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Superior Court judge issues another smackdown to school vouchers 

Lucinda MacKethan, a retired N.C. State professor, at a rally at the State Capitol sponsored by Public Schools First NC, an advocacy group which opposes school vouchers.

Photo by Bob Geary

Lucinda MacKethan, a retired N.C. State professor, at a rally at the State Capitol sponsored by Public Schools First NC, an advocacy group which opposes school vouchers.

Under the voucher scheme cooked up by the Republicans in the General Assembly, $10 million a year of taxpayer funding was earmarked for students to attend private, mostly religious schools. Each voucher will be worth $4,200—if the plan is upheld by the courts.

This, by the way, is the second General Assembly in North Carolina history to try vouchers. The first, in 1956, was attempting to preserve segregated schools—a purpose not wholly dissimilar to what the Republicans are up to now.

About the new voucher plan, the question isn't whether vouchers pose a threat to public schools. Of course they do, and the Republicans want them to. Rather, it's whether the N.C. Constitution prohibits vouchers.

Yes, it does, Superior Court Judge Robert Hobgood ruled last week. After hearing arguments Tuesday (Part 1 of the arguments here, part 2 here), he was back Thursday morning with a scathing opinion that the voucher plan violates eight sections of the constitution.

Hobgood ordered it stopped.

The eight, Hobgood said, include two sections of Article 9—titled "Education"—which direct the General Assembly to fund "a general and uniform system of free public schools" and to spend state revenues appropriated for public education "exclusively" within that system.

Importantly, Article 9 contains a section on "Higher Education" which allows the General Assembly to support private colleges as well as the University of North Carolina system—such aid is explicitly permitted, in contrast to the requirement that primary and secondary school funding be exclusively for public schools.

Which would seem to clinch the case, except that Hobgood doesn't get the last word—that will come from the state Supreme Court.

Earlier this year, Hobgood issued a temporary injunction to halt the voucher program; in an unusual move, the Supreme Court stepped in and lifted his injunction, and it's only by luck that the voucher funds weren't out the door by the time Hobgood could rule. (The state agency assigned to issue the vouchers messed up, and the money never left the bank.)

Will the Supreme Court uphold vouchers? Well, five of the seven seats are held by Republicans, and with four seats up for election in November, the GOP is spending heavily to keep control. As conservative political consultant John Davis put it, "lose the court, lose the war."

That advice definitely applies to the Republicans' war on public schools.

What is the Republican argument for the constitutionality of vouchers? In two words, it's "Can, too"—GOP lawyers contended that spending for private-school vouchers is "supplemental" to public-school funding and isn't barred by Article 9.

Attorney General Roy Cooper's offense joined this argument, with Special Deputy Attorney General Lauren Clemmons contending that because the constitution doesn't specifically say that the General Assembly can't fund private schools, it can too.

This, said attorney Burton Craige, an attorney for the anti-voucher plaintiffs, amounted to arguing that "exclusively doesn't mean exclusively."

But if the text of the constitution doesn't prove it, Craige said, the '56 voucher story does. Back then, the General Assembly was trying to get around the U.S. Supreme Court's decision in Brown v. Board of Education that public schools be integrated.

Thus, the so-called Pearsall Plan created vouchers for students who were assigned against their will to integrated schools—they could attend all-white private schools. Then as now, it was up to the private school whether to accept a voucher-backed applicant.

The Pearsall Plan also allowed local school districts to close if voters approved.

The authors of the plan, though, realized that state aid to private schools was barred by the state constitution. So they went to the voters with a constitutional amendment to allow vouchers, and in September, 1956 it passed by a 4-to-1 margin.

Soon, however, the federal courts struck down the Pearsall Plan—it violated Brown—and in 1971, a new constitution was approved by the voters; it dropped the '56 amendment and restored the prohibition against vouchers.

"What was true in '56 is still true," Craige said: If the General Assembly wants to enact a voucher plan, it needs a constitutional amendment.

I said that the purposes of the new voucher plan and the old one aren't dissimilar. The old one meant to keep whites and blacks apart. The new one, by its terms, can only be understood as an effort to help middle-class kids go to private schools, especially Christian schools, that low-income kids can't afford.

It's the new segregation—it's economic, but inextricably linked to our history of racism.

Here's the deal: The vouchers, for $4,200, are available to students from families with incomes below a threshold based on the federal free and reduced lunch program. But that threshold—133 percent of F&R income—allows a family of four, for example, to qualify with income of $58,820.

Families at that level will use vouchers to reduce what they'd otherwise pay for private schools, which cost a whole lot more than $4,200 a year.

Just $10 million a year to start, but if this program is allowed to exist, believe me, it will grow.

Meanwhile, poor families are either out of luck, or the kids will go to a second-rate school that operates on $4,200 a year per student—half what we spend on public schools.

Worse, as Hobgood said, the Republicans' plan doesn't require trained principals, teachers, or even any curriculum—it's an open invitation to lure an unwary parent to a second-rate school.

"It appears," the judge said, "that the General Assembly is seeking to push at-risk students from low-income families into non-public schools in order to avoid the cost of providing them a sound, basic education in public schools" as previous courts required.

While the Republicans throw money at private schools, they're also cutting funds for public schools. Put the two together and it's a war for separate and unequal all over again.

This article appeared in print with the headline "Still Unconstitutional."

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  • The GOP and its voucher love

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