintiff-intervenors alleged “[m]any of the urban school boards . . . lack[ed] sufficient [s]tate funding to provide all of their students with appropriate educational materials and supplies.” Based on these allegations, plaintiff-intervenors also advanced five claims for relief. In Count I, plaintiff-intervenors claimed they were entitled to relief because defendants failed to (1) “provide an adequate education to all students in the urban school districts,” and (2) “provide the urban school boards with the resources necessary to provide all of their students with an adequate education.” This second failure, said plaintiff-intervenors, prevented the urban school boards from accomplishing “the[ir] responsibility to provide all of their students with a constitutionally adequate education.” In Count II, plaintiff-intervenors contended “[t]he State’s public education system, including its educational funding system [(particularly the BEP’s supplemental funding program)] [was] inadequate, inequitable, irrational, arbitrary and capricious, and not general and uniform, in violation of the . . . [c]onstitution.” This meant that “[plaintiff-intervenor students] ha[d] been denied access to a general and uniform system of public education in which equal opportunities are provided” and that the urban school boards could not fulfill their responsibility to provide “equal educational opportunities.”

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Count III subsumed two grievances. More generally, plaintiff-intervenors complained that “whether a student receive[d] an adequate education depend[ed] on capricious circumstances, including where the student live[d].” More particularly, plaintiff-intervenors alleged that “[t]he State’s supplemental funding scheme irrationally discriminate[d] against school districts not defined as ‘low wealth’ or ‘small’ and against the students and communities served by those districts.” For these reasons, plaintiff-intervenors argued that the State’s funding of education “denied equal protection of the laws to [plaintiff-intervenor students]” because it “d[id] not provide, and d[id] not ensure that the urban school boards c[ould] provide, an adequate education to all students in the urban school districts.” For the same reasons, in Count IV, plaintiff-intervenors claimed that “[t]he State ha[d] denied due process of law to [plaintiff-intervenor students].” And in Count V, plaintiff-intervenors presented two theories of how defendants had violated Chapter 115C’s requirements: First, defendants had not provided the “resources necessary to allow [plaintiff-intervenor students] to have access to ‘adequate school systems’ that provide[d] them with a ‘[BEP]’ and ‘equal educational opportunities.’ ” Second, defendants had not provided resources sufficient to enable the urban school boards to provide an education that met the requirements of the BEP and other state standards. In their prayer for relief, plaintiff-intervenors sought declaratory judgments consistent with these claims. In Leandro, we summarized the nature of plaintiff parties’ allegations as

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follows: Both plaintiff and plaintiff-intervenors (hereinafter “plaintiff[ ]parties” when referred to collectively) allege in their complaints in the case resulting in this appeal that they have a right to adequate educational opportunities which is being denied them by defendants under the current school funding system. Plaintiff[ ]parties also allege that the North Carolina Constitution not only creates a fundamental right to an education, but it also guarantees that every child, no matter where he or she resides, is entitled to equal educational opportunities. Plaintiff[ ]parties allege that defendants have denied them this right. Plaintiffs allege that children in their poor school districts are not receiving a sufficient education to meet the minimal standard for a constitutionally adequate education. Plaintiffs further allege that children in their districts are denied an equal education because there is a great disparity between the educational opportunities available to children in their districts and those offered in more wealthy districts of our state. Plaintiffs allege that their districts lack the necessary resources to provide fundamental educational opportunities for their children due to the nature of the [S]tate’s system of financing education and the burden it places on local governments. They allege that the [S]tate leaves the funding of capital expenses, as well as twenty-five percent of current school expenses, to local governments. They further allege that although their poor districts are the beneficiaries of higher local tax rates than many wealthy school districts, those higher rates cannot make up for their lack of resources or for the disparities between systems. Plaintiffs also allege that students in their poor school districts are not receiving the education called for by the [BEP], part of the statutory framework for providing education to the children of this state. Plaintiffs complain of inadequate school facilities with insufficient space, poor lighting, leaking roofs, erratic heating and air conditioning, peeling paint, cracked

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plaster, and rusting exposed pipes. They allege that their poor districts’ [then-current] media centers have sparse and outdated book collections and lack the technology present in the wealthier school districts. They complain that they are unable to compete for high quality teachers because local salary supplements in their poor districts are well below those provided in wealthy districts. Plaintiffs allege that this relative inability to hire teachers causes the number of students per teacher to be higher in their poor districts than in wealthy districts. Plaintiffs allege that college admission test scores and yearly aptitude test scores reflect both the inadequacy and the disparity in education received by children in their poor districts. Plaintiffs allege that end-of-grade tests show that the great majority of students in plaintiffs’ districts are failing in basic subjects. Plaintiff-intervenors allege that the current state educational funding system does not sufficiently take into consideration the burdens faced by their urban school districts, which must educate a large number of students with extraordinary educational needs. In particular, plaintiff-intervenors claim that their school districts have a large number of students who require special education services, special English instruction, and academically gifted programs. They allege that providing these services requires [the urban] school boards to divert substantial resources from their regular education programs. Plaintiff-intervenors contend that defendants . . . have violated the North Carolina Constitution and Chapter 115C . . . by failing to ensure that their relatively wealthy school districts have sufficient resources to provide all of their students with adequate and equal educational opportunities. In addition, plaintiff-intervenors claim that the [S]tate’s singling out of certain poor rural districts to receive supplemental state funds, while failing to recognize comparable if not greater needs in [the urban school] districts, is arbitrary and capricious .... Plaintiff-intervenors allege that deficiencies in physical facilities and educational materials are particularly

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significant in their systems because most of the growth in North Carolina’s student population is taking place in urban areas such as those served by [the urban] school boards. They claim that their urban districts must serve a disproportionate number of children who due to poverty, language barriers, or other handicaps, require special resources. They allege that because urban counties have high levels of poverty, homelessness, crime, unmet health care needs, and unemployment which drain their fiscal resources, they cannot allocate as large a portion of their local tax revenues to public education as can the more rural poor districts. 346 N.C. at 342–44, 488 S.E.2d at 252–53 (emphases added). The pleadings (and this Court’s summary thereof) paint a clear picture of plaintiff parties’ original theory of the case—namely, that the State had distributed funding for the BEP in such a manner that the named students, in the named school districts, had not been given an opportunity to receive a constitutionally compliant education under the education system as it existed in 1994. Significantly, plaintiff parties did not allege that all children in all school districts across all one hundred counties were facing similar challenges, or that there was no way for the State’s funding system to operate constitutionally. In fact, by raising an alleged statutory violation, plaintiff parties seemed to concede that if the State had complied with the statutory requirements, then it would have provided a constitutionally compliant education system. Thus, the complaints did not allege that the State’s education policy was facially unconstitutional; rather, they challenged only the implementation of the education system in their respective districts. In other words, the complaints raised

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as-applied challenges. See generally N.C. Dep’t of Revenue v. Philip Morris USA, Inc., 388 N.C. 181, 189, 919 S.E.2d 175, 181 (2025) (“The chief distinction [between facial and as-applied challenges] is found in the differing degrees to which the two kinds of challenges can call a statute’s constitutionality into question. Whereas a facial challenge alleges that a statute can never be applied constitutionally, an as-applied challenge makes a significantly more modest claim. It merely asserts that a statute cannot be constitutionally applied to the party disputing its validity, ‘even if the statute is otherwise generally enforceable.’ ” (quoting State v. Packingham, 368 N.C. 380, 383, 777 S.E.2d 738, 743 (2015), rev’d on other grounds, 582 U.S. 98, 137 S. Ct. 1730 (2017))). On 2 November 1994, the Attorney General appeared on defendants’ behalf and moved to dismiss plaintiff parties’ complaints on several grounds. On 19 January 1995, the trial court transferred venue to the Superior Court, Wake County. On 1 February 1995, the trial court denied defendants’ motion to dismiss without explanation.^[10] Defendants appealed. C. Leandro v. State 1. Court of Appeals Decides Leandro v. State When this case was first appealed, a unanimous panel of the Court of Appeals immediately acknowledged that the judicial branch is not the appropriate forum to

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wrestle with education policy: “As a preliminary matter, we recognize that education is primarily the responsibility of parents, teachers, and state and local officials, and not of state judges. Judicial intervention in educational services is appropriate only when a constitutional right is ‘directly and sharply implicate[d].’ ” Leandro v. State, 122 N.C. App. ^[1], 6–7, 468 S.E.2d 543, 548 (1996) (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273, 108 S. Ct. 562, 571 (1988)). The Court of Appeals then reversed the trial court’s order denying defendants’ motion to dismiss, reasoning that plaintiff parties’ complaints had failed to state claims upon which relief could be granted. Id. at 14, 468 S.E.2d at 552. Ultimately, the decision rendered by the Court of Appeals had two primary holdings: First, it held that the General and Uniform System Clause “ensure[s] [only] a system of public education that [is] administered uniformly across the state”; it does not require “spending or programming uniformity” or “provide[ ] [a] fundamental right to equal educational opportunities.” Id. at 8–9, 468 S.E.2d at 548–49. Second, the Court of Appeals held that “the fundamental educational right under the . . . [c]onstitution is limited to one of equal access to education, and it does not embrace a qualitative standard.” Id. at 11, 468 S.E.2d at 550. Put more bluntly, the court concluded “that a constitutional fundamental right to adequate educational opportunities does not exist.” Id. at 12, 468 S.E.2d at 551. In light of these holdings, the Court of Appeals reasoned that the trial court should have dismissed plaintiff parties’ lawsuits in their entireties. See id. at 8–14,

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468 S.E.2d at 548–52. The Court of Appeals further explained that plaintiff parties’ statutory claims alternatively failed because “the specific statutory provisions themselves provide[d] no basis for relief.” Id. at 14, 468 S.E.2d at 552. Following the Court of Appeals’ decision, plaintiff parties sought this Court’s discretionary review. ^[2]. General Assembly Enacts the ABCs Accountability System While plaintiff parties’ petitions were pending before this Court, the General Assembly modified its accountability model for public schools in 1996.11 See An Act to Implement the Recommendation of the Joint Legislative Education Oversight Committee to Implement the State Board of Education’s ABC’s Plan in Order to Establish an Accountability Model for the Public Schools to Improve Student Performance and Increase Local Flexibility and Control, and to Make Conforming Changes, ch. 716, § 3, 1996 N.C. Sess. Laws 352, 354 (codified as amended at N.C.G.S. §§ 115C-105.20 to -105.21, -105.25 to -105.27, -105.30 to -105.32, -105.35 to -105.39 (1996 Supp.) (current versions at N.C.G.S. §§ 115C-105.20 to -105.23, -105.25 to -105.27, -105.30, -105.32, -105.35, -105.37, -105.38, -105.39 (2025)). The General Assembly directed the State Board to “develop a School-Based Management and Accountability Program” with “[t]he primary goal of . . . improv[ing] student performance.” N.C.G.S. § 115C-105.20(a) (1996 Supp.). More specifically, the

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program was to (i) focus on student performance in the basics of reading, mathematics, and communications skills in elementary and middle schools, (ii) focus on student performance in courses required for graduation and on other measures required by the State Board in the high schools, and (iii) hold schools accountable for the educational growth of their students. Id. § 115C-105.35. The General Assembly instructed the State Board to “set[ ] annual performance standards for each school in the [s]tate in order to measure the growth in performance of the students in each individual school.” Id. To this end, the State Board was to create “rigorous student academic achievement performance standards for kindergarten through eighth grade and student academic performance standards for courses in grades 9–12” that “align[ed], whenever possible, with the National Assessment of Educational Progress (NAEP).” The Excellent Schools Act, ch. 221, § 3(e), 1997 N.C. Sess. Laws 427, 431 (codified at N.C.G.S. § 115C-105.40 (1999)). Following these directives, the State Board developed “the ABCs (Accountability, Basics, and Local Control) Accountability System,” which it first employed in the 1996–1997 school year. The details of this complex program are largely beyond the scope of this opinion. But in broad strokes, [h]igh standards [were] at the center of the ABCs. The aim [was] to ensure that all students [were] learning and showing continuous improvement. . . . The plan look[ed] at the progress of individual schools, rather than at whole school systems. . . . The plan compare[d] the school with itself and measure[d] the progress of its own students by

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comparing pretest and posttest scores on the North Carolina End-of-Grade Tests . . . . N.C. Dep’t of Pub. Instruction, ABCs of Public Education in North Carolina: A Journey Toward Excellence 3 (1999) [hereinafter NCDPI, ABCs of Public Education], https://files.eric.ed.gov/fulltext/ED469452.pdf. To foster “accountability,” the ABCs Accountability System offered incentive awards to schools and their administrators and teachers. Id.; see also N.C.G.S. § 115C-105.36 (1998 Supp.). It also provided procedures for identifying and assisting low-performing schools, N.C.G.S. §§ 115C-105.38 to -105.38A (1998 Supp.), as well as grounds for the removal or dismissal of school personnel in low-performing schools, id. § 115C-105.39. As for the “basics” prong, the system required schools “to focus on reading, writing, and mathematics,” but gave schools “more freedom to integrate [other] subjects” like science, history, geography, and the arts. NCDPI, ABCs of Public Education at 3; see also N.C.G.S. § 115C-105.35(i)–(ii) (1996 Supp.). Regarding “control,” the program provided local administrators and teachers “more control over the schools in which they work and the flexibility to make their own decisions” when determining how to achieve their student performance goals. NCDPI, ABCs of Public Education at 3; see also N.C.G.S. § 115C-105.21(b) (1996 Supp.). Most pertinent to this opinion, under the ABCs Accountability System, there were four performance/proficiency levels to measure student performance. “Level I” meant the student did “not have sufficient mastery of knowledge and skills in th[e] subject area to be successful at the next grade level.” NCDPI, ABCs of Public

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Education at 47. “Level II” meant the student “demonstrate[d] inconsistent mastery of knowledge and skills in th[e] subject area and [was] minimally prepared to be successful at the next grade level.” Id. “Level III” meant the student “consistently demonstrate[d] mastery of grade level subject matter and skills and [was] well prepared for the next grade level.” Id. To be considered “proficient” or “at grade level,” students needed to score at least at Level III on their end-of-course/end-of-grade tests. Finally, “Level IV” meant the student “consistently perform[ed] in a superior manner clearly beyond that required to be proficient at grade level work.” Id. 3. Supreme Court of North Carolina Decides Leandro v. State Returning to the court system, this Court allowed plaintiff parties’ petition for discretionary review. We then affirmed in part and reversed in part the Court of Appeals’ decision to dismiss all of plaintiff parties’ claims. Leandro, 346 N.C. at 358, 488 S.E.2d at 261. This Court affirmed the Court of Appeals’ decision to dismiss plaintiff parties’ claims predicated on the notion that the constitution “mandate[d] equality in the educational programs and resources offered the children in all school districts in North Carolina” (i.e., plaintiffs’ Count III and plaintiff-intervenors’ Count II).12 Id. at

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348, 488 S.E.2d at 255. This Court did so because the General and Uniform System Clause “does not require that equal educational opportunities be afforded students in all of the school districts of the state.” Id. at 351, 488 S.E.2d at 257. In this analysis, this Court—guided by the constitution’s text, the historical context in which the people adopted it, and this Court’s caselaw—acknowledged the facial constitutionality of the State’s educational funding system multiple times. See id. at 349–50, 353, 488 S.E.2d at 256, 258. This Court observed further that equality across school districts would be practically impossible, resulting in a “steady stream of litigation [that] would constantly interfere with the running of the schools of the state and unnecessarily deplete their human and fiscal resources as well as the resources of the courts.” Id. at 350, 488 S.E.2d at 257; see also id. at 350–51, 488 S.E.2d at 256–57 (observing that other state courts had experienced “substantial problems” when dealing just with the right to a sound basic education, and concluding that the constitution’s framers did not intend for the General Assembly to strain to achieve the “impractical or unattainable goal” of absolute equality in educational offerings across school districts, noting “even greater problems of protracted litigation resulting in unworkable remedies” would follow) (first citing Horton v. Meskill, 486 A.2d 1099 (Conn. 1985); then citing Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717 (Tex. 1995); then citing State ex rel. Bds. of Educ. v. Chafin, 376 S.E.2d 113 (W. Va. 1988); then citing William E. Thro, The Third Wave: The Impact of the Montana, Kentucky, and Texas Decisions on the Future of Public School Finance

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Reform Litigation, 19 J.L. & Legal Educ. 219 (1990); then citing James S. Liebman, Implementing Brown in the Nineties: Political Reconstruction, Liberal Recollection, and Litigatively Enforced Legislative Reform, 76 Va. L. Rev. 349, 392–93 (1990); then citing Note, Unfulfilled Promises: School Finance Remedies and State Courts, 104 Harv. L. Rev. 1072, 1075–78 (1991); and then citing Abbott v. Burke, 693 A.2d 417 (N.J. 1997))). In addition to the claims predicated on equality in educational opportunities, this Court affirmed the Court of Appeals’ decision to dismiss plaintiffs’ equal protection claims (i.e., plaintiffs’ Count II). Id. at 352, 488 S.E.2d at 258. We observed, “Any disparity in school funding among the districts resulting from local subsidies is directly attributable to Article IX, Section 2(2) itself. Plaintiffs are essentially reduced to arguing that one section of the North Carolina Constitution violates another. . . . This argument is without merit.” Id. This Court did not address plaintiff parties’ claims predicated on the Law of the Land Clause or due process principles (i.e., plaintiffs’ Count IV and plaintiff-intervenors’ Count IV). Accordingly, the Court of Appeals’ decision to dismiss those claims was the final ruling on those claims and became the law of the case. See generally Hayes v. City of Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 681–82 (1956) (“[W]hen an appellate court passes on a question and remands the cause for further proceedings, the questions there settled become the law of the case, both in subsequent proceedings in the trial court and on subsequent appeal, provided the

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same facts and the same questions which were determined in the previous appeal are involved in the second appeal.”). This Court agreed with plaintiff parties, however, that a “right to a qualitatively adequate education arises under the . . . [c]onstitution.” Id. at 345, 488 S.E.2d at 254. Specifically, this Court acknowledged that “Article I, Section 15 and Article IX, Section 2 . . . combine to guarantee every child of this state an opportunity to receive a sound basic education in our public schools.” Id. at 347, 488 S.E.2d at 255. We then defined some core qualitative components for a “sound basic education.” Id. (first citing Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989); and then citing Pauley v. Kelly, 255 S.E.2d 859, 877 (W. Va. 1979)). Accordingly, this Court reversed the Court of Appeals’ decision to dismiss plaintiff parties’ claims premised on the adequacy of educational opportunities (i.e., plaintiffs’ Count I and plaintiff-intervenors’ Count I), allowing those claims to proceed to determine “whether the State ha[d] failed to meet its constitutional obligation to provide an opportunity for a sound basic education to plaintiff parties.” Hoke County I, 358 N.C. at 612, 599 S.E.2d at 374 (emphasis added) (citing Leandro, 346 N.C. at 348, 488 S.E.2d at 255). This Court also reversed the Court of Appeals’ decision to dismiss plaintiff parties’ claims predicated on the 1994 statutes (i.e., plaintiffs’ Count V and plaintiff-intervenors’ Count V). Leandro, 346 N.C. at 353–54, 488 S.E.2d at 258–59. We did so because “most of the sections of the statutes [plaintiff parties] rel[ied] upon

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d[id] little more than codify a fundamental right guaranteed by our [c]onstitution.” Id. at 353, 488 S.E.2d at 258. Indeed, this Court observed, “The General Assembly . . . seem[ed] to have recognized the constitutional right to a sound basic education and to have embraced that right in Chapter 115C.” Id. at 347, 488 S.E.2d at 254. The statutes cited in plaintiff parties’ complaints “reiterate[d] the constitutional requirement that every child in the state have equal access to a sound basic education.” Id. at 354, 488 S.E.2d at 259. And “[t]o the extent that plaintiff[ ]parties c[ould] produce evidence tending to show that defendants ha[d] committed the violations of Chapter 115C alleged in the complaints and that those violations ha[d] deprived children of some districts of the opportunity to receive a sound basic education, [they were] entitled to do so.”13 Id. Thus, this Court acknowledged that the statutory framework established by the General Assembly provided for a constitutionally compliant statewide public education system. Finally, this Court reversed the Court of Appeals’ decision to dismiss plaintiff-intervenors’ equal protection claim to the extent it challenged the BEP’s supplemental funding program for low-wealth counties (plaintiff-intervenors’ Count III). Id. at 352–53, 488 S.E.2d at 258. This Court stated that the General Assembly could create a supplemental funding program so long as it did not “distribute[ ] state

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funds to the districts in an arbitrary and capricious manner unrelated to . . . educational objectives.” Id. at 353, 488 S.E.2d at 258. This Court continued, “Plaintiff-intervenors ha[d] made sufficient allegations in their complaint to entitle them to proceed to attempt to prove that the state supplemental funding system in question [was] unrelated to legitimate education objectives and, therefore, . . . arbitrary and capricious.” Id. In sum, this Court affirmed the Court of Appeals’ decision to dismiss three of plaintiffs’ five claims and two of plaintiff-intervenors’ claims. We reversed the Court of Appeals’ decision as to the rest of plaintiff parties’ claims. Accordingly, there were three “surviving claims for trial”: (1) whether the State ha[d] failed to meet its constitutional obligation to provide an opportunity for a sound basic education to plaintiff parties, (2) whether the State ha[d] failed to meet its statutory obligation, pursuant to Chapter 115C of the General Statutes, to provide the opportunity for a sound basic education to plaintiff parties, and (3) whether the State’s supplemental school funding system [was] unrelated to legitimate education objectives and, as a consequence, [was] arbitrary and capricious, resulting in a denial of equal protection of the laws for plaintiff-intervenors. Hoke County I, 358 N.C. at 612, 599 S.E.2d at 374–75 (emphasis omitted and emphases added) (citations omitted) (citing Leandro, 346 N.C. at 348, 353–54, 488 S.E.2d at 255, 258–59). Importantly, these surviving claims for trial were the as-applied challenges as pled, which related to specific students in specific school districts operating under a specific education system that existed in 1994.

