Among the main characters of Charles Dickens’s Bleak House is Jarndyce and Jarndyce, an unresolved, long-lasting chancery suit of unclear origin and nature.
The suit, which may have something to do with an inheritance, features attorneys on all of its many sides “engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horse-hair warded heads against walls of words, and making a pretence of equity with serious faces, as players might.”
“Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises.”
Interminability compounds the suit’s confusion: “Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. … The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers, a long procession of Chancellors have come in and gone out.”
The legal action, in short, “was squeezed dry years upon years ago.”
The novel’s preface, which Dickens wrote in 1853, explains that the author found inspiration for his never-ending equitable suit in two real cases, one “before the Court which was commenced nearly twenty years ago in which from thirty to forty counsel have been known to appear at one time” and the other “commenced before the close of the last century.”
Jarndyce and Jarndyce, along with the real lawsuits that inspired Dickens, marks our misguided commitment to pressing the levers of manmade social machinery — institutions generally and the law particularly — after they have so obviously broken down and simply are not furthering the human ends they were intended to serve. The gambler’s fallacy can too easily take hold of our well-meaning minds and, contrary to decades of experience and a long train of persistent, uninterrupted disappointment, convince us that next time victory or triumph or success shall finally be ours as we at last wring from our efforts the practical relief we have long sought.
Were he with us today Dickens may well have drawn inspiration from another lawsuit, North Carolina’s answer to Jarndyce and Jarndyce: Leandro v. State.
In 1994, Robert Leandro, an eighth-grader from Hoke County, joined with students from other poor, rural school districts to sue the State of North Carolina for failing to provide the sort of public education required by the state’s constitution. The poor school districts themselves also signed on to the lawsuit. Eventually so would urban districts and their students.
The legal grounds for the plaintiffs’ allegations were several provisions in the state constitution.
North Carolina’s Declaration of Rights — the first article of our state constitution, which functions as a greatly expanded state-law analog to the country’s Bill of Rights — provides, “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.”
And Article IX, Section 2(1) of our constitution states, “The General Assembly shall 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.”
The constitutional bottom line: The people have a right to education, the state has a duty to provide them with an education, and the General Assembly is the mechanism by which the state is to do so.
Those students and school districts that sued the state argued the quality and condition of their public schools and the education those schools offered were so poor as to deprive children of their rights under these provisions of the state’s constitution, so they asked the judiciary for relief.
Over an objection by the state, a trial judge agreed the plaintiffs’ suit could proceed to trial because if what the plaintiffs alleged turned out to be true, then they would be entitled to legal relief.
The state appealed to the North Carolina Court of Appeals, which reversed the trial judge and ruled the plaintiffs had to seek relief for their inadequate schools not from the judiciary, but from the legislature and the political process. The right to education enshrined in our constitution, the court of appeals said, is simply one of equal access to whatever school system the state happens to operate: As long as the state opens a building, calls it a school, and allows all children to spend their days there, it has met its constitutional duty.
The students and school districts appealed to the North Carolina Supreme Court, which in 1997 reversed the court of appeals and unanimously held our constitution requires the state to provide schoolchildren with what the justices called “a sound basic education.” (While Dickens said his inspiration for Jarndyce and Jarndyce featured “thirty to forty” lawyers appearing at any given time, the opinion in Leandro lists twenty-three participating attorneys.)
The Court articulated a four-pronged explanation of the kind of schooling that would satisfy the constitutional requirement of educational adequacy:
“For purposes of our Constitution, a ‘sound basic education’ is one that will provide the student with at least: (1) sufficient ability to read, write, and speak the English language and a sufficient knowledge of fundamental mathematics and physical science to enable the student to function in a complex and rapidly changing society; (2) sufficient fundamental knowledge of geography, history, and basic economic and political systems to enable the student to make informed choices with regard to issues that affect the student personally or affect the student’s community, state, and nation; (3) sufficient academic and vocational skills to enable the student to successfully engage in post-secondary education or vocational training; and (4) sufficient academic and vocational skills to enable the student to compete on an equal basis with others in further formal education or gainful employment in contemporary society.”
