Mitch Kokai | Parents Across North Carolina to Monitor Progress of Opportunity Scholarship Lawsuit

Thousands of NC families will watch with interest as the state Court of Appeals tackles a case scheduled for oral argument this week.

The state’s second-highest court will determine the next steps in a lawsuit challenging the popular scholarship program. This program increases options for low-income families whose children struggle in traditional public schools. The scholarships help these families choose private school options that better meet the children’s needs.

More than 20,000 students now use Opportunity scholarships to attend more than 500 private schools across North Carolina. State legislators recently increased both the scholarship amount and the upper income eligibility limits. By early May, the program had received more than 13,000 new applications for 2022-2023. That’s a 30% increase over the previous year, according to Parents for Educational Freedom in North Carolina.

All of these families could face the impact of a lawsuit currently sitting in the state Court of Appeals.

Appeals judges must determine whether the trial will remain with a single Wake County trial judge or move to a three-judge Superior Court panel. This decision does not seem very exciting, but the resolution of the problem could have a major impact on the outcome of the lawsuit.

To explain why, it is important to distinguish between two different types of constitutional challenges to NC statutes. The first is called a “face challenge”. Critics argue that a law is unconstitutional “on its face”, meaning there are no circumstances under which the law can be upheld.

Opportunity scholarships have already survived a facial challenge. The North Carolina Supreme Court ruled in 2015, by a 4-3 vote, that the program could continue. Nothing in the state constitution prevented state lawmakers from creating a scholarship program, according to the majority of the court.

The current lawsuit, led by Tamika Walker Kelly of the NC Association of Educators, takes a different approach. The NCAE is the state arm of the National Education Association, a national union of teachers. Teachers’ unions have been among the most vocal opponents of parent school choice programs across the country, including Opportunity Scholarships in North Carolina.

Kelly and his fellow plaintiffs argue that they are not challenging the OSP Act on their face. Instead, they claim to proceed with the second type of constitutional challenge. They argue that the program violates the constitution “as applied” to their particular situation.

An “as applied challenge” may proceed before a single judge. A “face challenge” requires a panel of three judges.

The National Institute for Justice is working with parents to defend scholarships against Kelly and the union. The IJ lawyers poke holes in the plaintiffs’ arguments.

“Clearly, plaintiffs do not disavow that their claims seek to invalidate the Opportunity Scholarship Program for everyone, and would therefore require a statewide remedy. This is a classic example of facial relief,” according to an IJ brief filed in March.

“This Court should rebuff plaintiffs’ efforts to misrepresent their claims,” ​​the brief continues. “No matter how much the plaintiffs claim to concede the face validity of the statutes or dress their claims in ‘as applied’ language, their claims do what all facial claims do: target the facial content of the statutes and thereby demand that the bylaws themselves be invalidated or fundamentally altered.The demands are therefore face-to-face challenges that must be transferred to a three-judge panel.

North Carolina Department of Justice attorneys for state Attorney General Josh Stein are also addressing the plaintiffs’ claims. State government attorneys note the Kelly lawsuit’s attack on private schools’ religious ties.

“[N]Nothing in the impugned legal scheme allows the Respondent State…to investigate the religious beliefs or practices of participating schools,” according to a Department of Justice brief. “Plaintiffs’ assertion that their challenge is an as-applied challenge because they are simply challenging the law as ‘implemented’ is misdirection.”

“Because the law, as written, does not permit the religious oversight apparently sought by the plaintiffs, the challenge they raise is to the text of the law as it stands, not to the application of the existing provisions,” the state said. added. “Second, because the law does not authorize the religious oversight and ‘enforcement’ sought by the plaintiffs, each plaintiff’s individual facts and circumstances offer little to help assess whether the law as written is constitutional, which strongly favors an outfit that plaintiffs claimed a face challenge. »

Whatever route the trial takes in the coming months, before a judge or three, the case could eventually reach the North Carolina Supreme Court. This court would have a chance to uphold or overturn its seven-year precedent upholding the scholarships.

The dispute offers Opportunity Scholarship parents and other voters an important reminder: The legal races at the bottom of North Carolina’s electoral ballot are having real impacts.

Mitch Kokai is senior policy analyst for the John Locke Foundation.

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