News: CJ Exclusives

Supreme Court Upholds Opportunity Scholarships

School choice advocates laud 4-3 majority ruling

The N.C. Supreme Court gave a boost to school choice efforts on Thursday by declaring that the state’s fledgling Opportunity Scholarships Program met constitutional muster.

The court reversed a lower court opinion that found the Opportunity Scholarships Program, also known as private school vouchers, unconstitutional.

The state’s highest court was split, with its four Republicans voting to reverse an August 2014 ruling by Superior Court Judge Robert Hobgood. The high court’s three Democrats wanted to uphold Hobgood’s decision.

Supporters of the scholarship program hailed the ruling as a victory for school choice and for students who are failing in public schools. Opponents said the ruling is a blow to the state’s public schools.

“Five out of six low income students in North Carolina don’t pass either or both of their end-of-grade reading and math tests,” said Renee Flaherty, an attorney for the Arlington, Va.-based Institute for Justice, which represented parents of students awarded vouchers.

“Today, the court recognized that a school system that was getting those results wasn’t serving the needs of North Carolina families,” Flaherty said Thursday. “The court emphasized that nothing in the North Carolina Constitution prohibits school choice.”

Rodney Ellis, president of the N.C. Association of Educators, one of the plaintiffs in the lawsuit, said the decision was not a good one for public schools.

“This decision will continue the damage being done to our public schools and students by allowing private vouchers to drain money from our already underfunded schools,” Ellis said. “We believe the constitution is clear; public funds for education should be used exclusively for public schools. NCAE will continue to fight for giving our students the resources to be successful like modern textbooks and technology, more one-on-one interaction with teachers, and a quality educator in every class.”

Chief Justice Mark Martin wrote the majority opinion.

“Our constitutionally assigned role is limited to a determination of whether the legislation is plainly and clearly prohibited by the constitution,” Martin wrote. “Because no prohibition in the constitution or in our precedent forecloses the General Assembly’s enactment of the challenged legislation here, the trial court’s order declaring the legislation unconstitutional is reversed.”

Martin was joined in the majority by Justices Bob Edmunds, Paul Newby, and Barbara Jackson.

Justice Robin Hudson wrote the dissenting opinion. She was joined by Justices Cheri Beasley and Sam “Jimmy” Erivin IV. In addition, Beasley wrote a separate minority opinion.

“Because the Opportunity Scholarship Program provides for the spending of taxpayer money on private schools without incorporating any standards for determining whether students receive a sound basic — or indeed, any — education, I conclude that the program violates the North Carolina Constitution in two respects,” Hudson wrote.

Hudson said the main constitutional flaw was that there was no framework requiring any of the participating private schools to contribute to public purposes.

“Defendants assert that ‘layers’ of accountability standards are built into the Opportunity Scholarship Program,” Hudson wrote. “I find none of these arguments convincing.”

Hudson noted that the defendants, primarily the state, lawmakers, and parents, asserted that they would not send their children to private schools that did not provide for a solid education.

“This may be true, but marketplace standards are not a measure of constitutionality,” Hudson wrote. She also lamented that the program did not provide any standards for teachers or education quality.

Beasley, in her dissent, alluded to the Pearsall Plan, a 1950s effort to use vouchers to avert desegregation mandated by the U.S. Supreme Court’s Brown v. Board of Education decision.

“Without systemic and cultural adjustments to address social inequalities, the further cruel illusion of the Opportunity Scholarship Program is that it stands to exacerbate, rather than alleviate, educational, class, and racial divides,” Beasley wrote. “In time, public schools may be left only with the students that private schools refuse to admit based on perceived lack of aptitude, behavioral concerns, economic status, religious affiliation, sexual orientation, or physical or other challenges, or public schools may become grossly disproportionately populated by minority children.”

Martin, in his majority opinion, responded to assertions from opponents of the Opportunity Scholarship Program, saying that a clause often cited by voucher opponents regarding a certain fund being used “exclusively” for public schools didn’t preclude other state revenues from being used for vouchers.

“Thus, within constitutional limits, the General Assembly determines how much of the revenue of the state will be appropriated for the purpose of ‘establishing and maintaining a uniform system of free public schools,’” Martin wrote, adding that the constitution doesn’t prohibit lawmakers from appropriating “general revenue to support other educational initiatives.”

