The Opportunity Scholarship Program (OSP) is North Carolina’s most popular school choice option, providing scholarships of up to $4,200 per student for low-income families in North Carolina. Passed by the North Carolina Legislature in 2013, the OSP today provides scholarships to over 12,000 K-12 students in North Carolina who use the program to attend 451 participating schools—and it has been wildly popular: in a recent survey of OSP parents, 97% of families were satisfied or very satisfied with their private school of choice, and 99% said their child feels safe as well as welcome there. The OSP has grown every year since its inception, and it has empowered thousands of families to provide educational opportunities for their children that would have otherwise been financially unattainable. But despite these accomplishments, the OSP is now in the crosshairs of a constitutional challenge—and not for the first time.
Almost immediately after the OSP’s passage in 2013, a similar coalition led by North Carolina’s largest teachers’ union filed two nearly identical legal challenges seeking to have the OSP struck down as unconstitutional. In those cases, Hart v. State and Richardson v. State, the Institute for Justice teamed with parents to defend the OSP. Those cases were ultimately heard together by the North Carolina Supreme Court in 2015. The Court upheld the OSP on the grounds that the North Carolina Constitution “specifically envision[ed] that children in our state may be educated by means outside of the public-school system.” To anyone who read the ruling at the time, it was clear that the North Carolina Supreme Court’s decision resolved the question of the OSP’s constitutionality once and for all.
But in late July 2020, a new coalition of plaintiffs, several of whom are public school teachers, filed a new legal challenge to this previously upheld program. And just as before, the new case seeks to have the OSP struck down as unconstitutional under the North Carolina Constitution. The new lawsuit alleges many of the same constitutional claims considered—and rejected—by the North Carolina Supreme Court in its 2015 decision.
For nearly a decade, the OSP has broadened educational options for low-income families in North Carolina. And North Carolina’s OSP is not materially different from similar scholarship programs adopted by dozens of other states. In fact, in virtually every state where similar programs have been challenged—including North Carolina—state supreme courts have upheld them as constitutional. But the program has its detractors, and they are persistent. But so is IJ. So, along with a coalition of North Carolina parents, IJ is once again fighting to secure the opportunities the OSP has brought, for North Carolina families now and in the future.
Motion to Intervene
The Plaintiffs’ Challenge to the Opportunity Scholarship Program Under the North Carolina Constitution
Following the 2013 passage of the OSP in the North Carolina, a coalition led by a North Carolina teachers’ union challenged the program on the grounds that it violated the North Carolina Constitution’s requirement that public funds be expended “for public purposes only.” But the North Carolina Supreme Court expressly rejected that argument in its 2015 decision. In its opinion in Hart v. State, the Court held that the OSP does indeed serve a public purpose by providing for the educational needs of low-income students in North Carolina.
Nothing has changed in North Carolina law since that 2015 ruling. And opponents of the OSP know this. So, to freshen up their challenge, plaintiffs in the new case have raised detailed allegations attacking the participation of religious schools in the OSP. Specifically, they allege that the OSP unlawfully discriminates based on religion because religious schools that enroll OSP students (and that are freely and independently selected by parents) are permitted to provide religious instruction in their curriculum, engage in religious worship and take religious factors into account in admissions.
But the plaintiffs’ allegations appear to amount to the argument that religious schools should not be allowed to participate in the OSP—an argument that has recently been foreclosed by the U.S. Supreme Court. As the Court ruled in the landmark case of Espinoza v. Department of Revenue, such an exclusion would violate the Free Exercise Clause of the First Amendment.
Moreover, the OSP is not limited to religious schools. Parents are free to use the OSP at any private school in North Carolina, religious or secular. And there is nothing about the OSP that forces parents to use it or to send their children to religious schools or schools that teach doctrines or values with which they disagree.
Of course, while the major focus of the plaintiffs’ complaint is the participation of religious schools, they do not limit their challenge to the participation of those schools. They also claim, though almost as an afterthought, that the OSP lacks any meaningful accountability and thus urge that the entire program be struck down as unconstitutional. If that happens, thousands of children will be forced to leave schools—religious and non-religious—that are serving them well and meeting their learning needs.
There is something perverse about eliminating educational options for low-income families when the crux of the plaintiffs’ allegations regarding the religious options available to families is that there are not enough secular options available to parents participating in the program. Surely if a parent feels that the local OSP-participating schools do not suit their child’s needs—either because of religious affiliation, accommodations or for any other reason—that does not mean the entire program is unconstitutional. Rather, it simply means that there is room for more educational options in North Carolina. The OSP cannot guarantee that every parent will be able to find a private school that perfectly suits their child any more than any system of public schools could guarantee such an outcome. But the OSP gets us closer to a system that recognizes there is no one-size-fits-all approach to education by encouraging schools to serve parents and by empowering parents to make the educational placement decisions for their own children.
Indeed, for any parent lamenting the lack of an ideal educational fit for their child, the goal should be to increase the number of available educational options, not to eliminate programs that do so. The mere fact that the OSP meets the needs of some, but not all, is not a valid basis to strike down the program for the thousands of families who already rely on it. It is absurd for the plaintiffs to complain that there are not enough choices outside of the public school system, but then seek to eliminate every choice. Their real objection to the OSP is not that participating schools do not suit their child’s needs, but rather that the OSP exists at all.
