Private Education and School Choice in North Carolina
One of the most fundamental rights of parents is to control their children’s upbringing.[1] Integral to this principle is the ability to control the education of one’s children.[2] While this right is deeply rooted in this nation’s history and tradition, parents often find it difficult to exercise it. For instance, parents who desire to send their children to a private school may find it difficult to afford the cost.
This issue is no stranger to parents in North Carolina. It is predicted that the average private school tuition in North Carolina for elementary and secondary school is $12,790, and the average cost for private high school is $17,123.[3] To contextualize this expense, the average family income in North Carolina was $73,958 in 2024.[4] While school choice vouchers are available in the state, such vouchers are typically insufficient to cover the full cost of a private education.
Recent federal legislation sought to fill this gap. The “One, Big, Beautiful Bill” established a federal income tax credit for donations to elementary and secondary school scholarships.[5] This allows private donors to contribute to private scholarship funds for schools, which are then distributed to students and parents to cover the cost of private education.[6] Each tax credit received is capped at $1,700 per taxpayer.[7] However, to take advantage of this program, states are required to opt into this statutory scheme.[8]
The North Carolina legislature passed H.B. 87, also known as the Educational Choice for Children Act (ECCA), which would opt North Carolina into this new scholarship program. The bill passed through the legislature, but the majority was a single vote short of circumventing the governor’s approval.[9] However, on August 6, 2025, Governor Josh Stein vetoed the bill.[10] Governor Stein’s justification for doing so was that such a provision would “hollow out” public schools by “cutting public education funding by billions of dollars while providing billions in tax giveaways to wealthy parents already sending their kids to private school. . .”[11] As of now, the House has placed H.B. 87 on the calendar again for further discussion.[12] However, should the bill pass with the necessary majority, it may not be the end of its challenges.
Previous Litigation
Previous school choice programs have been challenged under the North Carolina Constitution, which guarantees the right to an education in Article I Section 15 and Article IX.[13] In Hart v. State, North Carolina taxpayers filed suit against the State and State Education Assistance Authority, challenging the constitutionality of the Opportunity Scholarship Program (OSP).[14] The OSP allowed a small number of students from lower-income families to receive scholarships from the State of North Carolina to attend private school.[15] Selected students received a scholarship grant of up to $4,200, which was paid to the nonpublic school of the family’s choice, subject to certain requirements.[16] The OSP was funded through general revenues apportioned to the Board of Governors of the University of North Carolina, and in 2015, $10,800,000 was allocated to the program.[17] North Carolina taxpayers alleged that the OSP violated several provisions of the North Carolina Constitution, including Art. 1, § 15, Art. IX, § 2, and Art. IX, § 6.[18]
First, the North Carolina Supreme Court rejected the taxpayers challenge to the OSP under Art IX, § 6.[19]Taxpayers asserted that Art. IX, § 6 required the General Assembly to allocate funds exclusively for the public school system, rather than any nonpublic school.[20] The Court rejected this notion, holding that the provision did not limit the State’s ability to spend on education generally, but merely to preserve funds for the public school system.[21] Second, the Court also rejected the challenge to the OSP under Art. IX, § 2.[22] Taxpayers asserted that the OSP would violate the uniformity clause and that the State “cannot create an alternative system of publicly funded private schools standing apart from the system of free public schools mandated by the Constitution.”[23] The Court found this unpersuasive, noting that the OSP “does not create ‘an alternate system of publicly funded private schools,’” but instead provided modest scholarships to low-income families and that the uniformity clause only applied to the public school system.[24] Last, the Court rejected the taxpayers’ claim under Art. 1, § 15.[25] Taxpayers argued that funding private schools violated the right to the privilege of an education because such legislation does not require private schools to meet the same educational requirements as the public school system.[26] Again, the Court rejected this, stating that the constitutional provision does not apply outside of the State’s public school system.[27]
Overall, despite the several challenges the OSP faced, it was ultimately held to be constitutional.
Potential Challenges
It is certainly possible that, should H.B. 87 pass, it could face similar challenges in court as the OSP did. While it seems that the North Carolina Supreme Court has established that such scholarship programs do not violate the North Carolina Constitution, there are factual distinctions between H.B. 87 and the OSP that may leave room for such a challenge.
