Hart v. State, No. 372A14.

• Docket Nº: No. 372A14.
• Citation: 368 N.C. 122, 774 S.E.2d 281
• Case Date: July 23, 2015
• Court: United States State Supreme Court of North Carolina

368 N.C. 122
774 S.E.2d 281

Alice HART, Rodney Ellis, Judy Chambers, John Harding Lucas, Margaret Arbuckle, Linda Mozell, Yamile Nazar, Arnetta Beverly, Julie Peeples, W.T. Brown, Sara Piland, Donna Mansfield, George Loucks, Wanda Kindell, Valerie Johnson, Michael Ward, T. Anthony Spearman, Brittany Williams, Raeann Rivera, Allen Thomas, Jim Edmonds, Sasha Vrtunski, Priscilla Ndiaye, Don Locke, and Sandra Byrd, Plaintiffs
v.
STATE of North Carolina and North Carolina State Education Assistance Authority, Defendants,
and
Cynthia Perry, Gennell Curry, Tim Moore, and Phil Berger, Intervenor–Defendants.

No. 372A14.

Supreme Court of North Carolina.

July 23, 2015.

Patterson Harkavy LLP, by Burton Craige, Raleigh, Narendra K. Ghosh, and Paul E. Smith ; Chapel Hill, and North Carolina Justice Center, by Carlene McNulty and Christine Bischoff, Raleigh, for plaintiff-appellees.

Roy Cooper, Attorney General, by Lauren M. Clemmons, Special Deputy Attorney General, for defendant-appellants.

Institute for Justice, Arlington, by Richard D. Komer, pro hac vice, Bert Gall, and Renée Flaherty, pro hac vice; and Shanahan Law Group, PLLC, Raleigh, by John E. Branch, III, for parent intervenor-defendant-appellants Cynthia Perry and Gennell Curry.

Nelson Mullins Riley & Scarborough, LLP, Raleigh, by Noah H. Huffstetler, III, and Stephen D. Martin, for legislative officer intervenor-defendant-appellants Tim Moore and Phil Berger.

American Civil Liberties Union of North Carolina Legal Foundation, Raleigh, by Christopher Brook, for Americans United for Separation of Church and State, American Civil Liberties Union, American Civil Liberties Union of North Carolina Legal Foundation, Anti–Defamation League, Baptist Joint Committee for Religious Liberty, and Interfaith Alliance Foundation, amici curiae.

Liberty, Life, and Law Foundation, by Deborah J. Dewart ; Swansboro, Thomas C. Berg, pro hac vice, Minneapolis, University of St. Thomas School of Law (Minnesota); and Christian Legal Society, by Kimberlee Wood Colby, pro hac vice, for Christian Legal Society; Springfield, North Carolina Christian School Association; Roman Catholic Diocese of Charlotte, North Carolina; Roman Catholic Diocese of Raleigh, North Carolina; North Carolina Family Policy Council; Liberty, Life, and Law Foundation; Association of Christian Schools International; American Association of Christian Schools; and National Association of Evangelicals, amici curiae.

Jane R. Wettach, Durham, for Education Scholars and Duke Children's Law Clinic, amici curiae.

Tin Fulton Walker & Owen, Charlotte, by Luke Largess ; and National Education Association, Washington, DC, by Philip Hostak, pro hac vice, for National Education Association, amicus curiae.

UNC Center for Civil Rights, by Mark Dorosin, Managing Attorney, and Elizabeth Haddix, Senior Staff Attorney, for North Carolina Conference of the National Association for the Advancement of Colored People, amicus curiae.

Robinson, Bradshaw & Hinson, P.A., Charlotte, by Richard A. Vinroot and Matthew F. Tilley, for Pacific Legal Foundation, amicus curiae.

MARTIN, Chief Justice.

368 N.C. 126

When assessing a challenge to the constitutionality of legislation, this Court's duty is to determine whether the General Assembly has complied with the constitution. If constitutional requirements are met, the wisdom of the legislation is a question for the General Assembly. E.g., In re Hous. Bonds, 307 N.C. 52, 57, 296 S.E.2d 281, 284 (1982). In performing our task, we begin with a presumption that the laws duly enacted by the General Assembly are valid. Baker v. Martin, 330 N.C. 331, 334, 410 S.E.2d 887, 889 (1991). North Carolina courts have the authority and responsibility to declare a law unconstitutional,¹ but only when the violation is plain and clear. State ex rel. Martin v. Preston, 325 N.C. 438, 449, 385 S.E.2d 473, 478 (1989). Stated differently, a law will be declared invalid only if its unconstitutionality is demonstrated beyond reasonable doubt. Baker, 330 N.C. at 334–35, 410 S.E.2d at 889.

