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Carolina Journal News Reports

Judge Lets Lawsuit Challenging Vouchers Proceed

School boards, teachers union want Opportunity Scholarships struck down

Feb. 18th, 2014
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RALEIGH — A Wake County Superior Court judge Monday refused to dismiss legal challenges to the state’s Opportunity Scholarships, aka vouchers, meaning that the lawsuit is likely to go to trial. Superior Court Judge Robert Hobgood issued Monday’s ruling after allowing the Institute for Justice, an Arlington, Va.-based libertarian legal defense organization, to intervene on behalf of two North Carolina parents hoping to use the Opportunity Scholarships to send their children to private schools.

The scholarships were established by the General Assembly in 2013 to provide financial assistance to low-income parents who want to remove their children from public schools and send them to private schools. The amount of the scholarships can reach as high as $4,200 per student, and the General Assembly set aside $10 million in the General Fund budget in the 2014-15 school year for the scholarships.

Separate lawsuits were filed by the N.C. School Boards Association and the N.C. Association of Educators, seeking to strike down the scholarships. In the courtroom, attorneys spent more than two hours arguing motions, including one to dismiss the lawsuits.

The plaintiffs contend that the scholarships violate a provision of the state constitution saying the state’s school fund “shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.” Plaintiffs attorney Burton Craige emphasized the word “exclusively” when he asked Hobgood not to dismiss the case.

Former state Supreme Court Justice Bob Orr, representing the school boards, argued that the scholarships would help private schools rather than parents. “The legislation has to fail because the benefit clearly goes to the private school,” Orr said. “The parents are a pass-through vehicle.”

Orr went on to say that “taxpayers are already providing each and every one of those students an opportunity for a sound basic education paid for by the public,” adding that providing the Opportunity Scholarships fails the public purpose test.

Dick Komer, an Institute for Justice attorney representing the intervening parents, took issue with Orr’s assertion that private schools, rather than parents, were the beneficiaries.

“The parent is not some pass-through vehicle to the private school,” Komer said. “The parent gets a scholarship… and they pay the private school for their services.”

Komer said that the scholarships make private schools accountable to parents. “Power has been transferred to the parent,” Komer said.

Assistant Attorney General Lauren Clemmons, representing the state, argued that the case should be dismissed, saying the Opportunity Scholarships would expand educational options for parents. She also said the money paying for the scholarships is separate from the funding mechanism that supports public schools.

Hobgood questioned Clemmons about the state budget, which showed a reduction in spending for the public schools related to Opportunity Scholarships matched by a similar increase in the budget to the North Carolina State Education Assistance Authority to underwrite the scholarships.

Clemmons responded that the public schools would not lose any money because they no longer would be educating children who receive scholarships.

One of the parents represented by the Institute for Justice, Cynthia Perry of Wake Forest, addressed reporters during a pre-hearing news conference.

“My daughter is presently struggling with reading comprehension,” Perry said. “With everything I do at home, she still struggles.”

Perry said the public schools are not meeting the needs of her daughter, who has Attention Deficit Hyperactivity Disorder. She said she believed a private school might have smaller class sizes and be able to offer more attention to her daughter’s needs. Perry added that a private school education might help support the morals she’s trying to teach her daughter at home.

“I’m elated,” Perry said about the prospects of her daughter receiving $4,200 toward a private school education in the fall.

“My child is a fighter,” Perry said. “Even with her struggling, she never gives up.”

Former state Superintendent Mike Ward, one of the plaintiffs in the lawsuit, said the judge’s decision to let the Institute for Justice join the lawsuit was “fine. These are folks who have a concern in the matter, and the genius of democracy is that we can sort that out in court,” he said.

Ward added he was “obviously delighted with the judge’s decision” not to dismiss the case. “He believes that this case has merit, that it needs to be heard.”

Darrell Allison, president of Parents for Educational Freedom in North Carolina, which supports Opportunity Scholarships, also expressed pleasure that Hobgood allowed the Institute for Justice to intervene for the parents. “It’s all about them,” Allison said of the parents. “Make no mistake about it, the demand for this program is real, with [nearly] 4,000 slots that have already been applied for.”

Hobgood will hear additional motions Friday, including one that would place a temporary injunction on the Opportunity Scholarship program, preventing scholarships for the school year opening in the fall from being awarded March 1.

Barry Smith (@Barry_Smith) is an associate editor of Carolina Journal.