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Republicans invoke constitution—until it doesn't suit them

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Is the new charter school legislation working its way through the General Assembly unconstitutional? Senate Bill 8 would allow for an unlimited number of charter schools, ditching the 100-school cap in place since 1996. But charter schools, though supported with state funds, aren't required to provide transportation to students, nor must they offer food or participate in the federally funded free and reduced-price lunch program for low-income students.

To the bill's critics, the lack of transportation, food and other services prevents poor kids from attending some charter schools. This is especially true if the schools are located in high-income neighborhoods and could function like the "separate and unequal" public schools banned by the U.S. Supreme Court in the 1954 Brown v. Board of Education decision.

During a debate on the Senate floor last week, Josh Stein, D-Wake, presented one of SB 8's sponsors a hypothetical but realistic scenario: What about a child who wants to attend a charter school, but his parents don't own a car, and although he qualifies for a free lunch, he can't get one? "Is it your belief that it's OK that that child should not have access to go to that school?" Stein asked.

"It's certainly OK if they don't go there," Sen. Jerry Tillman, R-Randolph, replied. Tillman reasoned that the child could go to a regular public school somewhere else. Tillman added, "The charter school and the commission must decide what [the school] can do and when they're going to do it financially."

Tillman's answer raised two constitutional issues in North Carolina—beyond the federal question of compliance with Brown. The state constitution, in Article IX, directs the General Assembly to provide for "a general and uniform system of free public schools ... wherein equal opportunities shall be provided for all students."

Whether the courts would decide that elite charter schools not equally available to low-income kids (or, for that matter, charter schools in low-income neighborhoods that serve predominantly black student populations) would violate Article IX is one question. As the Indy reported two weeks ago, 62 of the 99 charter schools operating in North Carolina now are either predominantly white or predominantly black or black and Hispanic.

A second question is whether SB 8, by creating a new commission separate from the State Board of Education to authorize and oversee charter schools, violates another provision of Article IX, which states: "The State Board of Education shall supervise and administer the free public school system and the educational funds provided for its support."

Initially, SB 8 would have made the new commission wholly independent of the State Board of Education. When the constitutional issue was raised, however, the bill's chief sponsor, Sen. Richard Stevens, R-Wake, changed it to make the commission semiautonomous—its decisions are final unless overruled by a three-fourths vote of the State Board of Education.

Handcuffing the State Board except by super-majority vote didn't cure the constitutional problem as far as critics were concerned, however. Sen. Charlie Dannelly, D-Mecklenburg, a senior member of the Black Legislative Caucus, continued to denounce the bill, saying it would turn the public schools into "a two-head monster," with one "constitutional" school system and another outside the constitutional framework.

As SB 8 stands, following passage in the Senate by a 34-16 vote, counties would be allowed to buy or build facilities for charter schools; they could also turn existing public schools into charter schools. Only the new commission's approval would be needed, plus at least four votes on the 13-member State Board of Education.

The bill goes to the House for consideration.

Dubious constitutionality is a trait common to much of the legislation favored so far by the new Republican majorities in the General Assembly.

House Bill 2, for example, which sailed through both houses in February, would make it illegal for state officials to comply with the Affordable Care Act (ACA), the federal health insurance reform measure enacted last year (and which Republicans prefer to call Obamacare). Under HB 2, Attorney General Roy Cooper was ordered to join a lawsuit challenging the constitutionality of the ACA in the federal courts.

Cooper struck back last week. "State legislatures cannot pick and choose which federal laws they will obey," he wrote in a memo to Gov. Bev Perdue. Screwing with the ACA could cost North Carolina billions of dollars in federal Medicaid and other health-related funding, the memo explained. Besides which, the Civil War settled the question of whether the states were sovereign; they're not.

Cooper might've said that, because he is independently elected to be the state's lawyer, the legislature can't order him to argue a position if he thinks it's wrong. But he didn't, probably because it's not clear what he can be ordered to do. Under Article III of the state constitution, the Attorney General must be a lawyer, but he's given no duties except what "shall be prescribed by law." t's not clear he would prevail on the point. Under Article III of the state constitution, the attorney general must be a lawyer, but he's given no power except what "shall be prescribed by law."

Perdue may veto HB 2, her office says. Or she may, as the Cooper memo suggests, simply direct state officials to ignore most of what it says because it's constitutionally unenforceable.

House Bill 48, which passed the House 94-13, would eliminate four of seven end-of-course tests given by the state to high school students. On the chopping block are tests in U.S. history, civics and economics, physical science and algebra II. The measure would save money. But it infuriated Wake County Superior Court Judge Howard Manning, who insisted in a 22-page memo to the Legislature's Republican leaders that they back off or else create a "constitutional confrontation" over the rights of students.

Manning's two rulings in the landmark Leandro case, each upheld by the state Supreme Court, have given him authority over failing school systems, and it's Manning's position that a solid testing regime is critical to turning them around. Otherwise, Manning told prospective teachers at N.C. State University last week, it's too easy for the adults in the schools to pretend that they're doing their job, even as huge numbers of students are failing and dropping out. "I call it academic genocide," Manning said.

House Bill 41 would give $2,500 state vouchers (the sponsor, Republican House Majority Leader Paul Stam of Wake County, insists they be called tax credits) to parents of students who attend private schools or are homeschooled in grades K–12. Giving every private school or homeschooled student the money, however, would be very costly. So Stam, in order to argue that his voucher scheme would save the state money by reducing the public school population, proposes to limit voucher payments under HB 41 to students who were "enrolled in and attended" a public school for at least two semesters the prior year.

That would appear, however, to discriminate against students already in private or home schools, in violation of the state constitution's guarantee that "No person shall be denied the equal protection of the laws." In addition, the Fourteenth Amendment to the U.S. Constitution bars the states from denying "to any person within its jurisdiction the equal protection of the laws."

No word yet—or bill, anyway—on the subject of voter IDs, another Republican favorite. Republican legislators campaigned on a pledge to require all voters to show a photo ID at the polls. But while 27 states have some form of voter ID requirement, only a few actually demand a photo ID to the exclusion of anything else. If our legislative leaders want to do so as well, it will be expensive. Right now, state DMV offices will issue a nondrivers' photo ID for $10. But the state constitution guarantees free elections and adds, just in case that isn't clear enough: "All elections shall be free."

And then there's Senate Bill 106, the so-called Defense of Marriage amendment, which would ask the voters to add a discriminatory prohibition against gay marriages or civil unions to the state constitution. How such a state constitutional ban would square with the federal Constitution's guarantee of equal protection of the laws is, of course, a red-hot issue, one that got even hotter last week with the Obama administration's announcement that it will no longer defend the constitutionality of the federal Defense of Marriage Act in court.

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