Defending School Choice in North Carolina

This past summer, North Carolina became the latest state to promote freedom in education. The state’s General Assembly passed and allocated $10 million for a new Opportunity Scholarship Program. This will provide up to 2,500 scholarships worth up to $4,200 to working-class families. To receive the scholarship, families must be eligible for the federal free and reduced school lunch program, which means there is an income cap of about $44,000 for a family of four.

These scholarships will provide an escape hatch for students stuck in public schools that are not educating them adequately. The Raleigh News & Observer reported that almost 70 percent of students from low-income families did not meet proficiency standards.

Currently, parents who want to send their kids to a private school must endure “double taxation.” Parents must pay taxes for public schools their children don’t attend and pay for private school tuition—a significant burden, especially for working-class families. North Carolina’s scholarship program makes it easier for families to send their children to the school of their choice.

But, unfortunately, school choice in North Carolina is under attack. Just a few weeks before the holidays, on behalf of 25 Grinches they recruited, the North Carolina Association of Educators and the North Carolina Justice Center filed a lawsuit challenging the school choice program. North Carolina’s state constitution establishes a separate fund for “establishing and maintaining a uniform system of free public schools.” As such, the teachers’ union and its allies allege it is unconstitutional for the Legislature to create a program to help families escape public schools.

That argument is wrong. The money for the Opportunity Scholarships comes from the state’s general fund, not the public school fund. So school choice in North Carolina is, in fact, constitutional. Indeed, the state operates a similar scholarship program for children with special needs, yet that is not being challenged in court.

To protect students’ chances at a better life, IJ has filed a motion to intervene in this school choice lawsuit. Courts have long upheld the rights of parents to choose how to educate their children. In March 2013, IJ successfully defended Indiana’s school choice scholarship program, by securing a unanimous decision from the Indiana Supreme Court that the program was constitutional. Way back in 1925, the U.S. Supreme Court put it best in Pierce v. Society of Sisters, when it unanimously declared Oregon’s ban on private schools unconstitutional:

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State.

Let’s hope judges in the Tar Heel State will continue that tradition.

Dick Komer is an IJ senior attorney.