Documente Academic
Documente Profesional
Documente Cultură
Lincoln Hood
PAD 633
13 September 2018
NC OPPORTUNITY SCHOLARSHIP AND IGR 2
Abstract
Table of Contents
Constituional Framework .............................................................................................................5
Introduction ..................................................................................................................................5
Explicit and Implied Powers ........................................................................................................5
Division of Power ........................................................................................................................6
Federalism ...................................................................................................................................8
Regulatory Schemes.................................................................................................................15
Governance Structure..............................................................................................................17
Challenges ................................................................................................................................19
Opportunities............................................................................................................................20
NC OPPORTUNITY SCHOLARSHIP AND IGR 4
Conclusion ....................................................................................................................................22
References .....................................................................................................................................24
NC OPPORTUNITY SCHOLARSHIP AND IGR 5
Constitutional Framework
Introduction
The North Carolina Opportunity Scholarship program is a vital tool for helping students
achieve educational success. This program is set up to help children in low income and working
class families to attend private schools (Pefnc.org, 2018; Edchoice.org, 2018). It does this by
giving vouchers to the parents that can then be spent on eligible schools. The schools that are
Every parent has a liberty interest in how their child is raised, including education (Pierce
v. Society of Sisters, 1925; Farrington v. Tokushige, 1927; Prince v. Massachusetts, 1944). The
State of North Carolina has, until recently, made it impossible for parents to find alternatives to
failing schools. Children trapped in these schools were in a space between incomplete education
or no education. These vouchers have created the ability of the parents to send their children to
schools that will allow them to receive the education that the parents believe they are in need of.
Further, this program has already been challenged on constitutional grounds (Binker,
2015). The NC Supreme Court has ruled that it is constitutionally sound. According to Chief
Justice Mark Martin “Our review is limited to a determination of whether plaintiffs have
demonstrated that the program legislation plainly and clearly violates our constitution. Plaintiffs
have made no such showing in this case. Accordingly, the trial court erred in declaring the
Opportunity Scholarship Program unconstitutional" (Binker, 2015). This has not stopped Gov.
Roy Cooper from filing another lawsuit (Travis, 2018). This lawsuit failed in April of this year
(Burns, 2018).
NC OPPORTUNITY SCHOLARSHIP AND IGR 6
There are no implied powers here. They are explicit, and rightfully so. Each branch has
the right to determine the validity of a school insomuch as it meets the requirements of the
voucher program. This means following all requirements under N.C. Rev. Stat. §§ 115C-562.1
through 562.7. Each branch has a limited role in this, but each branch also has the ability to
remove a school from the program for violations (or in reverse, reinsert it into eligibility).
Take, for example, the following from § 115C-562.5 (a) “ Provide to the Authority (State
Educational Assistance Authority) a criminal background check conducted for the staff member
with the highest decision-making authority, as defined by the bylaws, articles of incorporation, or
other governing document, to ensure that person has not been convicted of any crime listed in
G.S. 115C-332.” This explicitly allows the state the right to run background checks on the
employees of eligible schools to ensure that they do not violate “any crime listed in G.S. 115C-
As further explained in the Revised Statues, each power that is granted is both limited yet
granted to either the authority or the legislature. Other parts, such as N.C. Rev. Stat. § 115C-
562.5 (b), are clearly governed by the rules governing discrimination complaints (in this case 42
U.S.C. § 2000d). There is no ambiguity in the requirements listed. Schools cannot decide to
follow part of it and ignore others. Failure to do so will trigger review by an independent office
Division of Power
NC OPPORTUNITY SCHOLARSHIP AND IGR 7
This program is designed to work within the division of power. Each part of the
government has the power to oversee the program through different elements of that branch. The
executive controls health and safety (for example), while the judicial has the power to determine
discriminatory practices. This has all but eliminated tension between the branches.
Once again you must look directly at the Revised Statues for how this is implicated.
