Attorneys on both sides of the voucher issue made their case on Tuesday to the state’s highest court, with Supreme Court justices considering a challenge to a Superior Court decision stating that the Opportunity Scholarship Program, offering tuition vouchers to low-income parents who removed their children from public schools, violated the state constitution.
The justices heard two hours of arguments — one regarding a lawsuit brought by the N.C. School Boards Association, and a second related to a separate suit filed by the N.C. Association of Educators. Other parties joined both lawsuits.
Attorney Burton Craige, representing the teachers’ group, and former Justice Bob Orr, arguing on behalf of the school boards, questioned whether spending tax money on private schools met the N.C. Constitution’s “public purpose” test.
Craige said the constitution requires tax dollars spent on education to be used “exclusively for maintaining a uniform system of public schools. We ask the court to declare that exclusively means exclusively.”
“To use public funds in the context of private schools, you would need extensive findings of fact about the need,” Orr said. “We have this talk about failing children, but there’s no requirement in this legislation that the participants who are ultimately chosen by lottery and then by the school are failing or even struggling.” Orr also said that the program doesn’t meet the criteria set out in the 1990s landmark Leandro decision, in which the N.C. Supreme Court mandated that every child have the opportunity to a “sound, basic education.”
Justice Sam Ervin IV asked attorneys if the courts had any role in monitoring the quality of education. Justice Paul Newby questioned whether the General Assembly should have leeway in public school appropriations.
Justice Robin Hudson peppered lawyers with questions regarding the lack of curriculum requirements, teacher certification, and accountability standards connected to the private schools accepting opportunity scholarships.
“This case is all about accountability,” said Dick Komer, an attorney for the Institute for Justice, which is representing parents who are using the voucher program. “It is not about unaccountable private schools. It is about an effort by the public schools, in this case, and their supporters to evade accountability. This program provides parents with additional opportunities that supplement the public school opportunity that they are provided.”
Komer and other attorneys supporting the voucher program noted that public schools are not held accountable for failing to deliver a sound, basic education as the constitution requires, even though five out of six children from lower-income families fail at least one of their two required end-of-year tests in public schools.
Lauren Clemmons, an assistant attorney general representing voucher supporters, argued that opponents were interpreting the state constitution incorrectly regarding the use of tax dollars for private school vouchers.
The constitution “does not prohibit the General Assembly from using General Fund revenue … for the scholarships at issue here,” she said. Orr and Craige disputed that conclusion, saying that public funding must support only public schools.
Attorneys defending the vouchers also noted that the state provides direct taxpayer assistance to private preschools and private universities, and none of the plaintiffs argue that spending tax dollars for those purposes violates the constitution.
The Opportunity Scholarship Program provides up to $4,200 in tuition assistance to parents of K-12 students who enrolled a child in a public school the previous school year but wish to send their child to a private school. About 1,200 students participated in the program during the current school year. More than 5,000 students applied for the scholarships, requiring a lottery to decide who would receive assistance.
Even though a lower court had ruled the program unconstitutional, parents were allowed to receive scholarships for the current school year while the appeals moved forward. The N.C. Supreme Court last fall decided to bypass the N.C. Court of Appeals and offer an expedited hearing to the parties so that the issue would be settled before the start of the 2015-16 school year.
The high court also decided to allow parents to begin the process of applying for scholarships for next school year, pending a final decision by the Supreme Court. That ruling is expected within the next few months.
Barry Smith (@Barry_Smith) is an associate editor of Carolina Journal.