At this stage of the proceeding, the justices said only that such a right exists under the state constitution. It remained for the students and school districts to demonstrate a violation of their rights. The Supreme Court sent the matter back to the trial court to give the plaintiffs an opportunity to prove their case.
Three years had passed since Robert Leandro filed suit.
On remand the trial court conducted a fourteen-month trial that, as the Supreme Court would later observe, “resulted in over fifty boxes of exhibits and transcripts, an eight-volume record on appeal, and a memorandum of decision that exceeds 400 pages.”
The trial court, with the consent of the parties, chose to use the public schools of Hoke County as a “representative plaintiff district” when assessing the public education offered to North Carolina’s students. In other words, the trial court would use the schools of Hoke County as stand-ins for evaluating the quality of public education across the state.
At the conclusion of the lengthy trial, Judge Howard Manning, a Republican designated to oversee the case by Chief Justice Burley Mitchell, a Democrat, found and concluded that the state was failing to provide students with the sound basic education required by the constitution.
Once again the state appealed to the North Carolina Supreme Court, and, in a 2004 opinion now denominated Hoke County Board of Education v. State, the justices unanimously affirmed the trial court’s conclusion that the state was denying students their right to receive a sound basic education. (This opinion lists seventeen participating attorneys.)
The Court decided Manning correctly canvassed so-called “outputs” — data like standardized test scores, graduation rates, employment potential, and post-secondary education success — to conclude Hoke County students were not receiving a sound basic education.
Across these metrics students in Hoke Coke fared more poorly — sometimes significantly so — than did other students across North Carolina. For example, about 47% of Hoke County students were proficient in algebra, while roughly 62% of students statewide were proficient. While nearly 75% of North Carolina students were deemed computer proficient, only 51% of Hoke County students were so designated. And whereas 68% of students statewide passed North Carolina’s high school proficiency test, only 53% of Hoke County students passed.
The trial court also gathered evidence that higher dropout rates in Hoke County resulted from “systematic weaknesses” and that the county’s students were “poorly prepared to compete on an equal basis in gainful employment and further formal education.” Evidence in this latter category included testimony from employers about job candidates from Hoke County being “not qualified to perform even basic tasks that are needed for the jobs available,” as well as data from the local community college: Of the Hoke County graduates who enrolled, 55% were placed in one or more remedial classes.
The justices found after reviewing this evidence and the trial court’s interpretation of it that Manning “properly concluded that the evidence demonstrates that over the past decade, an inordinate number of Hoke County students have consistently failed to match the academic performance of their statewide public school counterparts and that such failure … constitute[s] a clear showing that they have failed to obtain a Leandro-comporting education.”
As for the trial court’s measurement of so-called “inputs” — the amount of money and other resources provided to Hoke County and the manner by which money was allocated — the Supreme Court largely affirmed the trial court’s finding that while the overall statewide structure of school funding complied with the constitution, there existed some deficiencies in poorer counties like Hoke, especially when it came to identifying and helping “at-risk” students.
Ten years after Robert Leandro filed his lawsuit, our Supreme Court had concluded that the state was depriving schoolchildren in North Carolina of their right to a sound basic education.
It was time to craft a remedy that would resolve the constitutional violation, something that would occupy the trial court for the next two decades and yet remains unfinished to this day.
Over the roughly twenty years since the Supreme Court decided Hoke County, three different trial judges have overseen the work of trying to bring North Carolina into compliance with the state constitution: Judge Manning oversaw the effort through his retirement in 2016, when Judge David Lee, a Democrat, was appointed. Then, in early 2022, Chief Justice Paul Newby, a Republican, suddenly replaced Lee with Judge Michael Robinson, also a Republican.