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This Court remanded those surviving as-applied claims to the trial court for resolution. Leandro, 346 N.C. at 348, 353–54, 488 S.E.2d at 255, 258–59. We did so, however, with a keen awareness of the constitutionally assigned roles for the different branches of government in education policy. This Court accordingly acted “with some trepidation,” understanding that “judges are not experts in education and are not particularly able to identify in detail those curricula best designed to ensure that a child receives a sound basic education.” Id. at 354, 488 S.E.2d at 259. Instead, this Court “acknowledge[d] that the legislative process provides a better forum than the courts for discussing and determining what educational programs and resources” should be provided. Id. This Court pointed out that legislators, unlike judges, “are popularly elected to represent the public for the purpose of making just such decisions.” Id. at 355, 488 S.E.2d at 259. We also emphasized that the legislature, unlike the courts, is “not limited to addressing only cases and controversies brought . . . by litigants” and may “conduct public hearings and committee meetings” to “hear and consider the views of the general public as well as educational experts,” thereby “permit[ting] the full expression of all points of view.” Id. Elsewhere, this Court expressed other concerns. For example, the Court acknowledged that education policy is an area where “there will be more than one constitutionally permissible method of solving” problems, that “[o]n even the most basic questions . . . the scholars and educational experts are divided,” and that funding increases were not a guaranteed cure-all to perceived problems plaguing

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public education. Id. at 356, 488 S.E.2d at 260 (emphasis omitted) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. ^[1], 42–43, 93 S. Ct. 1278, 1301–02 (1973)). Additionally, as noted above, this Court appeared concerned about “protracted litigation resulting in unworkable remedies,” observing that “[s]ubstantial problems have been experienced in those states in which the courts have held that the state constitution guaranteed the right to a sound basic education.” Id. at 350–51, 488 S.E.2d at 257. Thus, when remanding the case, this Court took care to non-exhaustively enumerate some factors to guide the trial court as it considered whether defendants had provided plaintiff students and plaintiff-intervenor students with an opportunity for a sound basic education. See id. at 355–57, 488 S.E.2d at 259–60. Specifically, this Court instructed the trial court to consider “[e]ducational goals and standards adopted by the legislature,” “the level of performance of the children of the state and its various districts on standard achievement tests,” and “the level of the [S]tate’s general educational expenditures and per-pupil expenditures.” Id. at 355, 488 S.E.2d at 259–60. This Court was clear, however, that no single factor alone was to be dispositive. See id. at 355–57, 488 S.E.2d at 259–60. Acutely aware that judges would be tempted to insert themselves into a province more appropriately handled by the legislative and executive branches, this Court expressed grave concern about the potential for judicial interference with the constitutional powers and duties of the other two branches. To that end, this Court

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provided the following guidance to future courts: In conclusion, we reemphasize our recognition of the fact that the administration of the public schools of the state is best left to the legislative and executive branches of government. Therefore, the courts of the state must grant every reasonable deference to the legislative and executive branches when considering whether they have established and are administering a system that provides the children of the various school districts of the state a sound basic education. A clear showing to the contrary must be made before the courts conclude that they have not. Only such a clear showing will justify a judicial intrusion into an area so clearly the province, initially at least, of the legislative and executive branches as the determination of what course of action will lead to a sound basic education. Id. at 357, 488 S.E.2d at 261. With those sentiments, this Court remanded the case to the trial court. D. Post-Leandro Developments in the Education System Approximately a month after this Court’s Leandro opinion in 1997, the education system underwent another relevant change—one addressing the substantive component of education. The General Assembly passed an amendment to section 115C-12 requiring the State Board to “develop a comprehensive plan to revise content standards and the [S]tandard [C]ourse of [S]tudy in the core academic areas of reading, writing, mathematics, science, history, geography, and civics.” See The Current Operations and Capital Improvements Appropriations Act of 1997, ch. 443, § 8.27(a), 1997 N.C. Sess. Laws 1344, 1396–97 (codified as amended at N.C.G.S. § 115C-12(9a) (1998 Supp.) (recodified as amended at N.C.G.S. § 115C-12(9c) (2025)). The revised content standards developed in the core

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academic areas [were to] (i) reflect high expectations for students and an in-depth mastery of the content; (ii) be clearly grounded in the content of each academic area; (iii) be defined grade-by-grade and course-by-course; (iv) be understandable to parents and teachers; (v) be developed in full recognition of the time available to teach the core academic areas at each grade level; and (vi) be measurable, whenever possible, in a reliable, valid, and efficient manner for accountability purposes. N.C.G.S. § 115C-12(9a) (1998 Supp.). The State Board dutifully revised the Standard Course of Study following this statutory amendment. E. The Hoke County Trial On 10 October 1997, the Attorney General moved on defendants’ behalf “to dismiss all claims by [the low-wealth] school boards and [the urban] school boards” for lack of standing. The Attorney General maintained that “[t]he constitutional right to the opportunity for ‘a sound basic education’ . . . belongs solely to the children attending the public schools[,] . . . not . . . to the [low-wealth and urban] school boards. Indeed, those boards have the duty to protect that right for all students enrolled in their local schools.” On 30 October 1997, before the trial court could rule on defendants’ motion, the then-Chief Justice designated the case as exceptional pursuant to Rule 2.1 of the General Rules of Practice for the Superior and District Courts and reassigned it to a special judge of the superior court (the first replacement judge). On 24 November 1997, the trial court denied defendants’ motion to dismiss without explanation. The case therefore proceeded with the low-wealth and urban school boards participating

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in the litigation. Nearly a year later, on 15 October 1998, “plaintiffs[,] at the behest of the trial court,” amended their complaint to present allegations regarding prekindergarten services. Hoke County I, 358 N.C. at 618, 599 S.E.2d at 378. Specifically, plaintiffs alleged that “[t]he [low-wealth school] districts d[id] not have sufficient resources to provide the prekindergarten and other programs and services needed for a sound basic education.” Plaintiff-intervenors also amended their complaint the same day, making similar allegations about the urban school districts’ inability to provide sufficient prekindergarten services. Defendants, through the Attorney General, denied these allegations. Because plaintiff parties had asserted different allegations about how the State’s educational funding system affected each of them, the trial court “bifurcated [this case] into two separate actions”—one for plaintiffs’ remaining claims, one for plaintiff-intervenors’. Hoke County I, 358 N.C. at 613, 599 S.E.2d at 375. The trial court held a trial on plaintiffs’ claims first. Id. Due to the “sheer size and complexity of dealing with evidence” from each unique school district, the trial court decided to hold separate trials for each plaintiff school district—one at a time, see Hoke County I, 358 N.C. at 613, 599 S.E.2d at 375. The trial court and the parties agreed that the first trial would address only the Hoke County school district. Id. The claims pertaining to the Hoke County school district came on for trial in September of 1999. The trial court allowed the introduction of evidence that

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“reache[d] a broader constituency” than the students in the case’s caption; indeed, “a far greater proportion of the evidence pertain[ed] to the circumstances of Hoke County’s student population in general than it d[id] to the named plaintiffs in particular.” Id. at 615, 599 S.E.2d at 376. Also, “the trial court heard evidence concerning the plight of those children who were about to enter the school system”— i.e., “prospective enrollees” of the Hoke County school system. Id. at 640–41, 599 S.E.2d at 392–93. Moreover, “the trial court took evidence on, and made conclusions about, student performance across the state.” Id. at 633 n.14, 599 S.E.2d at 387 n.14; see also id. at 625, 599 S.E.2d at 382–83. The reference to student performance in school districts around the state necessarily rested on an assumption that there were Leandro-compliant school districts to which comparisons could be drawn. Nevertheless, all the “evidence in the case w[as] restricted to its effect on Hoke County.” Id. at 613, 599 S.E.2d at 375. The trial on the Hoke County claims “lasted approximately fourteen months and resulted in over fifty boxes of exhibits and transcripts, an eight-volume record on appeal, and a [M]emorandum of [D]ecision that exceeds 400 pages.” Id. at 610, 599 S.E.2d at 373; cf. id. at 621, 599 S.E.2d at 380 (highlighting the Memorandum of Decision’s “free-wheeling nature”). Throughout the trial, defendants “consistently t[ook] the position” that the State’s educational funding system generally “me[t] the constitutional mandate.” Indeed, defendants “fought ‘tooth and nail’ to prevent any finding that (1) the State. . . [was] not providing the equal opportunity for each child to obtain a sound basic

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education,” or (2) “the State . . . [was] not providing sufficient funding to its school districts to provide each and every child with the equal opportunity to obtain a sound basic education.” According to defendants, any constitutional violations occurring in the Hoke County school district were due to how “the individual school district . . . spen[t] the money the State provide[d].” Accord Hoke County I, 358 N.C. at 631, 599 S.E.2d at 386. The trial court largely agreed with defendants. See id. at 634–35, 599 S.E.2d at 388–89. The trial court reviewed five aspects of the State’s education system to ensure compliance with Leandro: (1) its curriculum (namely, the BEP and the Standard Course of Study developed pursuant to N.C.G.S. § 115C-12(9a)), (2) its teacher licensing/certification system, (3) its funding delivery system, (4) the ABCs Accountability System, and (5) its student performance standards. Notably, the trial court observed that “plaintiffs ha[d] stated that they have no complaint about the content of the [s]tate curriculum”; rather, “plaintiffs . . . confessed that their only complaint about the Standard Course of Study is how it ‘is brought into practice’ or ‘implemented.’ ” (Emphasis added.) In the end, the trial court affirmed that each component was constitutionally sound. The trial court stated that the State’s educational funding system was “structurally sufficient to enable school systems to distribute and allocate funds for every child to have an equal opportunity to obtain a sound basic education.” Significantly, the trial court explicitly stated, “The evidence clearly and convincingly

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show[ed] that the majority of North Carolina children [were] not at-risk of educational failure and [were] obtaining a sound basic education as required by Leandro.” As summarized by this Court, the trial court found that the State’s general curriculum, teacher certifying standards, funding allocation systems, and education accountability standards met the basic requirements for providing students with an opportunity to receive a sound basic education. As a consequence, the trial court concluded that “the bulk of the core” of the State’s “Educational Delivery System . . . is sound, valid, and meets the constitutional standards enumerated by Leandro.” Hoke County I, 358 N.C. at 632, 599 S.E.2d at 387 (alteration in original); see also id. at 634, 599 S.E.2d at 388 (noting that the trial court found, “as a general proposition,” that “the State’s Funding Delivery System for education was adequate” and observing “that the trial court went to great lengths in its efforts to convey its view that the evidence offered no definitive showing that the State’s overall funding, resources, and programs scheme lacked the essentials necessary to provide a sound basic education”). In other words, the trial court acknowledged that the State’s provision and funding of education were facially constitutional, meaning any viable constitutional challenge to the education system would therefore have to be an as-applied challenge. But after reviewing data produced under the ABCs Accountability System and comparing Hoke County students to other students across the state, the trial court determined that “at-risk” students in Hoke County were not receiving a sound basic

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education.^[14] According to the trial court, this was because neither defendants nor the Hoke County school board had “strategically allocat[ed] the available resources to see that at-risk children have the equal opportunity to obtain a sound basic education.” (Emphasis added.) Accord Hoke County I, 358 N.C. at 637, 599 S.E.2d at 390. The trial court therefore “ordered the State to reassess both its financial allocations and its other resource provisions earmarked for Hoke County schools . . . to ensure that ‘at-risk’ children in Hoke County are afforded a chance to take advantage of their constitutionally-guaranteed opportunity to obtain a sound basic education.” Id. (emphases added); see also id. at 608–09, 599 S.E.2d at 373. It left the “ ‘nuts and bolts’ of the educational resource [allocation] assessment in Hoke County to the other branches of government” and provided only general guidelines. Id. at 636, 599 S.E.2d at 389; see also id. at 637–38, 599 S.E.2d at 390. In short, the trial court: (1) informed the State what was wrong with Hoke County schools; (2) directed the State to reassess its educational priorities for Hoke County; and (3) ordered the State to correct any and all education-related deficiencies that contribute to a student’s inability to take advantage of his right to the opportunity to obtain a sound basic education. Id. at 638, 599 S.E.2d at 390.

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“In addition to ordering the State to reassess its resource allocations to Hoke County schools in an effort to improve them for students currently in attendance,” id. at 640, 599 S.E.2d at 392, the trial court also found that, in the Hoke County school district, “the evidence showed that the State was providing inadequate resources for . . . ‘at-risk’ prospective enrollees, and that the State’s failings were contributing to the ‘at-risk’ prospective enrollees’ subsequent failure[s] to avail themselves of the opportunity to obtain a sound basic education,” id. at 641, 599 S.E.2d at 392–93. “The trial court concluded that [s]tate efforts towards providing remedial aid to ‘at-risk’ prospective enrollees were inadequate,” and it ordered the State to provide pre-kindergarten classes for that group. Id. at 642, 599 S.E.2d at 393. F. Supreme Court of North Carolina Decides Hoke County Board of Education v. State (Hoke County I) Following the Hoke County trial, the parties cross-appealed and petitioned this Court for discretionary review prior to a determination by the Court of Appeals. This Court allowed their petitions. At the outset of the opinion in Hoke County I, this Court acknowledged that although “[t]his litigation started primarily as a challenge to the educational funding mechanism imposed by the General Assembly[,] . . . [w]ith the Leandro decision, . . . the thrust of this litigation [had] turned from a funding issue to one requiring the analysis of the qualitative educational services provided to the respective plaintiffs and plaintiff-intervenors.” Hoke County I, 358 N.C. at 609, 599 S.E.2d at 373 (emphasis added). Moreover, the statutory question that remained after Leandro

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“ha[d] been subsumed, for all practical purposes, by the constitutional question.” Id. at 612 n.1, 599 S.E.2d at 374 n.1. In other words, because the education policy established by the statutes provided a constitutionally compliant sound basic education, compliance with the statutes would equate to constitutional compliance. Plaintiff-intervenors’ equal protection claim concerning the BEP’s supplemental funding program for low-wealth counties was not yet ripe because it had not yet been addressed in a separate action. Id. at 612 n.2, 599 S.E.2d at 375 n.2. Thus, in Hoke County I this Court considered whether “the evidence show[ed] that the State ha[d] failed to provide Hoke County school children with the opportunity to receive a sound basic education, as defined in Leandro.” Id. at 610, 599 S.E.2d at 373 (emphasis added). After addressing some procedural matters, this Court affirmed the trial court’s conclusion that statewide educational policy and funding were generally constitutionally sound. See id. at 632–38, 599 S.E.2d at 387–91. In its analysis, this Court pointed out that “the question of whether students are obtaining a sound basic education” is different than “the question of whether they were afforded their opportunity to obtain one.” Id. at 625 n.11, 599 S.E.2d at 383 n.11. Indeed, we recognized that “[t]he failure to obtain such an education may be due to any number of reasons beyond the defendant State’s control, not the least of which may be the student’s lack of individual effort and a failure on the part of parents and other caregivers to meet their responsibilities.” Id. As such, this Court stated, “In order to

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prevail, plaintiffs must show more than a failure on the part of Hoke County students to obtain a sound basic education.” Id. Rather, “in order to show Hoke County students [were] being wrongfully denied their rightful opportunity for a sound basic education, plaintiffs [were required to] show that their failure to obtain such an education was due to the State’s failure to provide them with the opportunity to obtain one.” Id. Ultimately, this Court agreed that at-risk students in Hoke County were being deprived of their constitutional opportunity for a sound basic education and affirmed the trial court’s directive for defendants to correct those shortcomings in that county. See id. at 638, 599 S.E.2d at 391. Nonetheless, this Court reversed the portions of the Memorandum of Decision that had required the State to provide prekindergarten services for all at-risk children in Hoke County. Id. at 645, 599 S.E.2d at 395. We began by explaining that the General Assembly’s establishment of “the proper age parameters for starting and completing school” were nonjusticiable political questions. Id. at 638–39, 599 S.E.2d at 391. Finally, although this Court agreed that the State was not adequately providing resources for at-risk prospective enrollees in the Hoke County school district, id. at 642, 599 S.E.2d at 393, we concluded that the trial court’s ordered remedy was, “at best,” “a premature judicial encroachment on a core function of our [S]tate’s legislative and executive branches” given the evidence the parties had presented at trial, id. at 644–45, 648, 599 S.E.2d at 394–97. Notably, Hoke County I was replete with reminders of its holding’s narrowness.

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This Court continually expressed its understanding that plaintiff parties’ claims were as-applied challenges.^[15] This Court also disclaimed “any opinion as to whether non ‘at-risk’ students in Hoke County [were] either obtaining a sound basic education or being afforded their rightful opportunity by the State to obtain such an education.” Id. at 634, 599 S.E.2d at 388 (emphasis added). We clarified that “non ‘at risk’ students [in Hoke County] [were] not: (1) held or presumed to be obtaining a sound basic education, or (2) precluded from pursuing future claims that they [were] not being afforded the opportunity to obtain a sound basic education.” Id. at 633 n.15, 599 S.E.2d at 387 n.15 (second emphasis added).

