The Florida Education Association (FEA), along with several allies, recently filed a lawsuit challenging the state’s 13-year-old tax-credit scholarship program. The teacher union’s complaint seeks to expand the 2006 Bush v. Holmes decision that struck down Florida’s Opportunity Scholarship program. But the nearly decade-old voucher case has also drawn the attention of the teacher union in North Carolina.
Just a week before the FEA filed the suit, Wake County Superior Court Robert Judge Hobgood’s struck down North Carolina’s Opportunity Scholarship program using similar arguments found in Bush v. Holmes. In his ruling Hobgood argued that the voucher program “siphons” money from public schools, “does not accomplish a public purpose,” and appropriates funds to “unaccountable schools” that have “no legal obligation to teach [students] anything.”
Mark Jewell, vice president of the North Carolina Association of Educators, one of the plaintiffs, told the News & Record that “Hobgood’s decision was a victory for children.” The News & Observer applauded Hobgood stating that he “saw through the deception,” while the Charlotte Observer called the decision a “cogent, compelling constitutional case against bad law.”
But Dick Komer, an attorney with the Institute for Justice representing parents receiving vouchers in North Carolina, says that Hobgood over-read the constitution.
As in Florida, North Carolina’s constitution requires a system of uniform, free public schools. North Carolina’s constitution, under Article 9, Section 6 and 7, also prohibits money appropriated to the state’s K-12 public school fund from being used on anything other than public schools.
However, the state’s voucher program used money appropriated from the General Fund to the North Carolina State Education Assistance Authority. This state agency not only administers scholarships, grants and tuition aid so students can attend public or private colleges in North Carolina, but its budget is also part of the state’s higher education fund, not K-12 fund.
Hobgood acknowledges the voucher funds were appropriated to the higher education budget, but he argues vouchers are unconstitutional because the funds “should be used exclusively for brick and maintaining a uniform system of free public schools (sic).”
“The plaintiffs believe that any money spent on K-12 education can only be spent on K-12 public schools,” says Komer. He believes the plaintiffs took their playbook from Florida’s Bush v. Holmes decision. Under Holmes, the Court found the voucher program unconstitutional because it “diverts public dollars into separate private systems parallel to and in competition with the free public schools” and that those schools were not “uniform” with public schools.
Hobgood’s decision used sharper language, but he too argued that the voucher program diverted funds from public schools into non-uniform private schools.
“Vouchers empower low-income parents and allows their children to leave public schools just like rich kids,” says Komer. Since the state doesn’t fund empty seats, argues Komer, the impact to public school budgets is the same whether students use a voucher or pay for the tuition themselves.
“The plaintiffs never explain why rich kids can attend private schools without harming public ones,” argues Komer.
The plaintiffs argued, and the court agreed, that vouchers not only divert funds from public schools, but that students are harmed by attending schools that do not employ certified teachers, do not use state standards or curriculum, and are under “no legal obligation to teach them anything.”
Komer points out that more than 95,000 wealthier students already attend such private schools in North Carolina, with no evidence those schools provide an inferior education.
By way of contrast, the “uniformity” on public schools may not be working for some students. As the Institute for Justice notes, just one out of every five economically disadvantaged students in the state is able to pass both the math and reading exams. On any single exam, economically disadvantaged students are half as likely to pass as wealthier students.
No one is disputing that North Carolina has a constitutional duty to fund free public schools, so one of the key unanswered questions is whether that requirement automatically prohibits the legislature from helping families try something different. “Empowering low-income parents so they have choices just like rich parents is within the legislature’s power” concludes Komer.
Defendants of North Carolina’s voucher program are currently appealing Hobgood’s decision.
