This week, two lawsuits challenging the state’s new school voucher law were green-lighted to move forward by Superior Court Judge Robert H. Hobgood, who denied the state’s motions to dismiss the cases on the basis that they lacked merit.
Also green-lighted by Judge Hobgood? An intervenor in the case who is seeking to defend the law on behalf of parents interested in school vouchers.
That intervenor is the Institute for Justice, a self-described libertarian law firm located in our nation’s capital that has a demonstrated interest in upholding laws that funnel taxpayer dollars from public school systems to largely unaccountable private schools.
“We will vigorously defend the Opportunity Scholarship Program on behalf of parents who rely on it to give their children the quality education they deserve. We will prevail, not just for our clients, but for families across the state who want true educational choice,” said IJ’s Senior Attorney Dick Komer in a press release this week.
The Institute for Justice, a Koch brothers-backed law firm with ties to the Walton and DeVos families, is looking to add North Carolina to its long list of school privatization victories.
Institute for Justice’s History
The Institute for Justice has long been involved in litigation and advocacy efforts around the country that involve school privatization efforts as well as issues revolving around private property, economic liberty, and free speech.
The law firm was founded in 1991 by Clint Bolick and Chip Mellor. In the firm’s early days, Bolick was known for his work opposing affirmative action legislation, and acted as one of the top strategists endeavoring to hold up the passage of the 1991 Civil Rights bill.
And, according to the New York Times, he is one of the prime architects behind school voucher plans in Milwaukee and Cleveland, which have come under intense scrutiny for no better or worse academic outcomes for its students as compared with public schools and numerous incidents of fraud and abuse of the programs.
The Institute for Justice has participated in 20 school privatization cases since the early 1990s and is engaged in five cases that are ongoing, including the lawsuits challenging North Carolina’s school voucher law.
Following passage of a school voucher program in Indiana back in 2011, taxpayers represented by the National Education Association challenged that law all the way to the Indiana Supreme Court. The Institute for Justice intervened in that case on behalf of parents who wished to take advantage of the vouchers. Indiana’s high court ultimately decided that the state’s voucher program was constitutional, ruling that it benefits low-income families directly, not private or religious schools.
Since that time, Indiana’s school voucher program has doubled in size.
Currently, the Institute for Justice is engaged in a battle for public funding of private schools in Alaska. That state’s legislature is considering a constitutional amendment that would explicitly allow public funds to be directed to private schools.
And at the national level, the IJ intervened in the 2002 Cleveland school privatization case, Zelman v. Simmons-Harris, which resulted in the U.S. Supreme Court handing down a 5-4 decision that allowed for school vouchers to go to religious schools–but only if many other alternatives, including secular schools, existed as options as well.
Interest in North Carolina
Along with American Legislative Exchange Council (ALEC), known for its efforts to provide conservative model legislation to GOP lawmakers across the country, the IJ published a report in 2007 titled “School Choice and State Constitutions: A Guide to Designing School Choice Programs.”
In that report, the IJ forecasts the likelihood that a school voucher program would pass in North Carolina.
According to the report’s Analysis and Recommendations section, “both tax credits and vouchers are school choice options for North Carolina…to avoid any potential problems with Article IX, sections 6 and 7 of the North Carolina Constitution, voucher program funding should explicitly come from sources other than the state’s public school fund.”
Lawmakers who designed North Carolina’s school voucher program followed suit and placed funds for the program –approximately $10 million — in the University of North Carolina System’s budget. Roughly the same dollar amount was reduced in the public schools’ budget to anticipate the number of students that would be leaving the public school system to attend private schools with taxpayer-funded vouchers.
Reached by phone, IJ’s attorney who is working on the North Carolina case, Dick Komer, explained the firm’s interest in the success of NC’s school voucher program.
“School choice programs represent a transfer of power from the government to the parents. It’s as simple as that,” said Komer.
“You get to send your kid to schools operated by the government or you get to choose to send them to other schools. This program is structurally the same as Pell Grant programs or North Carolina’s complementary programs for higher ed scholarships,” said Komer.
