Hart v. State , 368 N.C. 122 ( 2015 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 372A14
Filed 23 July 2015
ALICE HART, RODNEY ELLIS, JUDY CHAMBERS, JOHN HARDING LUCAS,
MARGARET ARBUCKLE, LINDA MOZELL, YAMILE NAZAR, ARNETTA
BEVERLY, JULIE PEEPLES, W.T. BROWN, SARA PILAND, DONNA
MANSFIELD, GEORGE LOUCKS, WANDA KINDELL, VALERIE JOHNSON,
MICHAEL WARD, T. ANTHONY SPEARMAN, BRITTANY WILLIAMS,
RAEANN RIVERA, ALLEN THOMAS, JIM EDMONDS, SASHA VRTUNSKI,
PRISCILLA NDIAYE, DON LOCKE, and SANDRA BYRD,
Plaintiffs
v.
STATE OF NORTH CAROLINA and NORTH CAROLINA STATE EDUCATION
ASSISTANCE AUTHORITY,
Defendants,
and
CYNTHIA PERRY, GENNELL CURRY, TIM MOORE, and PHIL BERGER,
Intervenor-Defendants
Appeal pursuant to N.C.G.S. § 7A-27(b)(1) from an order and final judgment
granting summary judgment and injunctive relief for plaintiffs entered on 28 August
2014 by Judge Robert H. Hobgood in Superior Court, Wake County. On 10 October
2014, pursuant to N.C.G.S. § 7A-31(a) and (b)(2), and Rule 15(e)(2) of the North
Carolina Rules of Appellate Procedure, the Supreme Court on its own initiative
certified the case for review prior to determination in the Court of Appeals. Heard in
the Supreme Court on 24 February 2015.
Patterson Harkavy LLP, by Burton Craige, Narendra K. Ghosh, and Paul E.
Smith; and North Carolina Justice Center, by Carlene McNulty and Christine
Bischoff, for plaintiff-appellees.
HART V. STATE
Opinion of the Court
Roy Cooper, Attorney General, by Lauren M. Clemmons, Special Deputy
Attorney General, for defendant-appellants.
Institute for Justice, by Richard D. Komer, pro hac vice, Robert Gall, and Renée
Flaherty, pro hac vice; and Shanahan Law Group, PLLC, by John E. Branch,
III, for parent intervenor-defendant-appellants Cynthia Perry and Gennell
Curry.
Nelson Mullins Riley & Scarborough, LLP, by Noah H. Huffstetler III and
Stephen D. Martin, for legislative officer intervenor-defendant-appellants Tim
Moore and Phil Berger.
American Civil Liberties Union of North Carolina Legal Foundation, by
Christopher Brook, for Americans United for Separation of Church and State,
American Civil Liberties Union, American Civil Liberties Union of North
Carolina Legal Foundation, Anti-Defamation League, Baptist Joint Committee
for Religious Liberty, and Interfaith Alliance Foundation, amici curiae.
Liberty, Life, and Law Foundation, by Deborah J. Dewart; Thomas C. Berg, pro
hac vice, University of St. Thomas School of Law (Minnesota); and Christian
Legal Society, by Kimberlee Wood Colby, pro hac vice, for Christian Legal
Society; North Carolina Christian School Association; Roman Catholic Diocese
of Charlotte, North Carolina; Roman Catholic Diocese of Raleigh, North
Carolina; North Carolina Family Policy Council; Liberty, Life, and Law
Foundation; Association of Christian Schools International; American
Association of Christian Schools; and National Association of Evangelicals,
amici curiae.
Jane R. Wettach for Education Scholars and Duke Children’s Law Clinic, amici
curiae.
Tin Fulton Walker & Owen, by Luke Largess; and National Education
Association, by Philip Hostak, pro hac vice, for National Education Association,
amicus curiae.
UNC Center for Civil Rights, by Mark Dorosin, Managing Attorney, and
Elizabeth Haddix, Senior Staff Attorney, for North Carolina Conference of the
National Association for the Advancement of Colored People, amicus curiae.
Robinson, Bradshaw & Hinson, P.A., by Richard A. Vinroot and Matthew F.
Tilley, for Pacific Legal Foundation, amicus curiae.
-2-
HART V. STATE
Opinion of the Court
MARTIN, Chief Justice.
When assessing a challenge to the constitutionality of legislation, this Court’s
duty is to determine whether the General Assembly has complied with the
constitution. If constitutional requirements are met, the wisdom of the legislation is
a question for the General Assembly. E.g., In re Hous. Bonds, 307 N.C. 52, 57, 296
S.E.2d 281, 284 (1982). In performing our task, we begin with a presumption that
the laws duly enacted by the General Assembly are valid. Baker v. Martin, 330 N.C.
331, 334, 410 S.E.2d 887, 889 (1991). North Carolina courts have the authority and
responsibility to declare a law unconstitutional,1 but only when the violation is plain
and clear. State ex rel. Martin v. Preston, 325 N.C. 438, 449, 385 S.E.2d 473, 478
(1989). Stated differently, a law will be declared invalid only if its unconstitutionality
is demonstrated beyond reasonable doubt. Baker, 330 N.C. at 334-35, 410 S.E.2d at
889.
In this case plaintiffs challenge the Opportunity Scholarship Program, which
allows a small number of students2 in lower-income families to receive scholarships
from the State to attend private school. According to the most recent figures
published by the Department of Public Instruction, a large percentage of economically
1 See N.C. Const. art. IV, § 1; Bayard v. Singleton, 1 N.C. 5 (1787) (recognizing the
courts’ power of judicial review and declaring unconstitutional an act of the legislature
infringing upon the right to a trial by jury).
-3-
HART V. STATE
Opinion of the Court
disadvantaged students in North Carolina are not grade level proficient with respect
to the subjects tested on the State’s end-of-year assessments.3 Disagreement exists
as to the innovations and reforms necessary to address this and other educational
issues in our state. Our state and country benefit from the debate between those with
differing viewpoints in this quintessentially political dialogue. Such discussions
inform the legislative process. But the role of judges is distinguishable, as we neither
participate in this dialogue nor assess the wisdom of legislation. Just as the
legislative and executive branches of government are expected to operate within their
constitutionally defined spheres, so must the courts. See In re Alamance Cty. Court
Facils., 329 N.C. 84, 94, 405 S.E.2d 125, 130 (1991) (“Just as the inherent power of
the judiciary is plenary within its branch, it is curtailed by the constitutional
definition of the judicial branch and the other branches of government.”).4 Our
constitutionally assigned role is limited to a determination of whether the legislation
2 In the first year of the Opportunity Scholarship Program, 2300 students were
selected to participate. The average daily membership in our State’s public and charter
schools is approximately 1.5 million students. N.C. Dep’t of Pub. Instruction, Facts and
Figures 2012-13, http://www.dpi.state.nc.us/docs/fbs/resources/data/factsfigures/2012-
13figures.pdf (last visited July 21, 2015) (reporting a combined average daily membership of
1,492,793 in public and charter schools during calendar year 2012-13).
3N.C. Dep’t of Pub. Instruction, 2013-14 School Report Cards, NC School Report
Cards, http://www.ncpublicschools.org/src/ (last visited July 21, 2015).
4 This foundational principle of constitutional law is well established in North
Carolina. See N.C. Const. art I, § 6 (“The legislative, executive, and supreme judicial powers
of the State government shall be forever separate and distinct from each other.”); see also id.
art. II (describing the legislative sphere of authority); id. art. III (describing the executive
sphere of authority); id. art. IV (describing the judicial sphere of authority).
-4-
HART V. STATE
Opinion of the Court
is plainly and clearly prohibited by the constitution. Because no prohibition in the
constitution or in our precedent forecloses the General Assembly’s enactment of the
challenged legislation here, the trial court’s order declaring the legislation
unconstitutional is reversed.
* * *
I
Under the provisions of the Opportunity Scholarship Program,5 the State
Educational Assistance Authority (the Authority) makes applications available each
year “to eligible students for the award of scholarship grants to attend any nonpublic
school.” N.C.G.S. § 115C-562.2(a) (2014). An “[e]ligible student” is defined as “a
student who has not yet received a high school diploma” and who, in addition to
meeting other specified criteria, “[r]esides in a household with an income level not in
excess of one hundred thirty-three percent (133%) of the amount required for the
student to qualify for the federal free or reduced-price lunch program.” Id. § 115C-
5 The Opportunity Scholarship Program was ratified by the General Assembly and
signed into law by the Governor in July 2013 as part of the “Current Operations and Capital
Improvements Appropriations Act of 2013”—the State’s budget bill for fiscal years 2013-14
and 2014-15. Current Operations and Capital Improvements Appropriations Act of 2013, ch.
360, sec. 8.29, 2013 N.C. Sess. Laws 995, 1064-69. The program was amended in August of
2014 to its present form, The Current Operations and Capital Improvements Appropriations
Act of 2014, ch. 100, sec. 8.25, 2013 N.C. Sess. Laws (Reg. Sess. 2014) 328, 371-73, and is
codified as amended in Part 2A to Article 39 of Chapter 115C of the General Statutes,
N.C.G.S. §§ 115C-562.1 through -562.7 (2013 & Supp. 2014).
-5-
HART V. STATE
Opinion of the Court
562.1(3) (2013). A “[n]onpublic school” is any school that meets the requirements of
either Part 1 (“Private Church Schools and Schools of Religious Charter”) or Part 2
(“Qualified Nonpublic Schools”) of Article 39 of Chapter 115C of the General Statutes.
Id. § 115C-562.1(5) (2013).
The Authority awards scholarships to the program’s applicants, with
preference given first to previous scholarship recipients, and then to students in
lower-income families and students entering kindergarten or the first grade. Id.