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Additionally, this Court emphasized its “consideration of the case [was] properly limited to the issues relating solely to Hoke County” because only those issues were “raised at trial.” Id. at 613, 599 S.E.2d at 375. And “because this Court’s examination of the case [was] premised on evidence as it pertain[ed] to Hoke County in particular,” its “holding mandates [could not] be construed to extend to the other four [low-wealth school] districts named in the complaint.” Id. at 613 n.5, 599 S.E.2d at 375 n.5 (emphases added). This Court instructed the trial court to move forward with proceedings for each of the other low-wealth and urban school districts because their individual claims had not yet been adjudicated. Id. at 648, 599 S.E.2d at 397. In summary, by this stage of the case, many of the original claims had been dismissed. After Hoke County I, this Court had reiterated the trial court’s observations that the structure and funding of the State’s education system as they existed in 1994 were facially constitutional, settling that matter for purposes of this action. In Hoke County specifically, however, there had been a showing that at-risk students were being deprived of their opportunity to receive a sound basic education, and this Court affirmed the trial court’s directive for defendants to work with the Hoke County school board to remedy the resource allocation problem identified in the Hoke County trial. Otherwise, this Court remanded to the trial court for further proceedings on the remaining plaintiff parties’ as-applied claims. G. Post-Hoke County I In the years following Hoke County I,

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[t]he State . . . established the Disadvantaged Student Supplemental Fund . . . to assist at-risk children, and . . . funded the Low Wealth Schools Fund . . . . Additionally, the State . . . allocated funds to (1) expand the More-at-Four program which provide[d] education to at-risk four-year-olds; (2) reduce class size; (3) increase resources to the Hoke County school system, including increased teacher salaries and creation of Learn to Earn High Schools; and (4) create new programs to adequately train school superintendents and administrators. Hoke Cnty. Bd. of Educ. v. State, 198 N.C. App. 274, 276, 679 S.E.2d 512, 515 (2009). Importantly, however, the rest of plaintiff parties’ claims remained untried. Indeed, the parties engaged in protracted, non-trial proceedings for several more years. Throughout this period, the trial court made no findings of fact or conclusions of law amounting to an appealable order. Instead, the original claims were neglected, steadily abandoned, and seemingly forgotten. The scope of this action contemporaneously began to exceed the boundaries set by the complaints and refined by Leandro and Hoke County I. By no later than 2017, the litigation went off in a different direction, focusing on public education statewide. All the while, the very education system upon which plaintiff parties’ complaints were based was steadily changed and then replaced. ^[1]. 2004–2011 a. The Penn Intervenors Intervene On 9 February 2005, over a decade after this case commenced, several “public school students in the Charlotte-Mecklenburg school district” and their parents or guardians (Penn Intervenors) sought to intervene in the action against both

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defendants and the Charlotte-Mecklenburg school board “to enforce their constitutional rights to a sound basic education.” Their complaint also raised equal protection claims. Notably, the Penn Intervenors were represented by current Justice Anita Earls, who would eventually cast the deciding vote in Hoke County III (discussed below).16 On 19 August 2005, the trial court allowed permissive intervention to consider the Penn Intervenors’ claims concerning “the failure of the [Charlotte-Mecklenburg school] district to provide sufficient human, fiscal, and educational resources to its central city and high poverty schools.”17 It denied intervention concerning any equal protection claims and expressly disallowed “evidence or argument on the [Penn Intervenors’] . . . conten[tion] that the [Charlotte-Mecklenburg school board’s] student assignment system violate[d] their right to a sound basic education under Leandro.” The trial court then “sever[ed] the [Penn Intervenors’] claim so as to permit

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a separate trial of [their] claims.”18 On 30 September 2005, the Penn Intervenors filed an amended complaint, which Justice Earls also signed, that further developed the claim allowed by the trial court and added several more students and the Charlotte-Mecklenburg Branch of the NAACP as plaintiffs.^[19] The Penn Intervenors’ amended complaint alleged the Charlotte-Mecklenburg school board’s then-current student assignment plan created “many ‘high poverty’ and low-performing schools” in its district, which enrolled and “locked in[ ]” many at-risk students. Ultimately, the Penn Intervenors claimed that “the [Charlotte-Mecklenburg school board], the State . . . , and the State Board . . . each . . . violated their duty to provide sufficient human, fiscal and educational resources to [the Charlotte-Mecklenburg school district’s] high poverty and low-performing high schools in order to assure that all students in those schools receive a sound basic education.” They therefore sought “[a]n order enjoining [the Charlotte-Mecklenburg school board, the State, and the State Board] to provide sufficient human, fiscal, and educational resources to every [Charlotte-Mecklenburg] high school, including every high poverty and low-performing school, to assure that all students in the [Charlotte-Mecklenburg] high schools [were] being consistently

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provided with a sound basic education.” b. Most Urban School Boards Voluntarily Dismiss Their Claims On 4 May 2006, plaintiff-intervenors Asheville City Board of Education, Buncombe County Board of Education, Durham Public Schools Board of Education, Wake County Board of Education, and Winston-Salem/Forsyth County Board of Education voluntarily dismissed their claims.^[20] Thus, the Charlotte-Mecklenburg school board was the only urban school board remaining in the litigation. Even had the Charlotte-Mecklenburg school board voluntarily dismissed its claims, however, it would still have been a participant in this litigation by virtue of being named a defendant by the Penn Intervenors. Following those urban school boards’ voluntary dismissals, this litigation involved only the established violations of at-risk Hoke County students’ rights, plaintiff parties’ yet-to-be-tried claims concerning the other low-wealth and urban school districts, and the Penn Intervenors’ new claims concerning the Charlotte-Mecklenburg school district. c. Notices of Hearing and Orders Regarding Hearings As the case languished into its second and third decades, the proceedings strayed beyond the issues raised in the original complaints even further. Indeed, at times in the various so-called “Notice[s] of Hearings and Order[s] [Regarding]

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Hearings,” the first replacement judge considered evidence concerning school districts not named in the complaints, and he made statements concerning the general state of education in North Carolina. Yet, in line with the law of the case, the first replacement judge repeatedly reiterated that the problem was not education policy or funding; rather, he found that the problem was a failure of the educational establishment and classroom instruction—i.e., implementation and delivery. One such example can be found in the trial court’s 16 March 2009 “Notice of Hearing and Order Re[garding] Hearing.” In this document, the trial court recounted an “academic disaster” in Halifax County despite not having held a trial on claims related to that school district: The bottom line is that Halifax County Public School children are suffering from a breakdown in system leadership, school leadership and a breakdown in classroom instruction by and large from elementary school through high school. .... . . . Financial data furnished by [the Department of Public Instruction] shows that the cost to the taxpayers to provide school level expenditures, the majority of which are salaries and benefits for employees, has exceeded $75,000,000.00 for the past three years. .... With all of this expense being paid to the adults whose responsibility it is to provide an equal opportunity to obtain a sound basic education to each and every child in the Halifax County Public School system, there seems to be little trickle down benefit to the children entrusted to the adults in these schools.

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.... . . . [I]t is time for the State to exert itself and exercise command and control over the Halifax County Public Schools beginning in the school year 2009–2010, nothing more and nothing less. By this Notice of Hearing and Order, the [trial] [c]ourt is providing the [e]xecutive [b]ranch the opportunity, initially at least, to exercise its constitutional authority over the Halifax County School system to remedy the academic disaster which is occurring there on behalf of the children who have no other place to turn to for a sound basic education. .... The [trial] [c]ourt will entertain no excuses or whining by the adults in the educational establishment in Halifax County about how it’s the children’s fault, not theirs, for failing to provide the academic environment where children can obtain a sound basic education. If these children had Leandro compliant school leadership and teachers, they can learn and obtain a sound basic education rather than fail and drop out of school doomed to a lifetime of poverty and its multiple damages. (Emphasis omitted & added.) Thereafter, the trial court scheduled a “non-adversarial hearing” where “the State . . . , acting through its [e]xecutive [b]ranch,” would be given “the opportunity to report to the [trial] [c]ourt concerning the actions that the [e]xecutive [b]ranch w[ould] take with regard to the Halifax County Public School system in response to the [trial] [c]ourt’s serious concerns . . . regarding the failure of the Halifax County Public School system.” As another example, in a memorandum addressed to his replacement and the General Assembly, Governor, Attorney General, and Superintendent of Public

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Instruction, the first replacement judge explained: Leandro requires that the children, not the educational establishment, have the [c]onstitutional right to the . . . opportunity to obtain a sound, basic education. This has not and is not happening now as the little children are not being taught to read and write because of a failure in classroom instruction as required by Leandro. . . . This is not happening now. Our children that cannot read by the third grade are by and large doomed not to succeed by the time they get to high school. As shown by the record in this case, that is a failure of classroom instruction. . . . Reduced to essentials, in my opinion the children are not being provided the opportunity because after all the millions spent, 90% of school costs are for adult salaries and benefits, and the data show as it did years ago and up to now the educational establishment has not produced results. Memorandum from Judge Howard Manning Jr., Retired, to the North Carolina General Assembly, Governor, Attorney General, and Superintendent of Public Instruction (Nov. 9, 2021) (emphases added), https://s3.documentcloud.org/ documents/21102063/manning-memo.pdf. These excerpts are emblematic of the trial court’s view that there was not a general problem with education funding or education policy. Instead, the problem lay with the education establishment responsible for implementing and administering the education system.

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d. The Speaker of North Carolina House of Representatives and the President Pro Tempore of North Carolina Senate Attempt to Intervene and Hoke County Board of Education v. State (Hoke County II) After the 2010 midterm elections, members of a political party different from the Governor, Superintendent of Public Instruction, and Attorney General’s political party became the majority in both the House of Representatives and Senate.^[21] Thereafter, in 2011 a disagreement arose between the Governor and State Board (executive branch defendants) and the Speaker of the North Carolina House of Representatives and President Pro Tempore of the North Carolina Senate (the General Assembly). Specifically, “the General Assembly [had] instituted changes to North Carolina’s prekindergarten program in the 2011 biennial budget law.” Hoke Cnty. Bd. of Educ. v. State (Hoke County II), 367 N.C. 156, 158, 749 S.E.2d 451, 454 (2013) (per curiam) (citing Current Operations and Capital Improvements Appropriations Act of 2011, S.L. 2011-145, § 10.7, 2011 N.C. Sess. Laws 253, 354–56). In response, plaintiff parties sought “a judicial determination that the 2011 legislative changes failed to comply with the State’s constitutional obligations recognized in Leandro and Hoke County [I].” Id. The trial court then entered a “Memorandum of Decision and Order Regarding Pre-Kindergarten Services for At-Risk Four Year Olds,” wherein it determined that

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certain aspects of the 2011 amendments were unconstitutional. The Governor then issued an executive order that, in the General Assembly’s view, was an “attempt[ ] to interpret the [trial court’s] [o]rder as establishing a new constitutional obligation upon the State to provide free, universal Pre-K services to each and every at-risk four year old in North Carolina beyond the levels of service funded by the General Assembly.” Disagreeing with the Governor’s executive order, the General Assembly asked the Attorney General to seek clarification from the trial court about the scope of its order. The Attorney General refused to do so because of “an inability to obtain a conflict waiver from the Governor or the Department of Public Instruction.” The Attorney General no longer “adequately represented” the General Assembly’s interests, so the General Assembly moved to intervene in the trial court proceedings to represent “the interests of the legislative branch.” The trial court denied the General Assembly’s motion to intervene, reasoning “[t]he . . . obligation[ ] to establish and maintain public schools is the ‘shared province of the executive and legislative branches,’ ” and declining to “put[ ] itself, or the judiciary, in the middle of th[e] political dispute” between the General Assembly and Governor. Thus, from 2011 forward, the General Assembly ceased to be a party to this action. See generally N.C.G.S. § 1-72.2 (2025) (stating that “when the State of North Carolina is named as a defendant . . . , both the General Assembly and the Governor constitute the State,” but recognizing that the legislative and executive

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branches are distinct entities for purposes of litigation and that the General Assembly may sometimes need to independently represent its own interests as its own party in an action); Berger v. State Conf. of NAACP, 142 S. Ct. 2191, 2197 (2022) (observing North Carolina is a State that “ha[s] chosen to authorize multiple officials to defend their practical interests in cases”). The validity of the General Assembly’s 2011 amendments was the subject of another appeal. Amendments enacted in 2012, however, rendered the appeal moot. Hoke County II, 367 N.C. at 159–60, 749 S.E.2d at 455. 2. 2011–2022 a. Changes to the Education System Unsurprisingly, as the volumes of the General Assembly’s session laws demonstrate, the education system experienced major revisions and many innovations since this case’s commencement in 1994. See, e.g., An Act to Implement Various Education Reforms, S.L. 2012-77, §§ 1–8, 2012 N.C. Sess. Laws 272, 272–77; The Current Operations and Capital Improvements Appropriations Act of 2012, S.L. 2012-142, § 7A.1(b), 2012 N.C. Sess. Laws 484, 527–31 (creating the “Read to Achieve” program with the goal of “ensur[ing] that every student read[s] at or above grade level by the end of third grade and continue[s] to progress in reading proficiency”); Current Operations and Capital Improvements Appropriations Act of 2013, S.L. 2013-360, § 9.3(b)–(c), 2013 N.C. Sess. Laws 995, 1084–88 (modifying teacher licensing standards). A few illustrations will suffice.

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For example, on the heels of the so-called Great Recession of 2008 and the enactment of the American Recovery and Reinvestment Act of 2009, the State submitted a proposal for a federal grant pursuant to the “Race to the Top” program. U.S. Dep’t of Educ., Race to the Top: North Carolina Report, Year 2: School Year 2011–2012, at 2 (2013), https://files.eric.ed.gov/fulltext/ED539241.pdf. The Race to the Top program funded “comprehensive statewide reform grants . . . to encourage and reward States that [were] creating the conditions for education innovation and reform.” Id. North Carolina was one of twelve recipients of Race to the Top grants. Id. The funding under the grant enabled the State to “remodel [its] state system as part of an ambitious plan to increase student achievement, close achievement gaps and continue to increase the number of career- and college-ready graduates.” N.C. Dep’t of Pub. Instruction, N.C. Race to the Top, http://www.dpi.state.nc.us/rttt/ [https://web.archive.org/web/20170802072032/http://www.dpi.state.nc.us/rttt/] (last visited Mar. ^[25], 2026). The State updated the Standard Course of Study to include Common Core State Standards. See, e.g., U.S. Dep’t of Educ., Race to the Top: North Carolina Report, Year 3: School Year 2012–2013, at 3 (2014), https:// files.eric.ed.gov/fulltext/ED580337.pdf. It also adopted a new accountability model: the READY Accountability Model. See Off. of Accountability & Testing Analysis & Reporting Section, N.C. Dep’t of Pub. Instruction, Technical Guide for School Accountability and Testing Results v–vi (2022), https://www.dpi.nc.gov/ncdpi-school-

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grade-technical-guide/open. These changes went into effect for the 2012–2013 school year. N.C. Dep’t of Pub. Instruction, Report to the North Carolina General Assembly: State Board of Education Progress Toward Implementing the Race to the Top Initiative 4 (2012), https://webservices.ncleg.gov/ViewDocSiteFile/16625. Like the ABCs Accountability System, the inner workings of the READY Accountability Model are complex and largely beyond the scope of this opinion. See generally N.C.G.S. § 115C-83.15(a) (2013) (establishing standards for measuring and grading “[s]chool achievement, growth, and performance scores”). But according to the State Board, the shift to the READY Accountability Model increased academic rigor for all grade levels and placed focus on college and career readiness as opposed to just end-of-course/end-of-grade testing. Moreover, it changed the proficiency/performance levels for measuring student performance, opting to use “achievement levels” to measure a student’s career/college readiness. “Achievement Level 1” meant a student demonstrated “limited command” of a topic, and “Achievement Level 2” meant a student demonstrated “partial command.” N.C. Dep’t of Pub. Instruction, 2016 READY Accountability Background Brief 1 (2016). “Achievement Level 3” meant a student demonstrated “sufficient command” of a topic. Id. This level indicated the student demonstrated grade-level proficiency, meaning he or she could advance to the next grade but may require additional support to be ready for college or a career. Id. “Achievement Level 4” meant a student demonstrated “solid command” of a topic, and “Achievement Level 5” meant a student

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demonstrated “superior command.” Id. Students achieving Levels 4 and 5 were considered “on track to be career and college ready by the time they graduate[d] high school.” Id. Per the State Board (the entity charged with administering the State’s public education system), test results under the READY Accountability Model did not correspond to test results under the ABCs Accountability System, meaning there was no way to statistically link results between the systems. Notably, the implementation of the READY Accountability Model’s higher, more-stringent academic standards initially “resulted in a lowering of academic proficiency rates statewide.” N.C. Dep’t of Pub. Instruction, Report to the North Carolina General Assembly: An Act to Improve Public Education SL 2012-77 (SB 274), Sec. 7(b), at 26 (2014). This decline in proficiency rates did not necessarily signal a sudden drop in statewide student aptitude. Rather, it was a result of more rigorous standards, and the State Board anticipated that scores would steadily rise in the years following the READY Accountability Model’s initial implementation. Other pertinent changes to the education system occurred as well. In 2015, the General Assembly codified the duty of local school boards to also provide public schoolchildren with the opportunity to receive a sound basic education. Current Operations and Capital Improvements Appropriations Act of 2015, S.L. 2015-241, § 8A.1(b), 2015 N.C. Sess. Laws 641, 748 (codified as amended at N.C.G.S. § 115C-47(1) (2025)). It did so after finding that “some local boards of education ha[d]

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failed to comply with the requirements of the judiciary’s decision in Leandro to provide all public school students the opportunity to receive a sound basic education.” Id. § 8A.1(a), 2015 N.C. Sess. Laws at 747. In 2017, the General Assembly repealed section 115C-81. An Act to Make Organizational and Technical Changes to the Courses of Study Statutes, S.L. 2017-126, § 1, 2017 N.C. Sess. Laws 913, 913. When it did so, it formally eliminated the BEP—the focus of the lawsuit as originally pled. Thus, the education system in 2017 was materially different from the education system that had existed in 1994, when plaintiff parties filed their complaints and amended complaints, and 2005, when the Penn Intervenors intervened and filed their amended complaint. Nobody amended or supplemented the pleadings to refine their claims in light of these major changes—including the outright repeal of the BEP, which had been the focus of the complaints. b. State Board’s Motion for Relief from Hoke County Judgment As significant changes took shape in the education system, this lawsuit trudged along. The first replacement judge retired and withdrew from the case, and on 7 October 2016, the then-Chief Justice reassigned the case to an emergency judge of the superior court (the second replacement judge).22

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motion to recuse because “the facts and claims at issue in [the Penn Intervenor’s] [c]omplaint . . . are entirely unrelated to the questions presently before the Court,” reasoning that “[t]he proceedings are not substantially related” and “the past proceeding is not relevant to the current issues”). H. Supreme Court of North Carolina Decides Hoke County Board of Education v. State (Hoke County III) On 4 November 2022, this Court, on its own motion, entered an order clarifying that we would “treat[ ] the [w]rit of [p]rohibition filed 30 November 2021 by the Court of Appeals in 425A21-1 as consolidated with 425A21-2 to the extent necessary for the Court to address the arguments pertaining to the [w]rit” in the appellate briefing and oral arguments. We also “stay[ed] the [w]rit of [p]rohibition pending any further filings in 425A21-1 pertaining to issues not already addressed in the opinion filed [the same day].” Also on 4 November 2022, this Court issued its divided decision in Hoke County Board of Education v. State (Hoke County III), 382 N.C. 386, 879 S.E.2d 193 (2022). A bare majority of four justices, with Justice Earls casting the deciding vote, “affirm[ed] and reinstate[d] the . . . 10 November 2021 Order’s directive instructing certain [s]tate officials to transfer the funds necessary to comply with Years 2 and 3 of the State’s [CRP].” Id. at 391, 879 S.E.2d at 198. It accordingly “vacate[d] in part and reverse[d] in part the trial court’s [26] April 2022 Order removing that transfer directive,” id., and stayed the Court of Appeals’ writ of prohibition, id. at 476, 879 S.E.2d at 249. Additionally, the majority remanded with instructions for “the trial

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court to recalculate the appropriate distributions in light of the State’s 2022 Budget” and “order the applicable [s]tate officials to transfer th[o]se funds as an appropriation under law.” Id. Finally, the majority ordered the trial court to retain jurisdiction over the matter to ensure implementation of its order and to “monitor [for] continued constitutional compliance.” Id. Hoke County III did not address whether the trial court in fact had subject matter jurisdiction to enter those orders. I. Post-Hoke County III On remand, the Chief Justice assigned the case to a fourth replacement judge. Then, on 8 February 2023, in 421A21-1, the Controller moved this Court to dissolve or lift its stay of the Court of Appeals’ writ of prohibition. “Because the Controller’s motion [was] a further filing in 425A21-1 pertaining to issues not already addressed by this Court, and because the Controller ha[d] made a sufficient showing of substantial and irreparable harm should the stay remain in effect,” this Court allowed the Controller’s motion and lifted the stay, thereby reinstating the Court of Appeals’ writ of prohibition. On 17 March 2023, the trial court held a hearing to recalculate distributions in light of the State’s 2022 budget. On 17 April 2023, the trial court entered an order with recalculated figures. Because this Court had reinstated the writ of prohibition, the trial court did not carry out Hoke County III’s directive to order the applicable state officials to transfer the funds as an appropriation under law. A new Hoke County appeal—Hoke County IV—quickly followed. The General

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Assembly appealed the 17 April 2023 Order and petitioned this Court for discretionary review prior to a determination by the Court of Appeals. This Court allowed the General Assembly’s bypass petition to address whether the trial court lacked subject matter jurisdiction to enter the 17 April 2023 Order. On 16 November 2023, the General Assembly again moved to recuse Justice Earls because of her prior representation of the Penn Intervenors. On 31 January 2024, Justice Earls again denied the motion. She repeated her initial justification for her continued consideration of the case: the case currently before the Court is “entirely different” from the case in which she sought intervention on behalf of the Penn Intervenors’ in 2005. See, e.g., Hoke Cnty. Bd. of Educ. v. State, 385 N.C. 856, 858, 861–62, 896 S.E.2d 620, 622, 624–25 (2024) (order of Earls, J.) (denying motion to recuse even though she had signed the complaint when “Penn[ ]Intervenors sued the Charlotte-Mecklenburg School District (CMS) as part of the Leandro litigation” because the “2005 suit” and the “2018 litigation” were “distinct—factually, temporally, procedurally, and legally”; in other words, “Penn[ ]Intervenors’ 2005 claim against CMS was a different suit based on different facts that raised different legal questions than this appeal” (emphasis added)). II. Analysis The legal question presented in this appeal concerns the trial court’s subject matter jurisdiction to enter the 17 April 2023 Order. In its brief, the General Assembly presented several arguments in support of its position that the trial court

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did not have subject matter jurisdiction. Among them, the General Assembly argued, The trial court . . . exceeded its jurisdiction by requiring the CRP because, in doing so, it purported to grant relief on a supposed “statewide” claim that no party has ever asserted, much less has standing to bring. .... . . . [N]o statewide violation has ever been asserted. For this reason, everything that has flowed from the [trial] court’s order imposing the CRP—including . . . Judge Lee’s 10 November 2021 Order attempting to transfer money out of the treasury to fund the CRP, as well as Judge Robinson’s and Judge Ammons’s amendments declaring the amounts supposedly owed under that order—has exceeded the court’s subject matter jurisdiction. Accordingly, the entire series of orders from the 2018 consent orders appointing WestEd to the 2020 orders requiring the CRP through to Judge Ammons’s order of 17 April 2023, should be vacated for lack of subject matter jurisdiction based on the absence of standing. We agree with the premise underlying its argument: the failure to invoke the trial court’s subject matter jurisdiction over a facial challenge means that the trial court did not have subject matter jurisdiction to resolve one. And because we agree that nobody in this case invoked the trial court’s subject matter jurisdiction over a facial challenge to the current education system, we agree that the trial court lacked subject matter jurisdiction to enter its 17 April 2023 Order. A. General Principles of Subject Matter Jurisdiction We begin by surveying some general principles and rules relevant to this inquiry. At its core, “[j]urisdiction is ‘the legal power and authority of a court to make

