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School voucher program could face legal challenge 

Republicans are charging ahead with an aggressive voucher program that would use $50 million of taxpayer money to pay for private education over the next two years. But the program may not fulfill its intent and, as in several other states, may run afoul of the state constitution.

The conservative "school choice" movement has been working its way through Republican legislatures across the country. Charter schools, which are semi-public institutions, are a large part of the movement, but vouchers, which pay families to transfer students out of the public system, are at its core.

Rather than pursuing vouchers through a single bill, North Carolina Republicans have chosen to roll it into the state budget, as has been done in New Jersey. However, in Texas, such a move was recently walked back.

More than 30 voucher programs exist nationwide, according to the American Federation for Children, a conservative education policy organization. But many of those programs simply provide tax credits for private school students or students with disabilities.

North Carolina's program would be among just a handful in the country that actually signs over a check to a private school for students whose family incomes fall under a certain level.

Students who qualify for free and reduced lunch—which is based on an income of $36,131 for a family of three—would be eligible for a voucher in the coming school year. In the program's second year, the threshold expands to 133 percent of that income level, or $48,054.

One key conservative claim is that vouchers save the state money. By the GOP's math, the state spends roughly $4,800 per student in public schools, but will cap vouchers at $4,200. Rep. Skip Stam, R-Wake, a key voucher proponent, who refuses to be interviewed by INDY Week, has made that claim.

But according to a fiscal analysis performed by legislative staff, the voucher program will cost taxpayers between $7.1 million and $22.9 million over the next five years. That's because many students who obtain vouchers normally would have paid for private school out of their own pockets. Others would have already been attending private school, but qualify for a voucher nonetheless.

Opponents argue that vouchers fund religious institutions. In North Carolina nearly 70 percent of the state's 698 private schools are religious.

The separation of church and state seems like the first place opponents would look to legally challenge a new voucher law. But Matt Ellinwood, who has been researching that possibility for the left-leaning N.C. Justice Center, says it isn't.

North Carolina's constitution doesn't have a clause that explicitly separates government and religion, Ellinwood says, "so a successful challenge on religious grounds seems unlikely."

However, many state constitutions, including North Carolina's, require that government provide a "uniform" education to all students. The "uniformity" clause has been used to strike down voucher laws in Florida, Louisiana and Colorado, according to Ellinwood.

Former state Supreme Court Justice Robert Orr, a Republican, agrees that uniformity is likely the best challenge to vouchers. "There could be a serious argument made that if you're spending money on private education, which is not really subject to government oversight, then that's not part of a 'uniform' education and you can't spend money to do that," Orr says. "There's no case law that I'm aware of, but it raises a serious constitutional question."

Since North Carolina vouchers could fund only up to 90 percent of a child's tuition, some families couldn't afford the final 10 percent. "The only other time we've had a separate school system is under segregation," Ellinwood says.

But Terry Stoops of the conservative John Locke Foundation argues the system doesn't conform with uniformity now: "The public school system, which includes charters, already has such a broad array of education programs that I don't think the uniformity clause will effect vouchers."

North Carolina's constitution also grants every child the right to "a sound, basic education," which was validated in a pivotal court ruling, the Leandro case. Orr helped write that decision. "What it may come down to," Orr says, "is that you don't know whether the private schools that are either in existence or that may be created to take advantage of the voucher system, whether they are providing the education that they are supposed to. Does the state want to monitor that?"

This article appeared in print with the headline "A constitutional test."

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