But one of the attorneys representing the 25 plaintiffs in the case who oppose the school voucher program, North Carolina Justice Center’s Christine Bischoff, offered a different perspective.
“The voucher program makes unaccountable private schools the direct beneficiaries of public tax dollars. Private schools can admit or deny admission to any student for any reason, whether it be the student’s religious affiliation, disability status, socioeconomic status, or for any other reason,” said Bischoff.
To Komer’s point that the school voucher program is analogous to higher education scholarship programs, Bischoff disagrees.
“Sending money to unaccountable private schools that don’t have to have certified teachers, administer a standardized curriculum, or inform the public about how students are performing academically directly conflicts with the constitutional mandate that state education funds be used exclusively to fund a uniform system of free public schools that must provide all [K-12] children with a sound basic education,” said Bischoff.
Komer told NC Policy Watch he doesn’t buy the accountability argument. “The whole accountability thing is a huge red herring and is based on paternalism,” said Komer.
“The same schools that parents can choose are the same schools that wealthier North Carolina families have been choosing for generations. Now, all the sudden, we’re worried about accountability because low-income parents can choose them? Parents have the best knowledge of their kids and know them the best and know what they need the best more than any government bureaucrat ever will,” said Komer.
Parent Cynthia Perry, one of two parents who the Institute for Justice is representing in the case, said she is considering sending her 8-year-old daughter to the Upper Room Christian Academy, a private school in Raleigh offering grades preK through 5.
That school’s tuition exceeds the voucher amount by nearly $1,000. “I’ll make the sacrifice,” said Perry.
Upper Room Christian’s pastor, Patrick Wooden, a vocal proponent of the school voucher legislation, was part of a group of pastors to come to Raleigh to support the bill’s passage.
In 2012, Upper Room had to eliminate its middle and high schools due to a lack of funding, according to its executive director.
Amid an extended review of Upper Room by the NCAA (at the time, the school had a strong focus on its basketball program), the school’s executive director balked at the characterization of the school serving as a “diploma mill” for basketball recruits.
Funding the Institute for Justice
According to the IJ’s tax records, the law firm took in more than $18 million in donations during the 2012 fiscal year.
Asked who funds the Institute, attorney Komer said he did not know.
“I believe, however, that 80 percent of our funding comes from individuals, and 20 percent of our funding comes from foundations…we are a 501c3, so donor lists are considered secret, or private, I think,” said Komer.
According to the website SourceWatch.org as well as the IJ’s own website, the Koch brothers were instrumental in providing the startup funds necessary for the Institute for Justice to get off the ground.
The Koch brothers have poured millions into far-right think tanks, advocacy groups and lawmakers to promote their libertarian agenda.
Another prominent funder of the Institute for Justice? The DeVos family, heirs to the Amway fortune who have poured hundreds of thousands of dollars of seed money into school privatization groups.
Wife Betsy DeVos runs the American Federation for Children, a national school privatization advocacy organization. Betsy is also known for her conservative Christian right-wing ideology and for having poured millions of dollars into promoting voucher programs across the country.
Other funders include the Walton Family Foundation, and the Lynde and Harry Bradley Foundation, and the Scaife Foundation — all big supporters of right-wing think tanks and school privatization advocacy groups.
Tax documents collected by the Bridge Project show that the Walton Family has made contributions totaling nearly $3.5 million to the Institute for Justice since 1998.
The Bradley Foundation, which has donated more than $2 million to the IJ, has close ties to Wisconsin Gov. Scott Walker, a key proponent of school vouchers.
On Friday morning, Judge Hobgood will rule on the plaintiffs’ request for a preliminary injunction in the school voucher case, which would halt the implementation of the program while the court decides if sending public funds to private schools is constitutional.
***UPDATE: Superior Court Judge Robert H. Hobgood issued an injunction Feb. 21st blocking North Carolina’s voucher program from moving ahead, pending a final resolution of two lawsuits currently before him. Click here for more on that ruling.
Questions? Comments? Education reporter Lindsay Wagner can be reached at [email protected] or 919-861-1460.