Note

Right to Be Educated or Right to Choose? School Choice and Its Impact on Education in North Carolina

Today, states face the challenge of how best to educate their citizens in light of state constitutional obligations to provide public education. Lawmakers must decide between investing more in traditional public schools or pursuing educational alternatives for students and their families. The school choice movement advocates for legal reform creating alternatives such as charter schools and school vouchers. This Note examines the ongoing doctrinal and social effects of school choice in North Carolina.

Doctrinally, school choice has successfully shifted the debate about what the purpose of state education law should be. As recently as one decade ago, statutory and decisional law was primarily premised on the idea that public education was a societal good designed to educate the citizenry and was governed by the costs and benefits to the community. Now, North Carolina education law increasingly emphasizes the importance of creating distinctive, varied school options and the benefits individual students accrue by accessing educational alternatives.

The change in North Carolina education law raises serious practical concerns. Rationalizing the benefits of publicly sponsored education in terms of individual gain leaves some students behind and produces negative social outcomes, such as segregation of schools. Charter schools and private schools funded by vouchers also have incentives to recruit high-performing students and not accommodate various disadvantaged groups within North Carolina. Unless the State is careful in considering the needs of all individual students, legalizing more state-sponsored school choice alternatives will exacerbate the relationship between family resources and educational opportunity.

Pardoning Contempt—Reconsidering the Criminal-Civil Divide

The Supreme Court has never authoritatively addressed the President’s power to pardon civil contempt. But in Ex parte Grossman, Chief Justice Taft argued in dictum that the President categorically lacked such power. That conclusion, now taken for granted, purportedly rested on English precedent as crystallized by Blackstone. But pre-ratification English cases and treatises fail to support the criminal-civil distinction as the boundary of the President’s power to pardon contempt. To the extent those English sources reveal at least an ambiguity in Article II, post-ratification American practice and normative considerations lend additional support to an alternative framework. Identifying a neglected indeterminacy as to the pardon power’s reach over certain civil contemnors, this Note rejects Taft’s criminal-civil divide and proposes a limiting principle centered on private legal interests. History, common law precedent, and functional considerations support a Constitution that permits pardoning contempt unless the pardon extinguishes private legal interests of third parties. Under this view, the President can pardon all criminal contemnors and can release from coercive fines or imprisonment those civil contemnors who owe tangible, but not equitable, relief. For criminal contemnors and this subset of civil contemnors, presidential pardons may face political or ethical obstacles, but should not face constitutional ones.

Super PACs, Personal Data, and Campaign Finance Loopholes

Personal data is a commodity—frequently bought, sold, and traded on the open market by for-profit and non-profit organizations alike. It is now commonplace for political campaigns to synthesize large amounts of personal information to tailor messaging to particular individuals for persuasion, turnout, and fundraising. As campaigns and other political organizations use data in increasingly sophisticated ways, they have also dramatically increased their data collection and transfer efforts. This Note explores how federal election laws and regulations have failed to keep pace with these developments, creating a loophole through which virtually unlimited money can flow to campaigns.

This Note argues that personal data should be regulated like any other campaign asset. Federal political campaigns are subject to strict contribution limits as well as a comprehensive disclosure regime. Current Federal Election Commission advisory opinions and agency inaction have allowed campaigns to receive valuable personal data at practically no cost, even from organizations like super PACs that are otherwise prohibited from making contributions to campaigns. Perhaps even more troubling is that these contributions are not subject to the disclosure requirements that form the backbone of the federal campaign finance system. The transfer of this class of assets is subject to neither meaningful restrictions nor public scrutiny. This Note details the problem and proposes several simple regulatory changes to close existing campaign finance loopholes.

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