Point of View

N.C.'s constitution - are they serious?

April 8, 2011 

— North Carolina's legislators seem oddly bipolar when it comes to the state constitution.

On the one hand, many are frantic to constitutionalize. Proposals to outlaw gay marriage, impose a Taxpayer's Bill of Rights, limit leadership terms, reform the annexation process and a host of other ballot initiatives approach center stage. The new Republican majority apparently believes intensely in the usefulness, perhaps even the sanctity, of state constitutional constraint.

On the other, the same lot seems well content to ignore, and even flout, the restrictions the North Carolina constitution already contains. Proposal and electoral ratification - the processes of amendment - are thought vital. Enforcement and compliance matter little at all.

Consider, for example, our ancient requirement that "the General Assembly (assure) that the benefits of the University of North Carolina, as far as practicable, be extended to the people of the State free of expense."

Two decades ago, the state provided 81 percent of the funds needed to teach undergraduates in the UNC system. By last year, the share had fallen to 63 percent. Tuition, since 2000, has skyrocketed - up over 175 percent. A year ago, the student tab was boosted twice in quick succession - lifting rates by 18 percent on some campuses. Over $600 million has been cut from the system in the last four years. According to some, a gash of up to 30 percent, this year, is in the offing. We slouch toward a new higher education funding model.

Not to worry, explained Senate President Pro Tem Phil Berger. Public university education in North Carolina is still a bargain, and Tar Heel parents can shoulder a heavier burden. "If you would say that UNC-Chapel Hill is a peer with Michigan and Virginia, then I don't see how you can look at those comparisons and say we don't have low tuition."

Of course, there's something of a logical misstep there. If UNC-Chapel Hill is less expensive than Michigan and UVa - schools that have no "as free as practicable" mandate and have long abandoned the low tuition model - I'm not sure that says anything at all about permissible tuition levels at Asheville, Pembroke, A&T, Central, East Carolina, State and the other campuses of our dispersed system.

And, more centrally, it seems clear that Berger seeks only to modestly outpace the market. But that's not what our constitution demands. It states a bold preference that our university system, like its K-12 counterpart, be offered "free of expense." Measuring how close Carolina can, in practice, come to that ideal is a function of our resources and public spending priorities. It's not determined by what Berkeley does. Berger's comparative assurances take no instruction from the text of our constitution whatsoever.

Beyond this, but similarly, last month the legislature voted to abolish four high school standardized, end-of course exams. Wake County Superior Court Judge Howard Manning had informed the legislators, pointedly, that eliminating the tests would make it impossible to enforce his existing decrees designed to assure a "sound basic education." The proffered statute, he explained, is "impermissible and would constitute a violation of children's rights under the state constitution."

Manning's logic was straightforward. Without such continuous, uniform examinations, teachers who fail in their mission could not be identified. Nor could the state monitor whether the demanded quality of instruction was delivered. Adults may grumble, he asserted, but the right "to a sound basic education" is "vested in every child in North Carolina."

Legislators brushed aside Manning's warning of "constitutional confrontation." Heeding the complaints of parents and teachers, and hoping to save $2.6 million annually in administrative costs, lawmakers ditched the tests not required by the federal government.

And that's my point. The statehouse treated the testing issue as if it operated simply at its own discretion. The mandates of our state constitution - the Leandro case be damned - deliver no compulsion. The dictates of Washington might, to be sure. But North Carolina's constitution is safely ignored. It's just talk. Not real law.

Of course, that can't be Manning's view. Much of our K-12 system has been held to violate legal command. Manning is not only empowered, he also is required to assure that the transgression is remedied. All things being equal, of course, we wouldn't have judges deciding what tests to give. But all things, the Leandro case explicitly determined, are not equal. And equal they must become.

Perhaps before our legislators initiate new state constitutional commands, they should take seriously the ones we already have.

Gene Nichol is a professor of law at UNC-Chapel Hill and director of the university's Center on Poverty, Work & Opportunity.

News & Observer is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service