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a decision that binds the parties to any matter properly brought before it.’ ” In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 789 (2006) (citation modified) (quoting Judicial Jurisdiction, Black’s Law Dictionary (7th ed. 1999)). “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S. Ct. 1003, 1012 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1869)). Not merely a personal protection afforded to litigants, a court’s power to pass on the merits of the case is established “by law and operates as a structural limitation on the power of courts.” Slattery v. Appy City, LLC, 385 N.C. 726, 729, 898 S.E.2d 700, 704 (2024). Thus, subject matter jurisdiction is only “conferred by the [c]onstitution, statutes[,] and the law of the land, that is, by sovereign authority.” Askew v. City of Kinston, 386 N.C. 286, 297, 902 S.E.2d 722, 731 (2024) (quoting Stafford v. Gallops, 123 N.C. ^[19], 22, 31 S.E. 265, 266 (1898)); see also Steel Co., 523 U.S. at 89, 118 S. Ct. at 1010 (describing subject matter jurisdiction as “the courts’ statutory or constitutional power to adjudicate the case”). Our constitution vests the “judicial power” of this State predominantly in the General Court of Justice, which includes the District Court Division, the Superior Court Division, and the Appellate Division. N.C. Const. art. IV, §§ 1–2. It more specifically provides that the General Court of Justice wields “general jurisdiction,”

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see id. art. IV, § 12, cl. ^[3] (vesting “original general jurisdiction” in the Superior Court Division); see also N.C.G.S. § 7A-240 (2025), meaning our state courts are broadly empowered to hear any claim that has not been exclusively reserved for another adjudicative body, Simeon v. Hardin, 339 N.C. 358, 368, 451 S.E.2d 858, 865 (1994). This broad subject matter jurisdiction, however, has limits. See, e.g., N.C. State Conf. of NAACP v. Moore, 382 N.C. 129, 141–42, 876 S.E.2d 513, 524 (2022) (“When presented with a purely political question, the judiciary is neither constitutionally empowered nor institutionally competent to furnish an answer.” (emphasis added) (quoting Harper v. Hall, 380 N.C. 317, 356, 868 S.E.2d 499, 529 (2022), overruled by, 384 N.C. 292, 886 S.E.2d 393 (2023))). Notably, because subject matter jurisdiction is a matter of law, it “rests upon the law and the law alone.” In re T.R.P., 360 N.C. at 595, 636 S.E.2d at 793 (quoting Feldman v. Feldman, 236 N.C. 731, 734, 73 S.E.2d 865, 867 (1953)). Subject matter jurisdiction accordingly “cannot be conferred upon a court by consent” of the litigants. In re K.J.L., 363 N.C. 343, 345–46, 677 S.E.2d 835, 837 (2009) (quoting In re T.R.P., 360 N.C. at 595, 636 S.E.2d at 793). Moreover, “a court’s lack of subject matter jurisdiction is not waivable and can be raised at any time.” Id. at 346, 677 S.E.2d at 837 (emphasis added); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 1244 (2006) (stating objections to subject matter jurisdiction “can never be forfeited or waived” (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 1785 (2002))).

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In fact, courts may—indeed, should—raise the issue of subject matter jurisdiction ex mero motu. See State v. Singleton, 386 N.C. 183, 201, 900 S.E.2d 802, 815 (2024). An appellate court, for instance, must first review its own jurisdiction “and then [that] of the court from which the record comes.” Steel Co., 523 U.S. at 94, 118 S. Ct. at 1012 (quoting Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S. Ct. 690, 692 (1900)). Because subject matter jurisdiction is the power to pass on the merits of a case, a court should not act in a case until it is satisfied that it has the authority to do so. “Where there is no jurisdiction of the subject matter the whole proceeding is void ab initio and may be treated as a nullity anywhere, at any time, for any purpose.” High v. Pearce, 220 N.C. 266, 271, 17 S.E.2d 108, 112 (1941) (first citing Clark v. Carolina Homes, Inc., 189 N.C. 703, 128 S.E. ^[20] (1925); and then citing Carter v. Rountree, 109 N.C. 29, 13 S.E. 716 (1891)). Thus, courts “shall dismiss the action” whenever it appears that it lacks subject matter jurisdiction. N.C.G.S. § 1A-1, Rule 12(h)(3) (2025); see also, e.g., Slattery, 385 N.C. at 730, 898 S.E.2d at 704. Foundationally, a party must properly invoke a trial court’s subject matter jurisdiction before a trial court may exercise subject matter jurisdiction in a case. It is insufficient for a trial court to be “generally authorized to exercise jurisdiction over the type of case presented.” In re T.P., 197 N.C. App. 723, 726, 678 S.E.2d 781, 784 (2009). In other words, “[a] trial court’s general jurisdiction over the type of proceeding . . . does not confer jurisdiction over the specific action.” In re A.B.D., 173

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N.C. App. 77, 86–87, 617 S.E.2d 707, 714 (2005). This means that “[a] court cannot undertake to adjudicate a controversy on its own motion.” In re Transp. of Juvs., 102 N.C. App. 806, 808, 403 S.E.2d 557, 558 (1991). Said differently, a court may not exercise subject matter jurisdiction ex mero motu. See id. at 808, 403 S.E.2d at 559 (“We conclude that without an action pending before it, the district court was without jurisdiction to enter an order . . . .”). This rule aligns with the role of courts as neutral arbiters of genuine disputes brought before them. Cf. The Federalist No. 78, at 464 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (“The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment . . . .”). Instead, a court may “adjudicate a controversy only when a party presents the controversy to it, and then, only if it is presented in the form of a proper pleading.” In re Transp. of Juvs., 102 N.C. App. at 808, 403 S.E.2d at 558. “Thus, before a court may act there must be some appropriate application invoking the judicial power of the court with respect to the matter in question.” Id. at 808, 403 S.E.2d at 558–59 (emphasis added) (citing Carolina Freight Carriers Corp. v. Loc. 61, Int’l Bhd. of Teamsters, 11 N.C. App. 159, 180 S.E.2d 461, cert. denied, 278 N.C. 701, 181 S.E.2d 601 (1971)). The requirement for a court’s subject matter jurisdiction to be properly invoked by a litigant is longstanding. See, e.g., Morse v. Curtis, 276 N.C. 371, 376, 172

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S.E.2d 495, 499 (1970); In re Peoples, 296 N.C. 109, 144, 250 S.E.2d 890, 910 (1978); Boseman v. Jarrell, 364 N.C. 537, 546, 704 S.E.2d 494, 501 (2010); Askew, 386 N.C. at 299, 902 S.E.2d at 732. In particular, “[a] court’s subject matter jurisdiction over a particular case is invoked by the pleading.” Boseman, 364 N.C. at 546, 704 S.E.2d at 501. As early as 1886, this Court formally observed, “The purpose . . . of the pleadings [is] to give [the court] jurisdiction of the subject matter of litigation and the parties in that connection.” Peoples v. Norwood, 94 N.C. 167, 172 (1886), cited with approval, In re K.J.L., 363 N.C. at 346, 677 S.E.2d at 837. If a party has not properly invoked the trial court’s subject matter jurisdiction over a claim, then the trial court is not empowered to rule on that claim. See, e.g., Eudy v. Eudy, 288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975), overruled on other grounds by, Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982); Miller v. McConnell, 226 N.C. 28, 35, 36 S.E.2d 722, 726 (1946). In other words, the trial court’s subject matter jurisdiction is coextensive with the claims raised in the pleadings. Generally, the pleading by which a plaintiff may invoke the subject matter jurisdiction of a trial court is the complaint (and amendments thereof), although counterclaims may be asserted in answers (and amendments thereof). See N.C.G.S. § 1A-1, Rules 3(a), 7(a), 15 (2025). As recently as 2024, this Court said that “[a] complaint . . . activates a court’s subject[ ]matter jurisdiction.” Askew, 386 N.C. at 299, 902 S.E.2d at 732 (emphasis added). Absent proper amendment, parties are not

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permitted to veer beyond the contours of the pleadings and litigate claims not raised therein. Any attempt to do so is beyond the trial court’s subject matter jurisdiction. The requirement for the invocation of the trial court’s subject matter jurisdiction corresponds to principles of due process and fundamental fairness. Indeed, fundamental fairness requires a complaining party to notify the adverse party of the nature of the alleged wrong and the relief sought. Notice of claims and an opportunity to be heard on those claims are foundational to due process. Cf. Armistead v. Cnty. of Carteret, No. 66A25, slip op. at 7 (N.C. Mar. ^[20], 2026) (“Without . . . notice, due process does not permit a judgment that binds the absent parties.”). The complaint serves as the roadmap of the litigation, and a party must stay within the contours of the complaint. Going beyond those contours requires complying with the process for amending complaints or bringing a new action. Otherwise, the defending party is not properly apprised of the claims. There could be other ramifications as well. After all, final judgments in cases trigger all sorts of equitable doctrines potentially foreclosing other relief—for example, res judicata and collateral estoppel. And when attorneys and judges stray outside the bounds of the complaint and the named parties, they risk inadvertently closing the courthouse doors to future litigants who may have stronger claims or unique facts. This is why precisely establishing the contours of a claim—what is being challenged, by whom, against whom, and on what grounds—in the complaint is paramount.

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The Rules of Civil Procedure, however, are not unduly rigid. They allow parties to amend their pleadings, which generally enables the pleading of different claims after an action has commenced. See N.C.G.S. § 1A-1, Rule 15(a). The Rules even provide that [a] claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading. Id. § 1A-1, Rule 15(c). The Rules also allow parties to file “supplemental pleadings,” which may “set[ ] forth transactions or occurrences or events which may have happened since the date of the pleading sought to be supplemented.” Id. § 1A-1, Rule 15(d). But the Rules do not permit every amendment. Recognizing the potential for gamesmanship, unfairness, and injustice, courts afford protection to the nonmoving parties and have imposed boundaries on when permissive amendments are acceptable. These boundaries are rooted in principles of fundamental fairness, notice, and justice. See, e.g., Isenhour v. Universal Underwriters Ins. Co., 345 N.C. 151, 154–55, 478 S.E.2d 197, 199 (1996) (“Although the spirit of the North Carolina Rules of Civil Procedure is to permit parties to proceed on the merits without the strict and technical pleading rules of the past, the rules still provide some protection for parties who may be prejudiced by liberal amendment. Among proper reasons for denying a motion to amend are undue delay by the moving party and unfair prejudice to the

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nonmoving party.” (citation modified) (first quoting Henry v. Deen, 310 N.C. 75, 82, 310 S.E.2d 326, 331 (1984); and then quoting News & Observer Publ’g Co. v. Poole, 330 N.C. 465, 485, 412 S.E.2d 7, 19 (1992))); Johnson v. Nw. Bank, 27 N.C. App. 240, 244, 218 S.E.2d 722, 725 (1975) (“[W]e perceive no injustice in the court’s refusal . . . to allow an amendment which would assert a claim completely different from that alleged in the original complaint, on behalf of persons not parties to the present litigation, which plaintiff . . . has no standing to assert.”). Pleadings do not only give notice of the alleged wrong; they also determine the course of the litigation—including which tribunal may properly exercise subject matter jurisdiction. For instance, our legal system recognizes two kinds of constitutional challenges: facial and as-applied. A “facial challenge” to the constitutionality of a statute is “an attack on [the] statute itself as opposed to a particular application” of that statute to a particular plaintiff. Cmty. Success Initiative v. Moore, 384 N.C. 194, 213, 886 S.E.2d 16, 32 (2023) (quoting Holdstock v. Duke Univ. Health Sys., Inc., 270 N.C. App. 267, 272, 841 S.E.2d 307, 311 (2020)). To succeed on a facial challenge, the plaintiff must show “there are no circumstances under which the statute might be constitutional.” Id. at 213, 886 S.E.2d at 32–33 (quoting Beaufort Cnty. Bd. of Educ. v. Beaufort Cnty. Bd. of Comm’rs, 363 N.C. 500, 502, 681 S.E.2d 278, 280 (2009)). Alternatively, an as-applied challenge does not deny that a statute is generally enforceable. See, e.g., State v. Packingham, 368 N.C. 380, 383, 777 S.E.2d 738, 743 (2015), rev’d on other grounds, 582 U.S. 98, 137 S. Ct. 1730

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(2017). As-applied challenges “represent[ ] a plaintiff’s protest against how a statute was applied in the particular context in which [the] plaintiff acted or proposed to act.” Cmty. Success, 384 N.C. at 213, 886 S.E.2d at 32 (quoting Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc., 247 N.C. App. 444, 460, 786 S.E.2d 335, 347 (2016)). The law permits one trial tribunal to hear and determine facial challenges raised on or after 7 August 2014: a three-judge panel of the Superior Court, Wake County. N.C.G.S. § 1-267.1(a), (c) (2025); id. § 1A-1, Rule 42(b)(4); see also, e.g., Holdstock, 270 N.C. App. at 275–76, 281, 841 S.E.2d at 313–14, 317; Lakins v. W.N.C. Conf. of United Methodist Church, 283 N.C. App. 385, 391, 873 S.E.2d 667, 674 (2022); cf. N.C.G.S § 1-81.1(a1) (2025) (establishing a three-judge panel of the Superior Court, Wake County, as the exclusive venue for facial constitutional challenges raised on or after 7 August 2014). A single trial court judge may not adjudicate such claims. As-applied constitutional challenges, however, may be resolved in the first instance by a single judge. Thus, for a judge or three-judge panel to properly exercise subject matter jurisdiction over a constitutional challenge, the parties and trial court must adhere to the allegations of the complaint. B. Application The trial court and remaining participants transformed their original as-applied constitutional challenges, which involved formerly school-aged children in eleven (later reduced to six) specific school districts with specific concerns about the implementation and delivery of educational opportunities in 1994 and 2005, into a

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facial challenge of the General Assembly’s current statewide school system. Clearly, this facial challenge was not part of, or foreseeable under, the 1994 and 2005 complaints and amended complaints. Further, the education system of 1994 and 2005, which the complaints and amended complaints identified as leading to the alleged constitutional violations, no longer exists. The education system of 1994 and 2005 ceased to exist as late as the General Assembly’s repeal and replacement of the BEP in 2017. This was not the only change, but it was the final one. For subject matter jurisdiction purposes, the question is at what point did this litigation leave the constraints of the pleadings as refined by this Court’s decisions in Leandro and Hoke County I. We hold that by no later than the Attorney General’s filing of the State Board’s motion for relief from the Hoke County judgment on 24 July 2017, the litigation had been so transformed that a proper invocation of the trial court’s subject matter jurisdiction over a facial challenge to the current system was required. Because no proper invocation was ever made, the trial court did not have subject matter jurisdiction to consider such a claim. Accordingly, any order entered after that date, including the trial court’s decision of 17 April 2023 and this Court’s decision in Hoke County III, are void ab initio. The courts did not have subject matter jurisdiction over the unpled facial challenge to the current education system. When plaintiff parties filed their complaints in 1994, they presented relatively modest, narrow claims for relief concerning how a particular component of the education system, as it existed at the time, impacted them. Their claims focused on

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how state financial resources were allocated to the low-wealth and urban school districts and how such allocations impacted the students in those specific school districts. Plaintiff parties placed particular emphasis on how delays in the State’s funding of the BEP in 1994, when paired with their county governments’ respective inabilities to raise sufficient county funding, prevented students in their school districts from receiving the educational promises guaranteed by the constitution and set out in the General Statutes as they existed in 1994. Plaintiff-intervenors also raised equal protection concerns regarding the BEP’s supplemental funding program. Importantly, plaintiff parties’ allegations did not suggest that the BEP’s funding scheme could never meet the students’ constitutional education rights. Plaintiff parties simply alleged that the education system, as applied to them in their respective school districts, was inadequate. These complaints set the initial parameters of this case and described what the case was about. Properly construed, the complaints in this case categorically did not present facial challenges. Instead, the allegations maintained that the BEP’s funding structure was operating unconstitutionally in the low-wealth and urban school districts’ unique circumstances. These allegations presented classic as-applied challenges. Therefore, plaintiff parties’ invocation of the trial court’s subject matter jurisdiction was over only as-applied challenges to the public education system that existed in the 1990s. In line with the invocation of the trial court’s subject matter jurisdiction in

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their pleadings, plaintiff parties litigated, and our courts adjudicated, the claims as as-applied challenges to the then-existing public education system during the early stages of this litigation. During that time, this Court’s decisions narrowed the litigation’s scope even further. In Leandro, this Court acknowledged that the State’s method of funding education—wherein different school districts may receive unequal funding—did not violate the constitution. Indeed, we recognized that the constitution itself, confirmed by the history of public education in this state, authorized local governments to contribute to the provision of public education in their respective jurisdictions. This, in turn, meant some school districts may be better funded than others. But because a constitution cannot violate itself, this Court held there was no constitutional infirmity with an educational funding system that resulted in discrepancies between school districts, and we dismissed plaintiff parties’ claims predicated on equal funding. This Court allowed, however, several of plaintiff parties’ other as-applied claims to proceed. This Court sent the matter back to the trial court for determination of (1) whether defendants had, in violation of the constitution and Chapter 115C, deprived the students in the low-wealth and urban school districts of their right to an opportunity for a sound basic education, and (2) whether the BEP’s supplemental funding program denied plaintiff-intervenor students the equal protection of the law. As pled, these claims related to the education system in 1994 and its specific

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applications to the named counties. Notably, the Court recognized that the then-current education statutes, if properly implemented, would satisfy the schoolchildren’s constitutional education rights. Following the Leandro decision, the trial court announced it would address each school district separately, further confirming that this litigation was focused on the unique implementation of the State’s educational funding system in each low-wealth and urban school district instead of blanket, statewide issues. After the Hoke County trial, which was the only trial to take place during this litigation, the trial court observed that the State’s education policy in its general curriculum, teacher certifying standards, funding allocation systems, and education accountability standards all satisfied the basic requirements articulated in Leandro for providing students with an opportunity for a sound basic education. In other words, the trial court confirmed the general constitutionality of the public education system of 1994 as established by the General Assembly. Plaintiff parties successfully demonstrated, however, that funding allocations by executive branch defendants and/or the Hoke County school board were not addressing the specific needs of at-risk students in Hoke County, thereby depriving those students of an opportunity for a sound basic education. In Hoke County I, this Court affirmed these rulings. This Court expressly limited the determinations of as-applied violations to at-risk students in Hoke County, and we remanded to the trial court for resolution of plaintiff parties’ other

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pending as-applied challenges. We did not remand for the trial court to consider an unpled facial attack on the statewide education system, nor did we remand for the trial court to consider whether defendants were depriving nonparty schoolchildren across the state in unnamed districts of their constitutional right to an opportunity for a sound basic education. In fact, this Court reiterated the constitutionality of the then-existing education system. Shortly after this Court’s decision in Hoke County I, the Penn Intervenors filed their own complaint, raising some claims specifically pertaining to alleged resource allocation shortcomings in the Charlotte-Mecklenburg school district and seeking to intervene in this action. In their complaint, the Penn Intervenors raised their own as-applied challenges. The trial court denied their intervention on claims that were dissimilar to plaintiff parties’ existing claims. Regarding the claim that was like plaintiff parties’ existing claims, however, the trial court allowed the Penn Intervenors to intervene. Even after the intervention, the Penn Intervenors filed an amended complaint to ensure their claim was properly before the trial court. The trial court severed the Penn Intervenors’ claims from plaintiff parties’ claims for a separate trial. These procedural developments further confirmed the as-applied nature of the litigation; if the original action had encompassed a challenge to the statewide public education system, there was no need for Penn Intervenors to intervene, or for the trial court to allow the intervention and sever the claims. The result of the first decade of this litigation was the following: The State’s

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public education system of 1994, both in terms of its substance and funding, was indisputably facially constitutional. These acknowledgements from Leandro and Hoke County I were (and remain) the law of the case. The only established as-applied violation of defendants’ constitutional duty to provide schoolchildren with an opportunity for a sound basic education was a resource allocation issue impacting at-risk students in Hoke County. This Court affirmed the trial court’s decision to allow executive branch defendants and the Hoke County school board to address this resource allocation problem. We remanded to the trial court for trials on the remaining original as-applied claims. A dispassionate review of this case’s ever-growing record leads to one conclusion: The remaining participants in this lawsuit are not actively litigating the original as-applied claims. Indeed, in the decades that have elapsed since Hoke County I, there have been no more trials. Nobody is actively prosecuting claims concerning the application of the 1994 or 2005 school system in the school districts specifically named in the complaints. The remaining participants apparently abandoned those claims long ago. Instead, as the procedural history demonstrates, the case is now a full-scale, facial challenge against the State’s education system. Since at least 2017, the trial court and remaining participants have openly sought a systemic overhaul of the public education system. By the trial court and remaining participants’ own admission, the litigation no longer seeks redress for students just in the school

