You know what they say about a creature that walks, looks, and quacks like a duck.

Judges April Wood and Richard Dietz of the N.C. Court of Appeals must know. Their clear understanding of the old saying helps explain a recent decision in a lawsuit challenging North Carolina’s Opportunity Scholarship Program. Wood and Dietz steered the case toward a three-judge trial court panel.

The link between the quacking duck and the Appeals Court decision requires some explanation.

More than 20,000 students across North Carolina use Opportunity Scholarships to attend more than 500 private schools. The program gives low- and moderate-income families the same access to school choice that wealthy families have had for years.

North Carolina’s Supreme Court ruled back in 2015 that the program complies with the state Constitution. A 4-3 ruling from the state’s highest court allowed the program to proceed.

Since that court case, support for Opportunity Scholarships has continued to grow. State lawmakers have increased the size of scholarship grants and raised income eligibility levels.

That hasn’t stopped the program’s critics. Chief among them is the N.C. Association of Educators, the state affiliate of the leading national teachers union. NCAE President Tamika Walker Kelly serves as lead plaintiff in the latest legal challenge against Opportunity Scholarships.

Rather than tackle the program directly, and risking a repeat of the 2015 state Supreme Court outcome, Kelly and her collaborators framed their lawsuit in a different way.

They weren’t attacking the Opportunity Scholarship law as unconstitutional “on its face,” they said. State law requires that type of challenge to proceed to a tribunal of three judges appointed by the N.C. Supreme Court’s chief justice.

The case Kelly v. State of N.C. purported instead to challenge the scholarship law “as applied” to particular plaintiffs. The scholarship law itself might be constitutional, as the state Supreme Court ruled in 2015, but state officials have applied it in an unconstitutional manner.

A Wake County trial judge accepted the “as applied” argument. He allowed OSP critics to pursue their fight against the program. Legal attacks included a discovery process in which OSP critics demanded detailed information from private schools across the state, despite the fact that no private school is a party to the lawsuit.

The Appeals Court eventually shut down that discovery process. Now Wood and Dietz, overruling their colleague Toby Hampson, have decided to take the case away from the single trial judge. They have ruled that the Kelly suit amounts to a “facial” challenge against Opportunity Scholarships.

“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,” Wood wrote on Oct. 18.  

“Here, there are no particular facts alleged from which a determination of whether the Program is unconstitutional as applied may be made,” she added. “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 explained. “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.”

If Kelly and her fellow plaintiffs win in court, the scholarship program could no longer operate.

“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.”

If it looks like a facial constitutional challenge, acts like a facial challenge, and would have the same practical impact as a facial challenge … quack, quack, quack.

The case is far from over. Kelly and scholarship critics still will have a chance to argue against the scholarships before three trial judges. Appeals could last into 2023 and beyond.

But the Appeals Court will not allow plaintiffs to hide their true intent. The lawsuit aims to strike down the Opportunity Scholarship Program. It’s the same argument that the state’s highest court rejected seven years ago.

Wood and Dietz didn’t fall for OSP critics’ tricks. They saw through the “disguise.” Thanks to them, thousands of N.C. families are more likely to maintain access to schools that best meet their children’s needs.

Mitch Kokai is senior political analyst for the John Locke Foundation.