North Carolina School Choice - Litigation Backgrounder


Litigation Backgrounder

North Carolina Parents Join Legal Battle To Defend School Choice Program



With the 2013 passage of the Opportunity Scholarship Program by the North Carolina General Assembly, North Carolina joined the growing list of states providing low-income families with greater school choice. The program will provide up to 2,400 scholarships worth up to $4,200 each to low-income families to send their children to private schools. To be eligible, families must also be eligible for the federal free and reduced-price school lunch program, which means there is an income cap of about $44,000 for a family of four. The program started accepting applications on February 1, 2014, and will begin awarding scholarships on March 1, 2014. More than 3,000 applications have already been received, and more keep rolling in. In short, North Carolina is about to offer low-income families the same opportunity for school choice that wealthier families already enjoy.

The teachers’ association and the school boards, however, are threatened by the opportunity for long-ignored parents to now select the best schools for their children. The North Carolina Association of Educators (NCAE), the North Carolina School Boards Association (NCSBA), and their allies are trying desperately to get rid of the program before scholarships can be awarded. The NCAE and the NCSBA, along with North Carolina citizens and local school boards, have filed two lawsuits alleging that the program violates the North Carolina Constitution. The teachers’ association and school boards fear that if low-income families begin to follow their wealthier peers to private schools that offer an education that parents prefer to that of the public schools, the low-performing public schools will no longer have a captive clientele with no alternative but to accept the inadequate education offered there.  Jobs could be lost and the teachers association could lose income from dues.

Because the direct and intended beneficiaries of the program are the families it empowers to make educational choices, the Institute for Justice (IJ) has teamed with two parents who have applied for scholarships. As it has done successfully numerous times in the past, IJ is seeking to intervene in the pending lawsuit representing parents and children—the most important individuals in this case—to help defend the program. If the trial judge permits the parents to intervene, the parents will be aligned with the state, which is represented by the North Carolina Attorney General’s Office. To date, parents have participated in helping to defend every challenged school choice program, and IJ expects that the judge will grant the parents the opportunity to help protect their interests under the program.

The parents represented by IJ are Cynthia Perry of Wake Forest, whose daughter Amiyah (called “Faith”) attends a Wake County elementary school, and Gennell Curry of Creedmoor, whose two sons, Demetrius and David, attend high school in the area. Perry and Curry hope to transfer their children to private schools if they receive scholarships. If it were not for this new program, neither parent could afford to pay for private school. If the program is struck down, Faith, Demetrius, and David will be forced to continue to attend public schools that are not meeting their needs.

Courts have upheld many programs similar to North Carolina’s, including programs in Indiana, Ohio and Wisconsin. Most importantly, the program is constitutional under the North Carolina Constitution. The program is funded through the North Carolina General Assembly’s general revenue fund, which is not earmarked to fund only public schools. Accordingly, the parents are confident that the North Carolina courts will preserve the lifeline this program represents and protect parents’ new power to find a better educational opportunities for their children.


The Plaintiffs' Claims Under the North Carolina Constitution

With passage of the Opportunity Scholarship program in the summer of 2013, North Carolina has joined 22 other states and the District of Columbia in providing families greater access to private schools. In fact, North Carolina already has a similar scholarship program—called Children with Disabilities Scholarship Grants—for students with special needs. No one has challenged this program.

Families with the financial means to do so have always exercised school choice, broadly defined by moving away from poorly-performing public schools or moving their children into more effective private schools. Low-income families are just as eager to access better schools for their children, and with this new program, North Carolina families will finally have the financial resources to do so.

The teachers’ association and school boards, however, have moved to enjoin the program just before scholarships are awarded on March 1. In the first lawsuit, the NCAE has recruited 25 North Carolina citizens associated in some way with the public school system. The NCSBA, four North Carolina citizens whose children attend or attended public schools, and 40 local school boards brought the second lawsuit. These plaintiffs seek to protect the public schools’ monopoly on education by blocking the school house doors to prevent low-income families from taking their children out of public schools in order to attend private schools.

The plaintiffs’ claims in both lawsuits, however, are indefensible. The plaintiffs seek to distort the language of the North Carolina Constitution to prohibit funding private schools with taxpayer money, but this simply is not the case. The North Carolina General Assembly can use its general revenue fund to create educational programs outside of the public school system. That is exactly what North Carolina legislators have chosen to do through the Opportunity Scholarship Program.

