This post appears here courtesy of the Carolina Journal
. The author of this post is Mitch Kokai
The latest legal challenge to North Carolina's Opportunity Scholarships has yet to head to a courtroom. But a review of a similar case from 2015 should raise concerns for scholarship supporters.
The N.C. Supreme Court upheld
Opportunity Scholarships as constitutional five years ago. But the justices split, 4-3, along party lines. At a time when the court was still officially nonpartisan, all four Republican-affiliated justices supported the scholarships. All three Democrats rejected them.
Circumstances have changed dramatically since the state's highest court delivered that victory for school choice. Given the changes, it's worthwhile to revisit the Supreme Court's 2015 written opinion
in Hart v. State.
In upholding Opportunity Scholarship school vouchers in July 2015, the state's highest court overruled an August 2014 ruling from a single Superior Court judge. That judge had sided with critics who wanted to kill the voucher program in the cradle.
Writing for the Supreme Court's four Republican members, then-Chief Justice Mark Martin assessed the General Assembly's decision to create a voucher program. Then he emphasized the courts' proper role.
"According to the most recent figures published by the Department of Public Instruction, a large percentage of economically disadvantaged students in North Carolina are not grade-level proficient with respect to the subjects tested on the State's end-of-year assessments,"
Martin wrote. "Disagreement exists as to the innovations and reforms necessary to address this and other educational issues in our state. Our state and country benefit from the debate between those with differing viewpoints in this quintessentially political dialogue."
"Such discussions inform the legislative process,"
Martin added. "But the role of judges is distinguishable, as we neither participate in this dialogue nor assess the wisdom of legislation."
"Our constitutionally assigned role is limited to a determination of whether the legislation is plainly and clearly prohibited by the constitution,"
the chief justice explained. "Because no prohibition in the constitution or in our precedent forecloses the General Assembly's enactment of the challenged legislation here, the trial court's order declaring the legislation unconstitutional is reversed."
Martin and the other three members of the Hart majority refrained from injecting their opinions about Opportunity Scholarships into their ruling. Instead they agreed that a decision about the scholarships belonged in the General Assembly, the home of "quintessentially political dialogue."
Voucher supporters might take comfort in the Hart decision, if the justices who sat on the N.C. Supreme Court in 2015 occupied the same seats today. But Martin is gone, along with two of the other three justices who joined his majority opinion in Hart. Only Justice Paul Newby remains from that quartet.
Meanwhile, all three dissenters in the 2015 case remain on the N.C. Supreme Court. Two of the three dissenting justices wrote opinions in Hart. Neither dissent bodes well for the future of a program designed to help low-income families use tax dollars to send their children to the schools of their choice.
Justice Robin Hudson wrote the main dissent. "Because the Opportunity Scholarship Program provides for the spending of taxpayer money on private schools without incorporating any standards for determining whether students receive a sound basic — or indeed, any — education, I conclude that the program violates the North Carolina Constitution in two respects,"
First, Hudson disputed the notion that Opportunity Scholarships fulfilled a public purpose. Second, she argued that voucher spending violated the state constitution's provision spelling out "a right to the privilege of education."
"The main constitutional flaw in this program is that it provides no framework at all for evaluating any of the participating schools' contribution to public purposes,"
Hudson argued. "[S]uch a huge omission is a constitutional black hole into which the entire program should disappear."
Hudson also dismissed the notion that a wider variety of options in an "educational marketplace" would ensure higher-quality programs. "[M]arketplace standards are not a measure of constitutionality,"
she wrote. "To the contrary, this Court must insulate constitutional standards from the whims of the marketplace."
No one can say for certain how Hudson would rule in a second review of Opportunity Scholarships today. But given her preference for watching the program "disappear" into a "black hole" in 2015, voucher supporters would be wise not to count on her vote.
Just as disturbing for today's Opportunity Scholarship advocates is the second dissent in the Hart case. Having joined Hudson's dissent, Justice Cheri Beasley added her own distinct criticism of school vouchers.
Beasley warned of "the danger posed by the General Assembly in designating general funds for nonpublic education and a nonpublic purpose."
"[I]t effectively undermines the support the legislature is constitutionally obligated to provide to the public school system,"
The voucher program "circumvents the mission of public schools," Beasley argued, and she labeled the General Assembly's decision to enact a voucher program "vexing."
Perhaps Beasley's most damning assessment of Opportunity Scholarships involved the words "cruel illusion." First, she employed those words to criticize the "opportunity" in the voucher program's name. She used the language again when assessing the program's potential impact.
"Without systemic and cultural adjustments to address social inequalities, the further cruel illusion of the Opportunity Scholarship Program is that it stands to exacerbate, rather than alleviate, educational, class, and racial divides."
Not only does Beasley still sit on the Supreme Court. She has served as chief justice
since Martin's resignation in February 2019. Beasley's current position gives her a larger role in overseeing the court's consideration of cases. She has voted with the majority in 99% of N.C. Supreme Court rulings this year. (Hudson's voted with the majority 98% of the time.)
Since 2015, the Opportunity Scholarship program has grown to serve more than 12,000 families. They can use up to $4,200 a year to send their children to the schools of their choice.
But a lawsuit
tied to the N.C. Association of Educators teachers union aims to end Opportunity Scholarships once and for all. If the case heads to the state's highest court, dissents in Hart v. State from 2015 suggest scholarship supporters would face a tough audience.
Mitch Kokai is senior political analyst for the John Locke Foundation.