Judge Hobgood’s order striking down vouchers

school choice 2
A week ago, Superior Court Judge Robert Hobgood issued an injunction preventing the first round of Opportunity Scholarships, or vouchers, from being issued to the parents who applied for them. (See here, here, and here for more.)

Hobgood’s 16-page order is now available (PDF), and the justification for striking down the law seems odd to this lay reader.

On Page 10, Hobgood notes that in 1955, the General Assembly created the Pearsall Committee for the purpose of figuring out ways for local school boards to evade the U.S. Supreme Court’s Brown v. Board of Education ruling that declared “separate but equal” public facilities segregated by race to be unconstituional. The next year, North Carolina voters approved a constitutional amendment allowing the General Assembly to provide tax-funded vouchers to parents who wanted to take their kids out of integrated public schools and send them to private schools.

The Pearsall Amendment was ruled unconstitutional in 1966 (and rightly so). When the state constitution was rewritten in the late 1960s and ratified in 1971, it did not include a Pearsall-like provision. On Page 16, Hobgood notes that because there the new state constitution did not authorize vouchers, they should be presumed to be illegal. His ruling, however, said nothing about how the current Opportunity Scholarship Program differed from the Pearsall Plan (for instance, race has nothing to do with Opportunity Scholarships).

What the judge appears to be arguing here is that because the 1971 Constitution is silent about a provision in the previous constitution that was illegal, then the current version of a law that is only marginally related to the provision that was illegal also must be illegal (even though he’s not ruling on the substance of the new law, I think).

Make sense to you? If so, please enlighten me.

3 comments

  1. I agree that the Pearsall amendment seems irrelevant to the question decided by the injunction order. The Pearsall amendment was struck down on the basis that it was an attempt to get around the mandate of Brown v. Board of Education. It’s invalidation in 1966 had nothing whatsoever to do with Article IX, Sec. 6. You can read the Hawkins case here: http://blogs.law.unc.edu/documents/civilrights/plaintiffspibrief13014.pdf (scroll down to exhibit E).

    Comment by Tyler Younts on March 1, 2014 at 10:49 am

  2. Rick, you’re missing the point Judge Hobgood is making. The Pearsall Committee recommended vouchers to get around Brown v. Board of Education. In doing so, it said that “there must be some changes to the state constitution” to implement its proposal. So the state constitution was soon modified to allow the vouchers.

    The inference that Hobgood is drawing is that the Pearsall Committee felt that the state constitution did not allow vouchers. As in vouchers period. And the General Assembly agreed. After the Pearsall material was declared unconstitutional and the state constitution rewritten, no other mechanism was added to allow vouchers. So to Hobgood there now is nothing that allows vouchers.

    Comment by Michael Lowrey on March 2, 2014 at 9:59 pm

  3. Michael, that makes the order more sensible, as far as it goes, even if you disagree that, by being silent about vouchers, the 1971 constitution disallows them. More learned people than me will take it from here.

    Comment by Rick Henderson on March 3, 2014 at 7:49 am

    Rick Henderson

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