North Carolina Vouchers: Unconstitutional

Last Updated: August 26, 2014

This article appeared in the August 2014 Rural Policy Matters.

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North Carolina’s school voucher program cannot move forward, according to Wake County Superior Court Judge Robert Hobgood.

The voucher program, dubbed the Opportunity Scholarship Act, already has a complicated legal history.

Grounds for the ruling

Judge Hobgood found the voucher program unconstitutional on a number of grounds, including that the program appropriates to private schools taxpayer funds that should be used exclusively to establish and maintain a uniform system of free public schools. Hobgood also found that the program allows funding to non-public schools that discriminate on religious grounds.

The voucher program is part of a broad package of education the North Carolina legislature began passing in 2012 after Republicans won the Governor’s race and super-majorities in both houses. Legislation also cut funding for public schools, removed tenure protections for teachers, expanded charter schools and reduced their accountability, and took several oversight authorities from the State Board of Education.

In 2013, the state budget allocated $10 million for Opportunity Scholarships, worth $4,200 a year per eligible student to attend private schools. Private schools were not required to admit students, to offer services, to meet curriculum or achievement standards, or to set basic standards for teachers and administrators.

Several of these latter aspects of the program are also referenced in the ruling. Hobgood found that the program appropriates taxpayer funds to schools that lack standards, curriculum, and certification requirements for teachers and principals. In addition, he found that the program appropriates educational funds outside the supervision and administration of the state board.

Further, Hobgood found that the program appropriates education funds in a manner that does not accomplish a public purpose, that it creates a non-uniform system of education; and that it siphons money from public schools in favor of private schools.

Hobgood refused to stay the ruling, meaning it will be in effect while the case is appealed.

Sources of funding, contentious history

The initial lawsuit against the Opportunity Scholarship program—brought by the North Carolina Association of Educators, the North Carolina School Boards Association, and the North Carolina Justice Center—challenged the constitutionality of the program.

In February of this year, Hobgood issued a preliminary injunction halting the program. In March, House Speaker Thom Tillis and Senate President Pro Tem Phil Berger asked North Carolina Attorney General Ray Cooper to appeal the injunction, a request Cooper refused.

But a group of parents, represented by the out-of-state firm Institute for Justice, intervened. They maintained they would be harmed by a delay in the program. In May, the State Supreme Court overturned the temporary injunction.

In an apparent attempt to head off questions about the use of public education dollars for non-public schools, the voucher law was amended over the summer. The $10 million in funding the program was returned to the education budget and replaced with $10 million from the state’s General Fund. The legislation included language stating that this money was not to be considered funding from the state.

Constitutional rights for low-income children

Hobgood directly addressed the funding question in two important ways. First, he noted that the state’s statutes contain no provision for voucher funding to come from any source except taxpayer funds, despite language in the voucher legislation claiming otherwise.

Secondly, Hobgood tied the voucher case directly to Leandro, the long-running school finance lawsuit brought by a group of rural school districts. The Leandro rulings affirm the state’s constitutional requirement to provide a sound basic education to all children attending North Carolina’s public schools.

Hobgood said that the voucher program effectively removes Leandro protections by providing state funding for schools that are not required to meet standards of quality and accountability. He went so far as to charge that low-income students might be pushed out of public schools: “It appears to this court that the General Assembly is seeking to push at-risk students from low income families into non-public schools in order to avoid the cost of providing them a sound basic education in public school as mandated by the Leandro decision.”

The ruling will likely be appealed.

Read more:

Local coverage:

The video of the ruling:

Background on recent North Carolina education policy:


Read more from the August 2014 Rural Policy Matters.