Court of Appeals sides with NC, lawmakers on scope of school voucher lawsuit

A three-judge panel will weigh the constitutionality of state’s school voucher program, the North Carolina Court of Appeals ruled 2-1 Tuesday.

The appeals court panel reversed an earlier judge’s ruling and has sent the case back to trial court in Wake County. There, a panel of three superior court judges will rule on the lawsuit, which challenges the state’s Opportunity Scholarship program. The program, approved by the North Carolina General Assembly in 2013, requires the state to distribute scholarships to any eligible applicants. It’s meant for public school families in low-performing schools who want to send their child to a private school instead.

The Opportunity Scholarship Program serves about 20,000 North Carolina students, enrolled at about 500 non-public schools. About 1.5 million children attend North Carolina’s public schools.

Now a three-judge panel — rather than a single judge — will hear the challenge to the politically divisive voucher program, as liberal and conservation advocate and politicians remain at loggerheads over increasing public school funding more broadly.

Tamika Walker-Kelly, president of the North Carolina Association of Educators, and six other parents sued the state in 2020, alleging the Opportunity Scholarship Program as implemented violates the rights of some families who cannot use a private school voucher at Christian schools because they are members of other faiths. The parents had not applied to those schools or to the voucher program but some had inquired about being able to attend them and were told they would not be able to.

Plaintiffs also argued the program is not subject to accountability measures that would guarantee it serves a public purpose.

At issue in the case Tuesday was whether a three-judge panel or a single judge needed to hear the case.

The plaintiffs argued they were not challenging the constitutionality of the law but merely its implementation that permits religious discrimination.

The state, along with legislator-intervenors, motioned to move the case to a three-judge panel, which the Judge G. Bryan Collins Jr. denied last year. Collins determined the plaintiffs’ requests do not challenge the entirety of the program and would not shut down the program.

Any challenge of a law’s constitutionality must be heard by a three-judge panel, not a single superior court judge.

In the court’s ruling, Judge April Wood wrote that the solution sought by the plaintiffs would “effectively invalidate the Program in its entirety,” noting that the law specifically allows religious schools to receive the funds. Solutions proposed by the plaintiffs, Wood wrote, would require rewriting the law or “imposing sweeping court supervision on scholarship approvals by regulators.”

Judge Richard Dietz concurred in result, while Judge Toby Hampson dissented.

Hampson argued moving the case to a three-judge panel was premature because the merits of the lawsuit hadn’t even been addressed in court yet.

“In doing so, contrary to our Court’s precedent, the majority forces Plaintiffs to make a facial constitutional challenge Plaintiffs have not plead and expressly disavow,” Hampson wrote.

The lawsuit asks a judge to order the state to ensure none of the private schools that families may use vouchers to attend discriminate against students who are members of other religions.

State officials have argued the lawsuit is a challenge of the Opportunity Scholarship Program itself.