§ 115C-562.2(a). Subject to certain restrictions, students selected to participate in
the program may receive a scholarship grant of up to $4,200 to attend any nonpublic
school. Id. § 115C-562.2(b) (2014). Once a student has been selected for the program
and has chosen a school to attend, the Authority remits the grant funds to the
nonpublic school for endorsement, and the parent or guardian “restrictively
endorse[s] the scholarship grant funds awarded to the eligible student to the
nonpublic school for deposit into the account of [that] school.” Id. § 115C-562.6 (2013).
A nonpublic school that accepts a scholarship recipient for admission must
comply with the requirements of N.C.G.S. § 115C-562.5(a), which include:
(1) providing the Authority with documentation of the tuition and fees charged to the
student; (2) providing the Authority with a criminal background check conducted on
the highest ranking staff member at the school; (3) providing the parent or guardian
of the student with an annual progress report, including standardized test scores;
-6-
HART V. STATE
Opinion of the Court
(4) administering at least one nationally standardized test or equivalent measure for
each student in grades three or higher that measures achievement in the areas of
English grammar, reading, spelling, and mathematics; (5) providing the Authority
with graduation rates of scholarship program students; and (6) contracting with a
certified public accountant to perform a financial review for each school year in which
the nonpublic school accepts more than $300,000 in scholarship grants. Id. § 115C-
562.5(a)(1)-(6) (2014). Nonpublic schools enrolling more than twenty-five
Opportunity Scholarship Program students must report the aggregate standardized
test performance of the scholarship students to the Authority. Id. § 115C-562.5(c)
(2014). Furthermore, all nonpublic schools that accept scholarship program students
are prohibited from charging additional fees based on a student’s status as a
scholarship recipient, id. § 115C-562.5(b) (2014), and from discriminating with
respect to the student’s race, color, or national origin, id. § 115C-562.5(c1) (2014); see
also 42 U.S.C. § 2000d (2012). Nonpublic schools that fail to comply with these
statutory requirements are ineligible to participate in the program. N.C.G.S. § 115C-
562.5(d) (2014).
The Opportunity Scholarship Program also subjects the Authority to certain
reporting requirements. Each year, the Authority must provide demographic
information and program data to the Joint Legislative Education Oversight
Committee. Id. § 115C-562.7(b) (2014). The Authority is also required to select an
independent research organization to prepare an annual report on “[l]earning gains
-7-
HART V. STATE
Opinion of the Court
or losses of students receiving scholarship grants” and on the “[c]ompetitive effects
on public school performance on standardized tests as a result of the scholarship
grant program.” Id. § 115C-562.7(c) (2014). Following submission of these reports to
the Joint Legislative Education Oversight Committee and the Department of Public
Instruction, “[t]he Joint Legislative Education Oversight Committee shall review
[the] reports from the Authority and shall make ongoing recommendations to the
General Assembly as needed regarding improving administration and accountability
for nonpublic schools accepting students receiving scholarship grants.” Id.
The Opportunity Scholarship Program is funded by appropriations from
general revenues to the Board of Governors of the University of North Carolina,
which provides administrative support for the Authority. In fiscal year 2014-15, the
General Assembly appropriated a total of $10,800,000 to the program.
II
On 11 December 2013, plaintiff Alice Hart and twenty-four other taxpayers
filed a complaint in Superior Court, Wake County, challenging the constitutionality
of the Opportunity Scholarship Program under the Constitution of North Carolina.6
6 Although plaintiffs generally represent a cross section of individuals who currently
interact or have previously interacted with our state’s public schools, plaintiffs’ complaint in
the present action was made in their capacity as taxpayers of the state.
-8-
HART V. STATE
Opinion of the Court
Plaintiffs’ amended complaint asserted five claims for relief, all of which
presented facial challenges under the North Carolina Constitution. First, plaintiffs
alleged that the Opportunity Scholarship Program “appropriates revenue paid by
North Carolina taxpayers to private schools for primary and secondary education” in
violation of Article IX, Sections 2(1) and 6, and Article I, Section 15. Second, plaintiffs
alleged that the law “appropriates revenue paid by North Carolina taxpayers to
private schools for the ostensible purpose of primary and secondary education
without those funds being supervised by the Board of Education” in violation of
Article IX, Section 5. Third, plaintiffs alleged that the law creates “a non-uniform
system of schools for primary and secondary education” in violation of Article IX,
Section 2(1). Fourth, plaintiffs alleged that in “transfer[ring] revenue paid by North
Carolina taxpayers to private schools without any accountability or requirements
ensuring that students will actually receive an education,” the law “does not
accomplish any public purpose” in violation of Article V, Sections 2(1) and 2(7). Fifth,
plaintiffs alleged that in “transfer[ring] revenue paid by North Carolina taxpayers to
private schools that are permitted to discriminate against students and applicants on
the basis of race, color, religion, or national origin,”7 the law serves no public purpose
and therefore violates Article V, Section 2(1), and Article I, Section 19. Plaintiffs
7 Plaintiffs’ allegations concerning a nonpublic school’s ability to discriminate based
on race, color, or national origin were rendered moot by the passage of N.C.G.S. § 115C-
562.5(c1). See ch. 100, sec. 8.25(d), 2013 N.C. Sess. Laws (Reg. Sess. 2014) at 371.
-9-
HART V. STATE
Opinion of the Court
requested a declaration that the scholarship program is unconstitutional under the
challenged provisions, as well as a permanent injunction to prevent implementation
and enforcement of the legislation.
On cross-motions for summary judgment, the trial court entered an order and
final judgment on 28 August 2014, allowing plaintiffs’ motion for summary judgment
on all claims, denying defendants’ and intervenor-defendants’ motions for summary
judgment,8 and declaring the Opportunity Scholarship Program unconstitutional on
its face. The trial court permanently enjoined implementation of the Opportunity
Scholarship Program legislation, including the disbursement of public funds.
Defendants appealed, and this Court, on its own initiative, certified the appeal
for immediate review prior to a determination in the Court of Appeals.9 For the
following reasons, we reverse the trial court’s order and final judgment declaring the
Opportunity Scholarship Program unconstitutional and dissolve the injunction
preventing further implementation and enforcement of the challenged legislation.
8 For purposes of this opinion, we will refer to defendants and intervenor-defendants
collectively as “defendants.”
We also certified the companion case of Richardson v. State, No. 384A14, for
9
immediate review, which we decide today in a separate opinion.
-10-
HART V. STATE
Opinion of the Court
III
Defendants’ appeal from the trial court’s order and final judgment presents
questions to this Court concerning the construction and interpretation of provisions
in the North Carolina Constitution.10 As the court of last resort in this state, we
answer with finality “issues concerning the proper construction and application of
North Carolina laws and the Constitution of North Carolina.” Preston, 325 N.C. at
449, 385 S.E.2d at 479 (citations omitted). Accordingly, our review of the
constitutional questions presented is de novo. Piedmont Triad Reg’l Water Auth. v.
Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001); see Craig v. New
Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009).
In exercising our de novo review, we apply well-settled principles to assess the
constitutionality of legislative acts. At the outset, the North Carolina Constitution is
not a grant of power, but a limit on the otherwise plenary police power of the State.
See, e.g., Preston, 325 N.C. at 448-49, 385 S.E.2d at 478. We therefore presume that
a statute is constitutional, and we will not declare it invalid unless its
unconstitutionality is demonstrated beyond reasonable doubt. Baker, 330 N.C. at
334-35, 410 S.E.2d at 889; see also Preston, 325 N.C. at 449, 385 S.E.2d at 478 (stating
that an act of the General Assembly will be declared unconstitutional only when “it
[is] plainly and clearly the case” (quoting Glenn v. Bd. of Educ., 210 N.C. 525, 529-30,
10 Plaintiffs have not presented any claims under the United States Constitution.
-11-
HART V. STATE
Opinion of the Court
187 S.E. 781, 784 (1936))). Next, when the constitutionality of a legislative act
depends on the existence or nonexistence of certain facts or circumstances, we will
presume the existence or nonexistence of such facts or circumstances, if reasonable,
to give validity to the statute. In re Hous. Bonds, 307 N.C. at 59, 296 S.E.2d at 285
(citing Martin v. N.C. Hous. Corp., 277 N.C. 29, 44, 175 S.E.2d 665, 673 (1970)).
Further, a facial challenge to the constitutionality of an act, as plaintiffs have
presented here, is the most difficult challenge to mount successfully. Beaufort Cty.
Bd. of Educ. v. Beaufort Cty. Bd. of Comm’rs, 363 N.C. 500, 502, 681 S.E.2d 278, 280
(2009) (citations omitted). “We seldom uphold facial challenges because it is the role
of the legislature, rather than this Court, to balance disparate interests and find a
workable compromise among them.” Id. (citation omitted); see also Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51, 128 S. Ct. 1184, 1191
(2008) (discussing why facial challenges are disfavored). Accordingly, we require the
party making the facial challenge to meet the high bar of showing “that there are no
circumstances under which the statute might be constitutional.” Beaufort Cty. Bd. of
Educ., 363 N.C. at 502, 681 S.E.2d at 280 (citation omitted); see also United States v.
Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987) (“[T]he challenger must
establish that no set of circumstances exists under which the [a]ct would be valid.
The fact that the [act] might operate unconstitutionally under some conceivable set
of circumstances is insufficient to render it wholly invalid . . . .”). It is through this
lens of constitutional review that we begin our analysis in this case.
-12-
HART V. STATE
Opinion of the Court
A
The first question presented by defendants’ appeal is whether Article IX,
Section 6 of the state constitution prohibits the General Assembly from appropriating
tax revenues to the Opportunity Scholarship Program, which is not part of our public
school system.
Defendants contend that Article IX, Section 6 should not be read as a limitation
on the State’s ability to spend on education generally. In plaintiffs’ view, however,
even when the General Assembly explicitly intends, as it did here, to appropriate
money for educational scholarships to nonpublic schools, the plain text of Article IX,
Section 6 prohibits that option and requires that any and all funds for education be
appropriated exclusively for our public school system.
