Kelly v. State and North Carolina State Education Assistance Authority

Litigation: A facial challenge to North Carolina’s Opportunity Scholarship Program, which plaintiffs assert is an “as applied” challenge “as implemented.”

Outcomes: Seven plaintiffs filed this lawsuit on July 27, 2020. They allege that this is an “as applied” challenge, meaning that the way the law is implemented, as to their children, is unconstitutional. As a result, a single judge has taken the case and allowed aggressive discovery to occur. However, defendants allege that the case is a facial, not “as applied” challenge. If so, then defendants are entitled, by law, to a hearing by a three-judge panel appointed by the North Carolina Supreme Court. On October 20, 2020, defendants filed a motion to transfer the case to a three-judge panel.  On January 6, 2021, Legislative defendant-intervenors also filed a motion to transfer. On May 7, 2021, the Superior Court denied defendants’ intervenor-defendants’ motions for transfer of the case to a three-judge panel. On May 19, 21 and 28, 2021, defendants and defendant-intervenors filed a notice of appeal to the North Carolina Court of Appeals. On June 21, 2021, plaintiffs moved for leave to amend their original complaint. On July 25, 2021, the court declined to rule on plaintiffs leave to amend. On August 6, 2021, parent intervenor defendants moved to stay discovery until after the court of appeals rules on the motions to transfer the case to a three-judge panel. On September 24, 2021, the Superior Court denied the motion for stay of discovery. On October 12, 2021, the Superior Court granted plaintiffs’ motion to compel discovery. On March 16, 2022, legislative intervenors filed a motion to stay discovery, alleging excessively burdensome discovery activity. On March 18, 2022, parent intervenors filed a similar motion to stay discovery pending the outcome of appeal regarding transferring the case to a three-judge panel. On March 24, 2022, the Court of Appeals granted parent intervenors motion to stay discovery. This case has been a case dealing in legal motions only for almost two years.

Why it Matters: If at first you don’t succeed, try, try again. In July of 2015, the North Carolina Supreme Court ruled that vouchers are constitutional in that state. Lead plaintiff Tamika Walker Kelly, head of the N.C. Association of Educators, the state affiliate of the National Education Association teacher’s union, is not willing to accept that ruling. Much like the second case against vouchers in Milwaukee, Jackson v. Benson in 2002, this is yet another attempt to undermine a prior ruling of a state supreme court upholding the constitutionality of vouchers. This is a serious activity challenging judicial integrity.

Effects: Private schools have been harassed, unreasonably, by aggressive discovery methods in a case that has speculative legal merit. Although this casts a pall on justice in North Carolina, parents have not been dissuaded to enroll their children in the Opportunity Scholarship voucher program. Parents have a greater respect for rulings of the North Carolina Supreme Court.