Lee said after he was replaced that he was not given a reason for his removal, but just six months before Newby took him off the case, Lee declared the judiciary’s patience at an end. Seventeen years had passed since the Supreme Court had handed down Hoke County, and, despite years of plans and hearings, Lee wrote that “the evidence before this court is wholly inadequate to demonstrate substantial compliance with the constitutional mandate of Leandro measured by applicable educational standards.” Kids still weren’t getting the education they deserve.
Lee noted that the state had sufficient funds to pay for the remedial plans the parties had been discussing for years, but legislators declined to appropriate the money necessary to implement the plans. This meant, he wrote, “the State has failed yet another class of students.”
“Time is of the essence,” he observed. “In the seventeen years since the [Hoke County] decision, a new generation of school children, especially those at risk and socioeconomically disadvantaged, were denied their constitutional right to a sound basic education. Further and continuing damage is happening now, especially to at-risk children from impoverished backgrounds, and that cannot continue.” (This was soft stuff compared to some of Judge Manning’s critiques, including one in 2009 that described the Halifax County Public Schools as committing “academic genocide” by its failure to meet the standards of Leandro.)
After deferring to legislators for nearly two decades — a deference commanded by respect for the legislature as a co-equal branch of government — Lee decided in November 2021 that the state’s intransigence required bolder action: He ordered the state treasurer to transfer more than $1.7 billion to various departments of state government to facilitate implementation of the plans to finally provide North Carolina’s school kids with the sound basic education promised to them by the constitution.
Republicans in the legislature, who have controlled the General Assembly since 2011, went ballistic.
Senate leader Phil Berger called Lee “unhinged” and “utterly without authority.” House speaker Tim Moore called Lee a “rogue judge” and accused him of “judicial misconduct” that warranted “the strongest possible response,” a coded threat to remove Lee from office for daring to cross lawmakers and ordering the state to do its constitutional duty.
Shortly after Lee’s ruling, in December 2021, state legislative leaders intervened as parties to the litigation so they could challenge his order in court. (Legislators had possessed the right to intervene since 2013, but they hadn’t bothered to use it.) A few months later, Newby removed Lee from the case and replaced him with Robinson.
Robinson almost immediately had to grapple with the consequence of the state passing its 2021 budget: Did money included in the spending plan, which was passed after Lee had entered his order compelling the transfer of money, render Lee’s previously entered order moot? Had the state, in its latest budget and of its own accord, finally complied with Leandro?
No, Robinson ruled. Some additional funding in the budget had moved the state closer to meeting its constitutional obligation to North Carolina’s schoolchildren, but only partially. As a result, Robinson issued an amended order finding the state would need to spend an additional $785 million to provide students with a Leandro-compliant public education.
Our Supreme Court heard the latest appeal in the case in August 2022, when the justices were asked to review Robinson’s order and determine whether state officials could be properly compelled by the judiciary to transfer hundreds of millions of dollars to pay for the sort of public education required by the constitution.
This time around there were thirty-seven attorneys listed as participants in the case, matching and nearly exceeding the “thirty to forty” that Dickens mocked in Bleak House. And by the time the court handed down its decision in November 2022, nearly thirty years had passed since eighth-grader Robert Leandro had filed his lawsuit. (Leandro now goes by “Robb” and is a partner at Parker Poe, one of the law firms that represented him and his fellow students when he filed his lawsuit in 1994. Just as Dickens observed, a youngster promised a rocking horse at the lawsuit’s commencement had acquired for himself a real one before the action’s conclusion.)
It’s tempting to view the judiciary’s most recent opinion through the lens of raw partisanship — because that’s how some of the justices themselves approached the case. The Court’s four Democrats voted to affirm the trial court’s order and ruled the state could be compelled to transfer the money necessary to properly fund our public schools, and its three Republicans dissented. The Democrats said the trial judge had gotten it right; the Republicans thought he had erred and, in expressing their view, displayed a desire to abandon the decades-old project that is Leandro. What had been a long-standing, broadly conceived judicial commitment to protecting the rights of North Carolina’s schoolchildren — the two previous Supreme Court decisions were unanimous: Leandro got the votes of six Democrats and one Republican, and Hoke County got the votes of five Republicans and two Democrats — was reduced by the GOP to a naked political fight in which the party chose to repudiate the work begun in 1997 and to which the Court had rededicated itself in 2004.