Entitled “State school fund,” Article IX, Section 6 provides:
The proceeds of all lands that have been or hereafter
may be granted by the United States to this State, and not
otherwise appropriated by this State or the United States;
all moneys, stocks, bonds, and other property belonging to
the State for purposes of public education; the net proceeds
of all sales of the swamp lands belonging to the State; and
all other grants, gifts, and devises that have been or
hereafter may be made to the State, and not otherwise
appropriated by the State or by the terms of the grant, gift,
or devise, shall be paid into the State Treasury and,
together with so much of the revenue of the State as may
be set apart for that purpose, shall be faithfully
-13-
HART V. STATE
Opinion of the Court
appropriated and used exclusively for establishing and
maintaining a uniform system of free public schools.
N.C. Const. art. IX, § 6.
The manifest purpose of this section is to protect the “State school fund” in
order to preserve and support the public school system, not to limit the State’s ability
to spend on education generally. Section 6 accomplishes this purpose by identifying
sources of funding for the State school fund and mandating that funds derived by the
State from these sources be “faithfully appropriated for establishing and maintaining
in this State a system of free public schools.” City of Greensboro v. Hodgin, 106 N.C.
182, 186-87, 11 S.E. 586, 587-88 (1890) (quoting a previous version of the provision).
The first four clauses of Section 6 identify non-revenue sources of funding, two of
which appear to be mandatory and two of which appear to be within the discretion of
the General Assembly to otherwise appropriate as it sees fit. The fifth clause (the
revenue clause) states that a portion of the State’s revenue “may be set apart for that
purpose”—meaning for the purpose of “establishing and maintaining a uniform
system of free public schools.” This clause recognizes that the General Assembly may
choose to designate a portion of the State’s general tax revenue as an additional
source of funding for the State school fund.
Thus, within constitutional limits, the General Assembly determines how
much of the revenue of the State will be appropriated for the purpose of “establishing
and maintaining a uniform system of free public schools.” Insofar as the General
-14-
HART V. STATE
Opinion of the Court
Assembly appropriates a portion of the State’s general revenues for the public schools,
Section 6 mandates that those funds be faithfully used for that purpose. Article IX,
Section 6 does not, however, prohibit the General Assembly from appropriating
general revenue to support other educational initiatives. See Preston, 325 N.C. at
448-49, 385 S.E.2d at 478 (“All power which is not expressly limited by the people in
our State Constitution remains with the people, and an act of the people through
their representatives in the legislature is valid unless prohibited by that
Constitution.” (citations omitted)). Because the Opportunity Scholarship Program
was funded from general revenues, not from sources of funding that Section 6
reserves for our public schools, plaintiffs are not entitled to relief under this provision.
Faithful appropriation and use of educational funds was a very real concern to
the framers of our constitution. Before the introduction of Article IX, Section 6 in the
1868 Constitution, the Literary Fund, which was devoted to funding public education,
was routinely threatened to be used during the Civil War to pay for other expenses
and was almost completely depleted by the war’s end. See M.C.S. Noble, A History of
the Public Schools of North Carolina 242-49, 272 (1930); Milton Ready, The Tar Heel
State: A History of North Carolina 263 (2005). The framers of the 1868 Constitution
sought to constitutionalize the State’s obligation to protect the State school fund. In
so doing, our framers chose not to limit the State from appropriating general revenue
to fund alternative educational initiatives. Plaintiffs’ arguments to the contrary are
without merit.
-15-
HART V. STATE
Opinion of the Court
Given our disposition of plaintiffs’ claim under Article IX, Section 6, we agree
with defendants that plaintiffs are likewise not entitled to relief under Article IX,
Section 5. Under Article IX, Section 5, “[t]he State Board of Education shall supervise
and administer the free public school system and the educational funds provided for
its support.” N.C. Const. art. IX, § 5 (emphasis added). Because public funds may be
spent on educational initiatives outside of the uniform system of free public schools,
plaintiffs’ contention that funding for the Opportunity Scholarship Program should
have gone to the public schools—and therefore been brought under the supervision
and administration of the State Board of Education—is without merit.
The final issue under Article IX presented by defendants’ appeal is whether
the Opportunity Scholarship Program legislation violates Article IX, Section 2(1).
Under Section 2(1), “[t]he General Assembly shall provide by taxation and otherwise
for a general and uniform system of free public schools, which shall be maintained at
least nine months in every year, and wherein equal opportunities shall be provided
for all students.” Id. art. IX, § 2(1). Plaintiffs contend that “[i]f the uniformity clause
has any substance, it means that the State cannot create an alternate system of
publicly funded private schools standing apart from the system of free public schools
mandated by the Constitution.”
Plaintiffs’ characterization of the Opportunity Scholarship Program is
inaccurate. The Opportunity Scholarship Program legislation does not create “an
-16-
HART V. STATE
Opinion of the Court
alternate system of publicly funded private schools.” Rather, this legislation provides
modest scholarships to lower-income students for use at nonpublic schools of their
choice. Furthermore, we have previously stated that the uniformity clause requires
that provision be made for public schools of like kind throughout the state. Wake
Cares, Inc. v. Wake Cty. Bd. of Educ., 363 N.C. 165, 171-72, 675 S.E.2d 345, 350
(2009). The uniformity clause applies exclusively to the public school system and
does not prohibit the General Assembly from funding educational initiatives outside
of that system. Accordingly, the Opportunity Scholarship Program does not violate
Article IX, Section 2(1).
B
The next question presented by defendants’ appeal is whether the
appropriation of general revenues to fund educational scholarships for lower-income
students is for a public purpose under Article V, Sections 2(1) and 2(7).
Defendants contend that providing lower-income students the opportunity to
attend private school “satisfies the State’s legitimate objective of encouraging the
education of its citizens.” Defendants maintain that, in satisfying this objective,
appropriations directed to the Opportunity Scholarship Program are made for a
public purpose. Plaintiffs contend that the program does not accomplish a public
purpose because the program appropriates taxpayer money for educational
-17-
HART V. STATE
Opinion of the Court
scholarships to private schools without regard to whether the schools satisfy
substantive education standards.
Under Article V, Section 2(1), “[t]he power of taxation shall be exercised in a
just and equitable manner, for public purposes only, and shall never be surrendered,
suspended, or contracted away.” N.C. Const. art. V, § 2(1). Under Article V,
Section 2(7), “[t]he General Assembly may enact laws whereby the State, any county,
city or town, and any other public corporation may contract with and appropriate
money to any person, association, or corporation for the accomplishment of public
purposes only.” Id. art. V, § 2(7). Because “[t]he power to appropriate money from
the public treasury is no greater than the power to levy the tax which put the money
in the treasury,” we subject both legislative powers to the public purpose
requirement. Mitchell v. N.C. Indus. Dev. Fin. Auth., 273 N.C. 137, 143, 159 S.E.2d
745, 749-50 (1968).
At the outset, we note that “the fundamental concept underlying the public
purpose doctrine” is that “the ultimate gain must be the public’s, not that of an
individual or private entity.” Maready v. City of Winston-Salem, 342 N.C. 708, 719,
467 S.E.2d 615, 622 (1996). Thus, in resolving challenges to legislative
appropriations under the public purpose clause, this Court’s inquiry is discrete—we
ask whether the legislative purpose behind the appropriation is public or private. See
id. at 716, 467 S.E.2d at 620-21; Mitchell, 273 N.C. at 144, 159 S.E.2d at 750. If the
-18-
HART V. STATE
Opinion of the Court
purpose is public, then the wisdom, expediency, or necessity of the appropriation is a
legislative decision, not a judicial decision. See Maready, 342 N.C. at 714, 467 S.E.2d
at 619. Accordingly, our public purpose analysis does not turn on whether the
appropriation will, in the words of plaintiffs, “accomplish” a public purpose.
Likewise, sustaining a legislative appropriation under the public purpose
clause does not require a concurrent assessment of whether other constitutional
infirmities exist that might render the legislation unconstitutional. If the challenged
appropriation is constitutionally infirm on other grounds, proper redress is under the
applicable constitutional provisions, not the public purpose clause. Thus, plaintiffs’
contentions that the Opportunity Scholarship Program runs afoul of Article I,
Sections 15 and 19, due to scholarships being remitted to allegedly “unaccountable”
schools or schools that discriminate on the basis of religion, are inapposite to the
public purpose analysis.11
Our inquiry under Article V, Sections 2(1) and 2(7), therefore, is whether the
appropriations made by the General Assembly to fund the Opportunity Scholarship
Program are for a public rather than private purpose. In addressing this question,
we are mindful of the general proposition articulated by this Court over forty-five
years ago: “Unquestionably, the education of residents of this State is a recognized
11 The independent applicability of Article I, Sections 15 and 19, in this case is
discussed in Part III(C) of our opinion.
-19-
HART V. STATE
Opinion of the Court
object of State government. Hence, the provision therefor is for a public purpose.”
State Educ. Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 587, 174 S.E.2d 551,
559 (1970) (citing Jamison v. City of Charlotte, 239 N.C. 682, 696, 80 S.E.2d 904, 914
(1954); Green v. Kitchin, 229 N.C. 450, 455, 50 S.E.2d 545, 549 (1948)).
In determining whether a specific appropriation is for a public purpose, “[t]he
term ‘public purpose’ is not to be narrowly construed.” Madison Cablevision, Inc. v.
City of Morganton, 325 N.C. 634, 646, 386 S.E.2d 200, 207 (1989) (citing Briggs v.
