In what is sure to fuel an already vigorous political debate, the North Carolina Supreme Court upheld North Carolina’s school voucher program yesterday, dissolving the trial court’s injunction prohibiting disbursement of funds to private and religious schools on behalf of qualified students. In Hart v. State of North Carolina, the Court ruled that the school voucher legislation was constitutional, stating that “the wisdom of the enactment is a decision for the General Assembly,” not the courts.
The North Carolina Opportunity Scholarship Program (Part 2A of Ch. 115C, Art. 39 of the General Statutes), commonly referred to as the voucher program, was passed by the General Assembly in July 2013 to provide annual scholarships of up to $4,200 for eligible students to use toward tuition at the participating non-public school of their choice. Although non-public schools participating in the program must meet certain reporting and testing requirements, there are no substantive requirements regarding certification and educational performance.
In December 2013, twenty-five individuals as taxpayers filed suit challenging the constitutionality of the law and seeking a permanent injunction preventing implementation and enforcement of the law. A companion case, Richardson v. State of North Carolina (decided on the same grounds), was also filed in December 2013 on behalf of another group of individual taxpayers and the North Carolina School Boards Association. On cross-motions for summary judgment, the trial court entered judgment in favor of the plaintiffs in August 2014, declaring the voucher program unconstitutional on its face and permanently enjoining implementation of the legislation, including the disbursement of public funds. The Defendants appealed, and the Court of Appeals stayed the injunction insofar as it prevented the State from disbursing funds to the 1,878 students who had accepted scholarships as of August 21, 2014. The Supreme Court subsequently certified the case for review prior to a determination in the Court of Appeals – one of five cases it assumed in an unprecedented exercise of its “bypass PDR” authority, as we’ve blogged about before.
The plaintiffs’ arguments focused on several provisions in the North Carolina Constitution:
- Article IX (Education), Section 6, which requires that the funds set aside for public education “shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools,” and related sections;
- Article V (Finance), Section 2(1) and (7), which state in relevant part that the power of taxation shall be used “for public purposes only” and that the General Assembly may enact laws allowing for contracts with and appropriations of State money to any person or entity “for the accomplishment of public purposes only;”
- Article I (Declaration of Rights), Section 15, which states: “The people have a right to the privilege of education, and it is the duty of the state to guard and maintain that right;” and
- Article I, Section 19, which states in relevant part that “[n]o person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.”
The Majority Opinion
The four-justice majority disposed of the Article IX issues, holding that Section 6 does not limit the State’s ability to spend on education generally. Thus, the Constitution empowers the General Assembly to determine how much revenue will be appropriated for public schools, but it does not prevent the General Assembly from appropriating other funds for other educational purposes.
As to whether the voucher program violated the “public purpose” requirements of Article V, the majority held that the program was for a public purpose in that it promoted educational opportunities for residents of the State, an issue “of paramount public importance.” Notably, the majority held that the Court’s inquiry under the public purpose clause is discrete and limited to whether the legislative purpose is public or private. Thus, the Court’s analysis did not address whether the legislation will accomplish the public purpose, holding that “the wisdom, expediency, or necessity of the appropriation is a legislative decision, not a judicial decision.”
Addressing the duty of the State to guard and maintain the right to the privilege of education, the majority held that Article I, Section 15 does not restrict the State outside of the public school context and therefore did not bear on the voucher program. The majority further noted that “there is no merit in the argument that a legislative program designed to increase educational opportunity in our state is one that fails to ‘guard and maintain’ the ‘right to the privilege of education.’”
Finally, leaving the door open to future challenges of the voucher program, the Court held that the plaintiffs lacked standing to bring a religious discrimination claim under Article I, Section 19. Because the plaintiffs brought the claim as taxpayers, not as members of a class prejudiced by the statute, this claim failed. However, the majority noted that “eligible students are capable or raising a [religious] discrimination claim” if they suffer religious discrimination as a result of the admission or educational practices of non-public schools participating in the program.
The Dissenting Opinions
The dissent, in an opinion authored by Justice Hudson, focused primarily on the public purpose clause. Disagreeing with the majority’s conclusion that the proper analysis does not turn on whether an appropriation will accomplish a public purpose, the dissent seemed most troubled by the fact that the law imposes no requirements regarding the education and training of teachers or the curriculum of participating schools. Citing Leandro’s (346 N.C. 336, 488 S.E.2d 249) requirement of a “sound basic education,” Justice Hudson maintained the law was constitutionally flawed because it “provides no framework at all for evaluating any of the participating schools’ contribution to public purposes.” Justice Hudson characterized this omission as “a constitutional black hole into which the entire program should disappear.” Interestingly, Justice Hudson’s opinion suggests that the measures for evaluating the performance of these schools need not meet the Leandro levels applied to public schools; rather, it is the “complete lack of any such standards” that gave the dissent pause.
Writing in a separate opinion, Justice Beasley “join[ed] fully” in Justice Hudson’s opinion, yet seemed to express graver concerns over the constitutionality of the voucher program and its expected effects. Justice Beasley noted that the legislation assumes that private schools will be readily available to lower-income families, noting that the opportunity provided by the vouchers, with attendant costs for transportation, tuition, books and school uniforms, is merely a “cruel illusion” for the poorest of families. Justice Beasley also suggested that the program stands to “exacerbate, rather than alleviate, educational, class, and racial divides,” suggesting that public schools may be left only with those students that private schools refuse to serve and become “grossly disproportionately populated by minority children.”
The Court’s decision means that North Carolina’s voucher program is here to stay – at least for the time being. While the Court’s majority appears reluctant to wade into policy issues it believes are best left to the legislature, discrimination claims were left unresolved. Moreover, the plaintiffs’ claims were entirely based on the state constitution, leaving open whether there may be federal constitutional claims. We’ll keep our eyes out for the next challenge.