IJ’s Parent Clients
IJ is representing four plaintiffs from North Carolina: Janet Nunn, Christopher and Nichole Peedin and Katrina Powers. Though their reasons for using the OSP differ, they all share a common story: the OSP made an educational choice that is right for their child possible – and such a choice would not have been possible otherwise. Here are their stories.
Janet Nunn is the legal guardian for her granddaughter, Nariah, and has legal authority to make educational decisions for her. Nariah, born two months premature, spent a month in the hospital before coming home with Janet. At the end of the first grade, with Nariah behind in school, Janet believed that Nariah should repeat the first grade to prevent falling behind more. The school rejected this option, leading Janet to apply for a scholarship from the OSP and to enroll Nariah at Victory Christian School in Charlotte. There, Nariah repeated the first grade and mastered the fundamentals of reading.
After Nariah became such a good student at Victory Christian, Janet decided it was time to find a school for her granddaughter with a rigorous, classical approach to education. Nariah is now thriving at Brookstone Schools in Charlotte, and would not be able to continue attending without the OSP. It would be a huge negative blow to Nariah’s education if her OSP educational choice was lost.
Christopher and Nichole Peedin
Christopher and Nichole are a married couple with two children, Corbyn and Gracie. The Peedins participate in the OSP and receive $3,780 annually to help them send their son Corbyn, who is entering the second grade, to St. Mary Catholic School in Goldsboro. The Peedins, who are not Catholic themselves, have loved their experience at St. Mary and consider the school’s staff and community to be family. They treasure the education their son has received there and intend to send Gracie there as well through the OSP. With the OSP gone, it would be almost impossible for them to cover the cost of tuition for both Corbyn and Gracie.
Katrina Powers is the mother of four children and is married to an active duty, combat-deployed member of the United States Army Special Forces. Katrina’s oldest daughter is a rising junior at a public high school who is very happy there and excels academically. Katrina’s next oldest daughter plans to complete her next year of middle school at a public charter school, and her youngest, a son, will be starting kindergarten soon.
Katrina’s youngest daughter, Teagyn, is a high functioning child with autism. Thanks to an OSP scholarship, Teagyn is enrolled at a private, nonreligious school, The School of Hope, where she will be doing the equivalent of third grade work this academic year. Before enrolling at The School of Hope, Teagyn attended public school, and it was not working for her; it was emotionally very stressful for her to go to school there, and she did not receive the help she needed. Frustratingly, while Katrina’s private insurance paid for a trained, licensed therapist to work one-on-one with Teagyn for up to 30 hours each week, the school refused to allow a non-school district employee to fill that role. Now, academically and emotionally, Teagyn is thriving. If the OSP went away, Katrina would be denied the ability to send her daughter to a school that provides her with a high-quality education in a caring environment.
The Institute for Justice and its Longstanding Defense of School Choice and the OSP
IJ intervened on behalf of Cynthia Perry and Gennell Curry when the OSP was first challenged in 2013. The legal battle was like dozens of others fought by IJ across the nation in its nearly 30-year history. And just as IJ successfully defended the OSP at the North Carolina Supreme Court in 2015, it has also been victorious in school choice cases before numerous other state supreme courts and three times at the U.S. Supreme Court. Indeed, in June, IJ secured a monumental win for school choice before the U.S. Supreme Court in Espinoza v. Montana Department of Revenue.1
School choice is important because it creates opportunity for those most in need. The stark reality of the American educational system is that the most affluent in society have access to whatever educational system is best suited to their children’s needs, while families that lack the means are consigned—for better or worse—to their assigned public school. But educational access should be driven by parental choice and individual student needs, not a student’s zip code or socioeconomic status. That is why programs like the OSP are vital; they provide educational options to parents who do not have the financial means to send their children to schools that best suit their needs or values. But because scholarship recipients often seek to leave the public school system in favor of private options, programs like the OSP are opposed by those who believe public education should be the only option for low-income families.
Opponents of school choice deploy a variety of arguments in challenges to school choice programs nationwide. In 2015, the North Carolina Supreme Court rejected one of those arguments, reasoning that “the ultimate beneficiary of [the OSP] is our collective citizenry,” and, as a result, holding that the OSP was unquestionably a legitimate “public purpose” under the state’s constitution.2 But opponents of school choice were undeterred. So, to protect the victory in Hart, and to preserve educational choice for thousands of North Carolina families, IJ is now defending the OSP yet again. And although opponents of the program have regrouped and attacked the program with a new client roster and a new argument regarding the religious schools that enroll scholarship recipients, the outcome should be the same: the OSP is constitutional under North Carolina Constitution.
The Litigation Team
IJ filed its motion to intervene on behalf of its client parents on August 19, 2020. The lead attorneys on the case are IJ Senior Attorney Tim Keller and IJ Attorney Ari Bargil. They are assisted by IJ Attorneys David Hodges and Marie Miller.
Numerous cases in North Carolina and across the U.S. support the constitutionality of the OSP:
- Espinoza v. Montana Dep’t of Revenue, 140 S.Ct. 2246 (2020): The U.S. Supreme Court reversed a decision of the Montana Supreme Court that held that the state could exclude religious institutions from participating in the state’s tax-credit scholarship program. The Court explained that the First Amendment prohibits states from passing school choice programs that exclude religious options.
- 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. IJ 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.
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