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districts named in the complaints; rather, they now purport to vindicate the rights of all students across the state. Significantly, counsel for executive branch defendants asserted that this case is a facial challenge at least three times at oral argument. See Oral Argument at 59:01–59:08, Hoke Cnty. Bd. of Educ. v. State (No. 425A21-3), https://www.youtube.com/watch?v=I9vCYenKjGc (“[T]his lawsuit is in all intents and purposes a facial challenge to the State’s funding structure.”); id. at 1:02:01–1:02:14 (“[W]hat we have here is a resolution of what I think of as a facial challenge, where they’re challenging the funding structure and the overall resources that are devoted to the public schools in this State.”); id. at 1:11:09–1:11:16 (“So, again, my understanding, how I perceive this case is, it’s a facial challenge to the statewide . . . provision of education . . . to all students . . . .”). Justice Earls seemingly agrees that the current litigation is distinct from the litigation in which she originally filed the Penn Intervenors’ pleadings. She based her refusal to recuse on her view that the lawsuit she filed in 2005 is very different from the one under consideration on appeal. Specifically, in her most recent order, Justice Earls stated her participation only involved suing “the school district where [the Penn Intervenor students] lived” and “s[eeking] a ‘limited intervention’ in the Leandro litigation” to “focus[ ] on a limited issue— . . . changes to CMS’s ‘student assignment patterns during the past five years.’ ” Hoke Cnty. Bd. of Educ. v. State, 385 N.C. 856, 860, 896 S.E.2d 620, 623 (2024) (order of Earls, J.). In contrast, she reasoned the current matter “stems from separate statewide litigation that [the]

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Penn[ ]Intervenors joined in 2018” that was driven by the trial court, which, “at its own behest, . . . invited [the] Penn[ ]Intervenors to participate in the statewide suit.” Id. at 861, 896 S.E.2d at 624. “In other words, this appeal stem[med] from [the] Penn[ ]Intervenors’ role in the statewide proceedings that started in 2018. The 2005 claim against CMS is not—and has never been—before us.” Id. The seismic shift in the nature and course of the litigation is not the only change. In addition, and as argued by the Attorney General in his 2017 motion for relief filed on the State Board’s behalf, the public education system that was the subject of the original as-applied claims and the Hoke County trial is not the subject of this newly-minted facial challenge. In that filing, the Attorney General, on the State Board’s behalf, identified numerous ways that the system of public education had changed as of 2017: These changes include: a new accountability model; reformed rigorous curriculum standards; increased graduation rates; career and technical education reforms; digital infrastructure, including a virtual public school; new programs and support structures for identifying and serving at-risk students, including technology components; new means of implementing effective educator practices; and numerous statutory changes in relation to one or more of these changes.[24]

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These (and other) changes markedly transformed how public education is provided. As the Attorney General alluded to on the State Board’s behalf, the trial court relied on data produced under the ABCs Accountability System in the Hoke County trial. That system was replaced in 2012 by a different accountability system. The new READY Accountability Model used different metrics than the ABCs Accountability System, and the two do not correlate. As another example, the Attorney General highlighted new technologies that had been incorporated into public school classrooms. The Attorney General was of course correct in this regard; to say that technology has advanced since 1994 is so obvious that it does not require lengthy discussion. Suffice to say, we now live in a world where everyone has supercomputers in their pockets; personal laptops and tablet computers are more commonplace than desktop computers; and the internet is readily available to virtually everyone anywhere at any time. The education system has naturally incorporated these (and many other) advancements. Since 1994, public schools have been outfitted with digital tools, resources, and courses. Some of these technologies equipped teachers, students, parents, and administrators with digital instruction. Some gave parents online access to monitor their children’s performance. Some even enabled “virtual public school,” offering over 150 virtual courses. The implementation of new technologies consistently revolutionized how students were being educated. But perhaps the most significant change respecting the specific claims of this

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lawsuit is the repeal of the BEP, which occurred 20 July 2017. Plaintiff parties’ complaints focused specifically on the State’s failure to timely fund the BEP and the resulting burdens placed on their districts. The BEP, however, is no longer a component of the State’s public education system. Thus, the education system mentioned repeatedly in the complaints and the evidence produced at trial is not the education system currently in place. The Attorney General was therefore correct when he remarked that this litigation is now one over a “ ‘future school system’ which was not the subject of the original action.” Even the trial court and the remaining participants recognized the education system has not been frozen as it existed in 1994 or 2005. For instance, the 21 January 2020 Consent Order states, North Carolina continuously changes and a Leandro-conforming educational system must take this into account. . . . Advances in science and technology have re-set expectations for the skills and competencies our students must have in order to be ready for the future. . . . Our education must adjust to and keep pace with the major ongoing technological, social, and economic changes in our society. That order also cataloged numerous and sundry ways that the public education system had been “improved” over the course of the litigation. All therefore seemingly acknowledge that the education system as it existed in 2017 was much different than the system identified in the 1994 and 2005 complaints. The bottom line is this: On 17 April 2023, the trial court was not resolving one of the as-applied constitutional challenges to the education system that was raised in

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the original complaints. And really, neither the trial court nor the remaining participants have been concerned with those claims since at least 2017. Rather, their focus shifted to resolving a facial challenge to an entirely different public education system. The fundamental problem, however, is that nobody ever properly invoked the trial court’s subject matter jurisdiction over a facial challenge to the current public education system. Indeed, rather than properly seeking to amend their complaints; voluntarily dismissing their claims and filing new lawsuits; or following any recognized procedure for raising new claims, the trial court and remaining participants simply started litigating an entirely different, unpled facial challenge to the current public education system. Proceeding without a complaint violates the rules of litigation, and it also does not comport with due process and fundamental fairness principles. Consider a simpler example: A mother takes her two children to a kid’s museum. During this visit, the mother’s elder child is injured while playing on the jungle gym. Believing that the museum was negligent, the mother and elder child commence a lawsuit against the museum. After the lawsuit is filed, the mother and her younger child are lawfully in the museum’s parking lot. The younger child is hurt after tripping on loose, broken pavement. At that point, if the mother again believes that the museum was negligent, she would not be permitted to simply start raising issues and producing evidence concerning her younger child’s injuries in the elder child’s

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lawsuit. A new complaint would be required to invoke the trial court’s subject matter jurisdiction over the younger child’s claim. And one can easily understand why. The younger child’s claim was not the subject of the original pleading; there was never a proper request for the trial court to resolve that claim. In other words, the trial court’s subject matter jurisdiction over the younger child’s claim was never properly invoked. And it would not be fair to the museum, which prepared to defend against the elder child’s negligence claim, to require it to defend against the younger child’s different, unpled claim in the same action. Indeed, to properly litigate a civil claim, the Rules of Civil Procedure require “[a] pleading which sets forth [the] claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim.” N.C.G.S. § 1A-1, Rule 8(a) (2025). Such pleadings minimally require “[a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief,” as well as “[a] demand for judgment for the relief to which [the plaintiff] deems himself entitled.” Id. § 1A-1, Rule 8(a)(1)–(2). Some claims have heightened pleading standards. See id. § 1A-1, Rule 9. These rules are not jurisdictional in the sense that failure to comply with every jot and tittle deprives a court of subject matter jurisdiction. But, as noted above, the pleading activates a trial court’s subject matter jurisdiction and controls the extent

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of that jurisdiction. When a litigant uses a pleading to activate a court’s subject matter jurisdiction over a claim, that is the only claim over which the trial court then has the power to adjudicate. Activation of the trial court’s jurisdiction over one claim does not automatically activate the trial court’s subject matter jurisdiction over other claims. If a litigant does not use a pleading to activate the court’s subject matter jurisdiction over a claim, the trial court cannot render a decision as to that claim. So, failure to present a claim in a pleading will have jurisdictional ramifications. As discussed above, however, parties may amend or supplement their pleadings to advance different claims after an action has commenced. See id. § 1A-1, Rule 15. Still, litigants must avail themselves of these procedures; they may not raise new claims simply by transfiguring claims already under review. And the remaining participants in this action undoubtedly understood this; after all, several times in the early stages of this litigation the remaining participants amended their complaints to alter the nature of their claims. First, in 1998, plaintiffs and plaintiff-intervenors amended their respective complaints in order to expand the lawsuit to cover prekindergarten services in the low-wealth and urban school districts. Second, in 2005, after the trial court permitted their intervention on just one claim, the Penn Intervenors amended their complaint to refine their allegations as to that claim and add several more intervenors. This apparent understanding of the need to properly amend pleadings renders the remaining participants’ failure to properly invoke the trial court’s jurisdiction over a facial challenge to the current education system

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inexplicable. Without amending the complaint or filing a new or supplemental one, nobody properly activated the court’s subject matter jurisdiction over facial constitutional challenges to the State’s current education system. The remaining participants’ willingness, with the trial court’s complicity, to simply transfigure the claims without regard for the parameters set by the original pleadings does not mean the claim was properly before the court.^[25] Additionally, the trial court’s purported exercise of subject matter jurisdiction to resolve a facial challenge to the current education system suffers from another fundamental flaw: since 2014, the General Statutes have vested the subject matter jurisdiction to invalidate acts of the General Assembly as facially unconstitutional only in three-judge panels of the Superior Court, Wake County. If the remaining participants wanted to belatedly raise a facial challenge, it had to be routed through such a three-judge panel. The trial court in this case was not a three-judge panel, but rather a single judge. For this additional reason, the trial court did not have subject matter jurisdiction. In sum, by at least 24 July 2017, this litigation had been fundamentally transformed as an unpled facial challenge to the current education system. Yet the

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remaining participants failed to properly invoke the trial court’s subject matter jurisdiction over the facial challenge to the current public education system and direct it to the proper tribunal. Accordingly, any order or opinion entered after that time, including Hoke County III and the 17 April 2023 Order, was issued without subject matter jurisdiction and is therefore void ab initio. The 17 April 2023 Order is vacated, and this entire action is dismissed with prejudice.^[26]

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Berger, J., concurring

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Berger, J., concurring

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Berger, J., concurring

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Berger, J., concurring

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Earls, J., dissenting

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then . . . we don’t have rule of law”; without rule of law, we cannot have a democracy. Why Democracy Depends on the Rule of Law, Duke Law News (Oct. 28, 2025) (quoting Professor Jedediah Britton-Purdy), https://law.duke.edu/news/why-democracy- depends-rule-law. That is not simply academic theory, it is historical fact. See, e.g, William E. Nelson, Politicizing the Courts and Undermining the Law: A Legal History of Colonial North Carolina, 1660–1775, 88 N.C. L. Rev. 2133, 2135 (2010) (describing how North Carolina’s judiciary experienced “complete politicization” which led inevitably to the “breakdown of law enforcement and the rule of law”). The worst damage from this decision, though, is to generations of North Carolina’s schoolchildren: those who believed in this Court’s pronouncements about the right to the opportunity for a sound basic education and who this Court leaves to their own devices. The majority swaps $678 million in “necessary and appropriate” funding to remedy the ongoing violation of schoolchildrens’ rights for three decades of broken promises and a shoddy explanation. IV. Conclusion The state Constitution contains many principles North Carolinians know to be true. The paramount value of education is one. The “right to the privilege of education” in a “general and uniform system of free public schools” is more than words on paper. N.C. Const. art. I, § 15, art. IX § 2(2). Educational opportunities impact our children’s health and well-being, the ability of our state’s economy to grow and develop, and the strength of our democracy. With education, we know ourselves. We

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learn our history, so we may know our shortcomings and our possibilities for the future. We learn language and critical thinking, so we can appreciate the blessings of liberty, freedom, and equality. Our public schools are ordained to provide all these opportunities and more: a safe space and a warm meal, a teacher who believes in you, exposure to classmates with different viewpoints and backgrounds, a path out of poverty into prosperity, and the means to overcome many of life’s greatest adversities. The majority’s decision to absolve the State of its solemn obligation to provide opportunities for a sound basic education in a uniform system of public education, and arguably when a remedy is needed most, is one more adversity our schoolchildren will have to face bravely. It is with those schoolchildren in mind, and with enduring hope that an independent and impartial judiciary will one day again fulfill its own obligations to protect the constitutional education rights of all schoolchildren and to check the State when it fails to do the same, I dissent. Justice RIGGS joins in this dissenting opinion.

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Dietz, J., dissenting

Justice DIETZ dissenting. There is an incongruity in this case that is too obvious to ignore. The heart of Leandro is the notion of a sound basic education. But the Enlightenment principles that form the building blocks of that education—rationality, objectivity, tolerance, skepticism—have been abandoned by all sides in this long-running lawsuit. Instead, this case and the discourse around it have become a study in the opposite— partisanship, bias, generalization, straw-manning, and appeals to ignorance. Simply put, Leandro has lost its way. I want to put it back on track. I see a path forward in this case that cures the State’s shameful failure to meet its constitutional obligations. But critically, that path also returns public education policy to the other branches of government, rather than resting it permanently in the courts. The Court chose not to walk that path today. But I think it is still worth mapping out. This is the end of Leandro as a lawsuit, but not Leandro as a promise to public school students. Because this constitutional issue will return, there is value in outlining the flaws I see on both sides of this polarized case, so that some future court might avoid the problems that led this lawsuit to its unfortunate demise. I’ll begin with the majority’s analysis. I do not agree with the majority that there are fatal jurisdictional defects in this case. Trial courts have subject matter jurisdiction over claims that the State is violating an express provision of the North

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Carolina Constitution. See, e.g., Corum v. Univ. of N.C., 330 N.C. 761, 784 (1992). Thus, our state court system certainly has the judicial power to entertain the claims asserted here. See id. If the trial court, or this Court, improperly used that judicial power to expand the remedies beyond what the complaint alleged, or beyond what the law permits, that is an error that warrants correction. See State v. Ballance, 229 N.C. 764, 767 (1949). It is not a defect in subject matter jurisdiction that deprives the court of all power to adjudicate anything in the case. See In re N.P., 376 N.C. 729, 731–32 (2021). Still, I understand some of the frustration that echoes through the majority opinion. Although I do not agree with the majority’s analysis, the current appeal in this case has revealed serious flaws in the implementation of the comprehensive remedial plan. Specifically, as the majority correctly points out, this case rapidly transformed into a statewide remedial lawsuit. When it did so, the court system failed to put in place the protections that Leandro II envisioned to avoid due process concerns. Then, for reasons I cannot discern, this Court skipped over these glaring issues in Leandro IV, leaving the trial court to work it out. The result is an implementation that threatens the due process rights of the very students it seeks to protect. I want to speak more about the errors in the majority opinion, but first I need to frame what I see as the two most critical flaws in the implementation of the current comprehensive remedial plan. Highlighting these flaws shows why the defects

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identified by the majority are not actually jurisdictional and can be corrected through the procedural safeguards envisioned by Leandro II. The first flaw concerns a lack of adequate representation for students impacted by the plan. The express purpose of the so-called “comprehensive remedial plan” is to be comprehensive. Its aim is “to bring North Carolina into constitutional compliance so that all students have access to the opportunity to obtain a sound basic education.” Hoke Cnty. Bd. of Educ. v. State, No. 95-CVS-1158, 2020 WL 13310241, at *1 (N.C. Super. Ct. Jan. ^[21], 2020) (emphasis added). The trial court’s order implementing the comprehensive remedial plan repeatedly states that the plan would “bring North Carolina into constitutional compliance” with its obligations to educate our children. Id. It ensures that, going forward, North Carolina will now “achieve the outcomes for students required by our State Constitution.” Hoke Cnty. Bd. of Educ. v. State, No. 95-CVS-1158, 2021 WL 8566348, at *4 (N.C. Super. Ct. Nov. ^[10], 2021). But everyone involved in this case admits that the comprehensive remedial plan isn’t actually comprehensive. It is a trade-off. Despite a warning from WestEd that its recommendations were not a “menu” of options from which the parties could pick and choose, that is exactly what happened. Id. Both programs and funding got cut from the plan. Specific recommendations were watered down. Others ignored. All of this had to be done to create a plan acceptable to the parties and the trial court. The plaintiffs summed it up at oral argument: “The comprehensive remedial plan is

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not perfect. It is not the plan that plaintiffs would have put before the court. There are pieces in the WestEd report that are not included in the comprehensive remedial plan.” See Oral Argument at 48:42–59. This highlights a due process problem with the trial court’s order. Students who would have benefited from the remedies left on the cutting room floor had no opportunity to be heard on that issue. See Taylor v. Sturgell, 553 U.S. 880, 892–93, 900–901 (2008). There could be groups of students, even entire school populations, who believe the portions of the WestEd report that got cut are more important than other parts that were left in. But they had no representation in this lawsuit. Id. At oral argument, plaintiffs insisted that this lack of representation was not an issue. They explained that any students who were harmed by the decisions that the plaintiffs made for them (without any input by them) could simply bring their own lawsuits: [COUNSEL]: I believe they bring that lawsuit. I believe they bring it against the State of North Carolina, perhaps they also include the State Board of Education. If they prove that their violations are not being redressed by the comprehensive remedial plan, then there may be an order that the comprehensive remedial plan needs to be amended. As I said, it’s not perfect. Oral Argument at 49:42–50:29. But that is not what the parties told the trial court in this case. The trial court expressly relied on the parties’ representation that the plan would “provide the opportunity for a sound basic education to all children in North Carolina.” Hoke Cnty.

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Bd. of Educ., 2021 WL 8566348, at *5 (emphasis added). If the plan doesn’t do that, it violates a key insight and holding of Leandro II. See Hoke Cnty. Bd. of Educ. v. State (Leandro II), 358 N.C. 605, 615–16 (2004). In Leandro II, we held that any remedies obtained by the so-called “named plaintiffs” in the case must adequately redress a harm that “has occurred to those ‘within the zone’ to be protected by the constitutional provision at issue.” Id. at 615. We emphasized that, because the case was limited to students in Hoke County, those named plaintiffs, “as Hoke County students, are certainly positioned within such a zone.” Id. But we were careful to indicate that this zone of protection did not extend even to students in other similar “rural districts.” Id. at 613 n.5. It was limited to Hoke County. By doing so, we created built-in due process protections because the “named plaintiffs” were closely matched with the students whose interests they were vindicating. This is a familiar concept that is found in other types of representative actions as well. See Taylor, 553 U.S. at 900–01. This lawsuit is very different now. The case expanded until it became a statewide challenge to the funding and resources for public education. When it did so, the student plaintiffs slowly left the case and now only a small group of government school boards remain as plaintiffs. But the courts never returned to this core holding of Leandro II to assess the rights of students within the new, much larger “zone of protection.” Nor did the courts examine whether the government plaintiffs could adequately vindicate the rights of those in this newly expanded zone. Id. at

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615–16. As a result, the government plaintiffs agreed to a plan that, by their own admissions, removed portions of the WestEd report that would have benefited certain public school students without giving those students a voice in the decision. See Oral Argument at 48:42–59, 50:24–51:12. This is an injustice, and it creates due process problems with the judgment. See Hansberry v. Lee, 311 U.S. 32, 45 (1940). The range of possible remedies is too complex, resources are too scarce, and the risk of conflicts is too great to permit a so- called “comprehensive” judgment, obtained by a group of government actors, without adequate safeguards for the students whose rights are being violated. Id. This flaw must be fixed so that all students are adequately represented and their constitutional violations adequately remedied. See Leandro II, 358 N.C. at 616. This brings me to my second flaw in the comprehensive remedial plan: no one ever proved that the plan is the right one. In Leandro IV, we acknowledged that the comprehensive remedial plan was “by no means the only path toward constitutional compliance under Leandro.” Hoke Cnty. Bd. of Educ. v. State (Leandro IV), 382 N.C. 386, 471 (2022). But no court ever compared the comprehensive remedial plan to these other “paths.” See id. Put another way, we recognized that the trial court did not choose the comprehensive remedial plan because it was the best solution. There could be a better plan. There could be a far better plan. Why, then, did the trial court choose the comprehensive remedial plan? Because the parties in this case made it the only choice. As this Court previously has

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observed, and as plaintiffs candidly admitted at oral argument, “the comprehensive remedial plan is the only plan that was ever put before the court.” Oral Argument at 50:56–51:03; see also Leandro IV, 382 N.C. at 471. When we teach our children about rationality, we have a name for this sort of logical fallacy. We call it an appeal to ignorance. The plaintiffs contend that the comprehensive remedial plan must be the proper remedy in this case not because someone proved that it is, but because no one proved that it isn’t. It is no different from concluding Bigfoot is real because no one has ever proved otherwise. Worse yet, there are many indications in the record that there are parties who were (and still are) willing to present competing evidence or offer a competing plan. See, e.g., Motion to Intervene and for Clarification or Relief from Order, Hoke Cnty. Bd. of Educ. v. State, No. 95-CVS-1158 (N.C. Super. Ct. Aug. ^[15], 2011). Beginning in the mid-2010s, every decision in Leandro appears designed to exclude those parties and their contrary viewpoints. The easiest way to see the injustice here is to imagine a counterfactual. Suppose that instead of the plaintiffs in this case pursuing the interests of traditional public schools and their political allies, it was the opposite. A Leandro-style case arrives before a trial court brought by plaintiffs asserting that the only way to cure the constitutional failures of public education is to expand school choice. They present a report from a consultant recommending a massive build-out of public charter schools. On the other side of the case is an attorney general whose own political views

