The principle of judicial restraint is a wonderful thing. It helps keep judges – as they go about their business of determining whether laws are constitutional – from horning in on the role of legislators, whose task is to make policy choices and then to enact laws reflecting those choices.
Proper restraint makes judges’ rulings more credible, gives legislators a healthy leeway and shores up our democratic system of checks and balances.
But what happens when judicial restraint becomes judicial paralysis? Then, a runaway legislature can get away with pretty much whatever it wants. Misplaced restraint can even become a form of passive aggression, whereby politically minded judges end up green-lighting laws that should have set off alarms in the courtroom.
All of which brings us to the N.C. Supreme Court and its recent decision that the state’s Opportunity Scholarship Program is perfectly in sync with the state constitution and therefore good to go.
With the court’s OK, the state is free to spend public money to subsidize some children’s attendance at non-public schools. And those schools are bound by none of the quality standards the Supreme Court itself has said are necessary to fulfill kids’ right to an education that means something.
That’s potentially sad for young people sent off to poorly regulated schools because sending them suits their parents – although of course it has to be acknowledged that in any given situation, a child who’s been struggling in a regular public school might do better in a different setting.
What’s more problematic in the larger sense is that Opportunity Scholarships – vouchers, in other words – drain both money and talent from the public school systems that most of North Carolina’s children attend.
Restraint in action
The high court’s July 23 go-ahead came in the form of a 4-3 decision, with Chief Justice Mark Martin delivering the majority opinion. (Click here to read that opinion and two dissents.)
Martin spoke for the court’s four Republican members as they essentially ratified one of the Republican-controlled General Assembly’s most contentious policy initiatives. On the decision’s short end were the three justices of Democratic persuasion.
Martin and his colleagues were careful to say that they weren’t weighing in on the voucher program’s merits – its wisdom or likely effectiveness. As to possible ripple effects on the public schools, they ducked. Their whole take on the matter, as explicated in Martin’s opinion, boiled down to a finding that the program might pass constitutional muster in some instances – so what choice did they have but to let it continue? If a 30-page ruling ever conjured up an image of eight upturned palms and a shrug of eight shoulders, this was the time.
But even in its passivity, the ruling amounted to an attack. That’s because it overturned a previous ruling by Superior Court Judge Robert Hobgood, who declared last August that, with regards to the state constitution, Opportunity Scholarships flunked the test.
Justice Robin Hudson, in a dissent joined by her Democratic colleagues Cheri Beasley and Sam Ervin IV, recounted the gist of Hobgood’s findings. As “Undisputed Material Facts,” Hobgood concluded after a trial that:
- Private schools receiving scholarship funds don’t have to be accredited by the State Board of Education or anyone else.
- Teachers or principals at those schools don’t have to be licensed “or have any particular credentials, degrees, experience, or expertise in education.”
- The schools don’t have to meet any requirements as to their curricula.
- They don’t have to meet any required minimum instructional times.
- They’re not prohibited from discriminating against applicants or students on the basis of religion.
- Among the 446 private schools identified by scholarship applicants as schools they planned to attend, 332 were religious schools and 117 were independent. Among the religious schools, 194 were not accredited by any organization. Among the independent schools, 59 were not accredited.
Mindful that the state constitution specifies that public funds must be spent for public purposes, Hudson went on to echo Hobgood’s conclusion that the voucher program fails to meet that standard.
She quoted his ruling: “appropriating taxpayer funds to unaccountable schools does not accomplish a public purpose.” And, as Hobgood put it, “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.”
Hudson acknowledged that private schools, under the constitution, don’t have to meet the same quality standards as public schools. However, she said, “When taxpayer money is used, the total absence of standards cannot be constitutional.”
Black hole beckoning
In the long-running case known as Leandro, under which the Supreme Court has clarified the extent of the state’s duty to educate its young people, public schools are supposed to provide, at a minimum, the opportunity to get a “sound basic” education. The outcome is supposed to equip them “to participate and compete in the society in which they live and work.” To meet that goal, schools must have appropriately qualified teachers and principals.
After reviewing those parameters, Hudson drilled to the heart of the voucher program’s constitutional shortcomings. She wrote: “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.’”
“The main constitutional flaw in this program,” wrote Hudson, “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.”
Justice Beasley fleshed out an aspect of the scholarship program that seemed to have escaped the court majority’s notice.
“In setting education policy,” she wrote in her own dissent, “the danger posed by the General Assembly in designating general funds for nonpublic education and a nonpublic 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.”
As established by the legislature, students eligible for the scholarships come from families with incomes no greater than 133 percent of the federal poverty level. Successful applicants are chosen by lottery, and discrimination is barred on the basis of race, color or national origin (not religion).
The vouchers are worth up to $4,200 per student – a figure that critics say might well not be enough to cover the actual costs of attendance for children from disadvantaged families. Voucher advocates, with the judicial winds at their backs, now are pushing to broaden the eligibility rules. It’s not hard to see where this is heading.
Chief Justice Martin was adamant in insisting that his court ordinarily must defer to legislative judgments. He wrote that the court must assume laws are constitutional unless it can be shown otherwise beyond a reasonable doubt.
To be rejected, he said, a law must fail the tests of constitutionality under every possible circumstance. And since education is in the community’s best interest, educational expenditures almost by definition serve a public purpose.
So, as a hypothetical: A child from a poor, inner-city family is awarded an Opportunity Scholarship, is accepted at a well-resourced, academically superior private school in the suburbs and somehow actually manages to attend.
Her performance in the classroom is outstanding. Surely she’s receiving a “sound basic” education, partly at public expense. But what about her peers who find themselves in unaccredited religious academies where the quality of instruction is sketchy at best? Those kids’ parents may think all is well, but it’s the children who end up paying a price for the lack of enforceable standards.
Voucher supporters claim they are simply trying to give disadvantaged students who may be struggling in the regular public schools the same kinds of alternatives for private education enjoyed by more affluent peers. No doubt some children will make good use of that opportunity – while for others, it will be a mirage.
The case in our Supreme Court hinged on state, not federal, constitutional issues, so there is no obvious route for appeal into the federal courts. Like it or not, the voucher program is now enshrined in state law.
What remains for those who have grave doubts about the program’s legality and wisdom is to push back against pending efforts to expand the eligibility rules. Opening voucher opportunities to students from middle-class or even well-to-do families would strip the program of its fig-leaf covering as a means of advancement for the poor.
Public school advocates, including the N.C. Council of Churches and many of its allies, also can continue pressing for meaningful ways to gauge whether private schools benefiting from the program are serving their students adequately.
Today, despite the Supreme Court’s colossal don’t-look-at-us shrug, those accountability tools scarcely exist. That the court agreed to tolerate such a pitifully meager level of oversight would have been shocking if it weren’t so predictable.