Under § 115C-562.8 the legislature has set the rules for how to appropriate the funding for this
program. The money that is set aside is then given to the Board of Governors of The University
of North Carolina to administrate. This money is then sent to the Authority (the State
Educational Assistance Authority) to be allocated to parents who have applied and qualified for
the Scholarship. In essence this means that it goes from the legislature to the executive for
On top of the rules in the Revised Statues directly controlling the Scholarship Program,
the Statues and Constitution govern the selection of the State Board of Education. In North
Carolina this is done by selecting eleven members that are appointed by the Governor and
confirmed by the General Assembly (“North Carolina”, 2018). The State Board of Education
controls educational standards, testing, and certification of schools in North Carolina (“Rules”,
2018). Because this Board is selected by the Governor, it is an executive agency. This allows the
executive some level of control in regards to the schools that accept scholarship money.
While the code does not mention the judiciary, they have a clear role. Discrimination,
improper decertification, and other issues can (and should) be brought before the court for final
NC OPPORTUNITY SCHOLARSHIP AND IGR 8
determination. The role of the courts in the division of power is one of review. It rarely, if ever,
Checks and balances have not been impacted. As stated above, because the whole
government has a role to play there is no tension and therefore little impact. The executive is
doing its job as it always has, and there have been no schools derecognized because of any issues
under them. The same is true with the judicial and legislative branches. This program, for lack of
This does not mean that the code does not provide for checks on the branches. The
Authority has the right to decertify, but must send a report to the legislature listing any of these
decertifications. This is to ensure that each school that is denied access to the scholarship funds
is violating the actual law rather than being taken away from the program due to arbitrary
determinations. In fact, under § 115C-562.7 (c), the report that the Authority must create each
As mentioned above, the executive can create checks by ensuring that each school is also
applying the standards set forth by the Board of Education for the State. These standards apply to
the Revised Statues when they mention “The report shall analyze the impact of the availability of
administrative units” (Rev. Statues § 115C-562.7 [c] [2]). Since the executive gets to decide
which standardized test will be used, it means that they have a direct hand in the measurement of
Also mentioned above is the judicial role in this program. They have already been
involved in two legal challenges to this program. The first one failed when the NC Supreme
Court ruled that it was not outside of the Constitution. The latest one, filed by Roy Cooper, failed
in April of 2018 (Burns, 2018). In short, they have twice applied their judicial review to the
program and twice determined that it does not run afoul of any precedent.
Federalism
Models of Federalism
The coordinate authority model “sets distinct boundaries between national and state
governments, with local units dependent upon state governments” (Federalism”, 2018). Under
this theory of federalism, we notice that the state have no powers not granted to them by the
the states (UNM.edu, 2009). In short, this model of federalism concludes that each level of
Under this model, the states, localities, and federal government are seen as concentric
circles fighting over the power that is divided among them (Federalism”, 2018). Under this
model, the state is subservient to the power of the federal government. Further, under this model,
if one level reserves a power for itself, it takes that power from another level (UNM.edu, 2009).
NC OPPORTUNITY SCHOLARSHIP AND IGR 10
That means if the state wishes to pass a new tax, it would have to take that power to tax from the
high, and no actor has more than limited power to act independently” (“Federalism”, 2018).
Under this model, autonomy is low because of the high levels of interdependence in the decision
making stages. Further, because of this interdependence, there is also an extremely high level of
When looking at school choice, one must look at the interdependence of the state actors
with the federal actors in the budgeting process. Federal block grants are given to the states, who
then are budgeting them for education spending (Klein, 2017). North Carolina is no different.
They have applied for these grants and funding, and often have been granted them. They then
Further, once this money is in the budget for the state, the local schools boards are able
to spend it to help both public schools and to establish new charter schools. That does not mean
that ESSA (Every Student Succeeds Act) money can be spent however a state wants (Chang,
2016). Under the proposed rules from the Trump Administration Department of Education a
provision was put forth that the funds must supplement, not supplant, state and local spending.
NC OPPORTUNITY SCHOLARSHIP AND IGR 11
This means that the funding that comes from the Federal grants should be used to help offset the
On top of the spending rules, the state has a full set of guidelines for spending money on
the school choice voucher program. N.C. Rev. Stat. §§ 115C-562.1 through 562.7 give the
detailed rules for how the money is to be allocated, spent, and even reported. It also covers who
is eligible for the program, and which types of schools can receive the funds, and any other
Seeing how the laws interact, and are interdependent on one another, shows a clear
dependence on the overlapping authority between the governments. The federal government
sends the money to the state with rules on how it must be used, the state sets guidelines on how
that money is appropriated for the Opportunity Scholarships, and the local level helps to regulate
and monitor schools for compliance with the program. The state and local levels must work
together or this program will never work the way it was intended.
application, and careful consideration. It cannot take into account the what-ifs or wherefores.
