North Carolina appeals court decides who will hear school voucher lawsuit
RALEIGH, NC (AP) — A legal challenge to North Carolina’s taxpayer-funded scholarship program allowing children in kindergarten through 12th grade to attend private schools — focused on allegations of bias based on religion and sexuality – must be heard by three trial judges, the state Court of Appeals ruled on Tuesday.
A majority of an appeals court panel overturned last year’s decision by Wake County Superior Court Judge Bryan Collins, who ruled on the lawsuit. filed by multiple North Carolina parents in 2020 must remain before a single judge.
Republican lawmakers defending the ‘scholarship program’ created in 2013 have appealed Collins’ decision, saying three Superior Court justices are required to hear the case because the litigation sought to dismiss the program in its entirety on the grounds that it violates the state constitution.
The complainants in the trial said scholarships are legal in some formats, but unconstitutional in each of their individual circumstances, so a single judge should preside. For example, some plaintiffs are in same-sex marriages who say they are discriminated against because some private religious schools with student grants oppose LGBTQ rights or expel openly gay students.
Scholarships are considered one of the major educational policy achievements for Republicans in the General Assembly since taking control of the legislature more than a decade ago. Nearly 23,000 students from low- and middle-income families received scholarships in the last school year, and more than $63 million in scholarships are being disbursed this school year, according to program data.
Opponents of the program include Democratic Gov. Roy Cooper and the North Carolina Association of Educators, which describes the rewards as vouchers.
The General Assembly agreed in the 2000s to begin using panels of three trial judges to hear redistricting challenges to prevent plaintiffs from “shopping around” by filing cases in certain counties. Their use was expanded in 2014 to cover any legal action to declare a state law “face” unconstitutional, or in all situations. The Chief Justice, who is currently Republican Paul Newby, appoints the three judges in these cases, each of them from a different region.
Writing Tuesday’s majority decision, Appeals Court Judge April Wood said it was clear the lawsuit was aimed at nullifying the program altogether and preventing students from getting scholarships. No evidence was presented that the plaintiffs applied for scholarships or were constitutionally denied enrollment in the program, she added.
The “plaintiffs were unable to identify a conceivable remedy for their claims that would not require rewriting the law or imposing extensive judicial oversight on exchange approvals by regulators,” wrote Wood. “These remedies are unmistakable markers of a facial challenge.”
Court of Appeals Judge Richard Dietz sided with Wood. In a dissenting opinion, Judge Toby Hampson wrote that it was premature for the appeals court to decide the scope of the challenge in the trial, and therefore who should hear the case at trial.
Given the Court of Appeals’ 2-1 split decision, the state Supreme Court would be forced to review Tuesday’s ruling if the plaintiffs appealed. In 2015, the judges ruled 4-3 that those who challenged the program’s legality failed to prove that it violated the constitution.