News: CJ Exclusives

N.C. Supreme Court Takes Over Voucher Appeal

Bypassing appeals court will expedite challenges to opportunity scholarships

The N.C. Supreme Court will decide the constitutionality of the state’s fledgling Opportunity Scholarship Program, bypassing the Court of Appeals.

The Supreme Court on Friday issued an order stating it would take the case on its own initiative. Briefs already submitted to the Court of Appeals will be accepted by the Supreme Court, along with any briefs yet to be filed.

Friday’s action pleased people on both sides of the issue.

“I think it’s in everybody’s interest to get it resolved as quickly as possible,” said Dick Komer, a senior attorney for the Institute for Justice, who is representing parents of children in the education voucher program.

“The decision by the N.C. Supreme Court to take this appeal directly and bypass the Court of Appeals reflects the importance of the constitutional issues involved,” said Bob Orr, a former N.C. Supreme Court justice who is representing the N.C. School Boards Association, which opposes the vouchers, in the lawsuit. “It allows for an expedited final decision on the constitutionality of the voucher program and serves the public’s interest in doing so.”

In 2013, the General Assembly passed and Gov. Pat McCrory signed into law a bill creating the Opportunity Scholarship Program, which provides up to $4,200 for children who come from lower income families to use for tuition at a private school.

In August, when most schools in the state were preparing to open for the 2014-15 academic year, Superior Court Judge Robert Hobgood ruled that the Opportunity Scholarship Program violated the N.C. Constitution. He issued an order barring the distribution of any of the money for the vouchers.

However, about 1,900 would-be recipients of the vouchers enrolled in private schools anyway, with some parents saying they had faith that the money eventually would be released to help them pay for their children’s education. The Court of Appeals did that last month, allowing the money already set aside by the state to be spent.

Komer noted that it’s not unprecedented for a state Supreme Court to accept a case without first going through an appeals court. A decade and a half ago, Arizona’s top court took up that state’s voucher program without it even going to a trial court, he said.

“Everything about this case has been a bit unusual,” Komer said. “State supreme courts generally exist to be the final word on these cases.

When Orr was on the N.C. Supreme Court in the early 2000s, the Supreme Court took up GOP challenges to the legislative redistricting maps passed in 2001 without that case going to the Court of Appeals.

“We look forward to presenting our arguments to the court in support of the trial court’s ruling that the legislation and appropriation of the public’s tax dollars through the voucher law violates the N.C. Constitution,” Orr said.

Rep. Paul “Skip” Stam, R-Wake, who sponsored the voucher legislation, said he was pleased with Friday’s development.

“We remain confident the Opportunity Scholarship Program will be permitted to expand, allowing more parents to send their children to the school of their choice,” Stam said.

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