First, the OSP was a state-funded scholarship initiative, whereas the funds from H.B. 87 would be derived purely from private donations incentivized by tax credits.[28] The majority’s decision in Hart centered its decision on the ability of the North Carolina legislature to apportion state funds outside of public education,[29] whereas H.B. 87 does not involve the direct use of state revenue.[30] While this may seem like a trivial distinction, it could leave room for challengers to limit Hart’s holding solely to state apportioned funds, leaving room to potentially strike down any tax-credit-based system. However, supporters of H.B. 87 will likely contend that such a program is constitutional, since it is funded through voluntary donations from private citizens, rather than previously allocated state funds.
Second, there may be greater potential for H.B. 87 to divert funding from public schools than what was apportioned in the OSP. Under the OSP, a separate amount of funds were allocated for private school scholarships,[31]whereas H.B. 87 enables any private donor in North Carolina to receive a tax credit for donating privately.[32] Critics, like Governor Stein, may assert that income tax deductions of this amount will reduce the amount of taxes collected to fund the public school system, effectively “hollowing out” public school funding.[33] While public school funding could be impacted in the aggregate, it will likely be difficult to overcome Hart’s interpretation of the North Carolina Constitution. Hart’s rationale made clear that simply because apportioned funds result in public schools receiving less funding, does not mean that such a scheme undermines a “uniform” system within the public school system. Furthermore, the $1,700 cap per tax credit may present an uphill battle for Governor Stein’s position.
To have a successful challenge, critics would likely have to demonstrate that such a scheme would have such a disparaging effect on public school funds that it deprives public schools of quality education. Ultimately, despite the differences between OSP’s state-funded scholarships and H.B. 87’s tax credit system, Hart’s rationale may present a significant obstacle to anyone seeking to challenge this law.
[1] See generally Meyers v. Nebraska, 262 U.S. 390 (1923); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925).
[2] Id.
[3] Melanie Hanson, Average Cost of Private School, Education Data Initiative (last updated Feb. 13, 2026), https://educationdata.org/average-cost-of-private-school.
[4] U.S. Census Bureau, North Carolina: Medium Household Income, Census Data https://data.census.gov/profile/North_Carolina?g=040XX00US37 (last visited Mar. 10, 2026).
[5] One Big Beautiful Bill Act, Pub. L. No. 119-21, § 70411, 139 Stat. 215 (2025) (codified at I.R.C. § 25F).
[6] Id.
[7] Id.
[8] Id.
[9] H.B. 87, 2025 Reg. Sess. (N.C. 2025).
[10] Josh Stein, Governor of N.C., Governor’s Objections and Veto Message for H.B. 87, Educational Choice for Children Act (Aug. 6, 2025),https://webservices.ncleg.gov/ViewBillDocument/2025/7393/0/H87-Bill-NBC-16862.
[11] Id.
[12] H.B. 87, 2025 Reg. Sess. (N.C. 2025).
[13] See Hart v. State, 774 S.E.2d 281, 284–85 (N.C. 2015).
[14] Id.
[15] Id. at 285 (noting that a large percentage of economically disadvantaged students in North Carolina are not grade level proficient with respect to the subjects tested on the State’s end-of-year assessments).
[16] Id. at 285–86.
[17] Id. at 286.
[18] Id. at 287.
[19] Id.
[20] Id. at 288.
[21] Id.
[22] Id. at 289–90.
[23] Id.
[24] Id.
[25] Id. at 292.
[26] Id.
[27] Id. at 293.
[28] H.B. 87, 2025 Reg. Sess. (N.C. 2025).
[29] Hart, 774 S.E.2d at 286–90.
[30] H.B. 87.
[31] Hart, 774 S.E.2d at 284–85.
[32] H.B. 87.
[33] Josh Stein, Governor of N.C., Governor’s Objections and Veto Message for H.B. 87, Educational Choice for Children Act (Aug. 6, 2025),https://webservices.ncleg.gov/ViewBillDocument/2025/7393/0/H87-Bill-NBC-16862.
