School choice opponents offer weak argument

Does Article IX, Sec. 6 of the North Carolina Constitution render the state’s Opportunity Scholarship (i.e., school choice) program unconstitutional?

This is an argument put forward by opponents of the program. In separate lawsuits filed by the NC Association of Educators (NCAE) and the NCSBA, opponents argue that using state school fund money for purposes other than the uniform system of free public schools violates Section 6. I actually agree on that point. Once a dollar is put into a state school fund, it cannot be misappropriated for another purpose. The real question is what funds must go into the education fund in the first place, not how the money is spent once it’s there. On this point Section 6 unequivocally gives the General Assembly wide latitude to adjust funding levels as it sees fit, provided that funding levels are sufficient to guarantee the Leandro right to a sound basic education (Article I, Sec. 15 and Article IX, Sec. 2). 

Article IX, Sec. 6 creates a school fund out of some, but not all, of the proceeds of things like state land sales, gifts to the state, and tax revenue. Section 6 designates the following funds to go into the Treasury:

  • “The proceeds of all lands that have been or hereafter may be granted by the United States to this State, and not otherwise appropriated by this State or the United States;”
  • “all moneys, stocks, bonds, and other property belonging to the State for purposes of public education;”
  • “the net proceeds of all sales of the swamp lands belonging to the State;”
  • “and all other grants, gifts, and devises that have been or hereafter may be made to the State, and not otherwise appropriated by the State or by the terms of the grant, gift, or devise[.]”
  • “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.”

Qualifying phrases like “and not otherwise appropriated” and “so much of the revenue of the State as may be set apart for that purpose” appear in four of the five Section 6 clauses. These phrases are important; they clearly give the General Assembly the authority and discretion to determine the amount from each category that will go into the education fund.

There isn’t much case law or scholarly writing addressing Section 6, but what there is undercuts voucher opponents. Preliminary research has found scant case law even mentioning, much less interpreting Article IX, Sec. 6. Moreover, the preeminent authority on the North Carolina Constitution, the oft-cited Professor John V. Orth, does not address the issue in the recently updated second edition of his book with Justice Paul Newby, The North Carolina State Constitution with History and Commentary (2nd ed., 2013). In terms of other scholarly writing, research has found only two law review pieces that have addressed whether Section 6 prohibits vouchers, and both conclude that it does not. See David Bryan Efird, RECENT DEVELOPMENT: Will North Carolina Vouch for Zelman? Examining the Constitutionality of School Vouchers in North Carolina in the Wake of Zelman v. Simons-Harris, 81 N.C.L. Rev. 2419, 2420 (2003); Mary Elizabeth Hill Hanchev, Note, Resisting Efforts to Provide Public Funding for Parochial Education in the Wake of Zelman v. Simmons-Harris: A Primer for North Carolina Advocates, 1 First Amend. L. Rev. 85 (2003).

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