News: CJ Exclusives

Court: State Can Prepare For 2nd Year of Vouchers

Funding must wait for justices' final decision

The N.C. Supreme Court says the state can commence administrative preparations for the Opportunity Scholarship Program while it considers an appeal from a lower court’s order that ruled the program unconstitutional.

“The State Education Assistance Authority may proceed with all preliminary administrative steps necessary to prepare for the 2015-16 academic year,” the Supreme Court’s order says. However, the court stopped short of allowing it to actually distribute funds for next year’s scholarships. Distribution had been scheduled to start Aug. 15, 2015.

“We are encouraged by the Supreme Court’s order granting our petition and allowing the Opportunity Scholarship Program to move forward,” said Renee Flaherty, an Institute for Justice attorney representing parents of Opportunity Scholarship recipients. “This means that the program can continue without disruption so that families can apply for scholarships and will receive them for the 2015-16 academic rear, if we prevail on appeal.”

“This is excellent news for the thousands of families who missed the opportunity to participate in the program’s first year and are eager for an educational option that best fits their needs,” said Karen Duquette, vice president of Parents for Educational Freedom in North Carolina, which supports the voucher program. “Not only will this allow new families to apply for the Opportunity Scholarship Program, but the Supreme Court has already showed a strong sign by allowing existing scholarship recipients to continue on the scholarship this year, which is hopefully a good indicator about the future of the program for next year and beyond.”

Bob Orr, an attorney representing one of the plaintiffs in the case, said that the plaintiffs were surprised by the order since they hadn’t filed their response to the motion allowing for the administrative work to begin. Orr said the motion isn’t due yet.

“The practical effect is that the process can move forward but no expenditure of public money can take place until the court makes a final decision,” Orr said. “With oral argument set for February, there will be ample time for a decision before the beginning of the 2015 school year.”

The 2013 General Assembly passed and Gov. Pat McCrory signed into law the Opportunity Scholarship Program, also known as vouchers. The program provides up to $4,200 for children who come from lower income families to use for tuition at a private school. To be eligible, students must be enrolled in a public school the year before they apply for the scholarships.

The legislation provided scholarship funding for up to 2,400 students, but the state received more than 5,500 applications, and 4,200 of the applicants were deemed eligible for scholarships. A lottery was held to determine which students could receive funding during the current school year.

Many of the parents seeking opportunity scholarships said the traditional public schools were not meeting the needs of their children, citing mild learning disabilities and bullying as a couple of the reasons they hoped for other options.

A number of groups and North Carolina residents, including the N.C. Association of Educators and the N.C. School Boards Association, filed lawsuits against the program. Plaintiffs claimed the law was unconstitutional, citing a provision in the N.C. Constitution requiring tax money to be “used exclusively” for public schools.

Defendants say the plaintiffs are misreading that provision of the state Constitution, and that there is no constitutional barrier to using tax dollars for vouchers. Along with the legal assistance of the Institute for Justice, state Senate leader Phil Berger, R-Rockingham, and House Speaker Thom Tillis, R-Mecklenburg, have intervened on the defendants’ behalf.

In August, as most schools in the state prepared to open the new school year, Superior Court Judge Robert Hobgood ruled that the program violated the N.C. Constitution. His order barred distribution of any money for the vouchers.

About 1,900 would-be voucher recipients enrolled in private schools anyway. Some parents said that they had faith that the money eventually would be released to pay for their children’s education.

The Court of Appeals in September allowed the release of those funds. In October, the N.C. Supreme Court said it would take the case for review, allowing for a quicker disposition of the appeal.

Both plaintiffs and defendants hailed the move, saying it would make it more likely that the program’s constitutionality could be resolved before the 2015-16 school year began.

The Supreme Court plans to hear arguments in February with a ruling to follow, perhaps by summer.

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