City of Raleigh, 195 N.C. 223, 226, 141 S.E. 597, 599 (1928)). We have also specifically
“declined to ‘confine public purpose by judicial definition[, leaving] “each case to be
determined by its own peculiar circumstances as from time to time it arises.” ’ ”
Maready, 342 N.C. at 716, 467 S.E.2d at 620 (alteration in original) (quoting Stanley
v. Dep’t of Conservation & Dev., 284 N.C. 15, 33, 199 S.E.2d 641, 653 (1973)). Indeed,
“[a] slide-rule definition to determine public purpose for all time cannot be
formulated; the concept expands with the population, economy, scientific knowledge,
and changing conditions.” Id. (quoting Mitchell, 273 N.C. at 144, 159 S.E.2d at 750).
Although the initial determination of the General Assembly in passing the law is
given “great weight” by this Court, Madison Cablevision, 325 N.C. at 644-45, 386
S.E.2d at 206, “the ultimate responsibility for the public purpose determination rests,
of course, with this Court,” id. at 645, 386 S.E.2d at 206. “[T]wo guiding principles
have been established for determining that a particular undertaking by [the State] is
for a public purpose: (1) it involves a reasonable connection with the convenience and
-20-
HART V. STATE
Opinion of the Court
necessity of the [State]; and (2) the activity benefits the public generally, as opposed
to special interests or persons.” Maready, 342 N.C. at 722, 467 S.E.2d at 624 (quoting
Madison Cablevision, 325 N.C. at 646, 386 S.E.2d at 207 (citations omitted)).
“As to the first prong, whether an activity is within the appropriate scope of
governmental involvement and is reasonably related to communal needs may be
evaluated by determining how similar the activity is to others which this Court has
held to be within the permissible realm of governmental action.” Id.; see also Green
v. Kitchin, 229 N.C. 450, 455, 50 S.E.2d 545, 549 (1948) (“A tax or an appropriation
is certainly for a public purpose if it is for the support of government, or for any of the
recognized objects of government.” (citations omitted)). Here, the provision of
monetary assistance to lower-income families so that their children have additional
educational opportunities is well within the scope of permissible governmental action
and is intimately related to the needs of our state’s citizenry. See State Educ.
Assistance Auth., 276 N.C. at 587, 174 S.E.2d at 559 (“Unquestionably, the education
of residents of this State is a recognized object of State government.”); see also Rowan
Cty. Bd. of Educ. v. U.S. Gypsum Co., 332 N.C. 1, 10, 418 S.E.2d 648, 655 (1992)
(“Education is a governmental function so fundamental in this state that our
constitution contains a separate article entitled ‘Education.’ ”); Delconte v. State, 313
N.C. 384, 401-02, 329 S.E.2d 636, 647 (1985) (“We also recognize that the state has a
compelling interest in seeing that children are educated and may, constitutionally,
establish minimum educational requirements and standards for this education.”).
-21-
HART V. STATE
Opinion of the Court
In State Education Assistance Authority v. Bank of Statesville, for example, we
approved the use of revenue bond proceeds to “make loans to meritorious North
Carolinians of slender means” for the purpose of “minimiz[ing] the number of
qualified persons whose education or training is interrupted or abandoned for lack of
funds.” 276 N.C. at 587, 174 S.E.2d at 559. Observing that “[t]he people of North
Carolina constitute our State’s greatest resource,” we held that “bond proceeds are
used for a public purpose when used to make such loans.” Id.
Similarly, in Hughey v. Cloninger we addressed the legality of an appropriation
made by the Gaston County Board of Commissioners to a private school for dyslexic
children. 297 N.C. 86, 88, 95, 253 S.E.2d 898, 900, 903 (1979). Although we held that
the Board of Commissioners lacked statutory authority to make such an
appropriation, we stated, albeit in obiter dictum, that had there been statutory
authority, such an appropriation “would have presented no ‘public purpose’
difficulties as it is well established that both appropriations and expenditures of
public funds for the education of the citizens of North Carolina are for a public
purpose.” Id. at 95, 253 S.E.2d at 903-04. We therefore conclude that the
appropriations made to the Opportunity Scholarship Program involve a “reasonable
connection with the convenience and necessity of the [State].” Maready, 342 N.C. at
722, 467 S.E.2d at 624 (quoting Madison Cablevision, 325 N.C. at 646, 386 S.E.2d at
207).
-22-
HART V. STATE
Opinion of the Court
As to the second prong of the public purpose inquiry, whether “the activity
benefits the public generally, as opposed to special interests or persons,” id. (quoting
Madison Cablevision, 325 N.C. at 646, 386 S.E.2d at 207), “[i]t is not necessary, in
order that a use may be regarded as public, that it should be for the use and benefit
of every citizen in the community,” id. at 724, 467 S.E.2d at 625 (quoting Briggs, 195
N.C. at 226, 141 S.E. at 599-600). “[A]n expenditure does not lose its public purpose
merely because it involves a private actor. Generally, if an act will promote the
welfare of a state or a local government and its citizens, it is for a public purpose.”
Id.; see also State Educ. Assistance Auth., 276 N.C. at 588, 174 S.E.2d at 560 (“[T]he
fact that the individual obtains a private benefit cannot be considered sufficient
ground to defeat the execution of ‘a paramount public purpose.’ ” (quoting Clayton v.
Kervick, 52 N.J. 138, 155, 244 A.2d 281, 290 (1968))).
The promotion of education generally, and educational opportunity in
particular, is of paramount public importance to our state. Indeed, borrowing
language from the Northwest Ordinance of 1787, our constitution preserves the ethic
of educational opportunity, declaring that “[r]eligion, morality, and knowledge being
necessary to good government and the happiness of mankind, schools, libraries, and
the means of education shall forever be encouraged.” N.C. Const. art. IX, § 1
(emphasis added). Although the scholarships at issue here are available only to
families of modest means, and therefore inure to the benefit of the eligible students
in the first instance, and to the designated nonpublic schools in the second, the
-23-
HART V. STATE
Opinion of the Court
ultimate beneficiary of providing these children additional educational opportunities
is our collective citizenry. Cf. Maready, 342 N.C. at 724, 467 S.E.2d at 625
(recognizing that an expenditure providing an “incidental private benefit” is for a
public purpose if it serves “a primary public goal”). Accordingly, the appropriations
made by the General Assembly for the Opportunity Scholarship Program were for a
public purpose under Article V, Sections 2(1) and 2(7).
C
The next issue presented by defendants’ appeal concerns the independent
applicability, if any, of Article I, Section 15 to plaintiffs’ claims. Article I, Section 15
declares: “The people have a right to the privilege of education, and it is the duty of
the State to guard and maintain that right.” N.C. Const. art. I, § 15. This
constitutional provision states a general proposition concerning the right to the
privilege of education, the substance of which is detailed in Article IX. Article I,
Section 15 is not an independent restriction on the State. See generally John V. Orth
& Paul Martin Newby, The North Carolina State Constitution 62-63 (2d ed. 2013).
Plaintiffs rely on Article I, Section 15 and Leandro v. State, 346 N.C. 336, 488
S.E.2d 249 (1997), a case challenging the adequacy of public school funding, for the
proposition that “public funds spent for education must go to institutions that will
provide meaningful educational services—specifically, to institutions with a
sufficient curriculum and competent teachers.” Because the Opportunity Scholarship
-24-
HART V. STATE
Opinion of the Court
Program legislation does not require that participating nonpublic schools meet the
sound basic education standard announced in Leandro, 346 N.C. at 347, 488 S.E.2d
at 255, or impose regulatory standards approximating those placed on our public
schools in Chapter 115C of the General Statutes, plaintiffs contend that the
scholarship program accomplishes no public purpose and is constitutionally
inadequate.12
As stated above, Article I, Section 15 has no effect on our disposition with
respect to plaintiffs’ public purpose claim. In its order and final judgment, however,
the trial court purported to grant independent relief to plaintiffs under Article I,
Section 15, concluding that the Opportunity Scholarship Program legislation fails to
“ ‘guard and maintain’ the right of the people to the privilege of education” by
“appropriating taxpayer funds to educational institutions that are not required to
meet educational standards” and by “expending public funds so that children can
attend private schools.” To the extent that plaintiffs rely on Article I, Section 15 as
12 Plaintiffs acknowledge that at least some nonpublic schools may be able to provide
scholarship students a meaningful education. Even so, plaintiffs contend that “[t]he State
has an affirmative obligation to ensure that public funds are used to accomplish a public
purpose” and that, without built-in accountability standards, the State cannot ensure that
the Opportunity Scholarship Program will accomplish its intended purposes as to each
scholarship recipient. In making this argument, plaintiffs would require the State to
demonstrate that the program operates constitutionally in all circumstances, rather than
accepting the burden of showing that there is no set of circumstances under which the law
could operate in a constitutional manner.
-25-
HART V. STATE
Opinion of the Court
an independent basis of relief, we agree with defendants that such reliance is
misplaced.
It is axiomatic that the responsibility Leandro places on the State to deliver a
sound basic education has no applicability outside of the education delivered in our
public schools. In Leandro we stated that a public school education that “does not
serve the purpose of preparing students to participate and compete in the society in
which they live and work is devoid of substance and is constitutionally inadequate.”
346 N.C. at 345, 488 S.E.2d at 254. We concluded that “Article I, Section 15 and
Article IX, Section 2 of the North Carolina Constitution combine to guarantee every
child of this state an opportunity to receive a sound basic education in our public
schools.” Id. at 347, 488 S.E.2d at 255 (emphases added). Thus, Leandro does not
stand for the proposition that Article I, Section 15 independently restricts the State
outside of the public school context.
Furthermore, our constitution specifically envisions that children in our state
may be educated by means outside of the public school system. See N.C. Const.
art. IX, § 3 (“The General Assembly shall provide that every child of appropriate age
and of sufficient mental and physical ability shall attend the public schools, unless
educated by other means.” (emphasis added)); see also Delconte, 313 N.C. at 385, 400-
01, 329 S.E.2d at 638, 646-47 (concluding that home school instruction did not violate
compulsory attendance statutes and noting that a contrary holding would raise a
-26-
HART V. STATE
Opinion of the Court
serious constitutional question under the North Carolina Constitution). Thus, even
if Article I, Section 15 could serve as an independent basis of relief, there is no merit
in the argument that a legislative program designed to increase educational
opportunity in our state is one that fails to “guard and maintain” the “right to the
privilege of education.”