Writing for the Court, Justice Robin Hudson, a Democrat, crafted a workmanlike, ultimately persuasive opinion that recounts in great detail the decades of deference judges displayed toward the executive and legislative branches of government, giving them chance after chance after chance to remedy the constitutional violation first identified by the trial court in the early 2000s. (Just as the Court’s previous protection of constitutional rights was bipartisan, so has been the executive and legislative failures to fully honor those rights: In the thirty years since the original lawsuit was filed, the governor’s mansion has been held by four Democrats and one Republican, and the General Assembly was held by Democrats until 2011, when Republicans took over.)
The failed promise of the long-standing legal fight plainly weighed on Hudson’s mind, whose opinion for the Court begins, “A quarter-century ago … .” She wrote that since Robert Leandro filed suit and the Supreme Court unanimously concluded the state was failing its schoolchildren, “the foundational basis for the ruling in [Hoke County] has remain unchanged. … [F]ar too many North Carolina schoolchildren, especially those historically marginalized, are not afforded their constitutional right to the opportunity to a sound basic education. As foreshadowed in [Hoke County], the State has proven — for an entire generation — either unable or unwilling to fulfill its constitutional duty.”
The Court observed that the judiciary’s deference to the executive and legislative branches of government — something required by a commitment to the separation of powers — was met with “decades of inaction.”
Wrote Hudson, “If this Court is to fulfill its own constitutional obligations, it can no longer patiently wait for the day, year, or decade when the State gets around to acting on its constitutional duty to guard and maintain the constitutional rights of North Carolina schoolchildren.” If the constitutional right declared in Leandro means anything, Hudson reasoned, the judiciary was now compelled to act in the face of what the state itself acknowledged to the trial court was its failure to make progress toward substantially implementing those steps necessary to comply with Leandro.
Since 2004, Hudson explained, the trial court had engaged in extensive fact-finding and investigation to develop a plan to bring the state into compliance with the constitution. This came as the trial court spent fourteen years “presid[ing] over presentations of relevant evidence by the parties in open court and ma[king] volumes upon volumes of factual findings and conclusions of law.”
The remedial plan, which the parties to the litigation, including the state, had endorsed as necessary to offer a Leandro-compliant education, laid out those funding benchmarks the state would need to hit to meet its obligations. The state acknowledged to the trial court it would not hit those benchmarks, which, when combined with years of fruitless judicial deference to other state actors, ultimately prompted the trial court to enter its order compelling the transfer of money.
The Court explained, “Year after year, hearing after hearing, attempt after attempt, the trial court continued to provide the executive and legislative branches more time and space to fix the violation on their own terms. Yet year after year, hearing after hearing, attempt after attempt, they did not.”
Indeed, the trial court found, and the Supreme Court seemed to affirm, that some state actors — namely the Republican leadership now in charge of the General Assembly — demonstrated “antagonism” toward the proceedings before the trial court.
Hudson suggested proof of the Republican legislative leaders’ bad faith could be found in their failure to intervene in the litigation until December 2021 — after the trial court entered its order compelling the transfer of state funds — even though they had granted themselves authority to do so years earlier. As the Court explained, the Republican legislative leaders “have largely opted to comment upon the proceedings from the sidelines, including by publicly disparaging the trial court itself.”
The dissenting justices, the majority wrote, seemed eager to participate in bad faith of their own, and Hudson characterized the dissenters’ arguments as fueled by “further obfuscation and recalcitrance in lieu of remedying this decades-old constitutional violation.”