Notably, these lawsuits do not challenge the program based on its provision of scholarships to parents whose children who attend religious schools. This is because the North Carolina Constitution does not have a “Blaine Amendment,” a constitutional provision prohibiting states from appropriating money to sectarian schools. Instead, the plaintiffs have focused on the funding of the program, claiming that the North Carolina Constitution prohibits using public funds to provide scholarships to parents who choose to send their children to any private school. North Carolina does have a separate fund earmarked to fund only public schools; the program’s money, however, does not come from this fund. The North Carolina General Assembly funded the program through its general revenue fund, which has no restriction. The teachers’ association and school boards are distorting the language of the North Carolina Constitution to argue that it says something that it simply does not say. Nothing in the North Carolina Constitution states that all money spent on education must be spent on public schools.

The children of North Carolina, like all children in the United States, enjoy a federal constitutional right to attend private schools. The North Carolina General Assembly has taken steps to assist low-income families in exercising that right through the Opportunity Scholarship Program. The plaintiffs’ claims that the program endangers the public school system are baseless.


IJ's Parent Clients

Cynthia Perry is the mother of Amiyah (called “Faith”) Perry, who is in second grade in a Wake County public elementary school. Perry sent her older son and niece to Wake County public schools, but the same approach just is not working for her youngest daughter. Faith, who has trouble with reading comprehension and has been diagnosed with Attention Deficit Hyperactivity Disorder, has already had to attend summer school twice. Perry is afraid that, if Faith stays in the public schools, she will slip through the cracks and have to repeat third grade. Perry worries about the impact on Faith’s self-esteem, confidence, and future academic prospects. Perry has lost confidence in the Wake County public schools and has applied for an Opportunity Scholarship so that she can send Faith to a private school. She believes that Faith needs a school with smaller classes so that she can receive more individualized attention. Perry is a single mother who only recently became reemployed as a child care worker after being laid off from her previous job. She cannot afford to send Faith to private school on her own—she needs the financial lifeline of an Opportunity Scholarship.

Gennell Curry is a mother of four. Her oldest daughter, Habekkuk, is 18 years old and a student at Methodist University in Fayetteville. She graduated from Christian Faith Center Academy (CFC Academy) in Creedmoor last year. Curry’s second-oldest child, Hannah, is 17 years old and a senior in high school. Curry’s oldest son, Demetrius, is 16 years old and a sophomore in high school. Her youngest child, David, is 14 years old and a freshman. Curry started all of her children in public school, but after she became dissatisfied with the education and treatment her children were receiving, she transferred them to private schools in Durham, and then to CFC Academy when they moved to Creedmoor. Due to a change in financial circumstances, she was forced to move her three younger children back to public school. She hopes to send her two sons back to CFC Academy with the help of the program. Both Demetrius and David are eager to return to CFC Academy. David is intellectually gifted, and Curry knows that he will receive an academically superior, appropriately challenging education at CFC Academy. Demetrius is a talented athlete, and his mother wants him to have teachers who will go the extra mile to help him excel academically as well. Curry knows that her children belong at CFC Academy, and the program would enable them to return to the school that allowed them to thrive.

The Litigation Team

The Institute for Justice filed its motion to intervene on behalf of its client parents on January 30, 2014.  Lead attorney for the parents is IJ Senior Attorney Dick Komer, who is assisted by IJ Attorney Renée Flaherty.


Relevant Cases

Numerous cases in North Carolina and across the nation speak to the constitutionality of the Opportunity Scholarship Program:

Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013):
The Indiana Supreme Court upheld the constitutionality of the state’s Choice Scholarship Program, a program very similar to North Carolina’s Opportunity Scholarship Program. The Institute for Justice represented two parents intending to use the program to send their children to private schools.

Sugar Creek Charter School, Inc. v. State, 712 S.E.2d 730 (N.C. Ct. App. 2011):
The North Carolina Court of Appeals affirmed that North Carolina may create schools or educational programs with funding options different from those of traditional public schools.

Delconte v. State, 329 S.E.2d 636 (N.C. 1985):
The North Carolina Supreme Court upheld the right of North Carolina citizens to homeschool their children.

Pierce v. Society of Sisters, 268 U.S. 510 (1925):
The U.S. Supreme Court upheld the federal constitutional right of parents to send their children to private schools.


For more information, contact:


John E. Kramer
Vice President for Communications
Institute for Justice
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Arlington, VA 22203-1854
Phone: (703) 682-9320 ext. 205


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