The final issue presented by defendants’ appeal concerns plaintiffs’ Article I,
Section 19 religious discrimination claim. Article I, Section 19 declares, in pertinent
part, “[n]o person shall be denied the equal protection of the laws; nor shall any
person be subjected to discrimination by the State because of race, color, religion, or
national origin.” N.C. Const. art. I, § 19 (emphasis added). Plaintiffs couch their
religious discrimination claim, both for justiciability purposes and with respect to the
merits of the claim, in terms of the public purpose doctrine. In short, plaintiffs
contend that the Opportunity Scholarship Program accomplishes no public purpose
because it allows funding for educational scholarships to schools that may
discriminate on the basis of religion. Again, our analysis of the public purpose
doctrine made clear that Article I, Section 19, like Article I, Section 15, has no effect
on our disposition with respect to plaintiffs’ public purpose claim.
With respect to the independent applicability of Article I, Section 19 as a stand-
alone claim, defendants have maintained throughout this litigation that such a claim
is not justiciable in this case because plaintiffs, as taxpayers of the state, lack
-27-
HART V. STATE
Opinion of the Court
standing. Specifically, defendants contend that plaintiffs have suffered no injury in
fact because they are not in the class of persons against which the program allegedly
discriminates. We agree and therefore hold that plaintiffs’ Article I, Section 19 claim
must be dismissed.
Generally, “a taxpayer has standing to bring an action against appropriate
government officials for the alleged misuse or misappropriation of public funds.”
Goldston v. State, 361 N.C. 26, 33, 637 S.E.2d 876, 881 (2006). Yet, “[a] taxpayer, as
such, does not have standing to attack the constitutionality of any and all legislation.”
Nicholson v. State Educ. Assistance Auth., 275 N.C. 439, 447, 168 S.E.2d 401, 406
(1969) (citations omitted). “[A] person who is seeking to raise the question as to the
validity of a discriminatory statute has no standing for that purpose unless he belongs
to the class which is prejudiced by the statute.” In re Martin, 286 N.C. 66, 75, 209
S.E.2d 766, 773 (1974) (quoting 16 Am. Jur. 2d Constitutional Law § 123 (1964)).
Here plaintiffs are taxpayers of the state, not eligible students alleged to have
suffered religious discrimination as a result of the admission or educational practices
of a nonpublic school participating in the Opportunity Scholarship Program. Because
eligible students are capable of raising an Article I, Section 19 discrimination claim
on their own behalf should the circumstances warrant such action, plaintiffs have no
standing to assert a direct discrimination claim on the students’ behalf.
-28-
HART V. STATE
Opinion of the Court
IV
“The General Assembly has the right to experiment with new modes of dealing
with old evils, except as prevented by the Constitution.” Redev. Comm’n v. Sec. Nat’l
Bank of Greensboro, 252 N.C. 595, 612, 114 S.E.2d 688, 700 (1960); see also New State
Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 386-87 (1932) (Brandeis &
Stone, JJ., dissenting) (indicating that an individual state may serve as a laboratory
of democracy and experiment with new legislation in order to meet changing social
and economic needs). In this case the General Assembly seeks to improve the
educational outcomes of children in lower-income families. The mode selected by the
General Assembly to effectuate this policy objective is the Opportunity Scholarship
Program.
When, as here, the challenged legislation comports with the constitution, the
wisdom of the enactment is a decision for the General Assembly. As this Court has
previously recognized, “[i]t may be that the measure may prove eventually to be a
disappointment, and is ill advised, but the wisdom of the enactment is a legislative
and not a judicial question.” Sec. Nat’l Bank of Greensboro, 252 N.C. at 612, 114
S.E.2d at 700. To the extent that plaintiffs disagree with the General Assembly’s
educational policy decision as expressed in the Opportunity Scholarship Program,
their remedy is with the legislature, not the courts. Our review is limited to a
determination of whether plaintiffs have demonstrated that the program legislation
-29-
HART V. STATE
Opinion of the Court
plainly and clearly violates our constitution. Plaintiffs have made no such showing
in this case. Accordingly, the trial court erred in declaring the Opportunity
Scholarship Program unconstitutional. We therefore reverse the trial court’s order
and final judgment.
REVERSED.
Justice HUDSON dissenting.
Because the Opportunity Scholarship Program provides for the spending of
taxpayer money on private schools without incorporating any standards for
determining whether students receive a sound basic—or indeed, any—education, I
conclude that the program violates the North Carolina Constitution in two respects.
As a result, I must respectfully dissent.
First, the Opportunity Scholarship Program (also known as the “voucher
program”) violates the requirements of Article V, Sections 2(1) and 2(7) that public
funds be spent for public purposes only. “The power of taxation shall be exercised in
a just and equitable manner, for public purposes only, and shall never be
surrendered, suspended, or contracted away.” N.C. Const. art. V, § 2(1). Additionally,
“[t]he General Assembly may enact laws whereby the State, any county, city or town,
-30-
HART V. STATE
HUDSON, J., dissenting
and any other public corporation may contract with and appropriate money to any
person, association, or corporation for the accomplishment of public purposes only.”
Id. § 2(7). Second, in so doing, the spending authorized under the voucher program
also violates Article I, Section 15, which states: “The people have a right to the
privilege of education, and it is the duty of the State to guard and maintain that
right.” Id. art. I, § 15.
In its order the trial court includes the following among the “Undisputed
Material Facts”:
4. Private schools that receive scholarship funds are (1)
not required to be accredited by the State Board of
Education or any other state or national institution; (2) not
required to employ teachers or principals who are licensed
or have any particular credentials, degrees, experience, or
expertise in education; (3) not subject to any requirements
regarding the curriculum that they teach; (4) not required
to provide a minimum amount of instructional time; and
(5) not prohibited from discriminating against applicants
or students on the basis of religion. See N.C. Gen. Stat. §
115C-562.1 et seq.
....
6. Of the 5,556 scholarship applicants, 3,804
applicants identified 446 private schools they planned to
attend. Of those 446 schools, 322 are religious schools and
117 are independent schools. Of the 322 religious schools
scholarship recipients planned to attend, 128 are
accredited by some organization and 194 are not accredited
by any organization. Of the 117 independent schools
scholarship recipients planned to attend, 58 are accredited
by some organization and 59 are not accredited by any
organization.
-31-
HART V. STATE
HUDSON, J., dissenting
The trial court then reached the following conclusions of law, among others:
3. The Court concludes from the record beyond a
reasonable doubt that the [Opportunity Scholarship
Program] Legislation funds private schools with taxpayer
dollars as an alternative to the public school system in
direct contravention of Article [I], Section[ ] 15 . . . and
Article V, Sections 2(1) and (7) of the North Carolina
Constitution. The legislation unconstitutionally
....
b. appropriates public funds for education in a
manner that does not accomplish a public purpose,
in violation of Article V, Sections 2(1) and (7), in
particular by appropriating funds to private primary
and secondary schools without regard to whether
these schools satisfy substantive educational
standards: appropriating taxpayer funds to
unaccountable schools does not accomplish a public
purpose;
....
e. fails to “guard and maintain” the right of the
people to the privilege of education in violation of
Article I, Section 15 by appropriating taxpayer funds
to educational institutions that are not required to
meet educational standards, including curriculum
and requirements that teachers and principals be
certified[.]
....
4. 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.
-32-
HART V. STATE
HUDSON, J., dissenting
As noted above, these facts are undisputed, and in my view, these conclusions are
correct.
In Madison Cablevision, Inc. v. City of Morganton this Court articulated a two-
part test for determining if a spending statute complies with the requirements of the
North Carolina Constitution as found in Article V, Section 2(1), which is quoted above
and known as the “public purpose” clause. 325 N.C. 634, 646, 386 S.E.2d 200, 207
(1989). As noted by the majority, while “[t]he initial responsibility for determining
what is and what is not a public purpose rests with the legislature” and “its
determinations are entitled to great weight,” “the ultimate responsibility for the
public purpose determination rests, of course, with this Court.” Id. at 644-45, 386
S.E.2d at 206 (internal citations omitted). Further, in Stanley v. Department of
Conservation and Development this Court articulated the following principle
regarding public purpose expenditures: “In determining what is a public purpose the
courts look not only to the ends sought to be attained but also ‘to the means to be
used.’ ” 284 N.C. 15, 34, 199 S.E.2d 641, 653 (1973) (citations omitted), abrogated in
part on other grounds by Madison Cablevision, 325 N.C. at 647-48, 386 S.E.2d at 208,
and superseded by constitutional amendment, N.C. Const. art V, §§ 2(7), 9. Therefore,
I conclude that the majority’s assertion that “our public purpose analysis does not
turn on whether the appropriation will . . . ‘accomplish’ a public purpose” is contrary
to our precedent. It is precisely this determination that we are called upon to
undertake here. To that end, this Court has articulated “[t]wo guiding principles” for
-33-
HART V. STATE
HUDSON, J., dissenting
determining whether an expenditure of tax funds is for a public purpose. Madison
Cablevision, 325 N.C. at 646, 386 S.E.2d at 207 (citations omitted) (involving
operation of a public enterprise by a municipality). A governmental expenditure
satisfies the public purpose clause if: “(1) it involves a reasonable connection with the
convenience and necessity of the particular [jurisdiction], and (2) the activity benefits
the public generally, as opposed to special interests or persons.” Id.
Defendants assert, and I agree with the majority, that our courts have long
held that education generally serves a public purpose. See, e.g., State Educ.