The Court ultimately concluded that “constitutional violations demand a just remedy” and affirmed the trial court’s order compelling the transfer of public funds from the state treasury to those departments that would use the money to fund a sound basic education. (The Court did send the case back to the trial court for some fine-tuning of the amount of money to be transferred in light of the recently adopted 2022 state budget.)
The opinion closed with a somber observation about the passage of time: “In 2004, the [Hoke County] Court lamented that ‘the instant case commenced ten years ago,’ and that ‘if in the end it yields a clearly demonstrated constitutional violation, ten classes of students … will have already passed through our state’s school system without benefit of relief. We cannot similarly imperil one more class unnecessarily.’ Today, that figure is twenty-eight years, and twenty-eight classes of students. The children of the original Leandro parents could well have entered or graduated from high school by now, all under a well-established constitutionally inadequate education system.”
The GOP dissenters, led by Justice Phil Berger, Jr., were unmoved as they attempted to rewrite and undo nearly three decades of state constitutional law so as to deprive Leandro of any practical meaning.
The essence of their argument was that a case treated by all litigants for years as being about the entirety of public education in North Carolina was really just about Hoke County, claiming it was “plainly wrong and blatantly contradicts the clear language of this Court [in Hoke County]” to conclude the case was about anything but the single school district there. In Berger’s hands, the Leandro project was much ado about very little, a tiny case about relatively small Hoke County, not a momentous case about the totality of North Carolina’s system of public education.
Berger wrote that the majority’s actions “raise the grave specter of executive and judicial collusion designed to subvert our constitutional framework and, by extension, the will of the people.” According to Berger, the judiciary may declare constitutional infirmities, but it possesses no power to remedy those infirmities because to bring a lawless, intransigent executive and legislature in line with its constitutional duties would violate the separation of power. For the dissenters, constitutional imperatives are mere paper promises.
He further argued that despite two decades of hearings in the trial court, “these collusive orders [finding the state in violation of its constitutional obligations and ordering relief] were entered without a trial on the merits to determine the validity of the actual plaintiffs’ claims. A statewide violation was simply assumed without a trial or final order.”
It appears Berger’s theory of collusion, which counts as an attempt to taint the entirety of the litigation with the stain of illegitimacy, arises thusly: Following Leandro in 1997, which itself resulted from years of adversarial litigation about the scope of educational rights protected by the state constitution, an adversarial trial was held to determine whether the state was offering an education compliant with the constitution. The state argued it was, and those alleging constitutional deficiencies argued it was not. At the end of this proceeding, the trial judge entered orders finding and concluding the state was failing to provide the kind of public education required by the constitution. The state appealed, and in its 2004 Hoke County decision, the Supreme Court largely affirmed. After our courts concluded the constitution protects the right to a sound basic education and after our courts concluded the state was failing to meet its constitutional duty to our children, it was time for the trial court to get to work on crafting a remedy. It was at this stage, after the law of the case was decided in favor of those who argued their rights existed and were being violated, that the state, as a party to the litigation, entered into a more collaborative relationship with the plaintiffs and the trial court to try to resolve the deficiencies identified by the judiciary following nearly a decade of adversarial proceedings. This simply isn’t collusion, and, as the majority suggested, Berger’s argument to the contrary suggests bad faith — something evident throughout his opinion.
For example, he gratuitously noted several times that one of the consulting firms hired to draft reports and proposals used to craft the trial court’s remedy was “San Francisco based,” the sort of meaningless, culture-war innuendo uttered on Fox News to suggest something foreign and, ultimately, dangerous.
Berger also took a pot shot at fellow Justice Anita Earls, who joined the majority opinion and, at an earlier stage in her career before election to the Court, had been part of an organization involved in the case. (Berger’s criticism, which felt underhanded and not driven by an earnest, good-faith concern for judicial ethics, also suffered from obliviousness: Senator Phil Berger, who is Justice Berger’s dad, was a named defendant as the case winded its way through the courts this time around. Senator Berger, who lost before the trial court, was among those asking Justice Berger to toss out the trial court’s order.)
