Head of NC teachers group drops lawsuit challenging Opportunity Scholarships

Tamika Walker Kelly, president of the N.C. Association of Educators, testifies during a legislative committee meeting. (Image from N.C. General Assembly YouTube channel)

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  • The head of the N.C. Association of Educators and fellow plaintiffs have dropped their lawsuit against North Carolina's Opportunity Scholarship Program.
  • More than 25,000 N.C. schoolchildren use Opportunity Scholarships to attend 544 private schools. The state awarded $133 million in Opportuntity Scholarships for the 2022-23 academic year.

The leader of North Carolina’s branch of a national teachers union is dropping her lawsuit challenging North Carolina’s Opportunity Scholarship Program. The news arrives as state legislators debate expanding funding for scholarships in the next state budget.

Tamika Walker Kelly, president of the N.C. Association of Educators, and other plaintiffs in Kelly v. State of North Carolina filed a notice of voluntary dismissal Wednesday in Wake County Superior Court.

“Plaintiffs hereby notice the dismissal of all claims against all Defendants,” wrote attorney Christopher Brook. “Plaintiffs have consulted with all parties regarding costs, and all parties agree that each side will bear their own costs. Defendants reserve the right to pursue costs should Plaintiffs re-file this lawsuit within one year of this filing.”

More than 25,000 N.C. students use Opportunity Scholarships this year to attend 544 private schools. The state awarded more than $133 million in scholarships for the 2022-23 academic year, according to data from the N.C. State Education Assistance Authority.

“This is incredibly good news for parents, students, and the people of North Carolina,” said Bob Luebke, director of the Center for Effective Education at the John Locke Foundation. “The Opportunity Scholarship Program helps more than 25,000 students across our state attend private schools that serve their individual needs. Many more families could benefit from having access to this choice. We applaud state legislators who are looking at expanding this program. The lawsuit from the head of the N.C. Association of Educators was designed to threaten the future of this widely popular program. Now that the threat is gone, there should be no impediment to moving forward as expeditiously as possible with sound school choice options.”

“The NCAE should have never filed this lawsuit in the first place, said Mike Long, president of Parents for Educational Freedom in North Carolina. “Their political motivations were clear, despite the fact that the North Carolina Supreme Court upheld the constitutionality of the Opportunity Scholarship Program in 2015.” 

“It was the NCAE president who said in a tweet that education is political, sadly in doing so she and NCAE choose to bully private schools in our state by dragging them through the legal process because of those political motivations,” Long added.

“The good news, today, is that the thousands of parents, families, and students who have been empowered by an Opportunity Scholarship can once again have the confidence that this program is safe and secure and here to serve them,” Long said.

News of the voluntary dismissal arrives six months after the N.C. Court of Appeals ruled that the case would have to proceed before a three-judge trial court panel.

The split 2-1 ruling announced Oct. 18 marked a win for the state, legislative leaders, and Opportunity Scholarship defenders. Each of those groups had asked for the case to be transferred from a single Wake County trial judge to the panel.

State law requires three-judge panels to hear lawsuits that include a “facial” constitutional challenge to a state law. In a facial challenge, there is no way for the law to stand if the plaintiffs win the case.

Plaintiffs challenging Opportunity Scholarships contended their suit amounted to an “as-applied” challenge that should remain with a single judge. An as-applied challenge focuses on the law’s impact on particular plaintiffs.

“Although Plaintiffs attempt to disguise their complaint as an as-applied challenge, the remedy they seek is to void the statute in its entirety, thereby reaching far beyond their particular circumstance,” wrote Judge April Wood in the majority opinion.  

“By arguing the Program is unconstitutional as applied because religious schools may receive funding, Plaintiffs are actually attacking the constitutionality of” the law governing Opportunity Scholarships, Wood explained.

“Here, there are no particular facts alleged from which a determination of whether the Program is unconstitutional as applied may be made,” she wrote. “None of the Plaintiffs alleged they applied for a scholarship under the Program, were unconstitutionally denied enrollment into the Program, or applied to an eligible school under the Program.”

“Plaintiffs’ complaint reveals they seek to prove their claims by solely attacking the portion of the Program’s schools which have religious characteristics,” Wood added. “Plaintiffs fail to allege the pertinent facts relating to their particular circumstances necessary to assert an as-applied challenge. Accordingly, because no Plaintiff has applied for a scholarship under the terms of the Program, it is unclear to this Court what facts, if any, exist to support Plaintiffs’ individual claims that the Program as applied to him or her is unconstitutional.”

“The success of Plaintiffs’ claims would effectively preclude any enforcement of [the OSP law], because the plain language of the statute expressly allows for private church schools and schools with religious charters to receive funding,” Wood wrote. “Since Plaintiffs have failed to plead facts and circumstances sufficient to assert an as-applied challenge, we deem the complaint to be a facial challenge to the statute making transfer to a three-judge panel mandatory.”

Judge Richard Dietz concurred with Wood’s decision to send the case to a three-judge panel. Wood and Dietz are both Republicans.

Judge Toby Hampson, a Democrat, dissented. “To decide at this preliminary stage that Plaintiffs’ asserted as-applied constitutional challenge in this case — as a matter of fact and law — can only be a facial constitutional challenge required to be heard by a three-judge-panel is premature and runs counter to the statutory procedure set forth by our General Assembly,” he wrote. “By failing to allow this litigation to proceed in normal fashion in our trial courts, the majority acts contrary to the statutory scheme which requires the Superior Court to make the determination of whether and when it is necessary to transfer the matter to a three-judge panel.”

“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 added.

Kelly served as lead plaintiff in the case. Her group, NCAE, the state affiliate of the National Education Association teachers union, has been a vocal critic of the Opportunity Scholarship Program since its inception.

The program survived an earlier constitutional challenge. The N.C. Supreme Court ruled, 4-3, in 2015 that the program could proceed.

Editor’s note: This article has been updated to include reaction.