What if Leandro had gone the other way?

No, not what if the state had won. What if the plaintiffs had gotten what they asked for. What if Justice Robert Orr's dissent in the first Leandro opinion, in 1997, had carried the day.

Justice Orr had the privilege of writing the second Leandro opinion (see below) this summer just before his retirement. In the opinion an odd phrase is used at crucial points: "the equal opportunity to receive a sound basic education." What does that mean?

Here is what it doesn't mean. Chief Justice Burley Mitchell made very clear in the first Leandro opinion that the law does not require equalized funding. The North Carolina Constitution does require a "general and uniform system" in which "equal opportunities shall be provided for all students," he conceded; but such language does not "mandate[] equality in the educational programs and resources offered the children in all school districts in North Carolina."

The plaintiffs--representing five impoverished rural school districts--argued that the "great variations in per-pupil expenditures from district to district" were a large part of the problem, that "inequalities in the facilities, equipment, student-teacher ratios, and test results between their poor districts and the wealthy districts compel the conclusion that students in their poor districts are denied equal opportunities for education."

Justice Mitchell engaged in some constitutional history. In 1868, he noted, language requiring a "general and uniform system" was in the constitution, but (naturally enough) the "equal opportunites" clause was not. In 1970, as Jim Crow languished on his deathbed, the constitution was overhauled. That's when the phrase requiring "equal opportunities . . . for all students" was added.

But then his opinion does an interesting thing. It confines the phrase to its narrow historical moment. The era of segregation came to an end. The problem the language was meant to fix is solved. What's left is a dead letter.

Justice Orr--who by the way, like Judge Manning, is a Republican--begged to differ (scroll down for his partial dissent). To him, the plain language meant what it said.

. . . [T]he 1971 constitutional framers removed existing language from the 1877 Constitution which mandated that "the children of the white race and the children of the colored race shall be taught in separate public schools; but there shall be no discrimination in favor of, or to the prejudice of, either race.". . . The framers did not choose simply to remove the initial racially discriminatory language, but instead rewrote the constitutional language to provide for "equal opportunities . . . for all students."

. . . [I]n regard to education, our Constitution displays a deep concern for "'ensur[ing] every child a fair and full opportunity to reach his full potential.'" . . . The Constitution, by its literal reading, means all students. It does not discriminate as to race, gender, handicap, economic status, or geography. Thus, students residing in a poorer district are still entitled to substantially equal educational opportunities as students in wealthier districts.

But this view did not prevail. What the majority settled on instead was the "equal opportunity to receive a sound basic education." This turns out to mean a right to certain minimum standards. As it stands, Leandro is potentially a major achievement. But it will not turn the Hoke County school system into a Chapel Hill-Carrboro.

What if Justice Orr's opinion had prevailed? So many things would have started to look different, not the least being the lay of the land in wealthy districts like our own.