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N.C. Supreme Court sets public education back

The Supreme Court of North Carolina delivered a stunning blow to public education and the separation of state and church yesterday. In a tellingly partisan 4-3 decision, the court upheld the state's "Opportunity Scholarship Program," reversing a trial court opinion that struck down the program in 2014.

The ruling comes less than a month after the Colorado Supreme Court rejected a local voucher program as a violation of Colorado's constitutional prohibition against funding religious education.

North Carolina's Opportunity Scholarship Program is a statewide voucher scheme that allows eligible families who want to send their children to private school to receive up to $4,200 annually in taxpayer dollars to cover the cost of private school tuition. Like other voucher and neovoucher schemes, North Carolina's program will siphon tax dollars from public schools that will instead be spent on schools that inculcate religion, with no apparent end in sight. While the court's decision releases more than $10 million in public funds set aside for the 2014-15 school year, state legislators are already clamoring for an increase in the amount of funding and an expansion of the program's income-eligibility requirements.

The N.C. Constitution mandates the state "the duty . . . to guard and maintain" its citizens' "right to the privilege of education." (Article I, Section 15). Article IX, Section 6, also known as the "State school fund," provides in part that money the state receives for education must be paid into the state treasury and "shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools."

The "opportunity scholarships" are not part of a public education system. As both the trial court judge and the state Supreme Court's dissent note: "Private schools that receive scholarship funds are (1) not required to be accredited by the State Board of Education or any other state or national institution; (2) not required to employ teachers or principals who are licensed or have any particular credentials, degrees, experience, or expertise in education; (3) not subject to any requirements regarding the curriculum that they teach; (4) not required to provide a minimum amount of instructional time; and (5) not prohibited from discriminating against applicants or students on the basis of religion. See N.C. Gen. Stat. § 115C-562.1 et seq."

"When taxpayer money is used, the total absence of standards cannot be constitutional," Associate Justice Robin Hudson wrote in dissent. "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; such a huge omission is a constitutional black hole into which the entire program should disappear."

Hudson's dissent includes a harsh critique of the state legislature for creating the voucher program, echoing the trial court's conclusions: "The General Assembly fails the children of North Carolina when they are sent with taxpayer money to private schools that have no legal obligation to teach them anything."

See FFRF's Voucher FAQ for more information on vouchers and neovouchers. FFRF thanks outgoing Legal Fellow Katherine Paige for her work on this issue.