Opinion: Daily Journal

Court Makes the Right Choice

There was absolutely nothing surprising about the North Carolina Supreme Court’s 4-3 decision to uphold the constitutionality of the state’s new Opportunity Scholarship program. The outcome was welcome. The lack of surprise was disappointing.

The four justices signing onto the majority decision by Chief Justice Mark Martin are Republicans. The three justices dissenting are Democrats. Opponents of school choice are citing this fact as proof that the result was improper. I couldn’t disagree more. Given the last several decades of jurisprudence, in which the high court has rarely limited the power of the General Assembly to make policy in North Carolina, to have done so with regard to this modest school-choice program would have stuck out like a sore thumb.

Is it constitutional for the General Assembly to give special tax breaks to politically favored big businesses while denying them to everyone else? Is it constitutional to appropriate tax dollars to church-owned day care centers, colleges, and charities? Is it permissible for state lawmakers to deny consumers the right to decide how they purchase automobiles, professional services, and medical care?

“Yes” is the answer to all these questions, if we’re going either on decisions handed down by courts or practices commonly engaged in by lawmakers without judicial intervention. The plaintiffs in the Opportunity Scholarship lawsuit had to engage in bizarre legal contortions to try to distinguish their case. Martin and the majority bloc refused to play Constitutional Twister with them.

For example, the plaintiffs argued it was illegal to spend tax dollars on programs assisting private-school parents because Article IX, Section 6 of the North Carolina Constitution required that tax dollars “shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.” This was a case of attempting to take a clause completely out of context and then hoping judges wouldn’t notice.

The quoted section comes at the end of a much-longer enumeration of revenues such as fines, forfeitures, and the sale of public lands that are required to be devoted to public schools “together with so much of the revenue of the State as may be set aside for that purpose” (meaning public schools). In other words, the clause authorizes the General Assembly to supplement the earmarked revenue sources with other tax dollars to fund public schools. But it doesn’t forbid lawmakers from funding other educational programs.

Another line of attack was to say that because private schools aren’t regulated the same way district-run public schools are, programs assisting private-school students do not advance a “public purpose.” Again, the majority didn’t bite. According to past precedent, including recent decisions, the public purpose doctrine is about the intentions of policymakers. School choice is clearly intended to expand educational opportunities for children.

You may think it will fail at the task, in which case you are free to oppose such programs, vote against lawmakers who support them, and perhaps even run for legislature yourself so you can overturn them. You are not free, however, to obtain a judicial post and then strike such programs down because you believe them unwise. There is a separation of powers here — and if judges are in fact going to start striking down state laws as violating the public purpose doctrine, they should really start with obvious abuses such as corporate welfare and perhaps get back to debating school choice in a generation or two.

What happens next? Both the House and Senate budgets expand funding for Opportunity Scholarships, now clearly legal. In the 2015-16 school year, some 4,300 students will benefit directly from the program, with thousands more benefitting indirectly (because there is good empirical evidence that competition prompts district-run public schools to get better). I’d favor expanding funding and eligibility for additional students, although I do not favor a universal voucher system because of regulatory concerns, among others (I do favor broad tax relief for educational investment).

As for choice opponents, I expect the Chicken Littles to continue to see phantasms falling from the sky. I’d love to be surprised, however.

Hood is chairman of the John Locke Foundation. Follow him @JohnHoodNC.