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generally align with the plaintiffs’ interests. If the trial court approved a comprehensive remedial plan from those plaintiffs’ consultant, and ordered billions in funds diverted from traditional public schools to public charter schools, what would happen? Would the plaintiffs in this case, would my dissenting colleagues, would everyone defending the current plan also defend this alternative plan because it, too, was “the only plan that was ever put before the court”? Of course not. They would all point to centuries of court precedent requiring this sort of judgment to be “tested by fire in the crucible of actual controversy.” See City of Greensboro v. Wall, 247 N.C. 516, 520 (1958). They would point out that there are obvious, competing proposals to remedy the violation, and the court system cannot simply put on blinders and pretend that these competing ideas do not exist. See State v. Byrd, 363 N.C. 214, 223 (2009). They would assert that it would be unjust to bind them to a judgment obtained by parties that do not truly represent their interests. See Hales v. N.C. Ins. Guar. Ass’n, 337 N.C. 329, 334–35 (1994). They would argue that the court should have joined them as parties so their voices could be heard or, at a minimum, appointed a second consulting firm so that opposing interests could “pit their evidence and arguments against each other” in a way that “best promotes the ultimate objective—truth and justice.” See Bouvier v. Porter, 386 N.C. ^[1], 12 (2024) (cleaned up). They would contend that, no matter how commendable the plaintiffs’ goals may be, entering a judgment this impactful and consequential in this limited,

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restricted way is “a breakdown in the adversarial process that our system counts on to produce just results.” See State v. Oglesby, 382 N.C. 235, 245 (2022). And they would be right. That judgment would be fatally flawed. This one is too. Having laid out these flaws in the recent Leandro rulings, the question becomes what to do about it. I certainly do not think permanently dismissing the case is the answer. The trial court has subject matter jurisdiction over these constitutional claims. See Corum, 330 N.C. at 784. There were parties with sufficient standing to invoke the court’s jurisdiction. See Town of Midland v. Harrell, 385 N.C. 365, 371 (2023). There is actual and genuine controversy that is justiciable in court. See N.C. Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 447 (1974). And there is a live, existing dispute among the parties that is not remotely moot. See In re A.K., 360 N.C. 449, 452–53 (2006). Thus, I see no basis to dismiss this proceeding with prejudice and unwind decades of progress in remedying this constitutional violation. In my view, the solution is procedural. I would remand this case so that the parties and the courts can quickly take a series of process-related steps that correct the flaws in the earlier rulings. These steps would ensure that the final judgment in this case is an inclusive, lasting solution to the constitutional failings of public education. First, I would order the trial court to join the legislature as a defendant in the remedial phase of this case. Admittedly, the Republican-led majority in the General Assembly is among the least sympathetic groups impacted by the comprehensive

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remedial plan. Still, the courts did not treat the legislature fairly. The General Assembly has the will and the resources to fund competing research and offer an alternative plan to remedy the failures of our public education system. Examining these opposing viewpoints is vital to reaching an outcome that all parties can accept as legitimate. This would permit the courts to select a truly appropriate remedy by testing the competing proposals through the adversarial process. See Wall, 247 N.C. at 520. Frustratingly, the plaintiffs blame the legislature for its own absence. But when the General Assembly timely moved to intervene in the early 2010s, the trial court denied the motion. See Motion to Intervene and for Clarification or Relief from Order, Hoke Cnty. Bd. of Educ. v. State, No. 95-CVS-1158 (N.C. Super. Ct. Aug. ^[15], 2011); Order re: Motion to Intervene and for Clarification or Relief from Order, Hoke Cnty. Bd. of Educ. v. State, No. 95-CVS-1158 (N.C. Super. Ct. Sep. ^[2], 2011). In other words, the legislature tried to come to court and present its own arguments and evidence. The court said no. Id. Then, in the legislature’s absence, that same court ruled that lack of funding from the legislature was the principal cause of the failings of public education. Hoke Cnty. Bd. of Educ., 2021 WL 8566348, at *5. On appeal, plaintiffs defended the court’s ruling by pointing out that the legislature never came to court to present any evidence to the contrary. Leandro IV, 382 N.C. at 458. Even schoolchildren can see the unfairness here. We must right this wrong going forward and permit the General Assembly to present its own arguments

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and evidence to the trial court. Second, it is time to use the procedural tools of the court system to give public school students a voice in this case. As I noted above, when we last examined these concepts in Leandro II, we focused on how the “named plaintiffs”—at the time a small group of Hoke County students—could represent others within the “zone of protection” in their school district and ensure that “the court will redress the harm inflicted on those within such a zone of protection.” Leandro II, 358 N.C. at 615–16. We relaxed the traditional “standing and evidentiary parameters” of the case because “our state courts cannot risk further and continued damage because the perfect civil action has proved elusive.” Id. This is sound reasoning in my view. Leandro is truly sui generis. Many of the prudential justiciability rules that our state courts apply in litigation, such as standing and mootness, are impractical in a case of this size and scope. But the Leandro plaintiffs took our words and distorted them, turning a holding that was designed to be comprehensive and inclusive into one that was restrictive and partisan. The “broadened parameters” of standing and representation in this case certainly go far beyond normal lawsuits. Leandro II, 358 N.C. at 616. But they cannot go so far that they permit the government plaintiffs in this case to abandon due process protections for the students whose rights are actually at issue. See Hansberry, 311 U.S. at 45. Because crafting a proper remedy in this case involves allocating funds, personnel, and school resources among a list of competing priorities,

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the courts must ensure that the suit includes representative plaintiffs—or “named plaintiffs” as we described them in Leandro II—with a genuine interest in advocating for all possible alternatives. 358 N.C. at 616. At oral argument in this case, the existing plaintiffs asserted that this inclusivity was impossible. When asked what would be wrong with creating a process that gives students notice of their Leandro claims and then provides them with an opportunity to be heard, plaintiffs responded that there was no “procedural mechanism” to do that: [COUNSEL]: I don’t think there would necessarily be anything wrong with that, your honor. The problem is, there is absolutely no procedural mechanism in this case, no proper mechanism in this case to do that. See Oral Argument at 53:22–34. I disagree. Throughout the thirty-year legacy of Leandro, this Court consistently has broken new ground in the interests of justice. We devised novel constitutional doctrine. Leandro v. State, 346 N.C. 336, 345 (1997). We “broadened the parameters” of traditional declaratory judgment actions. Leandro II, 358 N.C. at 616. We relaxed fundamental concepts of justiciability and jurisdiction. Id. We even held that the Leandro courts can exercise “some activities usually belonging to one of the other two branches” of government. Leandro IV, 382 N.C. at 457. If the judiciary can do all this, we can also tinker a bit with our own rules of procedure. Thus, I would remand this case with instructions to convert it into a special, streamlined class action. Our court system permits so-called “class action”

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lawsuits when there are so many potential plaintiffs that it is “impractical to bring them all before the court.” Surgeon v. TKO Shelby, LLC, 385 N.C. 772, 777 (2024). A class action allows small groups of people to represent much larger groups after first taking steps that ensure due process, such as providing notice to class members and ensuring that the representatives of the class have no conflicts of interest and can fairly represent everyone. Id. A class action corrects the flaws inherent in the earlier Leandro rulings. And, importantly, I am not the only one to acknowledge this reality. At oral argument, the State conceded that “there are aspects of this that could have been resolved more effectively if we had a class action or a mass action with all the counties as plaintiffs or a certified class of all parents in the state. That would lead to true global peace here.” Oral Argument at 1:01:50–1:02:03. I would remand the case to pursue this “true global peace.” That is what I believe Leandro desperately needs—a truly “global” solution. Or, to use a phrase more connected to this case, a truly “comprehensive” solution. On remand, the trial court could order the State to provide notice to all public school students and their parents that the courts are crafting a comprehensive remedy for the failures of our public education system. The court could then work with the parties to select representative students (and their parents) from across the state to stand in for their local peers as named plaintiffs. These representatives would be accountable to their subclass of students and obligated to seek remedies that provide them with meaningful relief.

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Third, and finally, I would not leave the management of this streamlined class action lawsuit to a single “Leandro judge.” See Leandro II, 358 N.C. at 612. Now that the case has evolved into a statewide remedy for every impacted student everywhere in the state, it is too much for one judge. We should use the provisions in the General Rules of Practice for the Superior and District Courts to designate a superior court judge to serve as a “Leandro judge” in every judicial district, if not every county. See N.C. R. Prac. Sup. & Dist. Cts. ^[2].1. This would permit the courts to dig deep into the failings of our public schools at the local level. The judiciary could rely not just on the views of a single paid consultant, as we were forced to do in the past, but on the views of students, parents, teachers, and administrators. Hearings could occur district by district, or even school by school. When this task is not imposed on a single busy judge, the judiciary would have the freedom to truly get to the heart of this constitutional problem in a matter of months, rather than years or decades. As I said at the beginning, public education is grounded in the principles of the Enlightenment. So too is the law. In Leandro II, this Court rightly observed that every day without a resolution to this case is another day where we allow the State to violate the constitutional rights of our children. 358 N.C. at 616. It is shameful that, even as we observed this reality, the court system also allowed Leandro to languish for decades. But in the past few years, the courts went too far in the other direction. In our

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rush to judgment, we abandoned the Enlightenment principles that inform our decision-making. We allowed a small group of government plaintiffs to impose a flawed remedy on every public school student across the state without the due process protections that the law requires. I can only speculate about why this Court felt so compelled to rush Leandro to the finish line by the end of 2022. Whatever the reason, no Leandro decision will stand the test of time unless it is obtained through a process of inclusion, not exclusion. A comprehensive, statewide remedy for these constitutional violations must include due process safeguards for the students whose rights are being vindicated; it must provide every interested party with a full opportunity to present their opposing evidence and views; and it must test competing positions in the crucible of adversity so that the courts can arrive at objective truth. The most recent Leandro decisions did not do this. But by innovating on the procedural tools at the court system’s disposal, we can fix these flaws and still reach a speedy resolution to this long-running lawsuit. For these reasons, I cannot join the majority in dismissing this case. I would remand this case to the trial court with instructions to stay the implementation of the comprehensive remedial plan, to pursue the procedural steps I outlined above, and to put this landmark case back on a path to a prompt, fair, and comprehensive judgment.

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Justice RIGGS dissenting. Two timeframes bear remembering while reading today’s opinion and dissents: 771 days and 11,511 days. Today’s decision represents a sad day amongst the many days our state judicial system has allowed our children to languish in uncertainty and without the resources they need to start their lives as productive members of our society. The first, 771 days, is the time it took for this Court to issue this decision, inexcusable in a matter of this importance. The second, 11,511 days, is the time in which students, educators, and parents have sought to secure an important right: the right to a sound basic education for all North Carolina children. It has taken 11,511 days to resolve whether our courts would actually enforce that right or merely treat it as a parchment promise, worth no more than the paper on which it was written. Our state’s children have already waited too long for their state government to provide them with the start in life that our Constitution promises them, and after making them wait even longer, this Court has now pulled the rug out from under them. Before diving into the majority’s long list of factual and legal errors, it is worth stating plainly what the majority does with today’s opinion. Under the guise of a narrow subject matter jurisdiction question, the majority voids a decision from a prior composition of this Court with which it disagrees, undermines decades of precedent

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regarding our state Constitution’s unique promise of a sound basic education, and solidifies its reputation as willing to selectively enforce constitutional provisions based on political preference, radically transforming the power of this Court to do its job without fear or favor. I agree with Justice Earls’s detailed analysis of the myriad flaws in the majority’s ruling today. I write separately for three reasons: (1) to emphasize the historical significance of the erosion of meaningful judicial review in this state; (2) to ensure that North Carolinians understand just how wrongheaded the majority opinion is factually, doctrinally, and practically; and (3) to perhaps offer some hope to readers that our jurisprudence and our politics need not always be so hopelessly tribal (and resultingly careless of the needs of our state’s most vulnerable persons— our children). I. Situating Today’s Decision in Our Court’s History Today’s decision not only dramatically reshapes the constitutional rights and educational realities of the millions of schoolchildren here in North Carolina; it also erodes this state’s long tradition of judicial review and expansive state constitutionalism. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). This Court not only abandons that responsibility but does so in a manner that will negatively impact the development

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of constitutional analysis in North Carolina and possibly across the country. Today’s decision, following the pattern of Harper v. Hall, 384 N.C. 292 (2023), is the next in a line of improper and partisan attempts to strategically narrow judicial review to avoid fulfilling constitutional promises and remedying constitutional wrongs. Our Constitution is clear: “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. Today’s decision betrays the robust understanding of positive rights in our state Constitution and can further contribute to the parsing of other rights and legal norms across the country. A. History of Judicial Review in North Carolina Our state played a prominent role in the establishment of judicial review in our developing nation. See James Iredell, To the Public (1786) (articulating an early theory of judicial review); Bayard v. Singleton, 1 N.C. (Mart.) 5, 7 (1787) (invalidating a legislative act as conflicting with the North Carolina Constitution and holding that, because the North Carolina Constitution was the “fundamental law of the land,” no legislative act “could by any means repeal or alter the Constitution”). North Carolina was among the first states to formally recognize the concept of judicial review—that in the delegation of powers to different branches of government, the judicial branch must be able to strike down laws that are inconsistent with constitutional guarantees. Glenn v. Bd. of Educ. of Mitchell Cnty., 210 N.C. 525, 530 (1936) (“It has been frequently said that this State was the first in the United States to declare an

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act of the General Assembly unconstitutional . . . .”); State v. Baldon, 829 N.W.2d 785, 806 (Iowa 2013) (Appel, J., concurring) (listing Bayard as an example of “state court judges operating under Revolutionary Era state constitutions . . . developing the principle of judicial review in a series of state constitutional cases decided before ratification of the United States Constitution and Marbury”). North Carolina’s articulation of judicial review came sixteen years before the Supreme Court of the United States recognized the federal judiciary’s power to invalidate legislative enactments in Marbury v. Madison, a case familiar to all first-year law students. Without judicial review, the promise of the balance of powers between the three separate branches of government would be illusory: the judiciary would have no power to rein in any excess of the other branches nor enforce the primacy of the constitutional documents that created each branch. The Court’s 1787 decision in Bayard established that, while the legislative branch is powerful and where the people’s representatives serve, the relationship between the people and its representatives cannot always be assumed to be (and, at times, has demonstrably not been) aligned. See 1 N.C. (Mart.) at 7. But see State ex rel. McCrory v. Berger, 368 N.C. 633, 651 (2016) (Newby, J., concurring in part and dissenting in part) (“The presumptive constitutional power of the General Assembly to act is consistent with the principle that a restriction on the General Assembly is in fact a restriction on the people.”). The Court in Bayard said “if the members of the General Assembly could”

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dispense with the right to a jury trial in a case involving the loss of property rights, “they might with equal authority, not only render themselves the Legislators of the State for life, without any further election of the people, from thence transmit the dignity and authority of legislation down to their heirs male forever.” 1 N.C. (Mart.) at 7. This hypothetical explicitly acknowledged that the legislature, absent the deterrent effect of a judiciary empowered to enforce the people’s rights, would be enticed to take positions or actions antithetical to its obligation to represent the people of this state. The Court in Bayard also noted that, notwithstanding the Court’s desire to respect and avoid a dispute with the legislature, those concerns could never “come in competition or authorize [judges] to dispense with the duty they owed the public, in consequence of the trust they were invested with under the solemnity of their oaths.” Id. at 6–7. B. Our Judiciary’s Role in Shaping State Constitutionalism North Carolina’s leadership in Bayard is significant not just for establishing the power of judicial review, but also for influencing the establishment of the judiciary’s authority in our new nation and in other states. See William Michael Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. 455, 459 (2005) (“The prevalence of pre-Marbury exercises of judicial review helps explain why the assertion of judicial review in Marbury provoked little controversy . . . .”). Bayard demonstrated an important and underappreciated aspect of state constitutionalism: that judicial decisions regarding constitutional norms and rights often percolate up

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from individual state courts and directly affect how constitutional law develops across the country. See Gerald S. Dickinson, The Bottom-Up Constitution: States and the Evolution of American Constitutional Law, Nat’l Civil Just. Inst. (July 19, 2025), https://ncji.org/wp-content/uploads/2025/06/2025-NCJI-Judges-Forum-Dickinson- The-Bottom-Up-Constitution-States-and-the-Evolution-of-American-Constitutional- Law.pdf. For decades, other states have looked to our precedent to help expand rights and define doctrine in a range of constitutional areas, including redistricting,1 separation of powers,2 and economic rights.^[3] The influence that state constitutional decisions can have across the country is perhaps best exemplified by the sheer number of out-of-jurisdiction cases that cite Leandro v. State (Leandro I), 346 N.C. 336 (1997), including at least fifteen state courts and various federal courts. Several of the cases from outside of this jurisdiction explicitly cite to Leandro I’s holding that 1 Clarke v. Wis. Election Comm’n, 998 N.W.2d 370, 385 (Wis. 2023) (citing Stephenson v. Bartlett, 357 N.C. 301 (2003), for its understanding of “contiguous”). 2 Legis. Rsch. Comm’n ex rel. Prather v. Brown, 664 S.W.2d 907, 914 (Ky. 1984) (citing North Carolina case and claiming, “Nearly every one of our sister state courts have similarly resisted any weakening of the doctrine of the separation of powers.”); In re Advisory Op. to the Governor, 732 A.2d 55, 101 (R.I. 1999) (Flanders, J.) (quoting the Court’s rejection in State ex rel. Wallace v. Bone, 304 N.C. 591 (1982), of legislative encroachment on executive power). 3 Wilkins v. City of Harrison, 236 S.W.2d 82, 84 (Ark. 1951) (quoting State v. Ballance, 229 N.C. 764 (1949), in holding that an ordinance prohibiting solicitation for the purpose of selling goods was unconstitutional); Abdoo v. City & Cnty. of Denver, 397 P.2d 222, 223 (Colo. 1964) (en banc) (listing Ballance as a decision that “overturned legislative enactments purporting to impose regulations upon photographers, which were comparable to those regulations contained in the ordinance under question in this case”); State ex rel. Whetsel v. Wood, 248 P.2d 612, 615 (Okla. 1952) (“We have . . . cited to no case involving the regulation of watchmakers; but we have read with considerable interest the case of State v. Ballance, . . . where the Supreme Court of North Carolina had under consideration a statute regulating the occupation of photography.”).

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the positive right to education is justiciable and within this Court’s authority. ^[4] However, even as other states look to our decisions to help constitutional rights progress, they also take note of our worst mistakes.^[5] This Court can serve as a leader in the development of positive, rights-enforcing doctrine or we can cede the role we have claimed from Bayard to Leandro at the forefront of the development of state constitutionalism across the country. While North Carolinians could be proud of state constitutional leadership, it seems those days are at least temporarily behind us. C. The Majority’s Revisionist History in Recounting Leandro I, this Case’s Trial Court Proceedings, and Leandro II 4 See, e.g., Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746, 781 n.183 (Tex. 2005) (listing North Carolina as a state that rejected the argument that school finance raised a nonjusticiable political question and characterizing Leandro as “rejecting political question argument and stating that when a government action is challenged as unconstitutional, the courts have a duty to determine whether that action exceeds constitutional limits. Therefore, it is the duty of this Court to address plaintiff-parties’ constitutional challenge to the state’s public education system” (cleaned up)); William Penn Sch. Dist. v. Pa. Dep’t of Educ., 294 A.3d 537, 952 (Pa. Commw. Ct. 2023) (“North Carolina supplies another example of a high court finding education to be a fundamental right.”); State ex rel. Dickey v. Besler, 954 N.W.2d 425, 444–45 (Iowa 2021) (Appel, J., dissenting) (listing Leandro as an example of how “most courts considering education claims under state constitutions with positive rights education provisions have not been daunted by the political questions doctrine in addressing the claims” (cleaned up)); Gannon v. State, 319 P.3d 1196, 1225 (Kan. 2014) (citing Leandro for the provision that “other state supreme courts have concluded that discerning standards to interpret their states’ education articles is well within their judicial authority”). 5 Our decisions have the potential to influence other states to curtail constitutional rights, as in the states that cited State v. Mann, 13 N.C. (2 Dev.) 263 (1829), to strip enslaved people of their civil rights. See Minor v. State, 36 Miss. 630, 632 (1859); Neal v. Farmer, 9 Ga. 555, 583 (1851). Other states evaluated North Carolina’s doctrine and recognized our mistakes. Merrick v. Betts, 101 N.E. 131, 132 (Mass. 1913) (“[rights-stripping] statements, like those of Ruffin, J., in State v. Mann, 2 Dev. (13 N.C.) 263, 265, have furnished convincing evidence of the injustice and inherent wickedness of the institution itself”); State v. D.E.D., 402 P.3d 851, 862 (Wash. Ct. App. 2017) (Fearing, C.J., concurring) (citing State v. Mann as demonstrative of the “era of slavery when a member of a race of people lacked any right to be left alone and lacked any entitlement to the possession of his or her corporeal existence”).

