Two more documents filed late Friday with the N.C. Court of Appeals take aim at legal tactics employed by opponents of the Opportunity Scholarship Program. The filings also criticize the trial judge who has been overseeing a lawsuit challenging the program.
“This appeal is about who will decide whether or not to take away educational scholarships from thousands of low-income North Carolina children: a single trial court judge or a group of three judges,” according to a motion filed by Marie Miller of the Institute for Justice. IJ represents parents defending OSP.
“To avoid a single judge shutting down an entire statewide program based on a mistaken belief that it is unlawful, the North Carolina General Assembly decided that facial challenges to state laws ‘shall be heard and determined by a three-judge panel,’” Miller added. “The trial court below, however, refused to transfer this lawsuit to a three-judge panel, even though the lawsuit seeks to dismantle the Opportunity Scholarship Program ‘in its entirety.’”
The motion questions the actions of Wake County Superior Court Judge Bryan Collins. He has been overseeing the case, Kelly v. State of N.C.
“While the appeal to determine who should ‘hear and determine’ the lawsuit has been pending, … the trial court decided for itself to determine the scope of the case by permitting and overseeing extensive and burdensome discovery,” Miller wrote. “In addition to seeking discovery from defendants, Appellees have embarked on voluminous third-party discovery into the religious beliefs and practices of dozens of private religious schools.”
Miller and her clients are asking the Appeals Court to block further discovery in the case. Discovery refers to the exchange of information between parties in a legal proceeding. It helps determine the evidence that can be used during a trial.
The parents’ request mirrors a similar motion filed Wednesday by legislators defending Opportunity Scholarships.
“[A]ppeals like this about who should ‘hear and determine’ a case inherently embrace things like overseeing discovery,” Miller wrote. “It therefore makes sense to stay discovery proceedings while this Court resolves who should oversee them. Second, threshold questions about this case — including the legal sufficiency of the pleadings of many or all of Appellees’ claims as well as the scope of discovery — cannot be answered until the pending appeal resolves which tribunal should answer those questions.”
“Most or all of Appellees’ ongoing, voluminous discovery could turn out to be unnecessary, wasting not only the parties’ time and resources, but also those of the dozens of private schools whose religious beliefs and practices are the primary target of Appellees’ discovery,” Miller added.
In a separate affidavit, Miller documented the extent of voucher opponents’ efforts to dig up information from private schools participating in the Opportunity Scholarship Program.
“I am aware that Plaintiffs have issued a total of 48 third-party subpoenas (36 document subpoenas and 12 subpoenas for testimony), taken nine third-party depositions, scheduled an additional three third-party depositions, and issued five requests for informal discovery, on a total of 39 private schools,” Miller wrote.
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.
The current appeal involves the question of transferring the case from Collins to a three-judge Superior Court panel. Resolution of that issue depends on the nature of the lawsuit.
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.
Kelly and fellow critics argue that the Opportunity Scholarship Program is unconstitutional as applied to the circumstances of particular plaintiffs in the case. Scholarship defenders counter that the lawsuit is not actually an “as-applied” constitutional challenge. In contrast, it amounts to a “facial” challenge because it challenges the constitutionality of the scholarship law “on its face.”
State law requires “facial” challenges to be heard by three-judge panels appointed by the chief justice of the N.C. Supreme Court.
The Opportunity Scholarship Program already has survived one facial challenge. In 2015 the state Supreme Court ruled, 4-3, that the program could proceed.