NC's School Choice Program Upheld

I'm happy to report that the North Carolina Supreme Court has upheld the state's school choice program against state constitutional challenges. (The main case is Hart v. State; a second ruling, Richardson v. State, relies on Hart.) The program provides scholarships to low-income students to use at the private school of their choice, religious or secular. The plaintiffs brought a variety of challenges, which boiled down to three arguments:

(1) The state cannot fund private schools at all. (E.g., the plaintiffs said, the clause requiring the state to maintain a "uniform system of schools" means that funded schools must be uniformly public.) The court answered that the uniformity clause only applies to policies within the public school system and does not prohibit the state from funding other educational opportunities. This is the opposite result from the one the Florida Supreme Court reached in 2006 in striking down that state's program under a similar "uniform education" provision (Bush v. Holmes).

(2) The state failed to include sufficient safeguards for the educational quality of schools participating in the program. This allegedly violates, e.g., the requirements that legislation serve a public purpose, and as well as the state's duty to "maintain the right of the people to the privilege of education"). The court responded that since some (most?) private schools were educationally adequate, claims of inadequacy were not the basis for a facial challenge to the program. (This reasoning might suggest there could be an as-applied challenge to a particular school's inadequacy, although the court isn't entirely clear on that.)

(3) Finally, the plaintiffs said, the program authorized the participation of schools that discriminate on the basis of religion, in violation of the provision that no person shall "be subjected to discrimination by the State because of race, color, religion, or national origin." The court held that the plaintiffs--state taxpayers--lacked standing to bring this claim because they did not claim they had been personally subjected to discrimination (e.g. denied employment or admission by a school on grounds of religion).

     Basically, the  plaintiffs' problem on the religion question was that there was no North Carolina  anti-establishment provision restricting government support of religious schools ("sectarian schools," as other states call them). So the plaintiffs tried to shoehorn their objection to religious schools into the provision prohibiting state discrimination based on religion. But the round peg didn't fit the square hole: they hadn't been discriminated against just because they were taxpayers, and moreover their equation of discrimination by the school with discrimination by the state misstates Con Law 101 principles about state action.  [UPDATE: I struck out "anti-establishment" above because, as Marc points out, the 19th-century Blaine-type restrictions on aid to "sectarian" schools can certainly be seen as doing something quite different from promoting pluralism as anti-establishment provisions do. I didn't mean to weigh in here on that issue--although I basically agree with Marc on it.] 

     The religious liberty clinic I supervise at St. Thomas, together with the Christian Legal Society,  filed a brief for several amici on the merits of the religious-discrimination claim. We emphasized that a religious school's employment and admissions decisions on ground of religion involve a constitutionally protected right to form a community based on religious ideals, and that the state could legitimately preserve that while also supporting the education those schools provide. (We also pointed out the basic state-action error.) The court didn't reach these arguments.

A passage in the court's discussion of the "public purpose" doctrine sums up the basic message of this decision:

Although the scholarships at issue here are available only to families of modest means, and therefore inure to the benefit of the eligible students in the first instance, and to the designated nonpublic schools in the second, the ultimate beneficiary of providing these children additional educational opportunities is our collective citizenry.