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Many of the majority’s legal errors are premised on a stubborn misreading of the prior decisions in this litigation, from both the trial court and our Court. Indeed, the majority seemingly hopes that no one ever actually bothers to pull up the 1994 complaint or reread the earlier trial and appellate court decisions in this case. We will never be able to agree on the law if we do not have some shared understanding of the facts. And if today’s polarized times tell us anything, it is that we have work to do to commit ourselves to an honest and accurate recitation of facts and history. To start, the majority extensively but erroneously reviews the first iteration of this case, Leandro I. See majority supra Section I.C. The majority states that this Court “acknowledged the facial constitutionality of the State’s educational funding system multiple times[,]” purportedly citing Leandro I, 346 N.C. at 349–50, 353. Majority supra Section I.C.^[3]. I do not find that reasoning or those words in the Leandro I decision. Indeed, the majority goes on to cite the “three ‘surviving claims for trial’ ” after Leandro I by quoting from Hoke County Board of Education v. State (Leandro II), 358 N.C. 605 (2004), in a prefatory comment that did not even purport to actually quote Leandro I. See majority supra Section I.C.^[3]. In its discussion of the Leandro I decision, the majority includes the following quotation: (1) whether the State ha[d] failed to meet its constitutional obligation to provide an opportunity for a sound basic education to plaintiff parties, (2) whether the State ha[d] failed to meet its statutory obligation, pursuant to Chapter 115C of the General Statutes, to provide the opportunity for a sound basic education to plaintiff parties, and (3) whether the State’s supplemental school funding system [was] unrelated to legitimate education objectives and, as

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a consequence, [was] arbitrary and capricious, resulting in a denial of equal protection of the laws for plaintiff- intervenors. Id. While the majority accurately quotes Leandro II, that was not the Leandro I rule. To put it more simply: through some opportune cherry-picking of quotations, the majority rewrites history by quoting our cases out of order and without context. To the extent it is not intentionally misleading, it certainly represents a stark misunderstanding of the prior rulings and procedural posture at various points in the long history of this case. Second, the majority offers a misleading explanation of the “Hoke County Trial.” See majority supra Section I.E. The majority asserts that “[t]he trial court stated that the State’s educational funding system was ‘structurally sufficient to enable school systems to distribute and allocate funds for every child to have an equal opportunity to obtain a sound basic education.’ ” Id. The majority, however, does not clarify that the trial court was specifically reviewing North Carolina’s “educational funding delivery system” and that the trial court noted that its “analysis of the funding delivery system will not address, at this point, whether the State is spending enough on education, but rather, whether the system to provide funding is constitutionally sufficient.” The majority unapologetically glosses over the following from the trial court’s Memorandum of Decision: Caveat. The Court’s determination that North Carolina’s

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educational funding delivery system is sound and flexible enough to provide for the delivery of funding to all school systems so that they may provide each child with a sound basic education does not answer the issue of whether or not the State of North Carolina, is providing sufficient funding to [the Hoke County School System] or any other [local education agency] in a manner that ensures that all children are receiving an equal opportunity to obtain a sound basic education. The distinction between “funding” and “funding delivery system” is an important one, particularly when considering what the trial court found. Third, the majority’s review of the 2004 decision in Leandro II (or Hoke County I, as the majority refers to the decision) seems misfocused. The Court largely affirmed the trial court’s findings, including those described above that recognized that the state’s funding delivery system was sound enough and flexible enough to satisfy the Leandro standard, but we specifically reserved the question of whether the State was adequately funding the system for later in the proceedings. Later proceedings did, in fact, squarely take up this issue. See, e.g., Order on First Progress Reports for Implementation of Comprehensive Remedial Plan, Hoke Cnty. Bd. of Educ. v. State, No. 95-CVS-1158, 2021 WL 8444440, at *2 (N.C. Super. Ct. Sep. ^[22], 2021) (ordering the parties to appear in October 2021 “to inform the Court of the State’s progress in securing the full funds necessary to implement the Comprehensive Remedial Plan”). This Court affirmed “those portions of the trial court’s order that conclude that there has been a clear showing of a denial of the established right of Hoke County students to gain their opportunity for a sound basic education and those portions of the order

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that require the State to provide” Leandro-compliant allocations to the county’s schools. Leandro II, 358 N.C. at 638. Recognizing that Hoke County was “the representative plaintiff district” for the rural counties’ claims, id. at 613, our Court held that cases “involving either other rural school districts or urban school districts” should “proceed, as necessary,” consistent with the opinion, id. at 648.6 II. North Carolina State Courts Had and Continue to Have Subject Matter Jurisdiction to Resolve this Dispute Despite the sleight of hand the majority employs in recounting the history of this case, the reality is that the affected entities, from official parties to educational leaders to lawmakers, have always grappled with a basic proposition: our Constitution charges the State with implementing and overseeing a uniform system of public education in a world where resources are not unlimited. See N.C. Const. art. I, § 15 (emphasis added); majority supra Sections I.C.^[3], I.E, I.F, I.G. No court can assess uniformity without consideration of how the State is running and funding education statewide—it is just preposterous to think otherwise. Plaintiffs in this case have never shied away from this reality, notwithstanding the pressures of 6 The majority also ignores the fact that the Court recognized “that the evidence presented in this case reaches a broader constituency than the two designated plaintiff-school children in the case’s caption.” Leandro II, 358 N.C. at 615. The Court explained, “[T]he nature of a declaratory judgment action and the mandate of Leandro combine to afford the trial court and the participating parties greater evidentiary leeway than in a conventional civil action.” Id. This Court rejected risking “further and continued damage” to “[t]he children of North Carolina [as] our state’s most valuable renewable resource” because “the perfect civil action has proved elusive.” Id. at 616. Sadly, that sage conclusion is erased by today’s opinion.

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“conventional civil action[s],” Leandro II, 358 N.C. at 615, and the devil is always in the details when implementing an educational system encompassing 100 counties and 115 different local education agencies. A. The Majority’s Understanding of Facial and As-Applied Challenges is Flawed The majority’s flawed legal analysis is perhaps most on display in its treatment of whether this case is properly understood as a facial or an as-applied challenge. In some cases, the distinction between facial and as-applied constitutional challenges will be both legally significant and easily discernible. But that is not always the case, and the fact that much of this litigation predates the legislature’s imposition of a distinct framework for venue decisions in facial and as-applied challenges does not retroactively deprive our courts of subject matter jurisdiction over these constitutional claims.^[7] Rather than myopically focusing on labels, this Court should focus on remedies. That approach is consistent with our constitutional education jurisprudence. See Sneed v. Greensboro City Bd. of Educ., 299 N.C. 609, 610, 619 (1980) (upholding the remedy of a system-wide injunction on collecting modest 7 Even to the extent that retroactive jurisdictional law changes are not impermissible, the legislative requirement of three-judge panels for facial constitutional challenges was explicitly not retroactive. See The Current Operations and Capital Improvements Appropriation Act of 2014, S.L. 2014-100, § 18B.16(f), 2014 N.C. Sess. Laws 328, 546– 47 (“G.S. 1-267.1(b2), as enacted in subsection (a) of this section, becomes effective September 1, 2014. The remainder of this section is effective when it becomes law and applies to any claim filed on or after that date or asserted in an amended pleading on or after that date that asserts that an act of the General Assembly is either facially invalid or invalid as applied to a set of factual circumstances on the basis that the act violates the North Carolina Constitution or federal law.”).

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instruction fees plaintiffs alleged were vague and “unnecessary obstacles to the [right to education]’s fulfillment” until the waiver policy was revised). Instead, the majority’s conclusion requires the reader to suspend all logic and plain meaning to conclude that a statewide remedy was never implicated by this litigation; and the reader must also believe that, in a case as procedurally unique and important as this one, see Leandro II, 358 N.C. at 616, the label of “facial” necessitates a dramatically different outcome over thirty years into the case. As recently as two years ago, in Singleton v. North Carolina Department of Health and Human Services, 386 N.C. 597 (2024), this Court reasoned, in a case raising constitutional claims under the Monopolies Clause, Exclusive Emoluments Clause, and Law of the Land Clause, that “[w]e recognize that plaintiffs initially characterized their claims as ‘as-applied’ challenges and expressly sought declaratory and injunctive relief ‘as applied to Plaintiffs.’ But when courts distinguish between facial and as-applied challenges, the ‘label is not what matters.’ ” Id. at 598–99 (quoting Doe v. Reed, 561 U.S. 186, 194 (2010)). Now, apparently, the label matters. Unfortunately, the majority is in effect applying one set of rules to plaintiffs seeking to vindicate economic rights and another to plaintiffs, including schoolchildren, seeking to vindicate their educational rights.^[8] 8 Limiting our authority and the scope of judicial review will almost certainly act to the detriment of even the constitutional guarantees that members of the conservative majority seem to highly value, such as property and economic rights. Those of us on the Court who have consistently argued that this institution does wield significant authority to enforce the Constitution have not parsed where we exercise that power, including in recent

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Perhaps we need to revisit the history and purpose of the North Carolina notice pleading standard. Rule 8(a) of the North Carolina Rules of Civil Procedure was adopted on 27 July 1967, when both chambers of the General Assembly voted to adopt it. An Act to Amend the Laws Relating to Civil Procedure, ch. 954, § 1, 1967 Sess. Laws 1274, 1284–85. In a landmark case interpreting the text of Rule 8 shortly after its adoption, we said that under the notice theory of pleading, a statement of claim is adequate “if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it.” Sutton v. Duke, 277 N.C. 94, 104 (1970) (cleaned up). “[T]he policy behind notice pleading is to resolve controversies on the merits, after an opportunity for discovery, instead of resolving them based on the technicalities of pleadings.” New Hanover Cnty. Bd. of Educ. v. Stein, 380 N.C. 94, 106 (2022) (quoting Ellison v. Ramos, 130 N.C. App. 389, 395 (1998)); see also Pyco Supply Co. v. Am. Centennial Ins. Co., 321 N.C. 435, 442–43 (1988) (“Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the property and economic rights cases. See, e.g., Kinsley v. Ace Speedway Racing, Ltd., 386 N.C. 418 (2024) (unanimously articulating the standard for bringing a claim under the Fruits of Their Labor Clause); Singleton, 386 N.C. 597. For this Court to have any credibility as an impartial arbiter of the law, this Court cannot determine that some rights—those which align with the personal political beliefs of those in the majority or those rights that they deem politically advantageous—are more justiciable than those rights which they disfavor. In creating a subclass of rights, the majority abdicates its most fundamental duties.

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Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.”). In years of litigation, neither the State nor any of its representatives have ever offered the excuse that they were not on notice that plaintiffs alleged statewide constitutional deficiencies with school funding and educational support. Any assertion would be laughable, of course, in light of the history of this litigation. B. The Pleadings in this Case Establish Subject Matter Jurisdiction Again, it seems the majority and dissents start from a different set of facts. From the beginning, plaintiffs’ complaint alleged a statewide injury. The initial factual allegation in the first complaint in 1994 reads: [The State Board of Education and the State of North Carolina] have failed in numerous respects to satisfy their constitutional and statutory obligations regarding education. These failures stem from the State’s system for funding its schools, which does not take sufficient account of the substantial disparities in wealth among school districts. The result of inadequate funding is an education system with inadequate and unequal educational opportunities. Plaintiffs asserted that the state’s education funding system as a whole was not general and uniform and did not provide equal opportunities for all children, even as they compared their individual district to others. See Leandro I, 346 N.C. at 342– 43 (summarizing plaintiffs’ pleadings, including that “they have a right to adequate educational opportunities which is being denied them by defendants [the State of North Carolina and the State Board of Education] under the current school funding

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system”). They claimed that, because of the state’s general system, the quality of educational opportunities varied substantially “according to where a child happens to live [within the state].” Plaintiffs sought a declaratory judgement that the state’s public education system, including its funding, “violates the Constitution of North Carolina by failing to provide adequate educational opportunities, by failing to provide substantially equal educational opportunities, and by denying due process of law.” While some counts in the initial complaint were ultimately dismissed, the framing of and notice provided by the pleadings were always statewide. And logically, the case here had to be about statewide claims because of the theory of the case. Any Leandro claim (as opposed to a claim under Deminski v. State Bd. of Educ., 377 N.C. 406 (2021)) must inherently be a statewide claim because North Carolina operates a uniform educational system. Even if plaintiffs alleged that students in a particular county were being deprived of the right to a sound basic education because of insufficiently funded schools, our educational system is funded, as constitutionally mandated, by a uniform, statewide funding delivery system. That requires at least some statewide perspective for liability purposes and most certainly a statewide approach for remedy. Put another way, the majority purposefully misses the forest for the individual trees. North Carolina’s uniform public education system is an interconnected, interrelated forest. C. The Law of this Case Establishes Subject Matter Jurisdiction

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The trial court’s consistent findings confirm what the pleadings established: that definitionally, assessing the constitutional adequacy of a uniform and sound basic public education requires a statewide analysis. In its judgment and final Memorandum of Decision entered on 4 April 2002, the trial court summarized years of factfinding and research to explain that, in determining whether children in Hoke County were receiving a sound basic education, the court was required to compare Hoke County’s performance with other counties’ performance. Judgment, Hoke Cnty. Bd. of Educ. v. State, No. 95-CVS-1158, 2002 WL 34165636, at *2–3 (N.C. Super. Ct. Apr. ^[4], 2002). It determined there was a statewide lack of coordinated, effective educational strategy for at-risk children in North Carolina. Id. at *3. The judgment went on to find that there was clear and convincing evidence that thousands of children throughout the state, including but not limited to children in Hoke County, were not provided with the minimum resources necessary to obtain a sound basic education. Id. at[*49] –50. The court reiterated that Leandro’s guarantee of a sound basic education applies to each and every child in North Carolina and the responsibility to meet that constitutional guarantee, as well as the obligation to remedy any violation, belongs to the State of North Carolina. Id. at[*48] –50. And the trial court explicitly stated: “[T]he State of North Carolina is ORDERED to remedy the [c]onstitutional deficiency for those children who are not being provided the basic educational services set out [above], whether they are in Hoke County, or another county within the State.” Id. at[*53] (emphasis added). The trial court, consistent

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with the pleadings, treated this case as a statewide challenge requiring a statewide remedy. D. The Majority’s Subject Matter Jurisdiction Analysis is Deficient and Inconsistent with Our Precedent So not only does the majority’s subject matter jurisdiction conclusion fundamentally rest on misinterpretations of the pleadings and prior rulings in this case, but it also offers no discernible contours for its future application. At the outset, the majority notes that it intends to resolve the question of whether the trial court lacked subject matter jurisdiction to enter its 17 April 2023 order and concludes that it did. Majority supra Introduction. Later in the opinion, the majority blithely asserts that “by no later than the Attorney General’s filing of the State Board’s motion for relief from the Hoke County judgment on 24 July 2017, the litigation had been so transformed that a proper invocation of the trial court’s subject matter jurisdiction over a facial challenge to the current system was required.” Majority supra Section II.B. But what is entirely missing is a coherent explanation about why the Attorney General’s filing on that date is legally significant, apparently because the legally significant moment might have been even earlier. The majority never explains why this Court affirmed the denial of the State’s motion to dismiss for lack of subject matter jurisdiction in Leandro I—presumably correctly since this Court does not explicitly purport to overturn Leandro I. This is a significant omission in a subject matter jurisdiction analysis: how does that give notice or guidance to parties seeking to litigate these cases? The cynical answer may

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be that the majority never intended to give notice or guidance, despite this Court’s obligation to do so. See State v. Lawrence, 365 N.C. 506, 511 (2012) (“It is the institutional role of this Court to provide guidance and clarification when the law is unclear or applied inconsistently.”); Mole’ v. City of Durham, 384 N.C. 78, 101 (2023) (Earls, J., dissenting) (reasoning that if the Court issued an opinion on the merits instead of a per curiam decision, “the parties would receive an explanation of why their claim was successful or failed, and future litigants would have a foundation from which to bring or defend any subsequent claims”). A final note on subject matter jurisdiction: even when this Court has held that subject matter jurisdiction does not exist, the proper disposition has been dismissal without prejudice, permitting plaintiffs to refile if they remedy the jurisdictional defect, not dismissal with prejudice. As the Chief Justice has previously noted: “Because there is no subject matter jurisdiction over plaintiff’s claims, dismissal of plaintiff’s amended complaint without prejudice is proper. Therefore, I agree with the majority that the proper disposition is dismissal without prejudice.” United Daughters of the Confederacy v. City of Winston-Salem, 383 N.C. 612, 653 (2022) (Newby, C.J., concurring in the result only with Berger, J., and Barringer, J., joining) (emphasis added); see also In re T.R.P., 360 N.C. 588, 597 (2006) (“[D]ismissal . . . [for

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lack of subject matter jurisdiction] ha[d] no res judicata effect, and . . . any party . . . can file a new petition in this matter.”).9,10 And even more fundamentally, this Court held twenty-two years ago that the rights of students were being violated. Leandro II, 358 N.C. at 647–48 (“[A]n inordinate number of students in Hoke County are failing to obtain a sound basic education and . . . defendants have failed in their constitutional duty to provide such students with the opportunity to obtain a sound basic education. . . . [T]he State must act to correct those deficiencies that . . . contribut[ed] to the State’s failure of providing a Leandro-comporting educational opportunity.”). Despite the Court’s clear mandate, the State never implemented any remedy, either statewide or in Hoke County. The majority conveniently omits this important fact from its analysis and dismisses the case without any hope for relief or remedy. III. The Majority Opinion Both Ignores a Host of Practical Realities and Creates New Problematic Practical Implications A. The Argument that Technological or Methodological Changes Divest this Court of Subject Matter Jurisdiction is Incorrect 9 I credit Justice Dietz for attempting to craft a proposed approach to resolving this litigation. While I cannot say that I agree with the doctrinal approach to reaching this proposal, a commitment to addressing due process and fairness in remedy is always laudable. And while I do think this proposal has some appeal as a compromise solution or an off-ramp from the mess created by the majority in this case, I have yet to find a different doctrinal path to reach his proposal without sacrificing my understanding of the law to my willingness to embrace compromise in an outcome. ^[10] The majority buries a stunning amount of incorrect or radically changed doctrine in footnote 26, offering a few of the “many reasons” it will not order remand for renewed litigation of the original as-applied claims. Major doctrinal departures should not be dealt with as afterthoughts. Suffice it to say that all of footnote 26 is problematic.

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In reading the majority opinion, a reader would conclude that the adage “times have changed” directly contributes to the Court losing subject matter jurisdiction. There is not a doctrinally sound reason that the case can no longer be litigated. While education has undoubtedly changed during the long history of this case, our children’s right to a sound basic education (and this state’s failure to provide such an education) has not changed. The majority introduces a dangerous fallacy by suggesting that “times changing” and “technology advancing”—quite the norm these days—can somehow cause our Court to lose subject matter jurisdiction and vitiate our duty to enforce our Constitution. The majority’s insistence that this case is nonjusticiable because of the proliferation of technology like personal laptops since the 1990s, majority supra Section II.B, is out of touch and incorrect. While many of us who were schoolchildren in the 1990s may not yet have had cell phones in our pockets, let alone smartphones, we knew technological changes were coming, as did our teachers. And although it has been more recent, educators and schoolchildren similarly understand that artificial intelligence has the potential to dramatically alter educational settings and outcomes. I hope not, but maybe someday we will be educating our children with artificial intelligence bots instead of well-trained and supported teachers. But all of that has about as much to do with the constitutional promise of a sound basic education for every child, regardless of the wealth of their county, as does whether a new style of jeans will come to be ubiquitous. Even as technology changes the way

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we educate our children, the State’s obligation to provide a sound basic education— and the ability of parties to litigate claims when the State fails in that obligation— must remain constant. Further, the majority’s distracting reference to changing accountability standards incorrectly implies that the method in effect at the time of the complaint is the only relevant metric for assessing the constitutional adequacy of public education. The truth is that whether you score it using an “ABCs” metric or “123s” metric, failure is still failure. And a change in the nomenclature and structure of accountability standards does not change the reality that we have been failing our public schoolchildren for decades. The majority’s “times have changed” commentary does not reflect any actual legal rigor in analysis or commitment to performing our constitutional job to enforce the constitutional rights of North Carolinians. There is an important balance between respecting the original intent behind the establishment of constitutional rights and ensuring that our constitutional analysis is sufficiently flexible to meet modern issues, but today’s decision fails to reckon with that balance in favor of outright dismissal. We must continue to assess the constitutional adequacy of public education by looking to funding, curriculum, and accountability. The development of new technologies and accountability standards are relevant to that analysis but certainly do not obviate this Court’s need

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to conduct any analysis whatsoever.^[11] See, e.g., State v. Bishop, 368 N.C. 869, 874 (2016) (analyzing the First Amendment given technological changes to the internet and “new media and forms of communication that progress might make available”); South Dakota v. Wayfair, Inc., 585 U.S. 162, 180–81 (2018) (analyzing the Commerce Clause given technological changes to modern e-commerce); Carpenter v. United States, 585 U.S. 296, 309–10 (2018) (analyzing the Fourth Amendment given technological changes to cell phones). And, for all the self-proclaimed originalists in the majority, the majority’s treatment of technological changes is ironically in conflict with modern originalist doctrinal trends, where courts have applied past-looking analysis to constitutional rights regardless of technological changes, even those which have radically reshaped society beyond what the Founders could have expected. See, e.g., United States v. Rahimi, 144 S. Ct. 1889, 1898 (2024) (“Even when a law regulates arms-bearing for a permissible reason . . . it may not be compatible with the [Second Amendment] right if it does so to an extent beyond what was done at the founding.”); N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2131–32 (2022) (describing the Second Amendment test for modern regulations by looking to whether and how the Founding generation addressed societal problems). This inconsistency suggests this Court may 11 For example, it would be reasonable to update our definition of a sound basic education to require computer competency in light of technological developments since we first articulated the right in Leandro I. However, it is unreasonable to claim, as the majority does, that because computers are more prominent in schools than they were in the 1990s, we are entirely unable to reach the present claim.

