Memorandum of Law


Jul 10th, 2013
by Jeanette Doran

this paper.

 

MEMORANDUM OF LAW

An Opportunity Scholarship Program Would Not Violate the Constitutional Requirement for a General and Uniform System of Free Public schools.

North Carolina Institute for Constitutional Law[1]

www.ncicl.org

July 10, 2013

As legislators consider the creation of opportunity scholarships, opponents have raised questions about whether such a program would violate the North Carolina Constitution. In particular some have pointed to the Article IX, §2(1) requirement that the State provide for a “general and uniform system of free public schools.” This clause, sometimes referred to as the “Uniformity Clause” or “Uniform System Clause,” and its applicability to an opportunity scholarship or voucher program is addressed in this memorandum. Below is an examination of relevant North Carolina law and discussion of pertinent cases from other states. A review of these authorities strongly suggests that the Uniformity Clause is not a bar to opportunity scholarships in North Carolina.

I.               Highlights of North Carolina’s Opportunity Scholarship Program as Proposed in HB944

House Bill 944[2] would establish opportunity scholarships, also referred to as vouchers, for students who live in households with incomes below the standard to qualify for free or reduced school lunches for the 2013-14 school year, House Bill 944, § 1(b), and incomes not exceeding 133% of that amount beginning for the 2014-15 school year and thereafter. Id. § 2.[3]  Students who qualify may receive $4,200 per year to use towards tuition at a “nonpublic school.”  Id. To accept opportunity scholarships, nonpublic schools must provide background checks of certain staff, administer standardized tests, and track the learning growth of scholarship students for a legislative oversight committee.  Id.  The Department of Administration’s Division of Nonpublic Schools will provide a list of nonpublic schools that meet these requirements every year.  Id.

            Funding for the vouchers is to be appropriated from the General Fund to the State Education Assistance Authority (SEAA).  Id. § 6(a).  The SEAA then would give grant checks to the parents who would endorse the grant for a specific nonpublic school.  Id.  In 2013, funding will begin at $10 million per fiscal year, and increase to $50 million by 2015.  Id.  It is the stated intent of the legislature, according to HB 944, to appropriate the savings created by the opportunity scholarships to public schools for at-risk students and community organizations serving at-risk students enrolled in public schools.[4]  Id. 

Currently, eleven states have some form of an educational voucher program.  See generally, School Vouchers Laws, http://www.ncsl.org/issues-research/educ/voucher-law-comparison.aspx (At the time the report was published, twelves states had voucher programs, but Florida’s was declared unconstitutional after the NCSL report was published.).  Four of these states have a state constitutional provision requiring a uniform system of schools: Florida, Colorado, Indiana, and Wisconsin.  Each states’ voucher program has been challenged in its respective supreme court.  Florida’s program was held unconstitutional under its uniformity clause; Colorado’s was unconstitutional on other grounds; and Indiana and Wisconsin’s programs were held constitutional despite challenges on uniformity grounds.  Additionally, some states have dealt with challenges based on other legal theories. [5]  However, this memorandum focuses on uniformity challenges to school vouchers.

II.             Relevant Legal Authorities Indicate that an Opportunity Scholarship Program would not Violate the Uniformity Clause.

Article IX, Section 2(1) of the North Carolina Constitution states: “The 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.”  N.C. Const. art. IX, §2 (1) (emphasis added).  The North Carolina Supreme Court has explained that in this clause, the term “uniform” modifies “system” which means that “schools of like kind” should be available to the state’s population.  Bd. of Educ. v. Board of Comm’rs, 174 N.C. 469, 473 (1917).  The Court looked at whether the schools in question are established throughout the state under public authority, and available to those qualified to enter.  Id.  As set forth in the North Carolina Supreme Court’s landmark Leandro decision, the uniformity clause requires a general and uniform system, which guarantees the opportunity to attain a sound basic education.  Wake Cares v. Wake County Bd. of Educ., 363 N.C. 165, 172 (2009) (considering whether year-round schools violate the uniformity requirement of Article IX, Section 2(1)). 

Different educational opportunities do not automatically remove a school from the “uniform system” of public schools.  Id.  For example, some questions remain about whether charter schools are part of the uniform system though such schools are undoubtedly public schools.  The Courts have not decided whether charter schools are part of the general and uniform system required by Article IX, Section 2(1); charter schools may be part of the uniform system under different guidelines or they may be an “optional education program” outside the uniform system.  Sugar Creek Charter Sch. v. State, 712 S.E.2d 730, 742 (N.C. Ct. App. 2011).  The Court of Appeals has said, “N.C. Const., art IX, § 2(1) does not forbid the State from establishing additional schools or educational programs to supplement those traditionally utilized to effectuate the constitutional mandate to provide access to a sound basic education.”  Id. 

A.     Wisconsin recognized that vouchers are constitutional as long as students have the opportunity to receive a “free uniform basic education” through public schools.

