- Sixteen private schools in Durham and Cumberland counties want a three-judge panel to resolve their concerns about a recently dismissed lawsuit involving Opportunity Scholarships.
- The schools are seeking sanctions of more than $25,000 from plaintiffs and lawyers involved with a legal challenge against the scholarship program. Plaintiffs dropped the lawsuit in April.
- The N.C. Court of Appeals ordered the case itself transferred to a three-judge panel before plaintiffs dropped their suit. Appellate judges agreed the legal complaint amounted to a "facial" constitutional challenge against Opportunity Scholarships.
Sixteen private schools in Durham and Cumberland counties hope a three-judge panel will resolve their claims in a now-dismissed lawsuit involving Opportunity Scholarships. The schools are seeking sanctions of more than $25,000 against plaintiffs in the case.
Tamika Walker Kelly, president of the N.C. Association of Educators, served as lead plaintiff in the suit that challenged the scholarship program. Kelly and her fellow plaintiffs voluntarily dismissed the two-year-old suit on April 19.
Two weeks later, on May 1, lawyers for the private schools filed multiple motions in the case. None of the schools had been a party to the case. Yet plaintiffs had targeted the schools with subpoenas involving extensive requests for written information and interviews. Those requests were tied to the legal process called discovery.
One of the schools’ May 1 motions requested sanctions to cover costs of dealing with Opportunity Scholarship opponents’ requests.
On Thursday the schools’ lawyers filed a new motion. It asked Wake County Senior Resident Superior Court Judge Paul Ridgeway to transfer the case to a three-judge panel. That panel would address the private schools’ request for sanctions and other relief.
When Kelly and other plaintiffs dropped their suit in April, their lawyers indicated that “all parties agree that each side will bear their own costs.” That statement didn’t cover the targeted private schools, who are considered “movants” in the case.
On Aug. 3, 2021, Opportunity Scholarship opponents targeted the Durham private schools with subpoenas covering the following documents for the 2019-20 and 2020-21 school years: “all school handbooks, student handbooks, and parent handbooks; all applications or other forms required to be completed or signed by prospective or returning students, their families, or their pastors; all forms required to be completed or signed by students upon their enrollment, or in order to continue their enrollment; all documents stating the school’s admission criteria, policies, or standards; all documents stating or describing the school’s disciplinary criteria, policies, or standards; all criteria, policies, standards, or rules governing student conduct; and all documents stating or describing the school’s official religious beliefs, including any statement of faith.”
The subpoenas called for all documents to be turned over by Sept. 2, 2021, with “depositions of school administrators with knowledge of the above materials to take place later that month.”
Courts refused to block this discovery process while the case was appealed. The six schools ran up legal and court costs topping $11,000 between October 2021 and November 2021.
On Nov. 11, 2021, the Opportunity Scholarship foes filed similar document requests with 10 Cumberland County private schools. Subpoenas called for depositions involving staff at three of the private schools in January 2022.
Once again, courts refused to block the discovery requests. The Cumberland schools accumulated bills of nearly $14,000 between November 2021 and January 2022.
In October 2022, the N.C. Court of Appeals issued a ruling overturning a Wake County trial judge’s decision about the case’s proceedings. Appellate judges ruled that the lawsuit amounted to a “facial” constitutional challenge of the Opportunity Scholarship Program. Such a challenge required a transfer of the case to a three-judge trial court panel.
The plaintiffs dropped their case six months later. “The Dismissal made no provision to pay any of Movants’ legal fees and costs,” according to the schools’ May 1 motion.
The schools cited Rule 45(c) of the N.C. Rules of Civil Procedure. “A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing an undue burden or expense on a person subject to the subpoena. The court shall enforce this subdivision and impose upon the party or attorney in violation of this
requirement an appropriate sanction that may include compensating the person
unduly burdened for lost earnings and for reasonable attorney’s fees.”
Opportunity Scholarship opponents did not need to target the private schools while pursuing the lawsuit, according to the motion.
“None of the Plaintiffs attended or sought to attend any of the Movant nonparty schools,” the motion explained. “This information sought is now and was then irrelevant to a facial challenge of the Opportunity Scholarship Program.”
The motion noted that the Opportunity Scholarship opponents pursued the targeted private schools despite an ongoing appeal. “By moving to compel enforcement of the subpoenas during the Appeal, [it] resulted in the nonparty school Movants responding to discovery that was unnecessary and irrelevant to Plaintiffs’ actual case. … Plaintiffs should not have imposed this undue burden on the Movants because there was no benefit to the Plaintiffs which could outweigh the burden imposed on the Movants,” the motion continued.
“Because Plaintiffs and their attorneys failed to take reasonable steps to avoid imposing this undue burden or expense on the Movants, Rule 45(c)(1) requires this Court to ‘impose upon the party or attorney in violation of this requirement an appropriate sanction that may include compensating the person unduly burdened for lost earnings and for reasonable attorney’s fees.’”
Attorney Paul “Skip” Stam signed the motion for sanctions. Stam is a board member of the John Locke Foundation, which oversees Carolina Journal.
More than 25,000 N.C. students used Opportunity Scholarships during the last year to attend 544 private schools. The state awarded more than $133 million in scholarships for the 2022-23 academic year, according to data from the N.C. State Education Assistance Authority.
The Opportunity Scholarship Program survived an earlier state constitutional challenge. The N.C. Supreme Court ruled, 4-3, in 2015 that the program could proceed.