White Papers and Policy Briefings

An Analysis of Voter Identification Requirements in Crawford v. Marion
Jeanette Doran
Nov 26th, 2013

As lawsuits attacking North Carolina’s voting and election law reforms proceed through the courts, opponents of such reforms will argue that various provisions of the new law are unconstitutional. The voter photo identification argument appears to have attracted the most attention and the lawsuits have raised some concerns about the constitutionality of voter ID requirements. These concerns will be addressed and dispelled by analyzing the U.S. Supreme Court’s decision in Crawford v. Marion County Election Bd., 553 U.S. 181 (2008), a case challenging Indiana’s Voter-ID law. To date, this is the only Voter-ID case that the Supreme Court has considered (however, the Supreme Court heard oral arguments on Arizona’s Voter-ID law on March 18, 2013). In a 6-3 decision, the Court refused to strike down Indiana’s Voter-ID law.


Firearms Rights Restoration & The North Carolina Felony Firearms Act
Tyler Younts
Nov 26th, 2013

Since 1971, the North Carolina Felony Firearms Act, G.S. § 14-415.1 et seq, has generally banned felons from owning or possessing firearms. But the Act, its applicability and constitutionality are far from settled. The General Assembly has amended the Act several times over the years to further restrict felons’ firearms rights. But more recently it altered this course, responding to new constitutional standards articulated by the North Carolina Supreme Court in Britt v. State, by amending the Act to provide for a firearms rights restoration process. 363 N.C. 546 (2009). This paper explains the major provisions of the Felony Firearms Act, particularly firearms rights restoration, in light of Britt and the decision of the Court of Appeals in Baysden v. State. ___ N.C. App. ___, 718 S.E.2d 699 (2011).


Quick Reference Guide to Firearms Rights Restoration & the North Carolina Felony Firearms Act
Tyler Younts
Nov 26th, 2013

This quick reference guide summarizes the North Carolina Felony Firearms Act, its applicability, relevant exceptions, firearm restoration rights, and important court cases dealing with the Act’s constitutionality


Memorandum of Law: N.C. Pre-Kindergarten Part I
Jeanette Doran
Sep 11th, 2013

Over the years, North Carolina courts have interpreted the North Carolina Constitution to require the State to provide children attending public schools the “opportunity to attain a sound basic education.” The courts recognized that some children were not being given that opportunity, specifically “at-risk” children entering kindergarten. As a result, the constitutionally mandated “opportunity to attain a sound basic education” morphed into a requirement that the State provide “at-risk” children with access to pre-kindergarten because a State funded pre-kindergarten (formerly More at Four and now NC Pre-K) was deemed the only method developed by the State to address at-risk children entering kindergarten. This requirement grew from the landmark decision in Leandro and its progeny. Set out below is a discussion of those cases and an explanation of how the pre-kindergarten mandate evolved.


Memorandum of Law: N.C. Pre-Kindergarten Part II
Jeanette Doran
Sep 11th, 2013

In response to the Supreme Court decisions in Leandro and Hoke County, the General Assembly enacted the “More at Four” program in 2001 to provide pre-kindergarten for at-risk children to prepare them for kindergarten. The program was amended in 2011 to rename it N.C. Pre-K and to cap the total number of at-risk children in the program at 20% of total enrollment. On appeal, the Court of Appeals declared “More at Four” the only program developed by the State to address “at-risk” children entering kindergarten. The court said that the State had time to develop other methods of addressing the problem, but it did not do so. Thus, according to the Court of Appeals, N.C. Pre-K is the method the State has decided to use without any other plan. The State must give all students the opportunity to a sound basic education, so it cannot deny pre-kindergarten to some at-risk students. On March 7, 2013 the North Carolina Supreme Court granted discretionary review when the State appealed the 2012 Hoke County decision. As of the date of this paper, the Supreme Court has not ruled on this case. The Court of Appeals decision turned on its belief that N.C. Pre-K was the only step that the State had taken to remedy the problems experienced by at-risk students entering kindergarten. As explained below, that view overlooks several other measures implemented by the State.


NC Supreme Court and Court of Appeals Review (August 2012-July 2013)
Jeanette Doran & Tyler Younts
Aug 23rd, 2013

NC Supreme Court and Court of Appeals review by Jeanette Doran and Tyler Younts highlights recent cases from those courts, which address constitutional questions.