The Milwaukee Parental Choice Program (MPCP) provides vouchers to students whose total family income is less than 300% of the federal poverty level.  Wisc. Stat. § 119.23, 2(a)(1)(a) (2013).  The Wisconsin Constitution requires district schools to be “as nearly uniform as practicable,” Wisc. Const. art. X, § 3, but that provision does not apply to the MPCP voucher program.  Jackson v. Benson, 218 Wis. 2d 835, 844-45 (1998).  The MPCP clearly uses the term “private schools” instead of “district schools,” so the constitutional provision does not apply.  Davis v. Grover, 166 Wis. 2d 501, 538 (1992).  Even if it did apply, the Wisconsin Supreme Court held the MPCP would not violate the uniformity clause:

“The uniformity clause clearly was intended to assure certain minimal educational opportunities for the children of Wisconsin. It does not require the legislature to ensure that all of the children in Wisconsin receive a free uniform basic education. Rather, the uniformity clause requires the legislature to provide the opportunity for all children in Wisconsin to receive a free uniform basic education. The legislature has done so. The MPCP merely reflects a legislative desire to do more than that which is constitutionally mandated.”

 

Id. at 538-39 (emphasis added).

            The purpose of Wisconsin’s uniformity clause squares neatly with North Carolina’s Leandro decision requiring the opportunity to attain a basic education.  Like in Wisconsin, North Carolina’s voucher program would be optional.  Students eligible for the vouchers still have the traditional opportunity to a sound basic education through the public school system.  Similar to language from North Carolina’s Sugar Creek decision, Wisconsin recognized that schools may be outside the uniform system and still be constitutional.  Moreover, Wisconsin made it clear that the vouchers were for “private schools,” which are not part of the public school system. North Carolina used the term “nonpublic school” in House Bill 944 to accomplish the same goal.

B.     Following Indiana’s decision, North Carolina’s program would likely be upheld because it leaves the public school system in place.

            After Florida ruled its voucher program unconstitutional, Indiana upheld its voucher program under its uniformity clause, and distinguished the language of Florida’s constitution from Indiana’s constitution.  Meredith v. Pence, 984 N.E.2d 1213, 1224 (2013).  Focusing on the language around the uniformity requirement, Indiana required a uniform system “to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement” while Florida required “adequate provision” for the uniform system.  Id.   Indiana must provide a general and uniform system and encourage intellectual growth; it does not require the encouragement to be through the general and uniform system.  Id. at 1224-25. Similar to Wisconsin’s decision in Davis, Indiana’s voucher system is constitutional as long as the general and uniform public school system remains in place.  Id. at 1222-23.  This reasoning applies even if a significant percentage of students use vouchers, taking large numbers of students out of the public schools.  Id.  (explaining the constitutionally required public school system still exists if 60 percent of students leave the public school system because of vouchers). 

            If North Carolina interpreted its uniformity clause in the same way, then as long as the uniform system of public schools still exists as set out in Article IX, Section 2 of the North Carolina Constitution, then other educational means outside the public school system may constitutionally exist.  The voucher program could be classified as an “optional education program” outside the uniform system—something the North Carolina Court of Appeals indicated in Sugar Creek is constitutionally permissible.  The opportunity scholarship program is proposed as an alternative for qualifying students.  No proposal would eliminate the uniform system of public schools in favor of vouchers. 

C.     Although Florida’s voucher system was declared unconstitutional, North Carolina would be unlikely to follow Florida’s reasoning.

            In 2005, Florida enacted The Opportunity Scholarship Program; it gave students attending failing public schools the opportunity to attend either a private school or a passing public school.  Bush v. Holmes, 919 So. 2d 392, 400 (2006). Parents, not schools, were required to ensure their children completed statewide tests if they participated in the program.  Id.  If a student’s parents decided to use the voucher to send the student to a private school, funding was transferred from the school district’s appropriated funds to an account for the opportunity scholarships.  Id. at 401-02.  Then, the parent received a check which could only be endorsed to a private school.  Id. 

Florida’s constitution requires: “Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools . . . .”  Fla. Const. art. IX, § 1a.  Under this provision, the Florida Supreme Court ruled the state’s opportunity scholarships program unconstitutional.  Though the opportunity scholarships were not “uniform” because private schools are not uniform in comparison with public schools in that they do not have the same curriculum or teacher certification requirements, and were not regulated or approved by the state, the scholarship program also violated this section by taking funding from the adequate provision for free public schools since the funding for the scholarships came out of the school district’s appropriated funds, Bush at 409.  Florida law also requires that where the Constitution expressly provides a manner of doing something, then it forbids it to be done in any other way.  Id. at 407. 

The program in Florida differed notably from that proposed in North Carolina.  Compared to North Carolina, Florida’s voucher program allowed less government oversight over private schools with voucher students.  While Florida did not have to approve private schools in the program, North Carolina’s proposed system requires the Department of Administration to provide a list of schools that meet the requirements set out in the legislation.  This includes the requirement that private schools must administer certain standardized tests, which Florida required parents, not schools, to provide. 

