North Carolina

Constitutional Provisions

Religion Provision

“All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience.” North Carolina Const. Art. I, § 13

Education Articles

“The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.” North Carolina Const. Art. I, § 15.

“Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged.” North Carolina Const. Art. IX, § 1.

“The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools .…” North Carolina Const. Art. IX, § 2.

“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 faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.” North Carolina Const. Art. IX, § 6. (Section 7 repeats this text with respect to the County Education Fund)

Vouchers: Yes

Tax Credits: Yes

Existing Private School Choice Programs

Special Education Scholarship Grants for Children with Disabilities

North Carolina Revised Statutes Sections 112.2 to .5, 115C-112.5 to .9

Opportunity Scholarships

North Carolina Revised Statutes Sections 115C-562.1 to .7

Relevant Case Law

Hart v. State, 774 S.E.2d 281 (N.C. 2015), and Richardson v. State, 774 S.E.2d 304 (N.C. 2015)

Plaintiffs sued North Carolina, arguing that the Opportunity Scholarships program was unconstitutional because it violates the North Carolina Constitution’s education provisions (Article I, Section 15 and Article IX, Sections 2 and 6), which they viewed as requiring that the state limit its K-12 educational expenses to supporting public schools; the public purpose language of Article V, Sections 2(1) and 2(7), because they believed the program lacked a proper public purpose; and the discrimination language in Article I, Section 19 because the religious schools could discriminate based on religion. The state Supreme Court rejected these arguments, finding that public funds may be spent on other types of education besides the public schools and that the program did not create an alternate system of publicly funded private schools. The Court also held that providing additional educational opportunities served a public purpose. Finally, the Court found that the plaintiffs did not have standing with respect to their religious discrimination claim because they had not been injured.

Smith v. Board of Governors of University of North Carolina, 429 F. Supp. 871 (W.D.N.C.), aff’d, 434 U.S. 803 (1977)

A federal district court held that state tuition assistance to students at colleges did not constitute excessive entanglement of the state with religious activities because the colleges were not pervasively sectarian and, although there was a religious presence, inculcation of religion was not the colleges’ primary purpose.

Heritage Village Church & Missionary Fellowship, Inc. v. State, 263 S.E.2d 726, 730 (N.C. 1980)

In striking down a statute imposing more burdensome licensing requirements on religious organizations than others, the North Carolina Supreme Court explicitly linked interpretation of the Religion Clauses in the North Carolina Constitution to interpretations of the First Amendment to the U.S. Constitution.

State Education Assistance Authority v. Bank of Statesville, 174 S.E.2d 551, 559 (N.C. 1970)

The North Carolina Supreme Court held that a state agency could issue tax-exempt bonds to acquire student loan debt without violating the North Carolina Constitution because advancing education is a public purpose. The Court went on to hold that “[s]ubject to constitutional limitations, methods to facilitate and achieve the public purpose of providing for the education or training of residents of this State in institutions of higher education or postsecondary schools are for determination by the General Assembly.”

Analysis and Recommendations

Both tax credits and vouchers are school choice options for North Carolina. The North Carolina Constitution does not have a Blaine Amendment or a Compelled Support Clause, and state cases look to federal Establishment Clause precedent. In Zelman, the U.S. Supreme Court upheld school choice programs under the federal Constitution. In 2014 in the Hart v. State and Richardson v. State cases, the North Carolina Supreme Court upheld the new Opportunity Scholarship program against a challenge under North Carolina’s education article and public purpose article.

To avoid any potential problems with Article IX, Sections 6 and 7 of the North Carolina Constitution, voucher program funding should explicitly come from sources other than the state’s public school fund.

Model Legislation: Education Savings Account, Parental Choice Scholarship Program (Universal Eligibility), Parental Choice Scholarship Program (Means-Tested Eligibility), Special Needs Scholarship Program, Foster Child Scholarship Program, Autism Scholarship, Great Schools Tax Credit Program, Family Education Tax Credit Program

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