Written by Mitch Kokai, Carolina Journal
One judge or a panel of three judges can decide on another legal challenge facing the North Carolina State Scholarship Program. Arguments presented in recent days to the North Carolina Court of Appeals focus on the direction of the case.
The state attorneys, Republican legislature leaders, and parents who advocate for opportunity scholarships all want to take the case to a three-judge panel. The plaintiffs in the case, who oppose the granting of opportunities, want the lawsuit to remain before a single judge.
The main issue is whether the issue represents a “face-to-face” constitutional challenge designed to repeal the scholarship law entirely. Such a challenge should be addressed to a panel of three judges for the initial hearing. If the lawsuit challenges the law only as it applies to the plaintiffs, only one judge can hear the case.
The effects are enormous for the 12,000 low-income families of North Carolina who rely on scholarships to attend private schools.
“This lawsuit represents the second attempt to challenge the validity of the program under the general purpose or discrimination theory,” according to attorneys for the state attorney general’s office Josh Stein. “Indeed, the ultimate goal here… is to prevent state defendants from offering scholarships to all parents seeking to participate in the program. Although the plaintiffs superficially assert that their claims raise a constitutional challenge to the program, they seek to declare that The Program is unconstitutional and an order permanently instructing further assignments and payments from the Program to any parent.”
“Because the plaintiffs here not only seek to order the enforcement of the contested law against themselves, but ask the court to permanently order the selection of coupon recipients and the disbursement of funds under the entire program, state defendants have sought to move the suit to a three-judge panel.” State attorneys add.
Lawyers for legislative leaders question the plaintiffs’ tactics in the case. “Courageously” a 2015 state Supreme Court decision to support “scholarship opportunities” in an earlier “face” challenge, scholarship opponents are trying again.
Attorney Matthew Tilly wrote on behalf of attorney Matthew Tilly: “But this time, they attempted to cast their lawsuit as an ‘implemented’ challenge—presumably they hoped to avoid both the stare and heavy burden required to succeed in a face-to-face claim from legislative leaders.
The plaintiffs claim to be parents of children eligible to receive OSP grants and complain that OSP is unconstitutional because they believe that most or all private schools in their area that participate in the alleged OSP “discriminate” based on opinions about religious[n]or sexuality or both,” Tilley adds.
He writes, “But none of the plaintiffs claimed that they took steps to apply for an OSP scholarship, sought to enroll in a school participating in OSP, or even wished to do so.” Instead, the plaintiffs attack the program in general, claiming – in their own words – that ‘the entire program’ is unconstitutional.
Parents working to defend the Opportunity Scholarship Program from legal attacks are also writing to support a move to a three-judge panel. John Branch wrote of the parents: “This challenge seeks ‘as applied’ to eliminate the program on which they and their children depend – but not the plaintiffs or their children.”
“Of course, if this is a truly applied challenge that involves only the interests of the plaintiffs, then the interests unrelated to the intervening parents (and their children’s educational future) will not be directly at stake. Yet having these rights squarely in the crosshairs underscores the scale of interests that are at stake. implied in this lawsuit and the importance of being considered by a panel of three judges.”
Opportunity grant opponents in the case are leading Tamika Walker Kelly, president of the state branch of the Teachers Union of the National Education Association. Kelly and his fellow plaintiffs oppose the idea of a three-judge hearing.
“While defendants raise the specter of a constitutional challenge to the face, the plaintiffs’ complaint clearly identifies the applicable challenge. Even if the defendants’ petition makes the described effort to demonstrate that their appeal is meritorious, that is an argument doomed to fail,” attorney Christopher Brooke writes of Kelly and other plaintiffs.
There is no information on when the appeals court will decide whether to refer the case to a three-judge panel.