That, of course, is if we are operating under the following definition of “rational decision
making” when individuals use analysis, facts and a step-by-step process to come to a decision
(Lombardo, 2018).
To be clear, there are plenty of applications in education for ad-hoc decision making.
When handling money and student success is not one of them. The question then becomes why?
NC OPPORTUNITY SCHOLARSHIP AND IGR 12
The simple answer is that if this program is mishandled, it could cause more harm than good for
the students. It could cause long-term harm economically, and socially as well. Would anyone
wish their child to be left “in the cold” (so to speak) because the money is suddenly stripped out
When looking at the code itself, you can see that there are triggers for increasing or
decreasing spending. All of this is based on analytics. They cannot change political winds (in this
case, from a GOP controlled state house to a Democrat controlled house) and decide to stop
funding this program. Under ad-hoc thinking, you could do just that. It would stop being about
the students and more about the political points that could be scored against the opposing party.
Overall, this policy requires careful thought, coupled with people who care more about
the status of the students in the state than their reelection chances. While this policy is a poor
vehicle for discussing the political theory, we can see that some people are more interested in the
health of the unions than the students they are entrusted with (since they have sued to try and
stop this program). With people who are rational and caring, we can have a healthy school choice
program and public school system that both compete for students. There is no need for this to
Process of Governing
There is no federal conflict, but there has been plenty of local conflict. The teacher’s
unions and other advocacy groups have put up a heavy fight to not have this project and policy
implemented (“Group sues over school voucher law, Goolsby calls suit ‘shameful’ and
‘disgusting’”, 2013). It went as far as the NC Supreme Court, who ruled it did not violate the
NC OPPORTUNITY SCHOLARSHIP AND IGR 13
Constitution (Binker, 2015). Since then, the state and the local levels have been working together
to make sure that schools meet the criteria for eligibility and that students are best served by the
Since his election in 2016, Roy Cooper has continued this assault on the program. He ran
hard on a platform of rescinding the scholarship program. He went as far as filing a lawsuit,
claiming that it was a violation of the separation of powers for the General Assembly to insert
the funding into his budget suggestions. As mentioned in other locations, this lawsuit failed in
April of 2018 with the court declaring that it was within the appropriations powers of the
Assembly.
The voucher program has nothing to do with governing. It is a program designed to help
those who need the most help in our communities, low income children. Since it does not
implicate the governor or legislature in a governing scheme, it has not impacted them. This does
not mean that groups and people have not tried to make it a governing issue. When they have,
however, the courts have put a damper on their schemes to stop it. . If anything, it made the
Federalism Model
There are four models of federalism. They are: dual federalism, cooperative federalism,
creative federalism, and new federalism (Idstevens50501, 2012). Each of these forms of
federalism has a specific role for both the states and the federal government. This policy clearly
This program relies heavily on new federalism, as outlined below. There are no creative
aspects to the federalist nature of this project, and there is no cooperative nature to it either. It is
a creation of the state of North Carolina, using federal and state dollars, to ensure students can
receive the education that they need. It is done without any federal involvement at all.
New federalism is heavily implied by this policy. The state maintains its right to educate
children in a way that they see fit, without federal involvement. There is a shrinking of the power
of the federal government’s size, and the money is spent directly by the states. Because federal
funds are being spent on private schooling, without federal involvement, it is a key to the growth
of GRS (General Revenue Sharing) under new federalism. In short, there is little, if any, federal
Budget Process
This program is funded by state dollars (including the federal dollars that are rolled into
the budget). The governing statue is NC Rev. Stat. § 115C-562.8. It sets aside a set number of
dollars each year for the first ten years of the program. This is currently at just over fifty-four
million dollars.