Whatever Berger and his fellow dissenters said about the separation of powers or alleged irregularities at the trial court, their real aim was clear enough: to minimize Leandro‘s meaning and effectively eliminate the right to a sound basic education in North Carolina.
It was nothing but a matter of “judicial fiat,” Berger wrote, to conclude constitutional language guaranteeing “a right to the privilege of education” involves any obligation to provide the funding necessary to run an adequate school system. The right recognized in Leandro, he argued, was merely “the right to the opportunity to receive a sound basic education,” a choice of emphasis strikingly similar to that used by the court of appeals when it held in 1996 that the state constitution contained no guarantee of substantive educational rights — an interpretation rejected by the Supreme Court in Leandro and now revived by Berger and his fellow dissenters.
This is how today’s Republicans will eventually kill Leandro: They will not overrule it, but shrink it. They will feign adherence to the case while gutting it of all practical meaning. And they will reduce a judicial landmark to an episode of hollow rhetoric expressing some vague commitment to education rights while doing very little to compel their achievement.
Berger and his fellow dissenters want to go back — and their failure to do so last year was but a temporary impediment.
The GOP swept North Carolina’s 2022 judicial elections, including three races for the Supreme Court, which went from a 4-3 Democratic majority to a 5-2 Republican majority just a couple of months after the latest decision in the Leandro litigation. (I hesitate to draw too much attention to the Supreme Court’s partisan affiliations. Remember that two previous Courts — one dominated by Democrats in 1997 and the other by Republicans in 2004 — unanimously affirmed the right to a sound basic education and, in no uncertain terms, ordered the state to do its duty. Of course, that was then and this is now — when the GOP runs on little more than nihilism and grievance, expressions of disdain for the liberal project undergirding the American republic, a desire to hoard unchecked power as an end unto itself, and a commitment to degrading much of the public square.)
After gaining power in January 2023, the Court’s new Republican majority — Chief Justice Newby and Justices Richard Dietz, Tamara Barringer, and Trey Allen, along with Justice Berger — lost no time trying to undo recent decisions that sought to protect and promote democracy in North Carolina.
In February 2023, the Court’s five Republicans voted to reconsider recent decisions blocking a voter ID law and invalidating gerrymandered legislative districts that heavily favor the GOP. When these previously invalidated laws are allowed to go into effect, as will surely happen after the Court reconsiders them, they will make it easier for the Republican Party to lock the people — especially Black, brown, and poor people — out of politics and entrench themselves in power, all while the Court’s newly installed GOP majority makes a mockery of the idea that judicial precedent matters and that courts are not mere instruments of the political personnel that happen to occupy them at any discrete point in time.
And now the justices have signaled they plan to do the same with Leandro.
Earlier this month, the Republican justices granted a preliminary request to stop the implementation of the latest Leandro decision compelling the state to spend the money necessary to do right by the children of North Carolina. No doubt the newly installed GOP majority will soon take those steps necessary to fully and finally undo Leandro.
A lawsuit initiated to vindicate the rights of schoolchildren now stands as a totem to power in its narrowest, meanest form, and a decades-long, bipartisan judicial commitment to making our state constitution’s education provisions actually mean something has splintered under the strain of a Republican Party hyper-charged by power-hungry partisanship.
One spies in it all the defeat of virtue at the hands of interest.
By “virtue” is meant the idea that some things are to be done because they ought to be done. We do them because doing them is the right thing to do, not because doing them is part of some instrumental, transactional calculation.
By “interest” is meant the idea that we do things because in doing them we seek some sort of gain, usually narrowly defined and untethered from any broader, deeper ethical perspective.
The pursuit of interest abandons any inquiry about doing the right thing in exchange for an inquiry about doing the beneficial thing. The rise of interest and the fall of virtue mark the triumph of opportunity over duty.
