In case you missed it, yesterday the injunction on the NC Opportunity Scholarships program  imposed by Superior Court Judge Robert Hobgood was lifted. Low-income families now have an opportunity to send their children to private schools.  The Opportunity Scholarships program had a base amount to start with of $10 million, which would only cover 2,400 of students to start.  It’s worth noting that the program is so popular, they had to hold a lottery. Not everyone thinks assisting low-income students is the right thing to do. For example, the NC Association of Educators (NCAE):

 “We feel that the program is not only unconstitutional but is also a reckless use of money,” – Mark Jewell NC Association of Educators via News and Observer 5/14/15

Wait..Serving low-income students is a reckless use of money? Gee, tell me more about how your serving the best interest of the NCAE children?

Jewell’s rhetoric here is only topped by the Defacto leader of the Democrat party, Reverend Barber:

“On Tuesday, the Rev. William Barber, the NAACP president, said vouchers are an attempt at re-segregation and a return to the 1950s.” –WNCN 2/25/14

It’s racist to want to help low-income kids obtain a better education than they are currently getting. Got that? 

Reminder: Don’t forget the hyperbole being engaged on vouchers by our top education official, CCSSO President and State Superintendent Atkinson,  with her “Schools Of Terror“ remark.

A Closer Look At The PushBack

The Opportunity Scholarships draw from taxpayer funds, which is where the outcry began with. This program is meant to expand to kids with special needs too.  The NCAE, liberal leaning school boards and non-profit ‘education’ groups complained and filed their lawsuits. One suit brought comes from the NC School Boards Association and the other from The NCAE and the NC Justice Center, which is the founder of the Blueprint NC. Blueprint NC, as you might recall, is the group that circulated an attack memo calling  for the Left to ‘cripple, slam and eviscerate’ Republican state leaders.

I’ve written about the voucher/scholarship rhetoric before. The pushback on Opportunity Scholarship vouchers smacks of  protectionism. It’s also a nice way to take pot shots at the Republican majority General Assembly and the Republican Governor and falsely paint them as education foes.

Their chief gripe is that these scholarships, or vouchers, violates the state Constitution by creating a separate educational system.  That’s hogwash. They just don’t want money leaving the public school system. Meanwhile, low-income kids are paying the price for this political jockeying.

“When only 30 percent of low-income children in North Carolina are considered proficient according to the NC Department of Public Instruction, it is clear that these children are not receiving a ‘sound, basic education’ as guaranteed by our state constitution,” said Darrell Allison, president of PEFNC in a press release . “The Opportunity Scholarship Program was designed to help fulfill this right to a sound education where regardless of your ZIP code or lack of income, children would still have a chance of obtaining a good education. To deny the over 3,000 parents who have applied for the right to participate in this program, to me, is not only unconscionable but unconstitutional.” – NCFPC.org

Opponents seem to think they are on solid footing with the claim these scholarships violate the state Constitution. One organization thinks that footing is not so solid. The NC Institute for Constitutional Law (NCICL) has issued a paper on this topic which cites precedent in other states like Indiana, California, Louisiana, Wisconsin and Florida. The paper looks at the uniformity clause in particular.

The Uniformity Clause found in Article IX states:

Sec. 2. Uniform system of schools.
(1) General and uniform system: term. 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.
(2) Local responsibility. The General Assembly may assign to units of local government such responsibility for the financial support of the free public schools as it may deem appropriate. The governing boards of units of local government with financial responsibility for public education may use local revenues to add to or supplement any public school or post-secondary school program.

The opposition case rests on this clause. NCICL goes through some examples of other states with similar situations dealing with uniformity clauses. Here are example section breakouts:

• Wisconsin recognized that vouchers are constitutional as long as students have the opportunity to receive a “free uniform basic education” through public schools.
• Following Indiana’s decision, North Carolinas program would likely be upheld because it leaves the public school system in place.
• Although Florida’s voucher system was declared unconstitutional,North Carolina would be unlikely to follow Florida’s reasoning.
• Though other states have held opportunity scholarships unconstitutional, state courts have done so outside uniformity grounds.

John Hood also called on an example in an article in the Carolina Journal. This example comes from right here in North Carolina. The example comes from the case called  Hughey v. Cloninger  in 1979. Relevant excerpt:

Indeed, the closest thing to a precedent that anyone has been able to find, a North Carolina Supreme Court decision in 1979 in a case called Hughey v. Cloninger , is helpful rather than harmful to the school choice cause. The case arose when Gaston County began appropriating local tax dollars to the Dyslexia School of North Carolina, a private institution serving students whose special educational needs were not being met by their public schools. A plaintiff sued to stop the county subsidy, a position that the Supreme Court ultimately agreed with — but not, the justices concluded, because taxpayer funding of private education was unconstitutional. Instead, the Court observed that the General Assembly had already authorized “educational expense grants” to North Carolina families of special-needs students attending private schools. Because counties have only the budgetary authority granted to them by the state, Gaston County couldn’t initiate a direct subsidy of the school in question, because the state legislature had already expressed its preference for a voucher mechanism.

Has anything happened since 1979 — any constitutional amendment or interpretation — that makes “educational expense grants” illegal? If so, why didn’t the teacher union and its allies say so in their legal arguments? If not, why wasn’t their case, or at least their requested injunction, dismissed outright? – Carolina Journal, 4/16/14

The conclusion of the NCICL paper was this that the scholarships do not violate the state Constitution’s uniformity clause:

Based on the North Carolina Constitution and case precedent, if House Bill 944 passes, North Carolina is most likely to follow the reasoning of either Wisconsin or Indiana Courts in upholding the opportunity scholarship program. Precedents to the contrary from other states are unlikely to influence the decision of North Carolina courts because those precedents rely on provisions or phrases not contained in the North Carolina constitution.

Legislators and proponents can feel comfortable that the opportunity scholarship program proposed in HB944 does not violate the requirement of a uniform system of free public Schools as required by ArticleIX, §2(1).

Related Reading:

• SB 402 (Appropriations Act 2013)
• HB 944 (Opportunity Scholarships Act 2013)
• Why Opportunity Scholarships are Constitutional
• NCICL Memo – Why Opportunity Scholarships do not violate the NC Constitution