State Supreme Court acts rashly on school vouchers

May 15, 2014 

The politicization of the state Supreme Court may be moving from the campaign trail to the court itself. That’s the way it looked Wednesday when the high court gave state constitutional concerns less weight than conservatives’ desire to move ahead with a favored program.

The Supreme Court lifted a lower court’s preliminary injunction against the start of a school-voucher program. It reversed an injunction issued by Superior Court Judge Robert Hobgood and upheld by the state Court of Appeals. State Attorney General Roy Cooper, who is defending the law, saw no point in appealing the injunction until the constitutional challenges contained in two lawsuits are resolved. But a group representing parents who have applied for vouchers did appeal with the blessing of the state’s GOP leaders and prevailed.

It’s hard to tell whether the high court’s one-sentence ruling was more notable for its political overtones or its dubious legal basis. Clearly two courts and the attorney general charged thought it reasonable to resolve the constitutional claims before setting the program in motion. Indeed, Judge Hobgood, one of the state’s most respected judges, described the law as “likely unconstitutional.”

The high court, if it had been acting with the prudence befitting its role, would simply have let the legal process continue. Instead, it tossed red meat to the conservatives who are willing to undermine the financial foundation of public schools in the name of school choice. The court has a 4-3 Republican majority, but the vote was not released.

At issue is a new state law that would grant 2,400 vouchers to students from low-income families for the 2014-15 school year. About 4,700 students have applied for the vouchers, worth up to $4,200 each, and a lottery was supposed to decide the recipients. However, Hobgood halted the lottery at the request of plaintiffs suing to block the law. The plaintiffs in one suit include the North Carolina Association of Educators and the N.C. Justice Center. Another suit was filed by the N.C. School Boards Association, which was joined by 71 of the state’s 115 school districts, including Chapel Hill-Carrboro and Chatham, Durham and Orange counties.

The plaintiffs argue the law is unconstitutional because it would use $10 million in taxpayers’ funds to support private and religious schools.

At the time of the injunction in February, Burton Craige, an attorney for the plaintiffs, said, “Judge Hobgood enforced the plain language of the North Carolina Constitution. Public funds for education must be used ‘exclusively’ for establishing and maintaining a uniform system of free public schools. Judge Hobgood recognizes that ‘exclusively’ means exclusively.”

Ultimately, the state Supreme Court may agree with that position. In the meantime, it has allowed the program to go forward despite compelling legal and practical objections. Along with the constitutional issues, there is a risk of unnecessary state costs and educational disruption to the students involved.

If the program is found to be unconstitutional, state education officials will have invested time drawing up rules and procedures that won’t apply. Students who make plans to change schools based on the vouchers might have those plans derailed. And schools that have received voucher funds might have to give them back.

The claims against the program are substantial and have been brought by groups at the heart of the state’s public school system. The claims should have been resolved before letting the program go forward.

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