July 23, 2015, was a dark day for an enterprise central to North Carolina’s civic well-being: the education of the state’s schoolchildren.
Sadly, the path down which the state Supreme Court blundered 10 years ago has grown only more treacherous and contrary to the overall public interest.
The occasion was a 4-3 ruling by the high court upholding the constitutionality of the so-called Opportunity Scholarship Program, which uses public funds to subsidize students’ attendance in private schools through the issuance of vouchers.
Overruling a trial court judge who had found that the scholarship program breached the state constitution on several grounds, the Supreme Court declared it was satisfied that the program served a public purpose and that it didn’t betray the state’s obligation to fund a “uniform system of free public schools.”
Then-Chief Justice Mark Martin, who wrote the majority opinion, emphasized the court’s need to defer to the legislature’s judgment. Only if the program’s opponents showed its unconstitutionality beyond a reasonable doubt could they prevail.
In fact, that’s the standard Superior Court Judge Robert Hobgood concluded had been met. And get this – the voucher program, when the Supreme Court said it could proceed, two years after the Republican-controlled General Assembly authorized it, was a far more modest undertaking than it is now. It’s fair to say that compared with the one approved in Martin’s narrow majority ruling, the program after those 10 years has mushroomed beyond recognition.
Ironic, then, that Martin relied on what can only be called a minimalist version of the program to decide that it passed constitutional muster. It allowed “a small number of students in lower-income families” to receive the state-funded scholarships, he wrote, with a state expense totaling $10.8 million in fiscal year 2014-15.
In the first year, 2,300 students were chosen to participate out of a public and charter school enrollment of some 1.5 million. The ostensible goal was to help financially struggling families place their kids in schools that might be better suited for them than the public schools to which they’d otherwise be assigned.
But in the school year just concluded, voucher recipients had swollen all the way to 80,470 – well more than half of the state’s 135,738 private school students.
A recent article by The News & Observer of Raleigh’s veteran education writer, T. Keung Hui, cited that jaw-dropping statistic drawn from state data. The number of voucher recipients more than doubled from the previous year. Tellingly, however, as Hui reported, overall private school enrollment increased by just 4,508 students.
Looser rules
What that signals is the impact of a change in the scholarship program’s rules – surely a change that makes Martin’s concept of how the program would work and who would benefit look, well, naïve.
Eligibility at first was closely tied to family income, with the cutoff set at 133 percent of the federal poverty level.
Now, though, with Republican legislators riding their sustained House and Senate majorities, income eligibility limits that had steadily risen have been simply abandoned. (The cap had meant a family of four could qualify for a scaled-down voucher with annual income up to $259,750 — not what’s commonly viewed as a hardship case.)
More than that, a requirement that students receiving private school vouchers must have previously attended public schools has also been dropped. It’s no surprise that many voucher applicants are kids who have been in private schools all along, with parents who could afford to send them there. Why should they suddenly be eligible for a public subsidy?
As Hui reported, the Department of Public Instruction last month said that among the new voucher recipients amid the program’s rapid expansion, a mere 8 percent had attended a public school in 2023-24. It can easily be concluded, as Hui wrote, that “as many as 92 percent of the new voucher students were existing private school students.”
Vouchers in 2024-25 topped out at $7,468 per student and ranged down to $3,360. Funding is channeled through an agency called the State Education Assistance Authority. From the mere $10.5 million expense 10 years ago, the annual amount has ballooned to $432.2 million for the school year just completed – a staggering leap from the 2023-24 figure of $185.6 million, Hui’s article reports. Tuition increases at some schools suggest they may be taking advantage of the money torrent.
An echoing critique
All this takes place as the legislature continues to resist full compliance with Supreme Court rulings in the long-running Leandro school finance case. That’s the case in which the state was found to be skimping on the kind of public-school investments needed to give every student what the court said the constitution entitled them to – an opportunity to receive a “sound basic” education, preparing them to become productive citizens.
That ruling was issued and affirmed by a Supreme Court with a majority of Democratic justices, only to be undercut by the current Republican-majority panel. It happens that now-retired Justice Robin Hudson, one of the court’s stalwarts in support of Leandro compliance, framed the arguments 10 years ago in opposition to the voucher scheme. Was it unconstitutional beyond a reasonable doubt? You betcha.
In her 2015 dissent, joined by Democratic colleagues Sam Ervin IV and Cheri Beasley, Hudson ripped the program as violating the principle that public funds must be spent only for public purposes (see page 30 and following in the opinion). The state’s lack of meaningful accountability for private schools’ educational performance, Hudson asserted, makes it impossible to tell whether they’re giving their students an education that’s worth a darn. So the taxpaying public shouldn’t have to subsidize it.
“When parents send their children to any private school of their choosing on their own dime, as they are free to do,” Hudson wrote, “that education need not satisfy our constitutional demand that it be 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.”
She quoted Judge Hobgood’s apt observation in his finding of unconstitutionality that “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.”
And she crystallized the state’s lack of private school standards in remarking, “Schools receiving public funding through the program are essentially free to employ whomever they desire to teach whatever they desire.” The total picture – which has only become clearer — is one in which the state turns it back on the constitutional mandate to give all its young people a fair shot at a decent education.
Public schools at risk
Hudson’s colleague Cheri Beasley, who would go on to become the state’s first female African-American chief justice before her ultra-narrow election defeat in 2020, in a concurring dissent articulated a core problem: “The danger posed by the General Assembly in designating general funds for non-public education and a non-public purpose is that it effectively undermines the support the legislature is constitutionally obligated to provide to the public school system.”
“In time,” Beasley wrote, “public schools may be left only with the students that private schools refuse to admit based on perceived lack of aptitude, behavioral concerns, economic status, religious affiliation, sexual orientation, or physical or other challenges, or public schools may become grossly disproportionately populated by minority children. The policy promoted by the Opportunity Scholarship Program, therefore, may serve to widen already considerable gaps and create a larger class of underserved children.”
The program has also tilted toward ostensibly religious schools that evidently scoff at the notion of being held accountable by secular authorities.
By now, it’s become obvious that 10 years ago, via the acquiescence of a conservative Supreme Court overly deferential to partisan blood brothers in the legislature, North Carolina green-lighted a policy risking the degradation of its public schools.
Hundreds of millions that could be spent on shoring up public schools that are obligated and committed to serving every child who comes through their doors are being siphoned off to private institutions with no obligations to anyone other than those students whom they choose to admit. And still, those obligations are hollow, since whether or not they’re met isn’t being credibly measured.
The North Carolina Council of Churches supports well-resourced and well-led public schools for the overriding reason that, without them, far too many of our young people – the people on whom our communities and our civil society in general will depend in the years to come – will be left without the knowledge and skills to reach their full, positive potential.
One could say that to waste that potential, or to cause it to be wasted, is nothing short of sinful. Even though Robin Hudson and her colleagues lost the voucher argument 10 years ago, their analysis made sense then and, with time’s passage, has proved even more compelling as public education struggles at the hands of the privileged, the selfish, the narrow-minded, and the prejudiced.
