N.C. Appeals Court blocks ‘burdensome’ discovery in Opportunity Scholarship lawsuit

Janet Nunn and her granddaughter Nariah. The Opportunity Scholarship Program helped Nariah attend a private school. Janet has gone to court to support the program. (Photo provided by Institute for Justice)

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  • New orders block all activity in a lawsuit challenging Opportunity Scholarships.
  • The N.C. Court of Appeals must decide whether a single judge or a three-judge panel should hear the case.

The N.C. Court of Appeals has issued new orders blocking all activity in a lawsuit challenging the state’s Opportunity Scholarship Program. That includes “burdensome” discovery targeting multiple private schools.

“All further proceedings in the above-captioned matter, including discovery, are hereby stayed pending this Court’s ruling on the motion to dismiss” the case, according to one of two orders filed Tuesday. One responded to a request from state legislative leaders. The other addressed a petition from parents who support the scholarship program.

Tuesday’s orders in Kelly v. State of N.C. followed a temporary stay granted on March 24.

Scholarship defenders had complained about the legal tactics employed by plaintiffs challenging OSP. Plaintiffs’ lawyers had been engaging in “extensive,” “burdensome, ” and “voluminous third-party discovery into the religious beliefs and practices of dozens of private religious schools, ” according to one court filing.

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 Appeals Court is scheduled to decide whether the lawsuit will stay with Wake County Superior Court Judge Bryan Collins. Appellate judges could transfer the case instead to a three-judge panel.

“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.’”

Discovery should not resume until the Appeals Court decides which court will proceed with the case, Miller argued.

“[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.

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 Appeals Court’s eventual choice between Collins or a three-judge panel 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.