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Next steps after a 4-3 vote

Editor’s Note: As a reminder to our readers, Ann McColl is an attorney and was a part of the litigation team for the Hart plaintiffs.

A 4-3 court decision comes across so much differently than a unanimous opinion. On important issues, like Leandro v. State (1997) or Brown v. Board of Education (1954), a unanimous opinion gives great weight to the certainty of the role of the constitution and the rightness of the opinion. A 4-3 does the opposite. The court does little to end the debate and exposes the judiciary to be a collection of people with their own viewpoints, political leanings, and frameworks for constitutional interpretation. To state the obvious only because it is so important, in a 4-3 vote, one justice changes the course of programs and policies in ways that can have a huge impact on the state or country. That’s what we have in the voucher/Opportunity Scholarships lawsuit.

A majority – by one – found no constitutional basis for stopping the flow of taxpayer dollars to fund tuition at private schools. North Carolina Supreme Court Chief Justice Martin began the majority opinion with the lens of constitutional review that “North Carolina courts have the authority and responsibility to declare a law unconstitutional, but only when the violation is plain and clear.” From here, the Chief Justice – writing the majority opinion joined by Justices Newby, Jackson, and Edmunds – found no constitutional defect.  Justice Martin concluded:

“When, as here, the challenged legislation comports with the constitution the wisdom of the enactment is a decision for the General Assembly…To the extent that plaintiffs disagree with the General Assembly’s educational policy decision as expressed in the Opportunity Scholarship Program, their remedy is with the legislature, not the courts.”

The three dissenting justices disagreed, finding the program constitutionally defective for failing to meet minimum constitutional standards for education and for failing to meet public purpose standards for use of taxpayer funds.

Whether you agree with the majority or the dissent, the court has made clear that this is an issue for the General Assembly.

So let us have conversation and debate to inform the General Assembly of the policy direction we seek with this program.

A good place to start is with the “Undisputed Material Facts” found by Judge Robert Hobgood at the trial court level. These facts were not changed or disputed by the North Carolina Supreme Court. For a full listing of the Undisputed Material Facts you can review the trial court order on the EdNC website. The numbers below are the same as in the trial court order. I have listed some of the undisputed facts below, along with a brief description of the court’s treatment of the facts and questions for us to consider.


  1. Private schools that receive scholarship funds are (1) not required to be accredited by the State Board of Education or any other state or national institution; (2) not required to employ teachers or principals who are licensed or have any particular credentials, degrees, experience, or expertise in education; (3) not subject to any requirements regarding the curriculum that they teach; (4) not required to provide a minimum amount of instructional time; and (5) not prohibited from discriminating against applicants or students on the basis of religion. See  N.C. Gen. Stat § 115C-562.1  et seq.
  1. Of the 5,556 scholarship applicants, 3,804 applicants identified 446 private schools that planned to attend. Of those 446 schools, 322 are religious schools and 117 are independent schools. Of the 322 religious schools scholarship recipients planned to attend, 128 are accredited by some organization and 194 are not accredited by any organization. Of the 117 independent schools scholarship recipients planned to attend, 58 are accredited by some organization and 59 are not accredited by any organization.
  1. At least 303 scholarship applicants planned to attend schools that enrolled fewer than 25 students in 2013-14 and at least 93 scholarship applicants planned to attend schools that enrolled 10 or fewer students in 2013-14.

Plaintiffs in the case argued that the lack of standards violated the “public purpose doctrine” of the North Carolina Constitution. The majority of four disagreed. Chief Justice Martin framed the question that “this Court’s inquiry is discrete – we ask whether the legislative purpose behind the appropriation is public or private…If the purpose is public, then the wisdom, expedience, or necessity of the appropriation is a legislative decision, not a judicial decision.” Finding that education is a public purpose, the majority did not explore the issue of standards.

Justice Hudson, writing the dissent which was joined by Justices Beasley and Ervin, disagreed:  “The main constitutional flaw in this program 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, in a separate dissent, wrote that “[w]ithout systemic and cultural adjustments to address social inequalities, the further cruel illusion of the Opportunity Scholarship Program is that it stands to exacerbate, rather than alleviate, educational, class, and racial divides.” 

This leaves us with questions about this program.

Does it matter whether a school is accredited or not?

Does it matter if the teachers and/or principals are licensed?

Does it matter if it is a homeschool converted to a private school?

Does it matter that the instructional time and curriculum are not required? 

We should also note the large number of applicants – 5,556. This ruling came out the same week as another set of hearings in Leandro v. State to address the State’s plan for providing an educational opportunity in public schools that meets constitutional standards.

What do we need to do better or differently in order for these children and their parents to want to stay in the public schools? 


  1. In 32 of North Carolina’s 100 counties, the only private schools are religious schools.
  1. Some religious schools will only admit applicants of a particular religion.
  1. As of 23 July 2014, the ten private schools in which the largest number of scholarship recipients planned to enroll are the following religious schools: Victory Christian Center School (Charlotte); Word of God Christian Academy (Raleigh); Greensboro Islamic Academy; Freedom Christian Academy (Fayetteville); Fayetteville Christian School;’ Northside Christian Academy (Charlotte); Al-Inman School (Raleigh); Concord First Assembly Academy; Tabernacle Christian School (Monroe); and Raleigh Christian Academy.

The majority found that the plaintiffs lacked standing to raise any discrimination claims based upon religion (Article I, Section 19) as they had not suffered discrimination. Given the court’s limited inquiry under the public purpose doctrine, the majority also found the religion clause in the constitution not relevant to determining whether the program met a public purpose.

Justice Beasley, in her dissent wrote: “[I]n time, public schools may be left only with the students that private schools refuse to admit based on perceived lack of aptitude, behavioral concerns, economic status, religious affiliation, sexual orientation, or physical or other challenges, or public schools may become grossly disproportionately populated by minority children. The policy promoted by the Opportunity Scholarship Program, therefore, may serve to widen already considerable gaps and create a larger class of under-served children.”

While the majority opinion leaves it open for religion claims in the future, for now, the questions around taxpayer funds to religious schools rest with us and the General Assembly.

Is it good policy to provide scholarships when in a third of our counties, students could have no choice but to attend a religious school?

Is it acceptable to allocate funds to schools that will only admit applicants of a particular religion?

Is it acceptable that some schools, on the basis of religion, could exclude some students, such as for sexual orientation?

Is it a good use of taxpayer dollars to fund options outside of public schools for parents to pursue a religious education?

These are not all the questions we should ask and answer. But they are important ones generated out of undisputed facts – and that’s a good place to begin a conversation. 

We have a 4-3 opinion.

The constitutional issues are settled in that somewhat unsettled way.

It is time for us to tackle these questions and others about how the voucher program moves forward in our state.

Ann McColl

Ann McColl is an attorney and state constitutional scholar.