Tillis, Berger take risky path by pressing ahead with vouchers

April 14, 2014 

It really is time to stop calling those who run the N.C. General Assembly conservatives. They are not conservative. They are reckless.

There’s a long list of actions that demonstrates their disregard for what defines the truly conservative. They hand out extravagant amounts to the wealthy in tax cuts and leave the state strapped for basic services. They turn down billions of dollars in federal support for the jobless and the health needs of the working poor. They ignore the principles of sound investment by cutting spending on public schools and higher education. They trample constitutional ideals regarding voting rights and civil rights. They shirk their obligations to be careful stewards of the environment.

The list could go on, but the case is concisely illustrated in the latest turmoil over school vouchers. The legislature passed as part of the state budget a provision allowing the expenditure of $10 million in so-called “opportunity scholarships” for students from low-income families. The vouchers are intended to provide as many as 2,400 students currently attending public schools up to $4,200 each annually. They could use the vouchers to attend K- 12 private schools, including religious schools.

Lawmakers knew at the time that spending public money on private and religious schools was legally tenuous on both state and federal constitutional grounds, but they went ahead and passed it. Some 4,700 children applied for the grants, which were supposed to be available for the coming school year.

Injunction ordered

Naturally, the N.C. Association of Educators, the N.C. School Boards Association and others filed two lawsuits challenging the voucher program. In February, Superior Court Judge Robert Hobgood issued a temporary injunction blocking the law pending a ruling in the cases.

That’s where the cases should stand. If the law is upheld, then proceed. That was the position of state Attorney General Roy Cooper, who is defending the law but declined to challenge the injunction. But the legislature’s Republican leaders, Senate leader Phil Berger and House Speaker Thom Tillis, are taking a damn-the-torpedoes approach. They want to start handing out vouchers before it has been determined that such payments are legal.

Tillis and Berger announced last week that they intend to ask the state Supreme Court to stay Hobgood’s injunction. If they’re successful, the State Educational Assistance Authority may spend up to $400,000 to set up rules for distributing the voucher funds and conducting a lottery to determine which applicants will receive an “opportunity scholarship.”

Repayment a possibility

In a March 31 letter to Tillis and Berger, Grayson G. Kelley, the chief deputy attorney general, warned that going ahead without a court ruling could result in costly administrative preparations for a program that subsequently dies. He also pointed out that those who receive the vouchers may be obligated to return the funds.

“We are also concerned about the potential ramifications for parents, students and schools if the legislation is struck down; $10 million expended through an unconstitutional program could raise significant issues, including whether scholarship funds should be repaid,” Kelley wrote.

Rather than accept the court’s order for a delay and Kelley’s concerns about going forward, the two Republican leaders are claiming that the injunction jeopardizes public funding for other state-supported education programs including private university scholarships, pre-kindergarten, Smart Start, aid to disabled and deaf children and Teach for America.

That is an extreme and alarmist reading of the injunction’s basis and a weak rationale for proceeding with vouchers without court approval. But on that basis, they’re willing to press for the launching of a potentially unconstitutional program at considerable cost and risk.

Reason and prudence would dictate a more cautious approach, but Tillis and Berger long ago showed they aren’t about being conservative.

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