Choice program deserves defense

by John Hood, John Locke Foundation and NC SPIN panelist, April 16, 2014.

Liberal activists may fume, and left-wing editorialists may grind their teeth, but legislative leaders are going to defend energetically their 2013 opportunity scholarship bill against lawsuits by the teacher union and other special interests.

Senate leader Phil Berger, House Speaker Thom Tillis, House Speaker Pro Tem Skip Stam (the main architect of the program), and other leaders won’t be defending school choice because they oppose public education. They won’t be defending school choice because some national organization told them to. They won’t even be defending school choice because it enrages their political adversaries, though perhaps that’s a side benefit.

No, North Carolina’s political leaders are defending opportunity scholarships for at-risk and disabled students because it’s the right thing to do.

In virtually no other area of public policy are recipients of a government-funded service forbidden from choosing providers that best meet their needs. No one tells Medicare patients what hospitals they must visit. No one tells food-stamp recipients where they must shop. In education, both federal and state governments provide financial assistance to children who attend child care centers and preschools, as well as to students who attend colleges and universities. Their families are free to choose from among public and private providers of these educational services, with nary a peep out of the usual left-wing suspects.

What makes elementary and secondary education a proper exception to this rule? Nothing. The only distinction is that district-run public schools have until recently enjoyed a monopoly. They simply don’t want to give it up.

It was no surprise that the North Carolina Association of Educators and other groups filed suit to block implementation of the new voucher program for the 2014-15 school year. They worry that once thousands of low-income children are enrolled in schools of choice, it will be practically difficult and politically disastrous to strip them of their choice later on.

It came as more of a surprise, however — and a disappointing one — when Superior Court Judge Robert Hobgood granted the union its desired injunction and issued a poorly reasoned decision about the case. As Institute for Justice attorneys representing potential voucher beneficiaries argued in their own appeal of Hobgood’s decision, the injunction “was granted based on obvious misrepresentations of the North Carolina Constitution, misrepresentations so plain that neither group of plaintiffs could cite any North Carolina precedents on point.”

Indeed, the closest thing to a precedent that anyone has been able to find, a North Carolina Supreme Court decision in 1979 in a case called Hughey v. Cloninger, is helpful rather than harmful to the school choice cause. The case arose when Gaston County began appropriating local tax dollars to the Dyslexia School of North Carolina, a private institution serving students whose special educational needs were not being met by their public schools. A plaintiff sued to stop the county subsidy, a position that the Supreme Court ultimately agreed with — but not, the justices concluded, because taxpayer funding of private education was unconstitutional. Instead, the Court observed that the General Assembly had already authorized “educational expense grants” to North Carolina families of special-needs students attending private schools. Because counties have only the budgetary authority granted to them by the state, Gaston County couldn’t initiate a direct subsidy of the school in question, because the state legislature had already expressed its preference for a voucher mechanism.

Has anything happened since 1979 — any constitutional amendment or interpretation — that makes “educational expense grants” illegal? If so, why didn’t the teacher union and its allies say so in their legal arguments? If not, why wasn’t their case, or at least their requested injunction, dismissed outright?

Whether Attorney General Roy Cooper does the job or legislative leaders hire counsel to do it for him, North Carolina’s opportunity-scholarship program must be defended all the way to the Supreme Court. Its existence doesn’t threaten the existence or dominance of district-run public schools, just as legislative tuition grants for private colleges don’t threaten the existence of UNC and Smart Start grants for private preschools don’t threaten the existence of public ones.

What the program does is give parents more choices. Who’s against that — and why?

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