Assistance Auth. v. Bank of Statesville, 276 N.C. 576, 587, 174 S.E.2d 551, 559 (1970)
(“Unquestionably, the education of residents of this State is a recognized object of
State government. Hence, provision therefor is for a public purpose.” (citations
omitted)). I further agree with the majority that, in principle, “the provision of
monetary assistance to lower-income families so that their children have greater
educational opportunities is well within the scope of permissible governmental action
and is intimately related to the needs of our state’s citizenry.”
Nonetheless, I cannot agree that the spending of taxpayer funds on private
school education through the Opportunity Scholarship Program here serves “public
purposes only” as our constitution requires. N.C. Const. art. V, § 2(1). In Leandro v.
State this Court concluded that “the right to education provided in the state
constitution is a right to a sound basic education. An education that does not serve
the purpose of preparing students to participate and compete in the society in which
-34-
HART V. STATE
HUDSON, J., dissenting
they live and work is devoid of substance and is constitutionally inadequate.” 346
N.C. 336, 345, 488 S.E.2d 249, 254 (1997). We went on to say in Hoke County Board
of Education v. State that a sound basic education should include an “effective
instructional program” taught by “competent, certified, well-trained” teachers and led
by “well-trained competent” principals. 358 N.C. 605, 636, 599 S.E.2d 365, 389
(2004). Admittedly, this is the standard we have set for our public schools, not our
private ones, and it is conceivable that we would set a less comprehensive substantive
standard for private schools. However, a large gap opens between Leandro-required
standards and no standards at all, which is what we have here. When taxpayer
money is used, the total absence of standards cannot be constitutional.
Before the legislature created the Opportunity Scholarship Program, taxpayer
money had not been used to directly finance any part of a private school education.
The expenditure of public taxpayer funds brings the Opportunity Scholarship
Program squarely within the requirements of Article V, Sections 2(1) and 2(7). As
the trial court noted, the schools that may receive Opportunity Scholarship Program
money have no required teacher training or credentials and no required curriculum
or other means of measuring whether the education received by students at these
schools prepares them “to participate and compete in the society in which they live
and work.” Leandro, 346 N.C. at 345, 488 S.E.2d at 254. As we have observed in
State Education Assistance Authority v. Bank of Statesville, “[t]he people of North
Carolina constitute our State’s greatest resource.” 276 N.C. at 587, 174 S.E.2d at
-35-
HART V. STATE
HUDSON, J., dissenting
559. Educating our citizens plants the seeds for their participation, and when we
are able to reap the rewards of having an educated citizenry, we can see that our
people are our greatest resource. See, e.g., Saine v. State, 210 N.C. App. 594, 604-05,
709 S.E.2d 379, 388 (2011) (“Educating North Carolinians certainly promotes the
welfare of our State, particularly at a time when unemployment is high and many
jobs that have historically not required education beyond a high school diploma, or
its equivalent, are rapidly disappearing.”). 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.” In my view,
spending on private schools through the Opportunity Scholarship Program, which
includes no means to measure the quality of the education, cannot satisfy the second
prong of the Madison Cablevision test. The main constitutional flaw in this program
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.
I am not persuaded by any of defendants’ arguments that the program, as
created, contains standards that are constitutionally relevant or adequate.
Defendants assert that “layers” of accountability standards are built into the
Opportunity Scholarship Program. I find none of these arguments convincing. First,
defendants argue that the “educational marketplace” will regulate the quality of the
-36-
HART V. STATE
HUDSON, J., dissenting
education provided by participating schools. Defendants assert that parents will not
send their children to schools that do not provide a solid education or adequately
prepare students for college or beyond. This may be true, but marketplace standards
are not a measure of constitutionality. To the contrary, this Court must insulate
constitutional standards from the whims of the marketplace. See Maready v. City of
Winston-Salem, 342 N.C. 708, 739, 467 S.E.2d 615, 634 (1996) (Orr, J., dissenting)
(“While economic times have changed and will continue to change, the philosophy
that constitutional interpretation and application are subject to the whims of
‘everybody’s doing it’ cannot be sustained.”).
In a related argument, both intervenor legislative officers and intervenor
parents contend that, because parents choose the private schools, the program is
“directly accountable to the parents.” This argument serves only to underscore that
the program serves the private interests of the particular families and not the public
good. While families are surely entitled to choose schools for their children according
to their interests, a program like the Opportunity Scholarship Program that spends
taxpayer money must, to be constitutional, serve “public purposes only.”
Second, defendants look to the statutory requirements governing all private
and nonpublic schools in North Carolina. These standards relate to attendance,
health, and safety, and also require standardized testing at certain intervals. See
N.C.G.S. §§ 115C-547 to -562 (2013). Here, however, we are not considering
standards for private schools that receive no public funding. Those schools are not
-37-
HART V. STATE
HUDSON, J., dissenting
governed by the same constitutional requirements as schools receiving public
funding; they need not serve “public purposes only.” When considering these
statutory standards in a public purpose context, it is clear that they do not help
measure whether the students enrolled are receiving an education that prepares
them to function in our state’s society. Even the requirement regarding standardized
testing falls short: that provision simply mandates that all private schools
“administer, at least once in each school year, a nationally standardized test . . . to
all students enrolled or regularly attending grades three, six, and nine.” Id. § 115C-
549; see also id. § 115C-557. A similar testing requirement exists for eleventh grade
students. Id. § 115C-550; see also id. § 115C-558. These testing standards do not
specify that students take any particular test, nor do they require any minimum
result. When a wide range of testing options are available and administered, it can
be difficult to compare results across schools (a tool which is regularly used to
determine the efficacy of our public schools). While the regulations governing private
schools do require comparisons with public school populations, these provisions
impose no consequences, regardless of test results. Moreover, the standards require
no accreditation of schools and no particular training or certification of teachers. As
a result, these standards fail to ensure that spending on these schools through public
Opportunity Scholarship Program funds is for any public purpose.
-38-
HART V. STATE
HUDSON, J., dissenting
Third, defendants point to statutes regulating schools participating in the
Opportunity Scholarship Program. In addition to the above requirements for private
and nonpublic schools, schools wishing to participate in the program must also:
(1) Provide to the [State Education Assistance] Authority
documentation for required tuition and fees charged to
the student by the nonpublic school.
(2) Provide to the Authority a criminal background check
conducted for the staff member with the highest
decision-making authority, as defined by the bylaws,
articles of incorporation, or other governing document,
to ensure that person has not been convicted of any
crime listed in G.S. 115C-332.
(3) Provide to the parent or guardian of an eligible student,
whose tuition and fees are paid in whole or in part with
a scholarship grant, an annual written explanation of
the student’s progress, including the student’s scores on
standardized achievement tests.
(4) Administer, at least once in each school year, a
nationally standardized test or other nationally
standardized equivalent measurement selected by the
chief administrative officer of the nonpublic school to all
eligible students whose tuition and fees are paid in
whole or in part with a scholarship grant enrolled in
grades three and higher. The nationally standardized
test or other equivalent measurement selected must
measure achievement in the areas of English grammar,
reading, spelling, and mathematics. Test performance
data shall be submitted to the Authority by July 15 of
each year. Test performance data reported to the
Authority under this subdivision is not a public record
under Chapter 132 of the General Statutes.
(5) Provide to the Authority graduation rates of the
students receiving scholarship grants in a manner
consistent with nationally recognized standards.
-39-
HART V. STATE
HUDSON, J., dissenting
(6) Contract with a certified public accountant to perform a
financial review, consistent with generally accepted
accounting principles, for each school year in which the
school accepts students receiving more than three
hundred thousand dollars ($300,000) in scholarship
grants awarded under this Part.
Id. § 115C-562.5(a) (2014). Like the standards referenced above for private schools
in general, none of these additional requirements relates to the quality of education
received by enrolled students. Simply mandating that a report card be sent home to
parents provides no guarantee that the education received is sufficient. And the same
problems exist as articulated above regarding the requirements to administer
standardized tests.
Finally, defendants point out the Opportunity Scholarship Program is required
by statute to report to the General Assembly. Under Section 115C-562.7, the
program’s overseers must report annually to the legislature specific administrative
statistics (relating to enrollment numbers, student demographics, and funds
received), as well as “[l]earning gains or losses of students receiving scholarship
grants.” Id. § 115C-562.7 (2014). While the data will allow the legislature insight
into the successes of the program, such reporting does not determine
constitutionality. First, the legislature is under no obligation to act on the reports.
Second, as we held long ago in Madison Cablevision, it is ultimately up to this Court
to determine if public spending serves a public purpose. 325 N.C. at 644-45, 386
S.E.2d at 206. Legislative oversight does not automatically make a controversial
-40-
HART V. STATE
HUDSON, J., dissenting
program constitutional, particularly when, as here, the law creating and governing
the program mandates no action.
Defendants themselves admit that the program lacks the standards outlined
in Hoke County for the employment of certified teachers and principals and for
curriculum. Hoke Cty. Bd. of Educ., 358 N.C. at 636, 599 S.E.2d at 389. Despite this
concession, they argue that because this is a facial challenge to the statute, plaintiffs
must show that the program is unconstitutional under all conceivable facts and
circumstances. See, e.g., Martin v. N.C. Hous. Corp., 277 N.C. 29, 44, 175 S.E.2d 665,
673 (1970). To that end, defendants argue that even if substantive standards were
required under our state constitution, some of the participating private schools would
meet those standards. This argument falls short, however, because our state
constitution mandates that every child obtaining an education paid for by public
funds receive an education that prepares him to succeed in society, and because we
are analyzing the statutory framework of the program, not the merits of a specific
school. N.C. Const. art. I, § 15; id. art. IX, § 2(1); Leandro, 346 N.C. at 351, 488 S.E.2d
at 257 (concluding that our state constitution “requires that all children have the
opportunity for a sound basic education” (emphasis added)). While I acknowledge
that “[w]e seldom uphold facial challenges because it is the role of the legislature,
rather than this Court, to balance disparate interests and find a workable
compromise among them,” it is important to remember that we must also “measure
the balance struck in the statute against the minimum standards required by the
-41-
HART V. STATE
HUDSON, J., dissenting
constitution.” Beaufort Cty. Bd. of Educ. v. Beaufort Cty. Bd. of Comm’rs, 363 N.C.