To be sure, these two attitudes can, and often do, bleed into each other. Rare is the person who does not act with at least some admixture of them. The important distinction, therefore, is not between those who act according to virtue and those who act according to interest, but between those who aspire to act according to virtue — and honestly try to do so — and those who possess no such aspiration and are instead content to settle for a life guided by mere interest.
The distinction can be illustrated in reactions last year to the attempted assassination of Nancy Pelosi, which resulted in the brutal bludgeoning of her husband, Paul.
Some people chose to condemn the attack without qualification or limitation. It was wrong for the attacker to break into then-Speaker Pelosi’s home and assault her aged spouse. Such condemnations spoke the language of virtue.
Others chose to endorse a perspective animated by mere interest. Vile people like Mark Robinson, our Republican lieutenant governor and a likely 2024 GOP gubernatorial candidate, made the political calculation that they could gain by insulting Paul Pelosi and indulging conspiracy theories about the attack that transformed the assault into a homophobic delusion that would resonate among people moved by a single motive: reducing everything to cramped, narrowly defined partisan interests and then crafting arguments and talking points whose sole function is to advance those interests without regard for reality or decency.
Those who try to live by virtue attempt to abide by certain standards of behavior that, because of the ethical asymmetry that exists between the virtuous and the merely interested, renders them mostly helpless before the snarl of interest. Those who would choose to guide their actions by interest possess a sort of veto over those who would prefer to live by virtue: Even a small group of people committed to interest can upend a virtuous community because virtue is defenseless against interest. Interest, by definition and unlike virtue, recognizes no limitations on its prerogatives and the means appropriate to achieve them: Means are good or bad to the degree they further or impede interest’s advancement; nothing is good or bad in and of itself, which means nothing is either compelled or forbidden, except as convenience counsels. If a certain action moves the bearer of an interest closer to the interest’s achievement, then it can be properly undertaken. Good faith vanishes before considerations and contemplations of power. Meanwhile, virtue maintains that some things shall be done and others shall not be done, no matter the cost — because doing them or not doing them is an ethical imperative that renders questions of cost irrelevant. There is not — and cannot be — a fair fight between virtue and interest because virtue’s insistence on itself renders it mortally vulnerable to interest’s assaults. Virtue is vanquished.
So if mocking an eighty-two-year-old man for being smashed in the skull with a hammer advances the position of crudely interested partisans, it shall be done. And if transforming the state’s highest court into nothing but an institution of raw power furthers the agenda of crudely interested partisans, it also shall be done — dishonestly, of course, and disguised in the garb of legal virtue and regularity, interest thereby paying homage to virtue by pretending to it.
When those who would prefer to live by virtue, who would seek to live by morality instead of calculation, find themselves in circumstances in which interest dominates, they face three options: They can adopt interest as their own standard of behavior; they can continue to cling to virtue while the power of interest batters them; or they can exit the community in which interest has come to reign. The first counts as betrayal; the second as futility; the third as surrender. And each, in its own way, counts as failure.
This seems to be the real lesson of Leandro: failure. Whether caused by bipartisan unwillingness, partisan sabotage, the triumph of interest over virtue, or some other dynamic — the limited efficacy of broad-reaching judicial decrees seeking to compel affirmative behavior stands as another potential explanatory candidate — failure is the case’s result when we measure Leandro by the only standard that counts: timely getting real help to real students attending real schools in real communities.
Nearly thirty years have passed since Robert Leandro and his fellow students filed their lawsuit. Twenty-five years have passed since our Supreme Court recognized the right to a sound basic education. And almost twenty years have passed since our Supreme Court affirmed the trial court’s decision that the schoolchildren of North Carolina are being deprived of that right.
Instead of a committed, concerted effort by the leaders of our state to do their constitutional and ethical duty, we have suffered dithering and delay as Leandro has ceased to be about public education and instead become about itself: a legal abstraction and a “scarecrow of a suit” in which judges, lawyers, and lawmakers endlessly battle while students go without.
We’ve adopted a Dickensian mockery for our political and legal reality — and in so doing, we, as a political community, have failed.