The principle of judicial restraint is a wonderful thing. It helps keep judges – as they go about their business of determining whether laws are constitutional – from horning in on the role of legislators, whose task is to make policy choices and then to enact laws reflecting those choices. Proper restraint makes judges’ rulings more credible, gives legislators a healthy leeway and shores up our democratic system of checks and balances.
But what happens when judicial restraint becomes judicial paralysis? A runaway legislature can get away with pretty much whatever it wants. Misplaced restraint can even become a form of passive aggression, whereby politically minded judges end up green-lighting laws that should have set off alarms in the courtroom.
All of which brings us to the N.C. Supreme Court and its recent decision that the state’s Opportunity Scholarship Program is perfectly in sync with the state constitution and therefore good to go.
With the court’s OK, the state is free to spend public money to subsidize some children’s attendance at nonpublic schools. And those schools are bound by none of the quality standards the Supreme Court itself has said are necessary to fulfill the right to an education that means something.
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That’s potentially sad for young people sent off to poorly regulated schools – although it has to be acknowledged that a child who’s been struggling in a regular public school might do better in a different setting.
What’s more problematic in the larger sense is that Opportunity Scholarships – vouchers, in other words – drain both money and talent from the public school systems that most of North Carolina’s children attend.
The high court’s July 23 go-ahead came in the form of a 4-3 decision, with Chief Justice Mark Martin delivering the majority opinion.
Martin spoke for the court’s four Republican members as they essentially ratified one of the Republican-controlled General Assembly’s most contentious policy initiatives. On the decision’s short end were the three justices of Democratic persuasion. Martin and his colleagues were careful to say they weren’t weighing in on the voucher program’s merits – its wisdom or likely effectiveness. As to possible ripple effects on the public schools, they ducked. Their whole take, as explicated in Martin’s opinion, boiled down to a finding that the program might pass constitutional muster in some instances – so what choice did they have but to let it continue? If a 30-page ruling ever conjured up an image of eight upturned palms and a shrug of eight shoulders, this was the time.
But even in its passivity, the ruling amounted to an attack. It overturned a previous ruling by Superior Court Judge Robert Hobgood, who declared last August that, with regards to the state constitution, Opportunity Scholarships flunked the test.
Supreme Court Justice Robin Hudson, in a dissent joined by her Democratic colleagues Cheri Beasley and Sam Ervin IV, recounted the gist of Hobgood’s findings. As “Undisputed Material Facts,” Hobgood concluded after a trial that:
▪ Private schools receiving scholarship funds don’t have to be accredited by the State Board of Education or anyone else.
▪ Teachers or principals at those schools don’t have to be licensed “or have any particular credentials, degrees, experience, or expertise in education.”
▪ The schools don’t have to meet any requirements as to their curricula.
▪ They don’t have to meet any required minimum instructional times.
▪ They’re not prohibited from discriminating against applicants or students on the basis of religion.
Among the 446 private schools identified by scholarship applicants as schools they planned to attend, 332 were religious schools and 117 were independent. Among the religious schools, 194 were not accredited by any organization. Among the independent schools, 59 were not accredited.
446 The number of private schools identified by Opportunity Scholarship applicants as schools they planned to attend
332 How many of those were religious schools
194 How many of the religious schools were not accredited by any organization
Mindful that the state constitution specifies that public funds must be spent for public purposes, Hudson went on to echo Hobgood’s conclusion that the voucher program fails to meet that standard.
As Hobgood put it, “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.”
Hudson acknowledged that private schools, under the constitution, don’t have to meet the same quality standards as public schools. However, she said, “When taxpayer money is used, the total absence of standards cannot be constitutional.”
In the long-running case known as Leandro, under which the Supreme Court has clarified the extent of the state’s duty to educate its young people, public schools are supposed to provide, at a minimum, the opportunity to get a “sound basic” education. The outcome is supposed to equip them “to participate and compete in the society in which they live and work.” To meet that goal, schools must have appropriately qualified teachers and principals.
After reviewing those parameters, Hudson drilled to the heart of the voucher program’s constitutional shortcomings. She wrote: “Therefore, while students enrolled in private schools may be receiving a fine education, if taxpayer money is spent on a private school education that does not prepare them to function in and to contribute to our state’s society, that spending cannot be for ‘public purposes only.’”
“The main constitutional flaw in this program,” wrote Hudson, “is that it provides no framework at all for evaluating any of the participating schools’ contribution to public purposes; such a huge omission is a constitutional black hole into which the entire program should disappear.”
Justice Beasley fleshed out an aspect of the scholarship program that seemed to have escaped the court majority’s notice.
“In setting education policy,” she wrote in her own dissent, “the danger posed by the General Assembly in designating general funds for nonpublic education and a nonpublic purpose is that it effectively undermines the support the legislature is constitutionally obligated to provide to the public school system.
“Because the Opportunity Scholarship Program circumvents the mission of public schools to successfully offer a sound basic education to all students, the General Assembly has failed to meet the mandated minimum standard.”
Students eligible for the scholarships come from families with incomes no greater than 133 percent of the federal poverty level. Successful applicants are chosen by lottery, and discrimination is barred on the basis of race, color or national origin (not religion).
The vouchers are worth up to $4,200 per student – a figure that critics say might well not be enough to cover the actual costs of attendance for children from disadvantaged families. Voucher advocates, with the judicial winds at their backs, now are pushing to broaden the eligibility rules. It’s not hard to see where this is heading.
Even in its passivity, the NC Supreme Court’s ruling on school vouchers amounted to an attack. It overturned a previous ruling by Superior Court Judge Robert Hobgood, who declared last August that, with regards to the state constitution, Opportunity Scholarships flunked the test.
Chief Justice Martin insisted that his court ordinarily must defer to legislative judgments. He wrote that the court must assume laws are constitutional unless it can be shown otherwise beyond a reasonable doubt.
To be rejected, he said, a law must fail the tests of constitutionality under every possible circumstance. And since education is in the community’s best interest, educational expenditures almost by definition serve a public purpose.
So, as a hypothetical: A child from a poor, inner-city family is awarded an Opportunity Scholarship, is accepted at a well-resourced, academically superior private school in the suburbs and somehow actually manages to attend.
Her performance in the classroom is outstanding. Surely she’s receiving a “sound basic” education, partly at public expense. But what about her peers who find themselves in unaccredited religious academies where the quality of instruction is sketchy at best? Those kids’ parents may think all is well, but it’s the children who end up paying a price for the lack of enforceable standards.
Voucher supporters claim they are simply trying to give disadvantaged students who may be struggling in the regular public schools the same kinds of alternatives for private education enjoyed by more affluent peers. No doubt some children will make good use of that opportunity – while for others, it will be a mirage.
The case in our Supreme Court hinged on state, not federal, constitutional issues, so there is no obvious route for appeal into the federal courts. Like it or not, the voucher program is now enshrined in state law.
What remains for those who have grave doubts about the program’s legality and wisdom is to push back against pending efforts to expand the eligibility rules. Opening voucher opportunities to students from middle-class or even well-to-do families would strip the program of its fig-leaf covering as a means of advancement for the poor.
Public school advocates also can continue pressing for meaningful ways to gauge whether private schools benefiting from the program are serving their students adequately.
Today, despite the Supreme Court’s colossal don’t-look-at-us shrug, those accountability tools scarcely exist. That the court agreed to tolerate such a pitifully meager level of oversight would have been shocking if it weren’t so predictable.
Steve Ford, former editorial page editor at The News & Observer, is a volunteer program associate at the N.C. Council of Churches, from whose blog this is reprinted.