NC appeals court rules who will hear Opportunity Scholarship suit

Commissioners approve funding match for Tia Heart grant

The NC Court of Appeals building in Raleigh. (PHOTO VIA NC COURT OF APPEALS)

RALEIGH — A legal challenge to North Carolina’s taxpayer-funded scholarship program for K-12 children to attend private schools — focused on claims of bias based on religion and sexuality — must be heard by three trial judges, the state Court of Appeals ruled on last week.

The majority on an appeals court panel reversed last year’s decision by Wake County Superior Court Judge Bryan Collins, who ruled the lawsuit filed by several North Carolina parents in 2020 should remain before a single judge.

Republican legislators defending the “Opportunity Scholarship Program” created in 2013 appealed Collins’ decision, saying three Superior Court judges are required to hear the case because the litigation was seeking to throw out the program in its entirety on grounds it violates the state constitution.

The plaintiffs in the lawsuit have said the scholarships are lawful in some formats but unconstitutional as carried out in each of their individual circumstances, so only a single judge should preside. For example, some plaintiffs are in same-sex marriages who say they’re being discriminated against because some private religious schools benefiting from student grants oppose LGBTQ rights or expel openly-gay students.

The scholarships are considered one of the chief education policy accomplishments for Republicans at the General Assembly since they took control of the legislature over a decade ago. Nearly 23,000 students in low- and middle-income families received awards during the last school year, and over $63 million in grants are being disbursed this school year, according to program data.

Program opponents include Democratic Gov. Roy Cooper and the North Carolina Association of Educators, which deride the awards as vouchers.

The General Assembly agreed in the 2000s to start using panels of three trial judges to hear redistricting challenges so as to prevent plaintiffs from “judge shopping” by filing cases in certain counties. Their use was expanded in 2014 to cover any lawsuit that sought to declare a state law “facially” unconstitutional, or in every situation. The chief justice, who is currently Republican Paul Newby, appoints the three judges in these matters, each of them from a different region.

Writing the majority decision, Court of Appeals Judge April Wood said it’s plain that the lawsuit seeks to strike down the program completely and prevent students from being awarded grants. No evidence has been presented that the plaintiffs applied for scholarships or were unconstitutionally denied enrollment to the program, she added.

The “plaintiffs have been unable to identify any conceivable remedy for their claims that would not require either rewriting the statute or imposing sweeping court supervision on scholarship approvals by regulators,” Wood wrote. “These remedies are unmistakable markers of a facial challenge.”

Court of Appeals Judge Richard Dietz sided with Wood. In a dissenting opinion, Judge Toby Hampson wrote that it was premature for the appeals court to decide the breadth of the challenge in the lawsuit, and thus who should hear the case at trial.

Given the split 2-1 ruling by the Court of Appeals, the state Supreme Court would be obligated to review Tuesday’s decision if the plaintiffs appeal. In 2015, the justices ruled 4-3 that people who challenged the program’s legality failed to prove it violated the constitution.