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be more focused on results-oriented jurisprudence than the clear evolution of doctrine. Societal changes and new technology make it more, not less, important that this Court thoughtfully reckon with modern developments to meet its obligation to safeguard our constitutional rights. See Bickett v. Knight, 169 N.C. 333, 347 (1915) (“The Constitution is intended to be permanent, and was adopted not only to meet conditions then existing, but for the future . . . .”). B. Today’s Decision Still Ignores the Basic Problem: Our State’s 100 Counties Have Access to Dramatically Different Resources and Leandro Compliance Requires a Statewide Solution The majority claims that the questions originally in controversy are no longer at issue today because the state’s educational system has undergone changes—as it naturally would over the decades. Although the “educational system” in place in 1994 does not exist under the same name, the State’s failure to allocate funds and its reliance instead upon local governments to fill gaps in funding are still present today. The majority ignores the basic problem that started this litigation all those years ago. North Carolina’s educational system then—and now—operated on both state and local levels, but, as the majority acknowledges, “local governments played a supplemental financial role.” See majority supra Section I.A.^[2].c (emphasis added); N.C.G.S. §§ 115C-472.22 to -472.24 (2025). That is still the case today. See N.C.G.S. § 115C-408 (2025) (giving funding authority to the State Board of Education and excepting for local funds as may be provided by local governments, including “the facilities requirements” to be met by county governments).

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The General Assembly has chosen to enact many statutes delegating the burden of funding education,12 but the State cannot delegate away its entire responsibility. Silver v. Halifax Cnty. Bd. of Comm’rs, 371 N.C. 855, 868 (2018) (stating that even when a county “hinders” the right to a sound basic education, “it is the State’s constitutional burden to take corrective action”). Even though the majority places blame on the counties for school funding inadequacies, this Court and the General Assembly are not making it easier for the counties to raise the funds necessary to provide a sound basic education, even if the General Assembly had properly and entirely delegated that responsibility to the counties (and it has not).13 Because counties and municipalities are statutory 12 See, e.g., N.C.G.S. § 115C-408(b) (2025) (“[T]he facilities requirements for a public education system will be met by county governments.”); id. §§ 115C-521(b), -524(b) (2025) (requiring boards of commissioners to provide funds for the erection of “school buildings equipped with suitable school furniture and apparatus” and to ensure that these buildings are in “good repair” and “at all times in proper condition for use”); id. § 115C-522(c) (2025) (making it the combined duty of “tax-levying authorities” and local school boards “to provide suitable supplies for the school buildings . . . includ[ing] . . . proper window shades, blackboards, reference books, library equipment, maps, and equipment for teaching the sciences” as well as the combined duty of boards of education and boards of county commissioners to “provide every school with a good supply of water”). 13 The majority fails to acknowledge that this Court has limited counties’ ability to raise revenue for schools. See Lanvale Props., LLC v. County of Cabarrus, 366 N.C. 142, 143 (2012) (holding the county lacked general or statutory authority to impose a school impact fee); see also Adam Lovelady, Schools and Development Regulations in North Carolina, Coates’ Canons, Univ. of N.C. Sch. of Gov’t Blog (June 28, 2024), https://canons.sog.unc.edu/2024/06/schools-and-development-regulations-in-north-carolina/ (“When it comes to school impact fees, North Carolina courts have been clear—local governments do not have the statutory authority to impose school impact fees. This is different from many fast-growing states where school impact fees are common.”). “Through a series of cases starting in the early 2000s and culminating with [Lanvale], North Carolina courts ruled against local governments attempting to charge school impact fees on new development.” Id.

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creations with only statutorily granted powers, they do not have inherent, unbounded authority to raise money for their schools and must conform to the legislature’s grant of powers. See id. at 866–67 (stating that counties are creatures of the legislature and serve as instrumentalities of the state government, so exercise power as conferred by statute). Some counties have more resources, and other counties have fewer resources, but the majority expects both to meet the burden of school funding without adequate support from the State, even under our uniform system of education. The majority creates a classic straw man logical fallacy, and its efforts to destroy that straw man by blaming the counties only serves as a weak attempt to distract from the real constitutional responsibilities borne by the State. The practical implications of this misplaced blame will create lasting harm. IV. This Case Bears Directly on the Reputation and Integrity of this Court The increasing partisanship associated with any discussion of educational rights in this state does not serve the children of North Carolina (nor does it do anything to engender respect for the Court’s impartiality). The course of this litigation has only recently shifted so markedly toward partisan lines. See Robert F. Orr, The Long and Winding Road: The Leandro Case Saga Continues, 101 N.C. L. Rev. F. 222, 240–41 (2023) [hereinafter Orr, Long and Winding Road] (“[T]he supreme court has had a varied composition throughout the litigation: Leandro I (five Democrats and two Republicans); Leandro II (six Republicans and one Democrat);

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and Leandro IV (four Democrats and three Republicans).” (footnotes omitted)). But critiques of “how we got here” do not need to be partisan in language. The course of this litigation has taken too long and certainly falls short of any ideal standard I have for how litigation of this import should be resolved. I see no point in pretending otherwise, particularly when public schoolchildren have borne the consequence of this shortfall. There is more than enough responsibility to go around. Litigants who seek relief in a court, at both the liability and remedy stages, have an obligation to work relentlessly to move their cases along, and they are not without options if a court drags its feet.^[14] With the benefit of hindsight, there were obviously ways in which the parties could have properly asserted pressure on the trial and appellate courts to move more quickly. See Mark Dorosin, Leandro v. State: The Challenges of Litigating School Funding Equity in Hyper-Partisan Times, 13 Touro J. of Race, Gender & Ethnicity 61, 65 (2024) (noting “repeated requests from the plaintiffs” to enter an order compelling the State to develop a specific plan to remedy the constitutional harm or to provide additional educational funding). But the blame certainly does not fall squarely at the feet of plaintiffs. The Legislative Defendant-Intervenors’ failure to appeal the 2011 denial of their motion 14 See, e.g., Stevens v. Guzman, 140 N.C. App. 780, 783 (2000) (“The failure of the trial court to enter an order . . . is to be addressed through a writ of mandamus filed with this Court.”); In re T.H.T., 362 N.C. 446, 455 (2008) (“A writ of mandamus ensures that the trial courts adhere to statutory time frames without the ensuing delay of a lengthy appeal.”); Oltmanns v. Oltmanns, 241 N.C. App. 326, 330–31 (2015) (“If a trial court fails to enter a written order, a party may apply to this Court for a writ of mandamus to compel entry of an order.”).

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to intervene, despite the subsequent enactment of legislation guaranteeing their intervention, implicates significant laches issues. See Marshall v. Hammock, 195 N.C. 498, 500 (1928) (“Equity aids the vigilant, not those who sleep on their rights.”). The legislature complained that it did not have notice of the statewide claims here, but it effectively sat on its rights from 2011 to 2021. Id. (“[R]easonable diligence is the best evidence of good faith and a just cause . . . .”). And the State Board of Education’s belated Rule 60 motion for relief from judgment also contributed to the delay. Most significantly, though, the buck stops with us, the judiciary, if the wheels of justice turn too slowly. First, the courts, particularly ours, should not have allowed this litigation to drag on for decades. While much of the judicial delay here was attributable to an otherwise laudable deference to the other branches of government, the majority construes that deferential delay as what ultimately defeats plaintiffs’ ability to obtain any relief. That, at core, cannot be the right answer—deference and delay as a defense to liability and remedy? Thus, for all the critiques of Leandro IV we saw in the 2022 dissents and see in judicial ink spilled here today, our courts have failed our children terribly. Not only do North Carolina courts have an “inherent power to preserve the efficient and expeditious administration of Justice and protect it from being impaired or destroyed,” In re Alamance Cnty. Ct. Facilities, 329 N.C. 84, 100 (1991) (cleaned up), we bear the responsibility and shame when we fail to act in a timely fashion to protect

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justice. Our trial courts have the power “to do what is reasonably necessary for the proper administration of justice,” id., including the power to control a case to ensure fairness and prevent injustice. It has been said, without much controversy I think, that “[t]he litigation would have been far better served if a comprehensive order setting out the intent of [the decision to first try the case of a representative county] had been entered and consented to in writing by the parties.” Orr, Long and Winding Road at 232.15 When the trial court failed to move this case along by taking excessive amounts of time to take evidence and enter comprehensive and final orders, this Court should have exercised its supervisory authority as the Supreme Court of North Carolina to intervene. N.C. Const. art. IV, § 12, cl. ^[1] (“[T]he Court may issue any remedial writs necessary to give it general supervision and control over the proceedings of the other courts.”).16 Our trial courts were not solely accountable for this situation: we have an obligation to ensure that our lower courts are doing their jobs and that cases are being resolved on reasonable timelines. We allowed our discretion and deference to simmer without coming to a boil for so long that multiple generations of schoolchildren lost out on the start at life that our Constitution promised them. ^[15] Justice Orr, a former justice of the Supreme Court of North Carolina, authored this Court’s opinion in Leandro II. ^[16] See also Raymond B. Mallard, Inherent Power of the Courts of North Carolina, 10 Wake Forest L. Rev. ^[1], 12–13 (1974) (explaining courts have the inherent powers that are “reasonably necessary for the administration of justice and the orderly and efficient exercise of the court’s jurisdiction”).

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Further, with the benefit of hindsight, perhaps it is easy to criticize Leandro IV. The majority there could have provided more clarity in defending its reliance on the WestEd Comprehensive Remedial Plan. The Leandro IV majority might also have reckoned more directly with the dissent, rebutting its points more squarely so that today’s majority could not repackage the Leandro IV dissent’s grievances as subject matter jurisdiction.^[17] But alas, some of the same members of this Court who decried the decision of a “bare majority” of the Court in Leandro IV force an even more fractured outcome here. Hoke Cnty. Bd. of Educ. v. State (Leandro IV), 382 N.C. 386, 481 (2022) (Berger, J., dissenting with Newby, C.J., and Barringer, J., joining). At least for now, we should not expect this majority to reject hubris or assume responsibility for building bridges. A. We Must Come to Some Shared Understanding of the Role of the Court Enough of how we got here, more than thirty years after the start of the litigation. What do we do about it beyond hope and pray that another branch of government takes its obligations seriously under the state Constitution? A helpful 17 While I think that the subject matter jurisdiction arguments underpinning today’s majority are wrong, I worry even more that now, decisions taken by our Court to resolve litigation with some finality will be undermined by never-ending and politically-motivated post-judgment challenges to subject matter jurisdiction. Lockhart v. Bell, 90 N.C. 499, 500 (1884) (“It is due to the parties litigant, and it is important in a more general and higher sense to the public in the administration of justice, that there shall be a decent and orderly end to litigation, and that the decisions of the courts shall be uniform and stable as well as correct.”); State v. Brunson, 327 N.C. 244, 249 (1990) (reasoning that finality “promot[es] public confidence in and stability of the legal system”); Weisel v. Cobb, 122 N.C. 67, 70 (1898) (“A partial change in the personnel of the Court affords no reason for a departure from the rule [against rehearing cases], but rather emphasizes the necessity for its application . . . .”).

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step might be examining with some curiosity whether our decisions help or hinder the efforts of litigants to bring fully developed cases through our judicial system and resolve them with finality. I am beyond troubled by the tone throughout the majority, particularly in the conclusion. There is no place in an opinion of the Supreme Court of North Carolina for scolding litigants for seeking to vindicate constitutional rights, particularly those of North Carolina’s children who cannot speak out for themselves. It is also surpassingly ironic that the majority is critical of plaintiffs’ efforts to effectively move this case forward, and yet it took over two years for this Court to issue this opinion, concluding in fewer than thirty pages of actual legal analysis. I cannot imagine a more surefire way to convince the legal community and the public that this Court is unable to act “without favor, denial, or delay” than to act with such dismissive disregard for the parents, students, and schools impacted by today’s decision, then abstractly opine on what better things lawyers can do than seek relief in this Court for a constitutional deprivation. See majority supra Section III; N.C. Const. art. I, § 18. Indeed, the majority makes clear that it lacks interest in entertaining not only future constitutional litigation under Article I, Section 15, and Article IX, but any litigation where this Court might be required to enforce the Constitution over the legislature’s objections or resistance. That is not only devastating for the state of checks and balances; it disabuses even a lay reader of any hope that we can expect

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an impartial judiciary that will consider the nuance of politically-charged cases, seek to build legal consensus, or provide meaningful clarity for practitioners. The role of the Court is to protect North Carolinians’ rights and liberties under our founding documents, and the role of state government is to make better the lives of the people who live in this state. But some of my colleagues disagree and have a dramatically different understanding of the role that our branch plays in governance and in the daily lives of North Carolinians. Ultimately, though, I expect that meaningful change in the direction of our courts—in how we work to resolve legal disputes in a reasoned and neutral way and how we strengthen or earn a public reputation for impartiality—needs to come from the top. Consider this: in cases with major constitutional or institutional significance, the Chief Justice, if in the majority, will frequently take the pen on drafting a so- called “Chief Justice’s Opinion.” Orr, Long and Winding Road at 227. In my mind, that tradition not only derives from a respect for seniority, but a belief that the Chief Justice bears extra responsibility for defending the institutional reputation of the Court and because the Chief Justice (here and at the Supreme Court of the United States) should typically be particularly sensitive to ensuring that the high court is neutral and impartial.^[18] Nothing about what the Court as a body does today seems 18 In his 2024 Year End Report, Chief Justice Roberts noted that a pressing threat to “judicial independence is defiance of judgments lawfully entered by courts of competent jurisdiction” and that “judicial independence is undermined unless the other branches are firm in their responsibility to enforce the court’s decrees.” John G. Roberts Jr., 2024 End of Year Report on the Federal Judiciary 7–8, https://www.supremecourt.gov/publicinfo/year-

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to embrace that ethos. To be sure, the Chief Justice of any high court does not alone bear the responsibility for defending the reputation and impartiality of the Court, but I do hope, for the sake of us all, that we are nearing the point in these contentious times where the tides change and leadership actively builds consensus and models the inclusion required to earn the trust of the people. B. Collegiality and Consistency on the Court Will Beget Better Law Unfortunately, today’s opinion not only highlights the philosophical differences among the members of the Court, but the inappropriate scolding we see in the majority extends beyond the litigants appearing before the Court. The majority targets one of its own members—a constitutional officer—in a concerning manner. The majority is rife with not-even-remotely subtle suggestions that Justice Earls is acting inappropriately by sitting on this case. Her name is explicitly stated seventeen times, and there are numerous other references to her involvement with the Penn Intervenors. Justice Earls has addressed this matter fully in her dissent, so I mention this only to highlight one particularly troubling aspect of the majority’s treatment of Justice Earls. To be clear, I obviously do not think it is inappropriate for members of the judiciary to express opinions, when invited, on whether other members of the end/2024year-endreport.pdf. Quoting the late Justice Ruth Bader Ginsburg, he added that “an independent judiciary is ‘essential to the rule of law in any land,’ yet it ‘is vulnerable to assault; it can be shattered if the society law exists to serve does not take care to assure its preservation.’ ” Id. at 8 (quoting R. B. Ginsburg, Remarks on Judicial Independence, Conf. of Am. Judges Ass’n (2006)). He urged the federal courts to “do their part to preserve the public’s confidence in our institutions.” Id. at 9.

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judiciary should or should not recuse themselves. See Order, Hoke Cnty. Bd. of Educ. v. State, 385 N.C. 866, 868 (Feb. ^[16], 2024) (No. 425A21-3) (Riggs, J., dissenting from the Court’s order dismissing plaintiff’s motion and suggestion of recusal of Justice Berger that was referred to the entire Court for its consideration).19 As I said there, “Impartiality—maintained in fact as well as for appearances—is central to the functioning of our state’s courts.” Id. (citing N.C. Nat’l Bank v. Gillespie, 291 N.C. 303, 311 (1976)). This Court established two ways in which a justice may resolve a motion seeking that justice’s recusal: he or she can decide it individually, or the justice can refer it to the rest of the Court. Recusal Procedure Order, 379 N.C. 693 (Dec. ^[23], 2021). What is astonishing to me is that the majority, after dismissing a recusal motion directed at Justice Berger because he had earlier individually denied a recusal motion in this case, impliedly critiques Justice Earls for exercising that same right under this Court’s procedures. See id. In 2022, Justice Berger decided that he did not need to recuse in this matter. However, after the partisan makeup of the Court changed, Justice Berger referred a later recusal motion to the entire Court. Referral Order, Hoke Cnty. Bd. of Educ. v. State, 385 N.C. 864, 865 (Feb. ^[5], 2024) (No. 425A21- 19 The Code of Judicial Conduct provides that “a judge should disqualify himself . . . in a proceeding in which the judge’s impartiality may reasonably be questioned, including but not limited to instances where . . . [he or his] spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person . . . [i]s a party to the proceeding, or an officer, director, or trustee of a party.” N.C. Code of Jud. Conduct 3(C)(1). A parent is within the third degree of relationship to a judge.

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3) (Berger, J.). And then this Court decided that because we were bound by Justice Berger’s earlier unilateral decision, the subsequent recusal motion “amounts to an impermissible challenge to Justice Berger’s denial of [plaintiffs’] first motion” and his first sole determination “shall be final.” Order, Hoke Cnty. Bd. of Educ. v. State, 385 N.C. 866, 867 (Feb. ^[16], 2024) (quoting Recusal Procedure Order, Hoke Cnty. Bd. of Educ., 379 N.C. at 693). Apparently, the majority would apply different rules to different members of this Court. Sadly, this brings to mind a famous quotation of the political philosopher Edmund Burke: “Hypocrisy can afford to be magnificent in its promises, for never intending to go beyond promise, it costs nothing.” We will never be able to move past the tired tribalism of our politics if this Court persists in such double standards. *************** I recognize the irony in offering this commentary in a dissent, but the public and the legal community alike are entitled to see where this majority has forsaken opportunities for compromise and collegiality. I understand that many will walk away from this Court’s decision and dissents feeling hopeless, believing that the divides among those who serve them on the highest court are too great to ever be bridged, too great to ever develop the kind of legal doctrine that both protects North Carolinians’ rights and will remain constant even when this Court changes political control. I refuse to believe that a better Court is out of reach. While we live in polarized times, and I do think today’s decision represents an institutional failure,

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the power to change this lies in the voices and votes of those who read this decision and want something different. While I disagree that some rights enshrined in the Constitution can only be vindicated at the ballot box,20 I do agree that the ballot box is the only place where one important North Carolina issue can be resolved: whether the jurists who serve on the Supreme Court of North Carolina are willing to enforce the rights our Constitution grants its citizens and whether those jurists can put politics aside to work together for the good of the people of this state. Today, this Court breaks a promise that constitutional drafters made to the people. The majority discards our constitutional commitment to the children of the state instead of acting to meet it. The majority distorts the facts and history of this case, hides behind technicalities rather than addressing the core issue affecting our children, and looks for a reason—any reason—to ignore the problem instead of fixing it. The majority’s message to our children is clear: pull yourself up by your bootstraps, but there is nothing this Court will do if the political branches never met their obligation to put boots on your feet in the first place. But tides will change, voters will reach a breaking point, and hope springs eternal that democratic demand for a different species of Court will soon produce results. Justice EARLS joins in this dissenting opinion. ^[20] See Richmond Cnty. Bd. of Educ. v. Cowell, 254 N.C. App. 422, 429 (2017) (“We have pronounced our judgment. If the other branches of government still ignore it, the remedy lies not with the courts, but at the ballot box.”).