500, 502, 681 S.E.2d 278, 280-81 (2009) (citation omitted). Here those minimum
standards require that children receiving a publicly funded education obtain an
education that serves a public purpose. The statute at issue here creates a program
that fails to incorporate any requirement to determine, much less ensure, that any,
let alone all, children enrolled are receiving a real education; as such, the statute
cannot survive a facial challenge.
Private schools are free to provide whatever education they deem fit within
the governing statutes’ requirements. When parents send their children to any
private school of their choosing on their own dime, as they are free to do, that
education need not satisfy our constitutional demand that it be a for a public purpose.
However, when public funds are spent to enable a private school education, that
spending must satisfy the public purpose clause of our constitution by preparing
students to contribute to society. Without meaningful standards meant to ensure
that this or any minimum threshold is met, public funds cannot be spent
constitutionally through this Opportunity Scholarship Program.
As stated above, I would not necessarily impose the same detailed
requirements on our private schools receiving public funds as are imposed on purely
public schools by Leandro and its progeny. I do conclude that such spending must
include some standards by which to measure compliance with the public purpose
doctrine; the complete lack of any such standards in North Carolina’s voucher
-42-
HART V. STATE
HUDSON, J., dissenting
program makes determining such compliance impossible. It is instructive that all
other states that have adopted similar programs have included substantive
requirements. Although other states certainly are not bound by constitutional
obligations identical to ours, examining their similar programs and the substantive
standards imposed on participating schools exposes the woeful lack of oversight in
the Opportunity Scholarship Program here. For example, compared with ten similar
programs across the country, North Carolina’s program falls painfully short. As
opposed to other jurisdictions’ legislative requirements for participating private
schools in the categories of state approval or accreditation, state-required curriculum,
required teacher qualifications, required participation in a state testing program, and
required number of instructional days or hours, the Opportunity Scholarship
Program fails to incorporate any of those mandates. In comparison, six of the ten
other jurisdictions have requirements in all those areas; nine out of ten have
requirements in at least four of the five areas; and all ten have requirements in at
least one of these areas.13 For example, in Indiana (which has the largest state wide
voucher program in the country), participating schools must be accredited, Ind. Code.
§ 20-51-1-6(a)(3) (2010); Ind. Code. Ann. § 20-51-1-4.7(4) (West 2013), and must teach
subjects prescribed by the State, Ind. Code. Ann. § 20-51-4-1(f)(9) (West 2011). These
13 According to the brief filed by amici curiae Education Scholars, the other
jurisdictions include Arizona, Cleveland, the District of Columbia, Indiana, Louisiana,
Maine, Milwaukee, Ohio, Vermont, and Wisconsin.
-43-
HART V. STATE
HUDSON, J., dissenting
schools must participate in state wide testing. Id. § 20-51-1-4.7(5) (West 2013). In
Louisiana participating schools must be approved by a state board, and approval is
contingent on a showing that the quality of the curriculum is at least as high as that
mandated for similarly situated public schools. La. Stat. Ann. § 17:11 (2001); id. §
17:4021(A) (West Supp. 2012). Even in Arizona, the least regulated jurisdiction
behind North Carolina identified by amici, participating schools must educate
students in reading, grammar, math, social studies, and science. Ariz. Rev. Stat.
Ann. § 15-2402(B)(1) (West Supp. 2011). As summarized above, North Carolina’s
Opportunity Scholarship Program lacks any kind of substantive oversight,
curriculum standards, or instructional requirements. Schools receiving public
funding through the program are essentially free to employ whomever they desire to
teach whatever they desire. This is a perfectly acceptable scheme for truly private
schools, but it fails utterly to satisfy the constitutionally mandated educational
standards required when public funds are spent on education.
This failure brings me to the second constitutional flaw in the Opportunity
Scholarship Program: the breach of the State’s duty to guard and maintain the right
to the privilege of education as set forth in Article I, Section 15, which is part of our
constitution’s Declaration of Rights. Notwithstanding this constitutional provision’s
clear statement that the people of our State have “a right to . . . education” and that
it is the State’s duty “to guard and maintain that right,” N.C. Const. art. I, § 15, the
majority indicates that this constitutional provision merely states a “general
-44-
HART V. STATE
HUDSON, J., dissenting
proposition concerning the right to the privilege of education”; that this provision is
merely aspirational, rather than substantive, in nature; and that plaintiffs’ reliance
on it as an independent source of relief is misplaced. The majority has not, however,
cited any decision from this Court in support of this proposition, and I believe the
majority’s assertion is inconsistent with this Court’s constitutional jurisprudence.
In Leandro this Court concluded that Article I, Section 15 and Article IX,
Section 2 of the North Carolina Constitution worked together in combination to
“guarantee every child of this state an opportunity to receive a sound basic education
in our public schools.” 346 N.C. at 347, 488 S.E.2d at 255. In other words, this Court
gave Article I, Section 15, considered in conjunction with other constitutional
provisions, substantive effect. As such, the plain language of Article I, Section 15 and
this Court’s decision in Leandro regarding the interplay between Article I, Section 15
and Article IX, Section 2 makes me unable to accept the majority’s statements
regarding the substantive import of this constitutional provision. See John V. Orth
& Paul Martin Newby, The North Carolina State Constitution 62-63 (2d ed. 2013)
(citing Leandro as an example in which, along with other constitutional provisions,
Article I, Section 15 was given substantive effect by this Court and stating that “[i]n
addition to the substantive component, this section may also secure other rights, the
violation of which could subject a local school board to suit without the benefit of
governmental immunity or insurance coverage”).
-45-
HART V. STATE
HUDSON, J., dissenting
Turning to the application of Article I, Section 15 to the instant matter, this
voucher program, as explained above, allows for taxpayer funds to be spent on private
schooling with no required standard to ensure that teachers are competent or that
students are learning at all. I must conclude that by creating this program, the
State’s legislature has completely abrogated the duty to “guard and maintain [the]
right” to an education. N.C. Const. art I, § 15. As the trial court concluded, “[t]he
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.” This failure violates the duty set forth in Article I, Section 15.
This Court’s duty to the people of our State, as expressed in several clauses of
our constitution, is to ensure that if taxpayer money is spent on private education,
the expenditure is for an education that can prepare our children to participate and
thrive in our state’s society. When the General Assembly fails to ensure that these
constitutional requirements are satisfied, this Court must exercise its responsibility
to do otherwise. Because the majority fails to do so, I respectfully dissent.
Justices BEASLEY and ERVIN join in this dissenting opinion.
Justice BEASLEY dissenting.
-46-
HART V. STATE
Beasley, J., dissenting
I join fully Justice Hudson’s dissent. I write separately to explain my
additional concerns with the Opportunity Scholarship Program as currently enacted.
I also write to urge caution and to reiterate the State’s duties under the North
Carolina Constitution “to guarantee every child of this state an opportunity to receive
a sound basic education in our public schools,” Leandro v. State, 346 N.C. 336, 347,
488 S.E.2d 249, 255 (1997), and to “afford[ ] school facilities of recognized and ever-
increasing merit to all the children of the State . . . to the full extent that our means
could afford and intelligent direction accomplish,” id. at 346, 488 S.E.2d at 254
(emphasis added) (quoting Bd. of Educ. v. Bd. of Cty. Comm’rs, 174 N.C. 469, 472, 93
S.E. 1001, 1002 (1917)).
The Supreme Court of the United States made the following prescient
observation regarding education more than sixty years ago. These words remain
equally valid now.
Today, education is perhaps the most important
function of state and local governments. Compulsory
school attendance laws and the great expenditures for
education both demonstrate our recognition of the
importance of education to our democratic society. It is
required in the performance of our most basic public
responsibilities, even service in the armed forces. It is the
very foundation of good citizenship. Today it is a principal
instrument in awakening the child to cultural values, in
preparing him for later professional training, and in
helping him to adjust normally to his environment. In
these days, it is doubtful that any child may reasonably be
expected to succeed in life if he is denied the opportunity of
an education. Such an opportunity, where the state has
undertaken to provide it, is a right which must be made
-47-
HART V. STATE
Beasley, J., dissenting
available to all on equal terms.
Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S. Ct. 686, 691, 98 L. Ed. 873, 880 (1954),
additional proceedings at 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955). Central
to the Court’s decision was the understanding that “[w]e must consider public
education in the light of its full development and its present place in American life.”
Brown, 347 U.S. at 492, 74 S. Ct. at 691, 98 L. Ed. 2d at 880.
Free public education historically has been, and today remains, vital to
American life. Its diminishment in quality or its concentration among a few invites
despots to power and risks oppressing the rest. With continued necessity for
preserving and promoting free public education clearly in view, I turn to the
Opportunity Scholarship Program.
The Court correctly explains that our circumspect inquiry is constrained to the
facial challenge presented in view of established principles of constitutional
interpretation. Nonetheless, the majority’s opinion should not be read so broadly as
to set an impossible standard for a facial challenge to legislation, particularly when
the legislation stands to affect the education of the children of North Carolina.
