Split Appeals Court sends Opportunity Scholarship case to three-judge panel

N.C. Appeals Court Judges Toby Hampson, left, Richard Dietz, and April Wood listen to oral arguments. (Image from N.C. Court of Appeals YouTube channel)

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  • A lawsuit challenging N.C. Opportunity Scholarships will head to a three-judge trial court panel. That move represents a legal win for the state, legislative leaders, and parents defending Opportunity Scholarships.
  • A split 2-1 panel of the N.C. Court of Appeals determined that the suit represented a "facial" challenge against the Opportunity Scholarship law. The program survived an earlier facial challenge in 2015.

The N.C. Court of Appeals has ruled, with a split 2-1 vote, that a lawsuit challenging North Carolina’s Opportunity Scholarship Program should head to a three-judge trial court panel.

The ruling announced Tuesday marks a win for the state, legislative leaders, and Opportunity Scholarship defenders. Each of those groups had asked for the case to be transferred from a single Wake County trial judge to the panel.

State law requires three-judge panels to hear lawsuits that include a “facial” constitutional challenge to a state law. In a facial challenge, there is no way for the law to stand if the plaintiffs win the case.

Plaintiffs challenging Opportunity Scholarships contend their suit amounts to an “as-applied” challenge that should remain with a single judge. An as-applied challenge focuses on the law’s impact on particular plaintiffs.

“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,” wrote Judge April Wood in the majority opinion.  

“By arguing the Program is unconstitutional as applied because religious schools may receive funding, Plaintiffs are actually attacking the constitutionality of” the law governing Opportunity Scholarships, Wood explained.

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

“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.”

Judge Richard Dietz concurred with Wood’s decision to send the case to a three-judge panel. Wood and Dietz are both Republicans.

Judge Toby Hampson, a Democrat, dissented. “To decide at this preliminary stage that Plaintiffs’ asserted as-applied constitutional challenge in this case — as a matter of fact and law — can only be a facial constitutional challenge required to be heard by a three-judge-panel is premature and runs counter to the statutory procedure set forth by our General Assembly,” he wrote. “By failing to allow this litigation to proceed in normal fashion in our trial courts, the majority acts contrary to the statutory scheme which requires the Superior Court to make the determination of whether and when it is necessary to transfer the matter to a three-judge panel.”

“In doing so, contrary to our Court’s precedent, the majority forces Plaintiffs to make a facial constitutional challenge Plaintiffs have not plead and expressly disavow,” Hampson added.

The lead plaintiff in Kelly v. State of N.C. is Tamika Walker Kelly, president of the N.C. Association of Educators. That group, the state affiliate of the National Education Association teachers union, has been a vocal critic of the Opportunity Scholarship Program since its inception.

More than 20,000 students use Opportunity Scholarships now to attend more than 500 private schools across North Carolina. State lawmakers recently increased both the size of the scholarship and the upper bounds of income eligibility. As of mid-May, the program had received more than 14,700 new applications for 2022-23, according to Parents for Educational Freedom in North Carolina. The program had 16,751 new applications for the 2021-22 school year, with more than 15,000 families renewing scholarships that year.

The Opportunity Scholarship Program has survived an earlier constitutional challenge. The N.C. Supreme Court ruled, 4-3, in 2015 that the program could proceed.