Institute for Justice · August 20, 2020

Today, three North Carolina families whose children benefit from the Opportunity Scholarship Program (OSP) announced their intervention with the Institute for Justice (IJ) to defend the OSP against a lawsuit challenging its constitutionality. The lawsuit, supported by several prominent North Carolina teachers’ unions, challenges a program that provides scholarships of up to $4,200 to low-income families to empower them to send their children to the private school of their choice. By moving to formally intervene in the lawsuit, the parents seek to ensure that the voice of the thousands of low-income families that rely on the scholarship are heard as the lawsuit proceeds through the courts.

“The North Carolina Supreme Court ruled five years ago that the OSP is constitutional and serves a valid public purpose, namely the education of North Carolina’s children,” IJ Senior Attorney Tim Keller said. “Parents, not government, should be able to choose the school that will best meet their children’s educational needs.”

Defending the program are parents Janet Nunn, Christopher and Nichole Peedin, and Katrina Powers. They are using the OSP to send their children to St. Mary Catholic School in Goldsboro, Brookstone Schools in Charlotte, and the nonreligious The School of Hope in Fayetteville. The lawsuit against the OSP threatens all of their children’s education plans, no matter what kind of school they attend.

Janet Nunn, a parent-intervenor in the lawsuit, uses the OSP for her granddaughter, Nariah. Nariah was born two months prematurely, spending more time in the hospital than most children. By the end of the first grade in her local public school, Nariah was behind academically.

Janet thought Nariah should repeat the first grade rather than fall behind even more, but Nariah’s assigned public school wanted to socially promote Nariah despite her clear lack of readiness. Disillusioned with the public school’s apparent disinterest in Nariah’s academic development, Janet applied for an OSP, which she used to enroll Nariah at Victory Christian School. Nariah thrived there,  quickly  mastering the fundamentals of reading and developing a new love of learning. Following her academic growth there, Janet decided it was time to find a school for her daughter 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. This would be a huge blow to Nariah’s education.

“The OSP has provided Nariah with an education to excel,” said IJ parent-intervenor Janet Nunn. “Her confidence, her belief, her willingness to learn has increased dramatically. She’s a hard worker and she knows the value of the scholarship and works hard.”

This is not the first time that IJ has sought to vindicate the constitutionality of North Carolina’s OSP. Five years ago, IJ successfully defended the OSP from a lawsuit that was initiated by prominent North Carolina teachers’ unions soon after the program was enacted. Nothing has changed in North Carolina since that 2015 ruling. Nevertheless, the plaintiffs argue that the entire OSP should be struck down because religious schools that enroll OSP students are permitted to provide religious instruction, openly worship, and take consider religious factors into account in admissions.

The plaintiffs’ allegations apparently amount to arguing that because parents may choose religious schools that the entire OSP should be struck down. But this argument has recently been foreclosed by the U.S. Supreme Court. As the Court ruled in the landmark case of Montana Espinoza v. Department of Revenue, striking down a school choice program because families may choose religious options violates the Free Exercise Clause of the First Amendment.

“The U.S. Supreme Court has held time and time again that states can create alternatives to the public-school system. That is all the OSP is—an alternative,” said IJ Attorney Ari Bargil. “If this misguided lawsuit against the program succeeds, thousands of kids who left schools where they did not feel academically challenged or safe, will have to return. This lawsuit is not about the well-being of North Carolinian children.”

Parent-intervenor Katrina Powers’s story exemplifies why school choice is so important. Katrina’s older two daughters are attending public school, and her youngest daughter, Teagyn, is a child with high-functioning autism who struggled in her government-zoned public school. It was emotionally stressful for her there because she did not receive the help she needed, and the school denied an accommodation she needed to learn. But now, thanks to the OSP, Teagyn is thriving academically and emotionally at The School of Hope. If the OSP went away, Katrina would be denied an education she is benefitting from so much.

“The OSP has grown from serving just over 1,200 students in 2014 to 12,284 for the 2019–2020 school year. It is popular because families know what’s best for their children, and families benefitting from the program, like our clients, know this lawsuit was not filed with their kids’ education in mind,” said IJ Attorney Marie Miller.

Since its founding over a quarter-century ago, IJ has successfully defended educational choice programs across the country, including three times at the U.S. Supreme Court. IJ is currently representing families in Tennessee seeking to protect a newly established scholarship program and challenging a discriminatory scholarship program in Maine.