In this case plaintiffs challenge the Opportunity Scholarship Program, which allows a

774 S.E.2d 285

small number of students² in lower-income families to receive scholarships from the State to attend private school. According to the most recent figures published by the Department of Public Instruction, a large percentage of economically disadvantaged students in North Carolina are not grade level proficient with respect to the subjects tested on the State's end-of-year assessments.³ Disagreement exists as to the innovations and reforms necessary to address this and other educational issues in our state. Our state and country benefit from the debate between those with differing viewpoints in this quintessentially political dialogue. Such discussions inform the legislative process. But the role of judges is distinguishable, as we neither participate in this dialogue nor assess the wisdom of legislation. Just as the legislative and executive branches of government are expected to operate within their constitutionally defined spheres, so must the courts. See In re Alamance Cty. Court Facils., 329 N.C. 84, 94, 405 S.E.2d 125, 130 (1991) ("Just as

368 N.C. 127

the inherent power of the judiciary is plenary within its branch, it is curtailed by the constitutional definition of the judicial branch and the other branches of government.").⁴ Our constitutionally assigned role is limited to a determination of whether the legislation is plainly and clearly prohibited by the constitution. Because no prohibition in the constitution or in our precedent forecloses the General Assembly's enactment of the challenged legislation here, the trial court's order declaring the legislation unconstitutional is reversed.

I

Under the provisions of the Opportunity Scholarship Program,⁵ the State Educational Assistance Authority (the Authority) makes applications available each year "to eligible students for the award of scholarship grants to attend any nonpublic school." N.C.G.S. § 115C–562.2(a) (2014). An "[e]ligible student" is defined as "a student who has not yet received a high school diploma" and who, in addition to meeting other specified criteria, "[r]esides in a household with an income level not in excess of one hundred thirty-three percent (133%) of the amount required for the student to qualify for the federal free or reduced-price lunch program." Id. § 115C–562.1(3) (2013). A "[n]onpublic school" is any school that meets the requirements of either Part 1 ("Private Church Schools and Schools of Religious Charter") or Part 2 ("Qualified Nonpublic Schools") of Article 39 of Chapter 115C of the General Statutes. Id. § 115C–562.1(5) (2013).

The Authority awards scholarships to the program's applicants, with preference given first to previous scholarship recipients, and then to students in lower-income families and students entering kindergarten or the first grade. Id. § 115C–562.2(a). Subject to certain

774 S.E.2d 286

restrictions,

368 N.C. 128

students selected to participate in the program may receive a scholarship grant of up to $4,200 to attend any nonpublic school. Id. § 115C–562.2(b) (2014). Once a student has been selected for the program and has chosen a school to attend, the Authority remits the grant funds to the nonpublic school for endorsement, and the parent or guardian "restrictively endorse[s] the scholarship grant funds awarded to the eligible student to the nonpublic school for deposit into the account of [that] school." Id. § 115C–562.6 (2013).

A nonpublic school that accepts a scholarship recipient for admission must comply with the requirements of N.C.G.S. § 115C–562.5(a), which include: (1) providing the Authority with documentation of the tuition and fees charged to the student; (2) providing the Authority with a criminal background check conducted on the highest ranking staff member at the school; (3) providing the parent or guardian of the student with an annual progress report, including standardized test scores; (4) administering at least one nationally standardized test or equivalent measure for each student in grades three or higher that measures achievement in the areas of English grammar, reading, spelling, and mathematics; (5) providing the Authority with graduation rates of scholarship program students; and (6) contracting with a certified public accountant to perform a financial review for each school year in which the nonpublic school accepts more than $300,000 in scholarship grants. Id. § 115C–562.5(a)(1)–(6) (2014). Nonpublic schools enrolling more than twenty-five Opportunity Scholarship Program students must report the aggregate standardized test performance of the scholarship students to the Authority. Id. § 115C–562.5(c) (2014). Furthermore, all nonpublic schools that accept scholarship program students are prohibited from charging additional fees based on a student's status as a scholarship recipient, id. § 115C–562.5(b) (2014), and from discriminating with respect to the student's race, color, or national origin, id. § 115C–562.5(c1) (2014) ; see also 42 U.S.C. § 2000d (2012). Nonpublic schools that fail to comply with these statutory requirements are ineligible to participate in the program. N.C.G.S. § 115C–562.5(d) (2014).

The Opportunity Scholarship Program also subjects the Authority to certain reporting requirements. Each year, the Authority must provide demographic information and program data to the Joint Legislative Education Oversight Committee. Id. § 115C–562.7(b) (2014). The Authority is also required to select an independent research organization to prepare an annual report on "[l]earning gains or losses of students receiving scholarship grants" and on the "[c]ompetitive effects on public school performance on standardized tests as a result of the

368 N.C. 129

scholarship grant program." Id. § 115C–562.7(c) (2014). Following submission of these reports to the Joint Legislative Education Oversight Committee and the...