Memorandum of Law: NC Budget Puts Common Core Assessments on Ice
Tyler Younts
Aug 14th, 2013

The North Carolina Institute for Constitutional Law recently published a multi-part series of white papers (available here) that explain many of the legal and constitutional concerns about the federal effort to establish national educational standards known as Common Core. While Common Core implementation continues despite vocal opposition centered on these and other concerns, a provision in the recently enacted state budget prohibits the State Board of Education from purchasing or implementing Common Core assessments, i.e., tests, unless and until the General Assembly first passes legislation giving its approval. This memorandum explains this budgetary provision and explores how it could impact implementation of Common Core moving forward.


Duties and Responsibilities of City Attorneys
Tyler Younts
Aug 12th, 2013

From time to time the North Carolina Institute for Constitutional Law receives inquiries asking about the duties and responsibilities of city or county attorneys, particularly in the context of attorney-client privilege and the North Carolina’s Open Meetings Law (OML). This memorandum of law explains what the duties and allegiances of a city attorney are, and are not, by exploring the interrelationship between the attorney’s duty of confidentiality, the duty to report wrongdoing, and the OML. It argues that in some cases, a city attorney has an obligation to report wrongdoing to the voting public.


Memorandum of Law: Special Counsel for State Legislatures
Jeanette Doran
Aug 1st, 2013

On July 26, the North Carolina General Assembly ratified Senate Bill 473, allowing the Speaker of the House and President Pro Tempore of the Senate acting jointly to intervene in certain legal actions on behalf of the General Assembly.


Common Core and NC: Pt. 1 - Common Core's History and Structure
Jeanette Doran & Tyler Younts
Jul 26th, 2013

As public awareness of the Common Core State Standards Initiative (Common Core) increases in North Carolina, so do the questions about it. This memorandum is the first in a multi-part series of legal memoranda by the North Carolina Institute for Constitutional Law designed to inform the public about the legal issues surrounding Common Core and address some of the questions raised by it. This paper explores the history of Common Core’s development and adoption. It explains what Common Core is, how it began, and how it was rolled out to the public. This paper then explains how and why most states adopted Common Core, what role federal Race to the Top grants played, and how waivers to the No Child Left Behind and Elementary and Secondary Education Act (NCLB/ESEA) continue to keep states locked into the program. Subsequent memoranda will address other issues including privacy concerns and parental rights.


Common Core and NC: Pt. 2 - An Assault on Federalism
Jeanette Doran & Tyler Younts
Jul 26th, 2013

The first paper in this five-part series examined the history and structure of Common Core. Now, we turn to the question of Common Core’s constitutionality and legality. Proponents of Common Core adamantly argue that it is a state-led initiative, not a federal edict. The insistence that Common Core is “state-led” comes despite the federal government’s directed efforts not only to induce states to adopt Common Core with billions of dollars in Race to the Top (RTTT) grants, but also to keep states locked into the initiative after adoption through No Child Left Behind (NCLB) and Elementary and Secondary Education Act (ESEA) waivers. In light of the billions of federal dollars spent on Common Core, some have wondered why there has been so much effort put into to convincing the public that Common Core is “state-led.” Some may believe that the insistence that Common Core is not a federal marching order is purely political. But, in reality, claims that Common Core is state-led are little more than a shallow attempt to pay lip service to constitutional principles of federalism which limit the power of the federal government. This paper provides a brief overview of the concept of federalism, followed by an explanation of the federal government’s constitutionally limited role in education matters, and an explanation of how Common Core runs afoul of the letter and spirit of the Constitution and federal law.


Common Core and NC: Pt. 3-How Much Will It Cost?
Jeanette Doran & Tyler Younts
Jul 26th, 2013

Rushing to adopt Common Core in order to win Race to the Top (RTTT) grants, few states thoroughly evaluated the full costs of implementing a new curriculum and aligned assessment tests. Recent studies suggests that the cost of implementing Common Core will add a burden of billions of dollars on already cash-strapped states— $15.8 billion nationally, and $641.9 million in North Carolina alone. Moreover, when federal government funding for assessment development dries up next year, states will be left to pick up the tab. This paper provides a brief overview of some recent research detailing the expected costs associated with Common Core, particularly as it relates to North Carolina.


Common Core and NC: Pt. 4 - A Threat to Student Privacy
Jeanette Doran & Tyler Younts
Jul 26th, 2013

Common Core will bring major changes to the way K-12 curriculum is set and how student data is collected, stored, and used. News reports reveal that the data collected is not always what one might associate with educational programming. For example, Reuters reported that data collection includes not just students’ names and academic information but also hobbies, attitudes toward school and career goals. This raises the issue of whether the student data collection required under Common Core is so pervasive and intrusive that it violates the constitutional right of privacy. This paper examines this question and concludes that Common Core undermines student privacy and requires serious reconsideration.