As mention above, it is funded by the Revised Code of North Carolina. Quite simply, it is
allocated a particular amount of money by the legislature each year. This limits the number of
students it can cover, and also limits the growth of the program from year to year. There is not
much more to it. In fact, they have to hold a lottery to determine who will receive these funds
The budget for this program is also not controlled by the state. It is controlled by a
nonpartisan group known as the “State Educational Assistance Authority.” This group keeps the
money in a reserve that is then distributed, per semester, to each family with a child in the
program. It has a minimal amount that must be kept back for administrative purposes, as
discussed below.
Further, the budget has set a hard cap at the amount each child can receive for a school
year. No child can get more than $4,200 per year (or $2,100 per semester). This is further
controlled in the budget by a “Maximum Household Gross Income” (“2016-17 North Carolina
Opportunity Scholarship Program Income Eligibility”, 2018). The budget itself protects from
abuse, and from overspending by capping the amount of money given and the number of
scholarships available.
Regulatory Schemes
There are grants, direct funding, appropriations, and funding requests. Each of these
follows a very specific set of regulations and laws. The two most common are grants and
appropriations. The other two are used to fund programs that either are not fully funded by the
government or have unknown expenditures over the course of the budget year.
They knew going into the debate that this program was going to be codified, and
therefore require yearly appropriations. Much like Medicaid or Section 8 housing, this program
did not ever need to bother with other funding schemes. In fact, this program had no reason to
even ask for appropriations. It was decided based on the needs of the schools (this was based on
Under § 115C-562.8 (a), it clearly spells out that the funding for the reserve “shall consist
of monies appropriated from the General Fund to the Reserve by the General Assembly and any
interest accrued to it thereon.” For the Fiscal Year 2018-2019 it is to set aside $54,840,000 (Rev.
Statues § 115C-562.8 [b]). According to the General Fund Revenue Update State of North
Carolina (2018) the General Fund is set at $10,765,000,000. This comes out to around 0.005% of
the revenues. They must also keep either four percent or one million five hundred thousand
dollars for administrative overhead each year (whichever is less) (Rev. Statues § 115C-562.8).
This budget is well thought-out and designed to impact the most children. It is a positive
step in ensuring that each student is getting the education they deserve. While they cannot take
on every student, they are taking on plenty, and doing so without going over budget. This
strategy is a great tool in the battle to get every student a quality education.
Fiscal Federalism
Since the federal government does nothing more than provide funds to the state that are
then appropriated as part of the budget, it is not implicated at all. The GRS involved in this
program is even minimal. It is only implicated because there are federal grants and dollars being
These funds that the government provides must be appropriated according to federal law.
The Trump Administration has made it easier to do so than his predecessors. They have passed
new rules (mentioned elsewhere) that allow the states to determine the best way to help the
educational institutions in the states. This is in sharp contrast to Obama, whose Education
The lack of federal control over the federal dollars helps. It also helps that the funding
from this program comes from the general fund. That means that the federal government has no
legal authority to control the spending. There are still plenty of federal dollars that pass through
the state. This author was unable to find a total of federal dollars in the NC budget that was
https://www.ncleg.net/Sessions/2017/Bills/Senate/PDF/S99v6.pdf).
There is very little competition for money and funding in this policy. While the schools
(both private and public) compete to retain students, it is a minimal funding question. Instead, the
parents and students compete for the funding with one another (Pefnc.org, 2018; Edchoice.org,
2018). Since parents and children are the primary funding recipients, it means that there is very
little vertical funding competition (or competition between levels of government). This funding
scheme is primarily a horizontal funding scheme between the students (and their parents), along
Under the North Carolina General Statues, this scheme must be given a particular amount of
money each year, to reach a cap (N.C. Rev. Stat. §§ 115C-562.1 through 562.7). This ensures
that there is enough money for the growing number of students who are applying for this
program. It also allows for some growth in the amount of money that is able to be given to
NC OPPORTUNITY SCHOLARSHIP AND IGR 18
parents each semester. Because this is codified, it also means that the legislature must change the
Finally, Gov. Roy Cooper recently attempted to sue to stop the automatic raises in the
program, thus killing it. This created unnecessary tension between the executive branch and the
legislative branch. He was de facto attempting to create a budgetary competition between public
schools and private schools (by favoring public education). The state courts refused to accept this
as beyond the authority of the General Assembly (Burns, 2018). While there was an artificial
attempt to create competition, it truly does not exist. The funds do not hurt the public education
system, and as stated above, the competition is between parents and local schools.
