North Carolina Supreme Court justices had numerous questions Tuesday for attorneys arguing for and against the use of public money at private and religious schools.
The justices asked about what constituted a “public purpose,” questioned interpretations of the state constitution and its framers’ intentions, and asked about guarantees for a quality education from schools and teachers not governed by state standards or oversight.
The voucher program, struck down by Judge Robert Hobgood in August, would have provided low-income families who wanted to send their children to private schools as much as $4,200 annually in taxpayer dollars. Hobgood declared it a violation of the North Carolina Constitution, saying “appropriating taxpayer funds to unaccountable schools does not accomplish a public purpose.”
But Lauren Clemmons, an assistant state attorney general, argued the voucher program approved in 2013 “supplements educational choices available to the state’s low-income students” and doesn’t “supplant the uniform system of free public schools.”
Burton Craige, an attorney representing 25 plaintiffs – sponsored by the N.C. Association of Educators and the N.C. Justice Center – who challenged the voucher program’s legality, argued otherwise.
“North Carolina has many fine private schools, but the problem with this legislation is these funds flow to all private schools, regardless of quality,” Craige told the justices. “The legislature can’t hand over millions of dollars based on the blithe assumption that anything that calls itself a school is providing a real education.”
Craige pointed to people in the courthouse gallery wearing blue T-shirts. “They have come in this weather from Fayetteville, Durham, Greensboro, Hickory and Asheville because they know what is at stake – and that is our public schools,” he said.
In arguments that touched on North Carolina’s past, Craige noted a program adopted nearly six decades ago in which families hoping to evade desegregation laws could get vouchers for private schools. The plan was declared unconstitutional after passage of the federal Civil Rights Act of 1964.
“If this General Assembly wants to give taxpayer funds to private schools, it can do so only through an amendment to the constitution,” Craige said.
Attorneys representing lawmakers argued that North Carolina public schools weren’t working for many students from low-income families, arguing that five of six students from economically disadvantaged families were failing one or both of the end-of-grade reading and math tests given by public schools.
They called vouchers a “parental choice program” for low-income families.
“This case is all about accountability,” said Noah Huffstetler, a Raleigh attorney representing Phil Berger, president pro tem of the N.C. Senate, and Tim Moore, speaker of the N.C. House of Representatives. “It is not about unaccountable private schools. It is about an effort by the public school districts in this case and their supporters to evade accountability.”
Richard Komer, an attorney with the Arlington, Va.-based Institute for Justice representing some families with vouchers, argued that the private schools are accountable to the parents of their students.
He added that it was the parents, not the private schools, benefiting from the public funds. “Parents know what’s best for their children and will seek an adequate, decent education for their children,” Komer said.
Bob Orr, a former N.C. Supreme Court justice and N.C. Court of Appeals judge and a member of the legal team challenging the vouchers, argued that as approved, the voucher program did not require that students approved for vouchers be from failing schools. Nor did it require them to show they were struggling.
Orr and Craige said many religious schools require students to adhere to the tenets of faith with which the school is affiliated. Nearly two-thirds of the private schools in North Carolina are unaccredited, Craige pointed out, and there would be no way to ensure their teachers were well-trained.
“Where’s the public benefit in a standard-less education in which the state has no ability to impose at least certain parameters on curriculums and standardization of teachers?” Orr asked.
When the justices will decide the case is uncertain. Rulings can take weeks, months and on rare occasions almost a year.