N.C. Association of Educators drops lawsuit against popular school choice program

By A.P. Dillon

April 26, 2023

RALEIGH — The N.C. Association of Educators (NCAE) dropped its lawsuit against North Carolina’s popular Opportunity Scholarship Program (OSP), according to a filing with the Wake County Superior Court last week. 

“Plaintiffs hereby notice the dismissal of all claims against all Defendants,” wrote Christopher Brook, the attorney representing NCAE. “Plaintiffs have consulted with all parties regarding costs, and all parties agree that each side will bear their own costs. Defendants reserve the right to pursue costs should Plaintiffs re-file this lawsuit within one year of this filing.” 

Brook had been appointed to the N.C. Court of Appeals by Democratic Gov. Roy Cooper in 2019. Brook, a Democrat, ran in 2020 to retain the seat but was defeated by Judge Jefferson Griffin, a Republican.

Parents for Educational Freedom in North Carolina (PEFNC) has been a consistent supporter of the OSP and has helped families navigate the program for years. PEFNC’s President Mike Long was pleased the NCAE dropped the suit. 

“The NCAE should have never filed this lawsuit in the first place,” Long said in a statement. “Their political motivations were clear, despite the fact that the North Carolina Supreme Court upheld the constitutionality of the Opportunity Scholarship Program in 2015. It was the NCAE President who said in a tweet that education is political, sadly in doing so she and NCAE choose to bully private schools in our state by dragging them through the legal process because of those political motivations.

“The good news, today, is that the thousands of parents, families, and students who have been empowered by an Opportunity Scholarship can once again have the confidence that this program is safe and secure and here to serve them. I am happy to report that North Carolina is a leader in parental school choice, while the NCAE acts as a politically motivated organization using children as political pawns in hopes to force them into a one-size-fits-all system.” 

The OSP was created by the legislature in 2013 and offers funding to low-income families who meet certain income thresholds for tuition at eligible private and parochial schools in the state. Scholarship awards can total up to $6,168 depending on the income criteria of the applicants.  

The OSP is utilized by more than 25,000 K-12 students in the state spanning 544 private schools. In the current academic calendar, the OSP awarded $133 million in scholarships to eligible students. 

The NCAE’s lawsuit was likely on its way to becoming moot due to certain bills making their way through the General Assembly that would alter and expand the OSP.  

Titled “Choose your School, Choose Your Future,” Senate Bill 406 was filed on March 29. If passed, the bill would alter the OSP by expanding funding to all North Carolina families using an income-based sliding scale. Senate lawmakers said if the bill is enacted it would be “the largest expansion of school choice since the program was created.” 

House Bill 823 has the same title and is a companion bill to Senate Bill 406. The House version was filed on April 18 by primary sponsors Rep. Tricia Cotham (R-Mecklenburg), David Willis (R-Union), Donnie Loftis (R-Gaston) and House Speaker Tim Moore (R-Kings Mountain).  

The lawsuit, Kelly v. State of North Carolina, was filed by NCAE President Tamika Walker Kelly and four other individuals in 2020. The lawsuit was the latest failed attempt to have the OSP dismantled. The N.C. Supreme Court had ruled against the NCAE’s 2015 attempt, stating they had failed to prove the program was unconstitutional. 

The current lawsuit saw some tug-of-war over whether the case should be heard by a single judge or by a panel of judges. Ultimately, the N.C. Court of Appeals ruled the case should stay with a three-judge panel. 

North Carolina Attorney General Josh Stein filed a motion in March 2021 to dismiss the case. The dismissal motion cited the prior failed lawsuit the NCAE filed in 2015 involving the OSP but also that the NCAE’s claims are “barred by the doctrine of res judicata,” a legal measure that blocks a party from relitigating a claim where a court has previously issued a final order or judgment.