The following editorial appeared in the September 2012 print edition of Carolina Journal:
The N.C. Court of Appeals inadvertently may have given state lawmakers a green light to expand school choice for low-income students across North Carolina. When the General Assembly returns to Raleigh, it should take what appeared to be a setback in the interminable Leandro school litigation and make the proverbial lemonade.
In late August, the appeals court upheld a decision by Superior Court Judge Howard Manning Jr. which said the General Assembly could not cap the percentage of "at risk" children receiving slots in North Carolina's pre-kindergarten program. The ruling is part of the nearly two-decade-old Leandro case, which requires the state to provide students from low-income districts adequate funding.
As we've said before, the decision to surrender policymaking duties in North Carolina's public schools to the courts undermines the constitution's guarantee of separation of powers. If another Leandro appeal reaches the state Supreme Court, the justices should toss out the entire mess and restore education policy decisions to the governor and the General Assembly, where they belong.
Last year, Manning ruled that the General Assembly's budget violated the rights of low-income youngsters when it capped the percentage of poor students who could enroll in the state's pre-kindergarten program, previously called More at Four.
Manning's ruling -- backed by the appeals court -- converted a program that the General Assembly created to help some low-income 4-year-olds into an entitlement for every low-income 4-year-old in North Carolina.
But if there's a silver lining in the court's latest swipe at Leandro, it's that the judges have provided an opening for new school choice alternatives.
The judges said:
we would like to emphasize that while [More at Four] was the remedy chosen by the legislative and executive branches in 2001 to deal with the problems presented by 'at risk' 4-year-olds, it is not necessarily a permanent or everlasting solution to the problem. ... Therefore, should the problem at hand cease to exist or should its solution be superseded by another approach, the state should be allowed to modify or eliminate [More at Four].
One possible "modification": Divert more money from the N.C. Education Lottery to Pre-K. When the lottery started, by law half of the revenues were targeted to class-size reduction programs and More at Four. During the recession, lawmakers raided the lottery to fund other programs, including Medicaid.
Directing enough lottery money to fund all eligible 4-year-olds' Pre-K instruction would satisfy the court's mandate, and restore the lottery to its original mission.
Another possibility: Create a tax credit or means-tested scholarship for "at-risk" 4-year-olds. The General Assembly considered a law giving corporations a tax credit if they contributed to scholarship funds so that low-income kids could attend private schools. A similar measure targeting Pre-K students could make the judiciary happy.
"It would be unwise for the courts to attempt to lock the legislative and executive branches into a solution to a problem that no longer works, or addresses a problem that no longer exists," the appeals court noted. Legislators, it's your move.