By Dick Komer
IJ has spent the last year and a half doing battle in North Carolina, defending the state’s school choice program from two different lawsuits. But on July 23, it was worth the blood, sweat and tears when the North Carolina Supreme Court ruled the state’s Opportunity Scholarship Program is constitutional, reversing a lower court decision. The program, enacted in 2013, provides scholarships of up to $4,200 to low-income families to use for a private school of their choice. IJ intervened on behalf of North Carolina parents to help the state defend its program.
These two cases show the importance of IJ’s work representing parents who want to use scholarship programs for their children. After the trial judge declared the program unconstitutional, it was IJ, not the state of North Carolina, that got the state Supreme Court to allow the program to award scholarships for the 2014–2015 school year. And it was IJ that successfully asked the North Carolina Court of Appeals to allow over 1,200 students to use scholarships during the first year of the program. And finally, it was IJ that succeeded in getting the North Carolina Supreme Court to grant expedited review so the program would not be delayed.
IJ’s final Hail Mary pass to the North Carolina Supreme Court came this July, five months after the Court held oral argument (during an unusual Southern snowstorm!). Time was running short for implementation of the second year of the program, and we did not want the program’s success to be compromised again. So we asked the court to make an exception to its procedures and issue a decision early. And once again the court caught IJ’s pass, upholding the program’s constitutionality a month early. As a result, hundreds, if not thousands, more families were able to take advantage of the scholarships in August.
This litigation was co-counsel Renée Flaherty’s introduction to the challenges of public interest litigation, where judges can adopt choice opponents’ meritless theories to deny deserving families essential educational opportunities. As always, IJ set the terms of the debate and maintained the pace of litigation with our repeated successful appeals, never giving opposing counsel a moment’s rest.
In addition to the importance of representing parents, the North Carolina victory also vindicates IJ’s willingness to delve into each state’s unique constitutional history. In rejecting the other side’s arguments, the North Carolina Supreme Court agreed with us that the state constitution allows North Carolina to provide scholarships to families for private schools. IJ’s experience in ferreting out the historical basis for particular constitutional language proved especially helpful in persuading the Supreme Court to allow the North Carolina Legislature to empower parents to choose their children’s schools.
Each new school choice victory builds on the foundation laid by our earlier victories, and North Carolina now joins the growing list of states with statewide school choice programs. The momentum for school choice continues to build, and sustaining the constitutionality of North Carolina’s new program ensures that more states will consider, and enact, programs to enhance parents’ ability to choose the best available education for their children.
Dick Komer is an IJ senior attorney.