Andrew Wimer
Andrew Wimer · October 18, 2022

ARLINGTON, Va.—Today’s ruling from the North Carolina Court of Appeals gives parents defending the state’s Opportunity Scholarship Program (OSP) a critical legal victory. In a 2-1 decision, the court found that a lawsuit filed against the program represented a broad constitutional challenge and should be heard by a three-judge panel. The ruling grants the request of parents represented by the Institute for Justice (IJ) who intervened to defend the program.

Today’s decision is an important step toward safeguarding the OSP from yet another legal challenge that seeks to undermine the right of parents to control the education of their children,” said IJ Attorney Marie Miller. “The Court of Appeals saw this challenge for what it was—a frontal attack on the legitimacy of the OSP that could only be resolved by a three-judge panel.”

The lawsuit filed against the OSP in 2020 and supported by several 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 theirchoice. By moving to intervene in the lawsuit, the parents sought 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.

For years IJ has sought to vindicate the constitutionality of North Carolina’s OSP. Seven 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 religious factors into account in admissions.

“This is not the first time opponents of school choice have challenged the OSP,” said IJ Attorney Joe Gay. “Today’s ruling from the Court acknowledges that this challenge is not much different from the last one, and IJ will continue fighting on behalf of parents to secure victory once again.”

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 been foreclosed by the U.S. Supreme Court twice in recent years. First, the Court ruled in Espinoza v. Montana Department of Revenue that striking down a school choice program because families may choose religious options violates the Free Exercise Clause of the First Amendment. Then, earlier this year, the Supreme Court ruled in Carson v. Makin that states may not exclude religious options from educational choice programs.