News: CJ Exclusives

Court Of Appeals Next Stop For Voucher Lawsuit

Judge refuses to allow scholarship lottery to go forward

Parents of students seeking to benefit from the state’s Opportunity Scholarships program must wait for the N.C. Court of Appeals to consider a lawsuit filed on their behalf. Superior Court Judge Robert Hobgood denied motions made by defendants to delay his preliminary injunction preventing the scholarships from being issued until an appeal can be heard.

The Institute for Justice, which is representing two parents who want to use Opportunity Scholarships to help send their children to private schools, had asked Hobgood to put his preliminary injunction order on hold — a “stay” in legal terms — to allow at least some of the administrative process for awarding the scholarships to proceed.

The Opportunity Scholarships, or vouchers, would provide as much as $4,200 in scholarships for children from lower-income families to offset the cost of attending private schools. To be eligible in the first year, the children receiving the vouchers must have been enrolled in a public school the previous year and qualify for free- or reduced-price lunches.

In the petition requesting the delay, Institute for Justice attorney Dick Komer said that the defendant parents planned to appeal the preliminary injunction to the N.C. Court of Appeals. He asked Hobgood to put his order on ice until the Court of Appeals could rule, noting it would take some time to award scholarships for the 2014-15 school year, the first year the voucher law said the scholarships would be available.

“In the alternative, parents request this court to stay its preliminary injunction for a short while until a lottery can be conducted and a list of scholarship recipients can be determined,” Komer wrote.

The request noted that at least 4,700 children had applied for the scholarships. However, there are only 2,400 scholarships available for the 2014-15 school year. A partial delay in the order would allow a lottery to select the parents who would qualify for the scholarships, Komer said.

The N.C. Association of Educators and the N.C. School Boards Association, among others, filed suit against the state challenging the voucher law. They claimed that the N.C. Constitution doesn’t allow tax dollars to be spent for private education.

In February, Hobgood issued an order preventing implementation of the new voucher law, including such administrative efforts as processing applications and holding a lottery to determine which children would receive the Opportunity Scholarships.

The plaintiffs argued that that Hobgood should not delay his order.

“When it granted plaintiff’s motion for preliminary injunction, the court considered and rejected the arguments now advanced by interveners,” the plaintiff’s brief says. “Nothing has changed between then and now that would justify staying the court’s order.”

Before Hobgood issued his latest order, Komer said he didn’t expect the judge to place his preliminary injunction on hold.

“I think that’s got a pretty low likelihood of success,” Komer said. “But it’s a prerequisite for asking for a stay from the N.C. Court of Appeals.”

Barry Smith (@Barry_Smith) is an associate editor of Carolina Journal.