Martin dismissed the argument that funds appropriated for private school vouchers did not serve a public purpose.

“The promotion of education generally, and educational opportunity in particular, is of paramount public importance to our state,” Martin wrote. “Although the scholarships at issue here are available only to families of modest means, and therefore inure to the benefit of the eligible students in the first instance, and to the designated nonpublic schools in the second, the ultimate beneficiary of providing these children additional educational opportunities is our collective citizenry.”

Martin noted that the constitutionally specifically envisions that children in the state may be educated by a means outside the public school system. He added that those who think that the voucher program is a bad policy decision should take that up with the legislature, not the courts.

Rep. Paul “Skip” Stam, R-Wake, who helped sponsor the voucher legislation, was pleased that the court upheld the program.

“Two-hundred and twenty-four schools worked with parents to allow students to attend the school of their choice while awaiting today’s court decision,” Stam said. “More families will now have realistic access to educational options for their children.”

Flaherty noted the popularity with the program. “With this decision, there’s definitely room for the program to grow,” Flaherty said. “There’s lots of demand.”

Darrell Allison, president of Parents for Educational Freedom in North Carolina, which pushed for the voucher program, offered his appreciation to the Supreme Court justices for upholding the program.

“We applaud them for recognizing that education is ultimately a personal right belonging to our citizens, not a governmental agency or system,” Allison said. “We join the thousands of families across the state who are celebrating today because the court has given them the legal right to exercise educational choice through the Opportunity Scholarship Program.”

Republican Gov. Pat McCrory also applauded the court’s ruling.

Today’s decision by the Supreme Court is a victory for every parent whose child is being underserved in North Carolina,” McCrory said. “This is a victory for choice, and it’s a victory for North Carolina students and their families.”

Leaders in both chambers of the General Assembly also praised the ruling.

“We are very thankful for the Supreme Court’s thoughtful decision in recognizing the constitutionality of the Opportunity Scholarship Program in North Carolina,” House Speaker Tim Moore, R-Cleveland, said. “We are elated that students currently benefiting from the scholarship, as well as future scholarship recipients, will be able to continue to achieve their educational goals through this unique opportunity.”

“Today the Supreme Court reaffirmed that education in North Carolina is about our children and their future,” said Senate leader Phil Berger, R-Rockingham. “This ruling makes clear that parents – not education bureaucrats or politicians – ought to be able to choose the educational pathway best suited to their children’s needs, and it empowers thousands of low-income families across the state to make that important choice.”

The head of an organization supporting higher taxpayer support of public schools railed against the Supreme Court’s decision.

“Today is a very sad day in the history of our state,” Yevonne Brannon, chairwoman of Public Schools First NC, said Thursday. “Our long-standing tradition of commitment to excellence in public education has made North Carolina a jewel among southern states. We cannot fathom how this decision upholds the constitutional promise that all children receive a sound, basic education within the public school system. And we are deeply concerned as strong public schools are critical for growing our economy and maintaining the vitality of our communities.”

Some national education reform groups took note of the N.C. Supreme Court’s ruling.

Kara Kerwin, president of the Center for Educational Reform, said the ruling was “a giant step in the right direction for parental empowerment in North Carolina.”

“With more than double the applications for scholarships in the first year of the program — approximately 5,500 applications for 2,400 scholarships — parents are making it abundantly clear that they want and demand more power over their children’s education,” Kerwin said.

Patricia Levesque, CEO of the Foundation for Excellence in Education, also heralded the ruling.

“This courageous ruling by the North Carolina Supreme Court stands up for students and parents and ensures they have choice and access to a quality education, regardless of zip code or income level” Levesque said. “Time and again, special interest groups put their own motives ahead of the needs of children by attacking school choice programs with baseless arguments and scare tactics. But today, students and parents achieved another victory, and we look forward to seeing more children benefit from the program.”

The General Assembly approved the Opportunity Scholarship Program in 2013. The program provides up to $4,200 in scholarships to children from lower-income families to attend a private school.

Stam noted that about 1,200 students attended 224 schools on the voucher program during the 2014-15 school year. More than 1,100 of those students reapplied for vouchers for the 2015-16 school year, along with 4,800 new applicants. Scholarships totaling $6 million were awarded to the students during the last school year, he said.

Both chambers of the General Assembly have allocated $17.6 million for the scholarship program for 2015-16, enough to help 4,400 students attend private schools.

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