New Voucher Lawsuit Uses School Finance Litigation to Make Its Claim

This from the Education Law Prof Blog: 

Last night, LaJuana posted the lawsuit by a group of educators and taxpayers challenging the constitutionality of North Carolina's recently enacted voucher program.  I wanted to add a little more commentary on how the case fits into the broader framework of voucher and school finance litigation.

The plaintiffs rely on school finance precedent and specific language in the state constitution to argue that the program is unconstitutional.  First, the North Carolina Constitution indicates that state funds deriving from public lands and proceeds that are set aside for education "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 appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.”  Thus, the use of any of these funds for private vouchers is a violation.

Second, the state supreme court has held that, "[u]nder the North Carolina Constitution, the State must provide all students an opportunity to receive a sound basic education."  But the state has yet to fulfill that guarantee for all students and, thus, the diversion of resources away from meeting this obligation is a violation of the constitution.

Third, even if one could characterize the voucher program as somehow being part of the delivery of public education, it would still violate the constitutional requirement of a "uniform system of public schools."  The voucher program is essentially standardless and makes no attempt to ensure the constitutionally mandated uniformity of opportunity between voucher students and public school students.

In many respects, this lawsuit mirrors Bush v. Holmes, 919 S.. 2d 392 (Fla. 2006), in which the Florida Supreme Court held that the state's  voucher program was an unconstitutional diversion of public education funds to private schools.  Both cases draw on the same type of explicit constitutional language that reserves public education money for public schools.  The North Carolina suit, however, is distinct and stronger for two reasons.  

First, the North Carolina case draws on favorable school finance precedent.  Florida has never had a favorable school finance decision from its high court and, thus, the litigants there were limited to arguments that were fairly obvious inferences from the basic constitutional language.  The result was a relatively narrow theory of the case.  The North Carolina claims, in contrast, are broader because there is more substance with which to work.  It also does not hurt that there is a track record of the courts having intervened in these matters, making doing so here less radical.

Second, because the remedy for the school finance case in North Carolina is not yet complete, the plaintiffs are in a strong position of effectively saying: "public schools are first in line and no one eats until we do."  In fact, for those who did not read the hundreds of pages of trial court opinions issued when the factual findings in the finance case began, Judge Manning was emphatic that schools should not be spending money on any bells and whistles until they first met the needs of at-risk students.

The idea was rather controversial, as he included athletics and gifted and talented in the bells and whistles category, and his theory of ineffective use of resources eventually proved to be an insufficient explanation for the extent of the inadequate opportunities. But the current claim in regard to vouchers is even stronger.  Instead of fully funding pre-k, for instance, the state is funding vouchers.

This practical reality makes the state's position more tenuous.  In Florida, the legislature was able to create a work around to fund vouchers because the constitutional violation was technical in nature: taking money from the wrong place.  But in North Carolina, the claim is also substantive: educational quality is guaranteed to public schools and is a foremost duty of the state.  There is not technical work around to this claim.