Governance Structure
This program has neither slowed the governance structure, not sped it up. It was
implemented with the goal of implementing upon passage. It was only slowed down by frivolous
lawsuits that challenged the legality of allowing students to use state funds to attend patriarchal
schools (“Group sues over school voucher law, Goolsby calls suit ‘shameful’ and ‘disgusting’,
2013). Once it was allowed to go into effect, it saw immediate use. In fact, it has done nothing
but grow from year to year (Pefnc.org, 2018). This increase is due to the codified rules governing
which schools are eligible for the funds. This is coupled with the rules governing the funding
Gov. Roy Cooper has tried to implicate the structure by claiming that the Assembly was
trying to force him to accept budget items. This was a non-starter with the court. It was ruled that
they were allowed to include automatic triggers in the budget, since it was within their powers
NC OPPORTUNITY SCHOLARSHIP AND IGR 19
(Burns, 2018). Quite simply, Roy Cooper has decided to try to claim powers from the legislature
By creating this program as a law rather than a strict program, they have allowed the
government to set it up and “get out of the way” (to use common parlance). Giving it ten million
dollars a year, each year, for the first ten years of the program was a stroke of brilliance. It allows
the program to run, and fund itself without needing to subject it to appropriations each year. It
also, as of April of 2018, is considered within their powers to do so thanks to the lawsuit by the
Governor.
Much like the funding, the authority to make changes and implement this program lies
with all different branches of the government. The legislature controls the funding for the
program. The judicial controls the legality of the program (such as if or when the program is
violating Constitutional norms). The executive controls state educational standards through the
state Board. Taken together, they must exercise an immense amount of codependence between
the branches so that each branch “stays in their lane” (so to speak).
Codification is important to this funding. Without the Revised Statues this scheme would
collapse under infighting and legal challenges. Further, by treating this funding as a grant or
scholarship, the parents are not on the hook for taxes or other expenses. The funding comes from
the general fund, and is therefore drawn from the tax base.
Many of the gates and barriers were arbitrary, as well as created by the critics of the
program. The lawsuits and complaints came mostly from teachers unions and Democrats. It was
NC OPPORTUNITY SCHOLARSHIP AND IGR 20
heavily supported by the NC GOP and parent’s rights groups. The courts came down on the side
of the supporters by ruling that the funding was not a violation of either the NC Constitution or
the US establishment clause. Now that the program is established, we have seen less fighting
against it.
Challenges
Ensuring that the schools meet the criteria for educational attainment under the NC
Revised Statues is important. Without this testing, a poorly performing school or school that is
well outside of acceptable guidelines could be taking taxpayer money. This could lead to
taxpayers being upset or angered by the spending. Further, the taxpayers can often find ways to
“game the system” and the local and state level administrators are responsible for ensuring this
Further, this program faces a lot of misinformation and willful lies. People claim that it
“steals” from the education budget. It does no such thing; it has its own budget that is managed
by the Authority. It is not racially discriminating either (as many opponents state). Instead, as of
2017, 45% of the students were minorities (Dillon, 2018, “OPS Summary Data”, 2017). It is not
designed for the “rich” but for low income families (Dillon, 2018). There is an income cap that
Finally, there is the issue with the sheer number of parents attempting to use the program.
According to NCSEAA (North Carolina State Educational Assistance Authority) (2018) the year
ending in 2017 there were 10,758 students that applied to the program. The program is only set
NC OPPORTUNITY SCHOLARSHIP AND IGR 21
up to take 6,200 students as of the 2016-17 school year (“Fast Facts on Opportunity Scholarship
Opportunities
Student achievement is the biggest goal of this program. This will allow NC to climb the
ranks in the national educational rankings. It can also help local and state administrators to find
which schools are in need of additional help (either by hiring more teachers or bringing in
support staff). Overall, this brings up great opportunities for administrators to ensure that each
This program also allows for parents to better impact the public school programs. Out of
thirty-three empirical studies, thirty-one of them have found positive impacts on the public
schools (“What are the benefits?”, 2018; Forster, 2016). This is primarily in the academic sense,
since the schools must now compete to hold onto their students. No longer are the public schools
able to fail the parents and students in their local areas by substandard teaching and failing test
grades.
