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Schools & School Boards — Constitutional – Opportunity Scholarship Program – Public Purpose

Hart v. State (Lawyers Weekly No. 15-06-0753, 55 pp.) (Mark Martin, C.J.) (Robin Hudson, J., joined by Cheri Beasley & Sam Ervin IV, JJ., dissenting) (Cheri Beasley, J., dissenting separately) Appealed from Wake County Superior Court (Robert Hobgood, J.) N.C. S. Ct.

Holding: Even if the Opportunity Scholarship Program – which uses taxpayer dollars as scholarships for underprivileged children to attend non-public schools – turns out to be unwise, it does not violate the North Carolina Constitution. The Constitution does not limit the General Assembly’s ability to fund education outside the public schools.

We reverse the superior court’s determination that the program (found at G.S. § 115C-562.1 et seq.) is unconstitutional.

N.C. Const. art. IX, § 6 provides that funds from various sources “together with so much of the revenue of the State as may be set apart for that purpose, shall be faithfully appropriated and used exclusively for establishing and maintaining a uniform system of free public schools.”

The purpose of this section is to protect the “State school fund” in order to preserve and support the public school system, not to limit the state’s ability to spend on education generally. Because the Opportunity Scholarship Program (OSP) was funded from general revenues, not from sources of funding that § 6 reserves for our public schools, plaintiffs are not entitled to relief under this provision.

Given our disposition of plaintiffs’ claim under Art. IX, § 6, plaintiffs are likewise not entitled to relief under Article IX, § 5: “The State Board of Education shall supervise and administer the free public school system and the educational funds provided for its support.” Because public funds may be spent on educational initiatives outside of the uniform system of free public schools, plaintiffs’ contention that funding for the OSP should have gone to the public schools – and therefore been brought under the supervision and administration of the State Board of Education – is without merit.

“The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools….” N.C. Const. art. IX, § 2(1). Plaintiffs contend that the uniformity clause means that “the State cannot create an alternate system of publicly funded private schools standing apart from the system of free public schools mandated by the Constitution.”

The OSP legislation does not create “an alternate system of publicly funded private schools.” Rather, this legislation provides modest scholarships to lower-income students for use at nonpublic schools of their choice. The uniformity clause applies exclusively to the public school system and does not prohibit the General Assembly from funding educational initiatives outside of that system. Accordingly, the OSP does not violate Article IX, § 2(1).

The next question presented by defendants’ appeal is whether the appropriation of general revenues to fund educational scholarships for lower-income students is for a public purpose under Article V, §§ 2(1) and 2(7).

“The power of taxation shall be exercised in a just and equitable manner, for public purposes only, and shall never be surrendered, suspended, or contracted away.” N.C. Const. art. V, § 2(1). Under N.C. Const. art. V, § 2(7), “[t]he General Assembly may enact laws whereby the State, any county, city or town, and any other public corporation may contract with and appropriate money to any person, association, or corporation for the accomplishment of public purposes only.”

If the legislative purpose behind the appropriation is public, then the wisdom, expediency, or necessity of the appropriation is a legislative decision, not a judicial decision. Accordingly, our public purpose analysis does not turn on whether the appropriation will “accomplish” a public purpose.

Unquestionably, the education of residents of this state is a recognized object of state government. Hence, the provision therefor is for a public purpose.

Two guiding principles have been established for determining that a particular undertaking by the state is for a public purpose: (1) it involves a reasonable connection with the convenience and necessity of the state; and (2) the activity benefits the public generally, as opposed to special interests or persons.

The provision of monetary assistance to lower-income families so that their children have additional educational opportunities is well within the scope of permissible governmental action and is intimately related to the needs of our state’s citizenry. We therefore conclude that the appropriations made to the OSP involve a reasonable connection with the convenience and necessity of the state.

It is not necessary, in order that a use may be regarded as public, that it should be for the use and benefit of every citizen in the community. An expenditure does not lose its public purpose merely because it involves a private actor.

Although the OSP scholarships 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. Accordingly, the appropriations made by the General Assembly for the OSP were for a public purpose under Article V, §§ 2(1) and 2(7).

Article I, Section 15 declares, “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.” Even if Article I, § 15 could serve as an independent basis of relief, there is no merit in the argument that a legislative program designed to increase educational opportunity in our state is one that fails to “guard and maintain” the “right to the privilege of education.”

The plaintiffs, as taxpayers, have suffered no injury in fact because they are not in the class of persons against which the OSP allegedly discriminates. Plaintiffs’ equal protection claim under N.C. art. I, § 19 claim must be dismissed.

To the extent that plaintiffs disagree with the General Assembly’s educational policy decision as expressed in the OSP, their remedy is with the legislature, not the courts.



(Hudson, J.) This voucher program allows for taxpayer funds to be spent on private schooling with no required standard to ensure that teachers are competent or that students are learning at all. By creating this program, the state’s legislature has completely abrogated the duty to “guard and maintain [the] right” to an education. N.C. Const. art I, § 15. As the trial court concluded, “The General Assembly fails the children of North Carolina when they are sent with taxpayer money to private schools that have no legal obligation to teach them anything.”

This court’s duty to the people of our state is to ensure that if taxpayer money is spent on private education, the expenditure is for an education that can prepare our children to participate and thrive in our state’s society. When the General Assembly fails to ensure that these constitutional requirements are satisfied, this court must exercise its responsibility to do otherwise. Because the majority fails to do so, I respectfully dissent.


(Beasley, J.) When public funds are used for nonpublic initiatives to fulfill the constitutional public education mandate, the appropriation may violate the public purpose clause, especially if the grant recipients are chosen because the public school system fails to meet their educational needs.

In setting education policy, the danger posed by the General Assembly in designating general funds for nonpublic education and a non-public purpose is that it effectively undermines the support the legislature is constitutionally obligated to provide to the public school system.

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