Opportunity Scholarship defenders boost case for moving challenge to filing three-judge panel
By Mitch Kokai, Carolina Journal
The legal fight over North Carolina's Opportunity Scholarship Program focuses now on whether a single judge or a three-judge panel should hear the case. Lawyers for the state and the scholarships' parent supporters have filed new briefs supporting the three-judge option.
Separate filings in the case titled Kelly v. State of N.C. arrived Wednesday at the state Court of Appeals. Both documents take aim at arguments from the case's plaintiffs, who oppose Opportunity Scholarships.
The plaintiffs contend their attack on private school scholarships for low-income families takes the form of an "as-applied" constitutional challenge. That means the Opportunity Scholarship law violates the N.C. Constitution in the specific circumstances of the case.
Under state law, a single judge can consider "as-applied" challenges.
The scholarships' defenders say the lawsuit actually challenges the law "on its face." State law requires "facial" challenges to proceed to a specially appointed three-judge panel. They argue the case should be transferred away from its current single Superior Court judge.
"Plaintiffs try to avoid transfer by asserting, 'This lawsuit is an as-applied constitutional challenge.' But transfer does not turn on magic words," according to the latest brief from attorneys at the Institute for Justice. IJ represents parents who support Opportunity Scholarships.
"[T]ransfer is required here because the constitutional problems Plaintiffs allege
demand facial relief," IJ attorneys wrote. "Conspicuously, Plaintiffs do not disavow that their claims seek to invalidate the Opportunity Scholarship Program for everyone, and would thus require a statewide remedy. This is a textbook example of facial relief."
"This Court should rebuff Plaintiffs’ efforts to mischaracterize their claims," the brief continued. "No matter how much Plaintiffs purport to concede the statutes’ facial validity or dress up their claims in 'as applied' language, their claims do what all facial claims do: target the statutes’ facial content and thus require the statutes themselves to be invalidated or fundamentally changed. The claims are thus facial challenges that must be transferred to a three-judge panel."
Lawyers from N.C. Attorney General Josh Stein's Justice Department echo the request for a transfer to a three-judge panel. The state government lawyers focus on plaintiffs' complaints about private schools' religious beliefs and practices.
"[N]othing in the challenged statutory scheme allows State Defendant ... to inquire into the religious beliefs or practices of participating schools," according to the Justice Department brief. "Plaintiffs’ assertion that their challenge is an as-applied challenge because they are simply challenging the statute as 'implemented' is misdirection."
"Because the statute, as written, doesn’t allow for the religious oversight seemingly urged by Plaintiffs, the challenge they are raising is one concerning the text of the statute on its face, not any application of the existing provisions," the state's brief added. "Second, because the statute doesn’t authorize the religious oversight and 'implementation' sought by Plaintiffs, the individual facts and circumstances of each Plaintiff offer little to assist in the evaluation of whether the statute as written is constitutional, which strongly favors a holding that Plaintiffs have asserted a facial challenge."
"At best, Plaintiffs’ constitutional claims are a hybrid; they have characteristics of both an as-applied challenge and a facial challenge," state attorneys concluded. "The nature of Plaintiffs’ challenge cannot be easily delineated, and transfer to a three-judge panel ... is required."
The new filings from the Justice Department and IJ arrived six days after the Appeals Court blocked all further discovery in the case. In a lawsuit, discovery involves the exchange of information that could be used as evidence in a trial.
Scholarship defenders had complained that the state's current judge, Wake County Superior Court Judge Bryan Collins, had allowed plaintiffs to engage in "burdensome," "onerous" requests for documents and depositions involving dozens of private schools in the state. None of the schools is a party in the case.
The Opportunity Scholarship Program now helps more than 20,000 students from low-income families enroll in more than 500 private schools. With a larger available scholarship and expanded income eligibility in 2022-23, the program has seen about 9,500 new applicants for the coming school year. That’s according to the group Parents for Educational Freedom in North Carolina.
Lead plaintiff Tamika Walker Kelly is the head of the N.C. Association of Educators, the state affiliate of the National Education Association teachers union. Teachers unions have been among the most vocal opponents of school choice programs like Opportunity Scholarships.
The Opportunity Scholarship Program already has survived one facial challenge. In 2015 the state Supreme Court ruled, 4-3, that the program could proceed.