Beaufort Cty. Bd. of Educ. v. Beaufort Cty. Bd. of Comm’rs, 363 N.C. 500, 502, 681
S.E.2d 278, 280-81 (2009) (“This Court will only measure the balance struck in the
statute against the minimum standards required by the constitution.”). It is well
established that, subject to the constitution, it is for the General Assembly to
“establish minimum educational requirements and standards.” Delconte v. State, 313
-48-
HART V. STATE
Beasley, J., dissenting
N.C. 384, 402, 329 S.E.2d 636, 647 (1985); see id. at 401-02, 329 S.E.2d at 647 (“We
also recognize that the state has a compelling interest in seeing that children are
educated and may, constitutionally, establish minimum educational requirements
and standards for this education.” (citations omitted)). But those standards must
comport with the constitutional minimum, and it has long been beyond dispute that
this Court has jurisdiction to determine whether legislation meets the minimum
allowed by our Constitution. E.g., Bayard v. Singleton, 1 N.C. 5 (1787).
This Court already has articulated “the minimum standards required by the
constitution,” Beaufort Bd. of Educ., 363 N.C. at 502, 681 S.E.2d at 281, when the
General Assembly purports to provide for public education. In Leandro we
“address[ed] plaintiff-parties’ constitutional challenge to the state’s public education
system.” 346 N.C. at 345, 488 S.E.2d at 254. We explained that the North Carolina
Constitution guarantees every child the right to a sound basic education, and we
defined the mandate for public education by explaining that
[f]or purposes of our Constitution, a “sound basic
education” is one that will provide the student with at
least: (1) sufficient ability to read, write, and speak the
English language and a sufficient knowledge of
fundamental mathematics and physical science to enable
the student to function in a complex and rapidly changing
society; (2) sufficient fundamental knowledge of geography,
history, and basic economic and political systems to enable
the student to make informed choices with regard to issues
that affect the student personally or affect the student's
community, state, and nation; (3) sufficient academic and
vocational skills to enable the student to successfully
engage in post-secondary education or vocational training;
-49-
HART V. STATE
Beasley, J., dissenting
and (4) sufficient academic and vocational skills to enable
the student to compete on an equal basis with others in
further formal education or gainful employment in
contemporary society.
Id. at 347, 488 S.E.2d at 255 (citations omitted).
Although Leandro concerned public schools, this Court has established that
the particular type of building in which the education occurs is immaterial. See
Delconte, 313 N.C. 384, 329 S.E.2d 636 (allowing home schools). It is the opportunity
for a constitutionally permissible minimum quality of education that is essential. If
the General Assembly appropriates public funds14 for public education, whether that
education occurs in public schools or nonpublic schools receiving public funds, the
General Assembly is limited to doing so only for the constitutionally permissible
public purpose of providing a “sound basic education.” When public funds are used
for nonpublic initiatives to fulfill the constitutional public education mandate, the
appropriation may violate the public purpose clause, especially if the grant recipients
are chosen because the public school system fails to meet their educational needs.
In denying relief for plaintiffs under North Carolina Constitution Article IX,
Sections 2(1), 5, and 6, the majority posits that these sections constitutionally protect
14 The General Assembly is conspicuously careful to avoid acknowledging that the
grants at issue are public funds. See, e.g., N.C.G.S. § 115C-555 (2013) (“For the purposes of
this Article, scholarship grant funds awarded pursuant to Part 2A of this Article to eligible
students attending a nonpublic school shall not be considered funding from the State of North
Carolina.”) (emphasis added); id. § 115C-562.1(6) (2013) (defining “Scholarship grants” as
“Grants awarded annually by the Authority to eligible students”). The majority correctly
notes that the program is funded through appropriations from the general revenue of the
Board of Governors of The University of North Carolina.
-50-
HART V. STATE
Beasley, J., dissenting
funds designated for education but do not limit the General Assembly’s designation
of other public funds for additional nonpublic education initiatives. In setting
education policy, the danger posed by the General Assembly in designating general
funds for nonpublic education and a non-public 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.
Given North Carolina’s history of public education and the State’s continued
efforts to address shortcomings to deliver on its constitutional mandate, the General
Assembly’s decision to pursue vouchers at this time and in this way is vexing.15 The
majority notes that the purpose of the grants is to address grade level deficiencies of
a “large percentage of economically disadvantaged students,” but as shown below, it
is unclear whether or how this program truly addresses those children’s needs. While
every member of this Court fully recognizes the legislature’s responsibility to
implement education policy and its right to pursue novel approaches, Redev. Comm’n
v. Sec. Nat’l Bank of Greensboro, 252 N.C. 595, 612, 114 S.E.2d 688, 700 (1960), this
15 There may be instances when the use of public funds for nonpublic schools can serve
a public purpose. While public schools are supposed to accommodate all students’ educational
needs, some circumstances exist in which the public purpose may be best met by funding a
nonpublic educational situation, such as the education of children with disabilities under
North Carolina General Statutes Chapter 115C, Subchapter IV, Article 9. This issue,
however, is not before our Court at this time.
-51-
HART V. STATE
Beasley, J., dissenting
Court should not permit the State to lessen its obligation to the children of North
Carolina.
In endeavoring to provide its citizens with a sound basic education, North
Carolina has long embraced a complex variety of educational initiatives, including
public schools, secular and sectarian private schools, and home schools. See generally
M.C.S. Noble, A History of the Public Schools of North Carolina (1930) (discussing
the history of public education in North Carolina, including the development of
curricula, religious instruction in public schools, teachers’ qualifications, and
segregated schools); see also Delconte, 313 N.C. at 397-400, 329 S.E.2d at 645-46
(summarizing the development of public education legislation). Our legislature has
met the standard with varying degrees of success. It is worth observing that our
General Assembly previously embraced vouchers for approximately a decade as a
means to avoid the State’s obligation under the U.S. Constitution to desegregate
public schools as required by the Supreme Court of the United States in its seminal
Brown v. Board decisions. See Milton Ready, The Tar Heel State: A History of North
Carolina 349 (2005) (describing the “Pearsall Plan” as “a stubbornly conservative
strategy that eventually satisfied no one”); id. at 355-56 (explaining that beginning
in the 1960s and 1970s, “[s]ophisticated racial and segregationist appeals . . . . took
on a more abstract form” and “[m]any of the newer strategies came wrapped in terms
as local control, vouchers, charter schools, tax cuts, distributive welfare, and limited
government interference in the private affairs of ordinary citizens”); see also Hawkins
-52-
HART V. STATE
Beasley, J., dissenting
v. N.C. State Bd. of Educ., No. 2067, 11 Race Rel. L. Rep. 745 (W.D.N.C. Mar. 31,
1966) (declaring the Pearsall Plan facially unconstitutional). Indeed, some of our
schools are only now achieving unitary status under long-standing federal orders to
desegregate. E.g., Everett v. Pitt Cty. Bd. of Educ., 788 F.3d 132 (4th Cir. 2015). Even
those victories, however, are tempered by a different reality:
The rapid rate of de facto resegregation in our public school
system in recent decades is well-documented. As one
scholar put it, “Schools are more segregated today than
they have been for decades, and segregation is rapidly
increasing.” Erwin Chemerinsky, Separate and Unequal:
American Public Education Today, 52 Am. U. L. Rev. 1461,
1461 (2003) (footnote omitted); see also Lia B. Epperson,
Resisting Retreat: The Struggle for Equity in Educational
Opportunity in the Post–Brown Era, 66 U. Pitt. L. Rev. 131,
145 (2004) (“American public schools have been steadily
resegregating for more than a decade, dismantling the
integrative successes of hundreds of districts that
experienced significant levels of integration in the wake of
Brown and its progeny. Such racial isolation in public
schools is worse today than at any time in the last thirty
years.”).
Id. at 150-51 (Wynn, J., dissenting).
For now, as noted by the majority, the program is available only to lower-
income families. This availability assumes that private schools are available within
a feasible distance, that these families win the grant lottery, and that their children
gain admission to the nonpublic school of their choice. With additional costs for
transportation, tuition, books, and, at times, school uniforms, for the poorest of these
families, the “opportunity” advertised in the Opportunity Scholarship Program is
-53-
HART V. STATE
Beasley, J., dissenting
merely a “cruel illusion.” Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 154-
55 (Tenn. 1993) (“[E]ducational opportunity of the children in this state should not
be controlled by the fortuitous circumstance of residence . . . . Such a system only
promotes greater opportunities for the advantaged while diminishing the
opportunities for the disadvantaged. . . . ‘The notion of local control was a “cruel
illusion” for the poor districts due to limitations placed upon them by the system
itself. . . .’ ”) (first and second ellipses in original) (quoting Dupree v. Alma Sch. Dist.
No. 30, 279 Ark. 340, 346, 651 S.W.2d 90, 93 (1983)) (third ellipsis in original))).
Without systemic and cultural adjustments to address social inequalities, the
further cruel illusion of the Opportunity Scholarship Program is that it stands to
exacerbate, rather than alleviate, educational, class, and racial divides. See generally
Julian E. Zelizer, How Education Policy Went Astray, The Atlantic (Apr. 10, 2015),
http://www.theatlantic.com/education/archive/2015/04/how-education-policy-went-
astray/390210/ (last visited July 16, 2015) (discussing changes in American education
policy over the past fifty years and the relationship between continually failing
education policy and economic inequality). See also Br. for N.C. Conference of the
NAACP as Amicus Curiae Supporting Plaintiff-Appellees at 3-9, Hart v. State, ___
N.C. ___, ___ S.E.2d ___ (2015) (No. 372A14) (discussing discriminatory “creaming”
and “cropping” practices by which private schools admit “the best and least costly
students” or “deny[ ] services and enrollment to diverse learners” (citations omitted)).
In time, public schools may be left only with the students that private schools refuse
-54-
HART V. STATE
Beasley, J., dissenting
to admit based on perceived lack of aptitude, behavioral concerns, economic status,
religious affiliation, sexual orientation, or physical or other challenges, or public
schools may become grossly disproportionately populated by minority children. The
policy promoted by the Opportunity Scholarship Program, therefore, may serve to
widen already considerable gaps and create a larger class of underserved children.
-55-