Robert Hobgood's Judicial Triumph

A brilliant ruling on North Carolina's school voucher program
Parker Poe

This is the first time I’ve ever said or written these words:

If you get a few spare minutes, you really ought to read a judge’s ruling.

It’s from Superior Court Judge Robert Hobgood of Wake County, who last week ruled unconstitutional North Carolina’s nascent school voucher program. It’s a remarkable document: clear, concise, direct, and thorough. More than that, though—Hobgood’s ruling dismisses not just the North Carolina program but the lie behind school voucher programs everywhere: that leeching taxpayer money from public schools solves the problem of failing public schools.

His basic findings:

This legislation unconstitutionally:

One, appropriates to private schools grades K-12 by use of funds which apparently has gone to the university system budget. It should be used exclusively for brick and maintaining a uniform system of free public schools.

Two, appropriates education funds in a manner that does not accomplish a public purpose.

Three, appropriates educational funds outside the supervision and administration of the State Board of Education.

Four, creates a nonuniform system of education.

Five, appropriates taxpayer funds to educational institutions that have no standards, including curriculum and requirements that teachers and principals be certified.

Six, fails to “guard and maintain” the right of the people to the privilege of education by siphoning money from the public schools in favor of private schools.

And seven, allows funding of nonpublic schools that discriminate on account of religion.

Yes, yes, and yes. Hobgood’s reasoning cuts away all the legislative branding about “opportunity scholarships” and “school choice” and reveals the heart of the voucher scheme: a corporatist ransacking of public schools, bankrolled by taxpayers.

The demolition of public education in the United States has been a longtime goal of the American far right, dating back to Milton Friedman and his colleagues at the University of Chicago in the early 1960s. But it’s only been in the last few years that legislators around the country have translated that idea into action in school district after school district, the most extreme example operating in New Orleans, with the nation’s first all-charter system.

The state will appeal Hobgood’s ruling, of course. Meanwhile, they’ve changed the law to try to make sure what Hobgood just did never happens again in this state.

As you might imagine, Hobgood, the senior Superior Court judge in his district since 1980, is not a popular man among our lawmakers. (Senate leader Phil Berger referred to the ruling as “a classic case of judicial activism” and said it “advances a clear political agenda.”) So they’ve passed a law designed to keep judges like him from derailing the laws they pass, establishing a three-judge panel system for constitutional challenges to legislation.

It’s a system without peer in the nation, and the stated rationale for it is, well, interesting. One major clue comes from Francis DeLuca, president of the Civitas Institute, the Raleigh think tank devoted to privatizing everything under the sun. “It had always bugged me that a local judge, maybe not even elected, could just stop in its tracks an entire state law that had been approved by both bodies and signed by the governor,” DeLuca told the N&O.

I know—that tripartite checks-and-balances thing can be quite annoying, especially for legislators and a governor who want to impose laws unrestrained by the law. That is, unfortunately, how American government is supposed to work.

The other clue comes from Sen. Buck Newton of Wilson, who defended the new system this way, again according to the N&O: “We think it will create efficiencies and is a good, common-sense way to streamline the process.” As if process was the point.

“Create efficiencies” and “streamline the process” is classic corporate-speak, the verbiage CEOs use in interoffice emails announcing the layoffs of half the workforce. In the context of state government, it means the emasculation of one of the three branches, clearing away a pesky impediment to rule by the legislature.

“I’m constantly frustrated with the courts being treated like they are your local permitting agency or something,” N.C. Bar Association President Catharine Arrowood told the paper. “This is the third branch of government. It is part of a three-part balance in our constitution. If it doesn’t function properly, our democracy doesn’t function.”

Democracies are inefficient. They’re supposed to be. That’s what’s good about them. They prevent concentrations of power. Legislators and people like Francis DeLuca either fail to understand that or, more chillingly, understand it perfectly well.