NC Court of Appeals weighing jurisdiction in lawsuit over private school vouchers

A North Carolina Court of Appeals panel will decide who will hear a lawsuit over the state’s private school voucher program.

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.

The Opportunity Scholarship Program serves about 20,000 North Carolina students, enrolled at about 500 non-public schools.

The lawsuit in Wake County Superior Court 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, approved by legislation in 2013 that requires the state to distribute scholarships to any eligible applicants. Any challenge of a law’s constitutionality must be heard by a three-judge panel, not a single superior court judge.

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.

The state and intervenors appealed the decision, which was before a Court of Appeals panel Wednesday for oral arguments. Judges asked numerous questions of both parties, and two of the three judges — Richard Dietz and Hunter Murphy — were skeptical of the plaintiffs’ claim that they are not challenging the constitutionality of the law that created the voucher program.

However the Court of Appeals decides could be appealed to the state Supreme Court.

The panel heard oral arguments for about an hour Wednesday morning, in which parties debated whether the lawsuit was challenging the Opportunity Scholarship Program law itself or merely how the law has been applied to some families.

“These allegations are not specific to any school,” state attorney Laura McHenry said, referring the lawsuit’s claims.

The plaintiffs note issues broadly with the voucher program’s oversight and with the lack of accreditation or licensing requirements of private schools, compared to public schools, McHenry said.

Further, the specific, personal issues brought up by the plaintiffs are religious in nature, McHenry said, and not related to accreditation or licensing requirements.

“These allegations in the complaint voice the concerns the plaintiffs have with the program as a whole,” McHenry said.

Marie Miller, an attorney for parents who intervened on the state’s behalf, argued parents of students with vouchers would lose their vouchers while the state reviews its oversight of the program and if their school ended up being prohibited from participating.

Paul Smith, an attorney for the plaintiffs, said no one is alleging the existence of a voucher program is unconstitutional.

Judges can decide when a person’s rights have been violated as a part of the program’s implementation and issue a remedy, Smith argued.

“That’s not re-writing a statute; that’s just what the judiciary does,” Smith said.

A ruling in the plaintiffs favor could prohibit schools that discriminate on the basis of religion from participating, Smith said.

But if the court has to order a state agency to create a new rule not outlined in the statute, Dietz said, “the statute itself must be unconstitutional.”

Smith disagreed, contending the statute is not discriminatory when it orders the state to fund vouchers for schools that don’t discriminate against students of other religions.

The Opportunity Scholarship Program allows lower-income students who aren’t succeeding in their traditional public school to apply for a scholarship to attend a private school instead.

The program has been criticized for not overseeing the private schools that receive the money and for not tracking the outcomes of students who use the scholarships. Private schools do not have to participate in state testing or federal programs or disclose academic data. They argue extra funding should be used to help the public schools instead.

Proponents contend the scholarships offer another educational choice to families of students who aren’t succeeding at their public school.

After years of lower-than-budgeted participation in the Opportunity Scholarship Program, lawmakers expanded it last fall to provide higher scholarship amounts and make more families eligible.