State’s highest court upholds school voucher program despite lack of accountability and standards

In a 4-3 decision that defies principles of accountability to taxpayers and students alike, the elected Republican justices of the state Supreme Court today upheld a school voucher program that allows taxpayer dollars to fund tuition for private schools having virtually no obligation to provide North Carolina students with even a basic education.

Chief Justice Mark Martin, writing for the majority and joined by Justices Robert Edmunds, Paul Newby and Barbara Jackson, couched the opinion in terms of judicial restraint and deference to the legislature, saying that the court’s role was “limited to a determination of whether the legislation is plainly and clearly prohibited by the constitution.”

Finding that the state’s “Opportunity Scholarship Program” did not clearly violate the state constitution, the court reversed Superior Court Judge Robert Hobgood’s 2014 ruling reaching the opposite conclusion.

“The General Assembly fails the children of North Carolina when they are sent with public taxpayer money to private schools that have no legal obligation to teach them anything,” Hobgood wrote at the time.

The challenged law, enacted as part of the 2013 state budget, allows the state to appropriate more than $10 million in public money to award qualifying low-income families $4200 per child for use at private schools.

Those schools, which can range from religious schools with several students to a home school of one, 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.

As to the lack of accountability required of the private schools receiving public voucher money, the 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.

It is axiomatic that the responsibility Leandro places on the State to deliver a sound basic education has no applicability outside of the education delivered in our public schools. In Leandro we stated that a public school education that “does not serve the purpose of preparing students to participate and compete in the society in which they live and work is devoid of substance and is constitutionally inadequate.”  We concluded that the North Carolina Constitution guarantees every child of this state an opportunity to receive a sound basic education in our public schools. Leandro does not [though] stand for the proposition that [the constitution] independently restricts the State outside of the public school context.

The upshot of that conclusion 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.”

Hudson added:

Private schools are free to provide whatever education they deem fit within the governing statutes’ requirements. When parents send their children to any private school of their choosing on their own dime, as they are free to do, that education need not satisfy our constitutional demand that it be a for a public purpose. However, when public funds are spent to enable a private school education, that spending must satisfy the public purpose clause of our constitution by preparing students to contribute to society. Without meaningful standards meant to ensure that this or any minimum threshold is met, public funds cannot be spent constitutionally through this Opportunity Scholarship Program.

Hudson, who was joined in her opinion by Justices Cheri Beasley and Sam Ervin, went on to compare accountability standards in the state’s voucher program with those in other states — and found North Carolina’s woefully inadequate.

“Compared with ten similar programs across the country, North Carolina’s program falls painfully short,” Hudson wrote.

Justice Cheri Beasley joined in Hudson’s opinion but wrote separately to explain her further concerns with the state’s voucher program.

Beasley pointed out that in Leandro, the court had already confirmed the right of every child in the state, not just those in public schools, to a “sound basic education.”

“The majority notes that the purpose of the grants is to address grade level deficiencies of a “large percentage of economically disadvantaged students,” but it is unclear whether or how this program truly addresses those children’s needs,” Beasley wrote.

She also noted the practical realities of a program that offers little help to the legislature’s professed beneficiaries:

For now, as noted by the majority, the program is available only to lower income families. This availability assumes that private schools are available within a feasible distance, that these families win the grant lottery, and that their children gain admission to the nonpublic school of their choice. With additional costs for transportation, tuition, books, and, at times, school uniforms, for the poorest of these families, the “opportunity” advertised in the Opportunity Scholarship Program is merely a “cruel illusion.”

Read the court’s full decision here.