Common Core and NC: Pt. 5 - A Threat to Parent's Rights
Jeanette Doran & Tyler Younts
Jul 26th, 2013

Common Core will bring significant changes to the way performance is tested, and thus curriculum is set, for grades K-12 and how parents may (or, more aptly, may not) influence, monitor and control their children’s education. Changes in curriculum and standardized testing aligned to Common Core raise questions about the input of parents, if any, in the wake of Common Core’s aftermath. This memorandum is the last in a multi-part series about Common Core. This paper builds upon the factual and legal analysis laid out in prior memoranda by the North Carolina Institute for Constitutional Law. This paper explains the constitutional rights of parents to parent their children and describes some of the constitutional questions which arise from North Carolina’s rush to adopt Common Core.


Memorandum of Law
Jeanette Doran
Jul 25th, 2013

On July 18, the Office of State Budget and Management (OSBM) informed the North Carolina Rural Economic Development Center, Inc., (known as the “Rural Center”) that OSBM was suspending scheduled disbursements from the State to the Rural Center. OSBM cited a critical state audit of the Rural Center as the reason for that suspension. OSBM also explained it was considering pursuing the return of state funds previously given to the Rural Center. As explained in this memorandum, OSBM’s actions were legally authorized and factually supported by both the state audit cited by OSBM in its letter to the Rural Center and by a federal Environmental Protection Agency audit not referenced by OSBM.


Memorandum of Law
Jeanette Doran
Jul 10th, 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.


At-Will Employment versus The Luxury of Tenure
Jeanette Doran
Jun 28th, 2013

This year, the North Carolina House and Senate both introduced bills aimed at restructuring public school teacher tenure. House Bill 719; Senate Bill 361. The House Bill survived the legislature’s self-imposed crossover deadline, which requires legislation to pass in at least one chamber by a certain point in the legislative session, and is now in the Senate Ways and Means Committee.


Constitutional Concerns about the Creation of an Independent Charter School Board
Jeanette Doran
Jun 5th, 2013

Since their creation in 1995, North Carolina’s public charter schools have been regulated and supervised by the State Board of Education pursuant to Title 115C, Article 16 of the General Statutes. Proposed legislation filed this year, Senate Bill 377 and the substantially similar House Bill 453, would alter this supervisory relationship. SB337 would remove all charter school-related supervisory, rulemaking, and assistance duties from the State Board of Education and place this authority into a newly created board, the “North Carolina Public Charter Schools Board.” While administratively housed within the Department of Public Instruction this board would operate “independently” from the State Board of Education and the Department of Public Instruction. The State Board of Education could only overturn the newly-created board’s decisions with what the bill describes as a “veto vote,” requiring a three-fourths majority, within forty-five (45) days of the new board’s decision. An independent charter school board, as proposed by SB337, raises serious legal concerns and likely violates the State Constitution.


Analysis Of Constitutionality Of House Bill 695
Jeanette Doran
Jun 4th, 2013

Does North Carolina House Bill 695, which would prohibit the application of foreign law in certain circumstances explained below, violate the Equal Protection or Establishment Clauses of the Constitution because of its impact on one type of foreign law?


Memorandum of Law: Eliminating Prisoner Legal Services Potentially Unconstitutional
Jeanette Doran
Jun 3rd, 2013

The North Carolina Senate’s budget proposal, SB 402, raises serious concerns over the defunding of North Carolina Prisoner Legal Services (NCPLS). As explained by N.C. Dept. of Corrections Division of Prisons, Policy & Procedures .0202 (cited herein as DOC Policy), the North Carolina Department of Corrections (DOC) currently contracts with NCPLS to provide legal services that will ensure prisoners have access to courts. This policy plays an important role in meeting the State’s constitutional obligation to ensure that prisoners have access to the courts. While budget proposals to eliminate funding for NCPLS are part of a broad effort to save taxpayer dollars, lawmakers should proceed cautiously and with a full understanding of the constitutional stakes. Ultimately, efforts to eliminate funding for NCPLS may prove to be pound wise and penny foolish. This paper explains what the constitution requires in terms of legal aid for prisoners, and evaluates the constitutionality or unconstitutionality of efforts to eliminate NCPLS.