Under the voucher scheme cooked up by the Republicans in the General Assembly, $10 million a year of taxpayer funding was earmarked for students to attend private, mostly religious schools. Each voucher will be worth $4,200if the plan is upheld by the courts.

This, by the way, is the second General Assembly in North Carolina history to try vouchers. The first, in 1956, was attempting to preserve segregated schoolsa purpose not wholly dissimilar to what the Republicans are up to now.

About the new voucher plan, the question isnโ€™t whether vouchers pose a threat to public schools. Of course they do, and the Republicans want them to. Rather, itโ€™s whether the N.C. Constitution prohibits vouchers.

Yes, it does, Superior Court Judge Robert Hobgood ruled last week. After hearing arguments Tuesday (Part 1 of the arguments here, part 2 here), he was back Thursday morning with a scathing opinion that the voucher plan violates eight sections of the constitution.

Hobgood ordered it stopped.

The eight, Hobgood said, include two sections of Article 9titled โ€œEducationโ€which direct the General Assembly to fund โ€œa general and uniform system of free public schoolsโ€ and to spend state revenues appropriated for public education โ€œexclusivelyโ€ within that system.

Importantly, Article 9 contains a section on โ€œHigher Educationโ€ which allows the General Assembly to support private colleges as well as the University of North Carolina systemsuch aid is explicitly permitted, in contrast to the requirement that primary and secondary school funding be exclusively for public schools.

Which would seem to clinch the case, except that Hobgood doesnโ€™t get the last wordthat will come from the state Supreme Court.

Earlier this year, Hobgood issued a temporary injunction to halt the voucher program; in an unusual move, the Supreme Court stepped in and lifted his injunction, and itโ€™s only by luck that the voucher funds werenโ€™t out the door by the time Hobgood could rule. (The state agency assigned to issue the vouchers messed up, and the money never left the bank.)

Will the Supreme Court uphold vouchers? Well, five of the seven seats are held by Republicans, and with four seats up for election in November, the GOP is spending heavily to keep control. As conservative political consultant John Davis put it, โ€œlose the court, lose the war.โ€

That advice definitely applies to the Republicansโ€™ war on public schools.

What is the Republican argument for the constitutionality of vouchers? In two words, itโ€™s โ€œCan, tooโ€GOP lawyers contended that spending for private-school vouchers is โ€œsupplementalโ€ to public-school funding and isnโ€™t barred by Article 9.

Attorney General Roy Cooperโ€™s offense joined this argument, with Special Deputy Attorney General Lauren Clemmons contending that because the constitution doesnโ€™t specifically say that the General Assembly canโ€™t fund private schools, it can too.

This, said attorney Burton Craige, an attorney for the anti-voucher plaintiffs, amounted to arguing that โ€œexclusively doesnโ€™t mean exclusively.โ€

But if the text of the constitution doesnโ€™t prove it, Craige said, the โ€™56 voucher story does. Back then, the General Assembly was trying to get around the U.S. Supreme Courtโ€™s decision in Brown v. Board of Education that public schools be integrated.

Thus, the so-called Pearsall Plan created vouchers for students who were assigned against their will to integrated schoolsthey could attend all-white private schools. Then as now, it was up to the private school whether to accept a voucher-backed applicant.

The Pearsall Plan also allowed local school districts to close if voters approved.

The authors of the plan, though, realized that state aid to private schools was barred by the state constitution. So they went to the voters with a constitutional amendment to allow vouchers, and in September, 1956 it passed by a 4-to-1 margin.

Soon, however, the federal courts struck down the Pearsall Planit violated Brownand in 1971, a new constitution was approved by the voters; it dropped the โ€™56 amendment and restored the prohibition against vouchers.

โ€œWhat was true in โ€™56 is still true,โ€ Craige said: If the General Assembly wants to enact a voucher plan, it needs a constitutional amendment.

I said that the purposes of the new voucher plan and the old one arenโ€™t dissimilar. The old one meant to keep whites and blacks apart. The new one, by its terms, can only be understood as an effort to help middle-class kids go to private schools, especially Christian schools, that low-income kids canโ€™t afford.

Itโ€™s the new segregationitโ€™s economic, but inextricably linked to our history of racism.

Hereโ€™s the deal: The vouchers, for $4,200, are available to students from families with incomes below a threshold based on the federal free and reduced lunch program. But that threshold133 percent of F&R incomeallows a family of four, for example, to qualify with income of $58,820.

Families at that level will use vouchers to reduce what theyโ€™d otherwise pay for private schools, which cost a whole lot more than $4,200 a year.

Just $10 million a year to start, but if this program is allowed to exist, believe me, it will grow.

Meanwhile, poor families are either out of luck, or the kids will go to a second-rate school that operates on $4,200 a year per studenthalf what we spend on public schools.

Worse, as Hobgood said, the Republicansโ€™ plan doesnโ€™t require trained principals, teachers, or even any curriculumitโ€™s an open invitation to lure an unwary parent to a second-rate school.

โ€œIt appears,โ€ the judge said, โ€œthat the General Assembly is seeking to push at-risk students from low-income families into non-public schools in order to avoid the cost of providing them a sound, basic education in public schoolsโ€ as previous courts required.

While the Republicans throw money at private schools, theyโ€™re also cutting funds for public schools. Put the two together and itโ€™s a war for separate and unequal all over again.

This article appeared in print with the headline โ€œStill Unconstitutional.โ€