Parents who support the North Carolina State Scholarship Program want a three-judge panel to review a lawsuit challenging the scholarships. A motion filed in the North Carolina Court of Appeals this month seeks to move the case away from a single judge.
“[T]The impact of his lawsuit is enormous,” according to a proposal made on behalf of three parents. Each parent uses the opportunity grant to send a child to a private NC school.” At stake is the education of children across the state. Since its inception in 2014, the program has enabled thousands of students from low-income families to attend the school their families choose.”
The three parents have been with the Justice Institute since August 2020. They are challenging a lawsuit in July 2020 led by North Carolina Teachers Association President Tamika Walker Kelly. The lawsuit, Kelly v. North Carolina State, seeks to dismantle the Opportunities Scholarship program.
Kelly and her fellow plaintiffs say they are challenging the constitutionality of the program because it works in practice. This is known as the “enforced” constitutional challenge. This differs from a “face-to-face” constitutional challenge. This type of challenge argues that there are no circumstances in which a law creating opportunity scholarships can be constitutional.
The North Carolina Supreme Court dismissed an earlier “face” appeal against the program in 2015. The judges’ vote at the time was 4-3.
State law requires constitutional appeals to proceed at the lower court level to a panel of three judges sitting in Wake County. Applicable challenges can move forward in hearings before a single judge.
The three parents who work with IJ don’t think Kelly’s suit is actually a challenge “as per application.”
“The plaintiffs did not disavow that they allege that the entire Opportunity Scholarship program is unconstitutional, even while asserting that their claims are ‘as applicable,’ per the motion in the Court of Appeals.” their social circumstances or significant financial pressures on their families.
“In fact, for many families who rely on program grants to send their children to their existing schools, the matter with the program means sending their children to the same schools that parents have determined did not meet their children’s scholastic, social, developmental, or emotional needs.”
“The plaintiffs tried to frame their case as a challenge ‘as it is’, but we know it’s not because of the way they sought relief in court,” said Ari Bargill, an attorney for the Institute of Justice. In an interview with the Carolina Journal. “In short, what they have requested is the blanket termination of the North Carolina Opportunity Scholarship Program for All — all participants and all potential participants.”
“That’s what actually makes it a challenge to the face, not as applied,” Barjeel said. “This is the kind of game that lawyers play in order to try to get the results they want. But at the end of the day, when what you are trying to do is bring down an entire system within a country, it is almost impossible to design that as a challenge focused on Just one or two people.”
Parents defending the scholarship program turned to the Court of Appeals this month after a Wake County trial judge rejected an initial request by a three-judge panel. Attorneys representing the state, the North Carolina Educational Assistance Authority, and legislative leaders have requested a three-judge panel. Supreme Court Justice Brian Collins denied their request in May.
There is no deadline for the Court of Appeals to rule on the application.