Likewise, Florida’s constitution differs from the North Carolina Constitution.  Whereas Florida requires “adequate provision . . . for a . . . high quality system of free public schools,” North Carolina requires the opportunity for a “sound basic education.”  As a result of Florida’s “adequate provision” language, Florida could not take funding from the public schools.  Florida’s Constitution is also interpreted to prohibit something done in a different way than what the Constitution expressly provides.  That is to say, in Florida the constitutionally described means is the only legal means.  But the applicable section of the North Carolina Constitution has been interpreted more broadly, suggesting that schools may be part of the uniform system with different guidelines or they may be outside the uniform system as an optional program.  That is, in North Carolina the constitutionally described means is one of the possible legal means.  The significance of Florida’s decision on this issue is further diminished by a subsequent decision in Indiana’s high court which upheld opportunity scholarships under its uniformity clause as explained above.

D.    Though other states have held opportunity scholarships unconstitutional, state courts have done so outside uniformity grounds.

Cases from other states, such as Colorado and Louisiana, have struck down voucher programs in those states, but those cases did not hinge on a constitutional provision analogous to North Carolina’s requirement for a uniform system of public schools. Accordingly, while opponents may look to those cases for instruction, the Colorado and Louisiana cases would be of little, if any utility.

Colorado’s constitution contains a uniformity clause. Colo. Const. art. IX, § 2.  But, importantly, that was not the basis for striking Colorado’s voucher program.  Rather, the case hinged on Article IX, Section 15 of the Colorado constitution which establishes district-level control of public schools.  Owens v. Colorado Cong. of Parents, 92 P.3d 933, 938-40 (2004). Section 15 requires the creation of local Boards of Education to be comprised of 3 or more directors and “Said directors shall have control of instruction in the public schools of their respective districts.” Colo. Const. art. IX, § 15. The Colorado court reasoned that the voucher program violated the local control mandate of Section 15 because it required the school districts to turn over a portion of their locally raised funds to private schools over which the local districts had no control.  Id. at 943-33.  Colorado’s reasoning is not applicable here because North Carolina’s constitution does not include a provision establishing district-level control over the state’s public school system.  Further, the proposed opportunity scholarships would be funded by the state, not local governments. 

            Similarly, Louisiana’s voucher program was recently held unconstitutional. However, it was not on uniformity grounds because the Louisiana Constitution does not contain a uniformity clause.  Instead, the program was unconstitutional based on Article VIII, Section 13(B) which requires the State Board of Education to use a formula to “equitably allocate the funds to parish and city school systems.”  La. Const. Art. VIII, Section 13(B); La. Fedn. of Teachers v. State, 2013 La. LEXIS 1077, 108 (La. May 7, 2013).  Thus, the Louisiana decision is not applicable in North Carolina because North Carolina does not have a constitutional provision similar to Louisiana’s Article VIII, Section 13(B).

Conclusion

            Based on the North Carolina Constitution and case precedent, if House Bill 944 passes, North Carolina is most likely to follow the reasoning of either Wisconsin or Indiana Courts in upholding the opportunity scholarship program. Precedents to the contrary from other states are unlikely to influence the decision of North Carolina courts because those precedents rely on provisions or phrases not contained in the North Carolina constitution. Legislators and proponents can feel comfortable that the opportunity scholarship program proposed in HB 944 does not violate the requirement of a uniform system of free public schools as required by Article IX, § 2(1). 



[1] For more information, please contact Jeanette Doran at 919-838-5313 or doran@ncicl.org. This memorandum was prepared with the assistance of Ashley Berger, law student intern.

[2] The provisions of HB944 have been added to SB402 as part of the proposed budget bill.

[3] For a family of four to qualify, their yearly income must be less than $43,568 for 2013-2014 and less than $57,945 for subsequent years.  Child Nutrition Programs; Income eligibility Guidelines, http://www.fns.usda.gov/cnd/governance/notices/iegs/IEG_Table-032913.pdf.

[4] One proposed state budget states that, beginning in 2014, the legislature “shall appropriate” an amount each year equal to the cost-savings of the opportunity scholarships to public schools or community organizations for the purpose of assisting at-risk students.  SB 402, § 8.29(k).  The amount of savings, if any, is a point of contention.  The per pupil expenditure in 2012-13 was $8,436 per student, $5,361 of which was provided by the state.  Facts and Figures, http://www.ncpublicschools.org/docs/fbs/resources/data/factsfigures

/2012-13figures.pdf.  Opportunity scholarships are $4,200 each.  House Bill 944, §115C-562.2(b).  Therefore, the savings per student that uses an opportunity scholarship should be $1,161 minus administrative costs.  Administrative costs are capped at 1% of the overall appropriation for the program.  HB 944, § 6(a).

[5] Other legal challenges are not discussed because they are not relevant for the purposes of this paper, such as the challenge to Maine’s program under the Establishment Clause.  728 A. 2d 127 (1999).  NCICL’s paper “Opportunity Scholarship Funding Would Not Violate the First Amendment of the U.S. Constitution” examines why HB 944 would be upheld under the Establishment Clause. http://ncicl.org/article/871 (2013).