In One-Party North Carolina, Elected Supreme Court Upholds School Vouchers

In North Carolina last week, the Charlotte Observer editorialized, “The legislature voted 4-3 along party lines… to approve taxpayer–funded vouchers for private schools.  Oh wait, that wasn’t the legislature.  That was the N.C. Supreme Court.  It’s becoming increasingly difficult to distinguish the two.”  The newspaper’s editorial board is commenting on the lack of checks and balances in a one-party state: Republican governor, Republican legislature, Republican elected supreme court.

The Raleigh News & Observer also editorialized on the explicitly partisan dynamics in the way the North Carolina voucher case was handled:  “And yet, in a ruling with a clear partisan flavor, the North Carolina Supreme Court, having snatched the confrontation over a school voucher program out of the hands of the N.C. Court of Appeals where it should properly have gone, has upheld the Republican legislature’s voucher program… The high court’s taking of the case was a sign Republican justices were going to support the agenda of Republican lawmakers.  And that’s what happened.”

North Carolina’s supreme court on July 23 upheld the constitutionality of a school voucher program the state’s legislature established in 2013.  Education Week reports that the program awards $4,200 to low-income students to enable them to attend private or parochial schools.  “Last year, around 1,200 students used vouchers to attend private schools.  At least three-quarters of them were affiliated with a religion….”  What are the issues at stake? The Raleigh News & Observer’s editorial explains: “It is distressing on its face, this idea that public money can go toward the expenses of private schooling.  It crosses the divide between public and private, between church and state, between common sense and partisan ideology.”

The North Carolina Justice Center explains the argument made by those who brought the lawsuit challenging the constitutionality of the new voucher program:  “The North Carolina Supreme Court disregarded the plain language of our state Constitution, which provides that public funds for education must be used ‘exclusively’ to support the public schools… Risky voucher schemes like the current law will not require schools to have qualified teachers or a standard curriculum, and (will) allow publicly funded private schools to discriminate against students on the basis of income, disability or religion.  Schools that receive vouchers have no accountability for student learning and achievement.”

Writing for North Carolina Policy Watch, Sharon McCloskey describes the legal challenge to the state’s voucher program. Private schools accepting the vouchers “can range from religious schools with several students to a home school of one.” Such schools “are not subject to state standards relating to curriculum, testing and teacher certification and are free to accept or reject students of their own choosing, including for religious or other discriminatory reasons.  In reaching its conclusion—and despite the constitution’s language that state funds should be ‘appropriated and used exclusively for establishing and maintaining a uniform system of free public schools’—the majority held that public funds may be spent on educational initiatives outside of the uniform system of free public schools… (T)he majority said that the constitutionally required ‘sound basic education’ for North Carolina students, set down in the landmark Leandro decision, did not apply to private schools.”

McCloskey continues: “The upshot… is that public schools paid for with taxpayer funds must provide students with such a ‘sound basic education.’ Taxpayer-funded private schools need not.  That double-standard particularly perturbed Justice Robin Hudson, who wrote in her dissenting opinion that ‘a large gap opens between Leandro-required standards and no standards at all, which is what we have here.  When taxpayer money is used, the total absence of standards cannot be constitutional.”

When I asked her to comment on this case, Molly Hunter, an attorney and the director of Education Justice, the Education Law Center’s national program, explained: “In its analysis of this [voucher] program, the Court overturns its own precedent and the North Carolina Constitution’s requirement that taxpayer funds must serve ‘public purposes only.’  The Court’s opinion is contrary to its own precedent, again, when it allows state funding to support schools that are not required to provide a ‘sound basic education,’ credentialed teachers, and a required curriculum, as public schools must do.”


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