Finally, they also save the state money. Out of twenty-eight studies, twenty-five of them
have found taxpayer savings (“What are the benefits?”, 2018; Forster, 2016). None of the
aforementioned studies have found any negative impact on the fiscal health of the states. It is
cheaper to pay for students to shop for a better education than it is for them to remain in high
Giving students the best chance to succeed is both an ethical and efficiency issue. Does
the cost outweigh the benefits or is it the reverse? Judging by national samples, it could be
argued that allowing parents freedom to choose will increase student success (Ccsa.org, n.d.).
This increased success can lead to economic growth, and increased efficiency in the public
sector. By allowing the students the best opportunities, the administrators are allowing the
schools to better serve both the students and the parents, not to include themselves.
This delivery service can also lead to academic success in the K-12 educational setting.
As mentioned before, there are many empirical studies that allow for this eventuality. Students
who are allowed to choose how they are educated are better prepared for the national testing, and
for additional education. The ethical implications of allowing students to be better students are
very well defined as well. Only people with a vested interest in the public education sector or
their allies are willing to trap students in failing schools (and thus generational poverty and other
issues).
In totality, this program’s delivery is designed to help the private schools, public schools,
and the students. Allowing the parents and students to decide for themselves how they want their
education to look will allow them to be successful and for the state to save money. This will be
both efficient and ethical. There should be no question that the students who are stuck in failing
schools deserve better education than they are receiving. This program and the delivery
mechanisms allow for that at the same time as allowing for public education to become better.
Conclusion
NC OPPORTUNITY SCHOLARSHIP AND IGR 23
It requires the government to work together in order for the program to function properly. With a
governor that is seeking to actively end it, the program is still going strong. It is making it easier
for parents and students to receive education. It is also increasing academic achievement. There
is a good chance that this program will continue to be as strong in the future as it is today.
NC OPPORTUNITY SCHOLARSHIP AND IGR 24
References
Binker, M. (2015, July 23). NC Supreme Court says vouchers are constitutional. Retrieved
constitutional/14791349/
Burns, M. (2018, April 09). Lawmakers top Cooper in battle over school vouchers, court size,
cooper-in-battle-over-school-vouchers-court-size-spending/17475355/
Chang, R. (2016, August 31). Ed Department Proposes ESSA Spending Rules. Retrieved July
rules.aspx
Charter School Success - The Benefits of Charter Schools | CCSA. (n.d.). Retrieved September
opportunity-scholarship-program-truths/
flash-cards/
NC OPPORTUNITY SCHOLARSHIP AND IGR 25
Forster, G. (2016, May 18). A Win-Win Solution: Empirical Evidence on School Choice (2016).
solution/
General Fund Revenue Update State of North Carolina. (2018, January 22). Retrieved September
Group sues over school voucher law, Goolsby calls suit 'shameful' and 'disgusting'. (2013,
http://www.wect.com/story/24197910/group-sues-over-school-voucher-law-goolsby-
calls-suit-shameful-and-disgusting
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https://www.youtube.com/watch?v=4vwNi-XxeOc
Klein, A. (2017, August 24). Here's What States Are Doing With Their ESSA Block Grant
12/2017/08/heres_what_states_are_doing_wi.html
Lombardo, J. (2018). The Rational Decision Making Model: Steps and Purpose in Organizations.
making-model-steps-and-purpose-in-organizations.html
NC OPPORTUNITY SCHOLARSHIP AND IGR 26
North Carolina - Opportunity Scholarships. (2018). Retrieved September 14, 2018, from
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scholarships/
North Carolina’s Opportunity Scholarship. (2018). Retrieved August 22, 2018, from
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http://www.ncseaa.edu/documents/OPS_Summary_Data.pdf
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https://stateboard.ncpublicschools.gov/rules-apa
Travis, K. (2018, February 08). School choice advocates file brief to dismiss Cooper lawsuit.
article/school-choice-advocates-file-brief-to-dismiss-cooper-lawsuit/
NC OPPORTUNITY SCHOLARSHIP AND IGR 27
What are the Benefits. (2018). Retrieved September 16, 2018, from http://pefnc.org/what-are-
the-benefits/