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  • Carolina Journal Staff

Private schools drop appeal in Opportunity Scholarships case


Sixteen private schools in Cumberland and Durham counties have withdrawn their appeal of trial court rulings in a now-dismissed lawsuit that targeted North Carolina’s Opportunity Scholarship Program. Among the challenged rulings was one that blocked the schools from seeking more than $25,000 in sanctions against scholarship critics.


In a court document filed Monday, lawyers for the 16 schools indicated that the parties had reached a “settlement agreement.” The document did not include details about the settlement.


A notice of appeal filed in December in Wake County Superior Court listed appeals of five separate rulings from five different Superior Court judges from July 2021 through November 2023.


The most recent order, issued Nov. 3 by Senior Resident Superior Court Judge Paul Ridgeway, denied the schools’ motion to have their claims transferred to a three-judge panel. Among the items the schools wanted the panel to address were sanctions related to Opportunity Scholarship critics’ actions during the discovery phase of the legal case.

Tamika Walker Kelly, president of the NC Association of Educators, served as lead plaintiff in the suit that challenged the scholarship program. Kelly and her fellow plaintiffs voluntarily dismissed the two-year-old suit on April 19.


Two weeks later, on May 1, lawyers for the private schools filed multiple motions in the case. None of the schools had been a party to the case. Yet plaintiffs had targeted the schools with subpoenas involving extensive requests for written information and interviews. Those requests were tied to the legal process called discovery.


One of the schools’ May 1 motions requested sanctions to cover costs of dealing with Opportunity Scholarship opponents’ requests.


When Kelly and other plaintiffs dropped their suit in April, their lawyers indicated that “all parties agree that each side will bear their own costs.” That statement didn’t cover the targeted private schools, who are considered “movants” in the case.


On Aug. 3, 2021, Opportunity Scholarship opponents targeted the Durham private schools with subpoenas covering the following documents for the 2019-20 and 2020-21 school years: “all school handbooks, student handbooks, and parent handbooks; all applications or other forms required to be completed or signed by prospective or returning students, their families, or their pastors; all forms required to be completed or signed by students upon their enrollment, or in order to continue their enrollment; all documents stating the school’s admission criteria, policies, or standards; all documents stating or describing the school’s disciplinary criteria, policies, or standards; all criteria, policies, standards, or rules governing student conduct; and all documents stating or describing the school’s official religious beliefs, including any statement of faith.”


The subpoenas called for all documents to be turned over by Sept. 2, 2021, with “depositions of school administrators with knowledge of the above materials to take place later that month.”


Courts refused to block this discovery process while the case was appealed. The six schools ran up legal and court costs topping $11,000 between October 2021 and November 2021.

On Nov. 11, 2021, the Opportunity Scholarship foes filed similar document requests with 10 Cumberland County private schools. Subpoenas called for depositions involving staff at three of the private schools in January 2022.


Once again, courts refused to block the discovery requests. The Cumberland schools accumulated bills of nearly $14,000 between November 2021 and January 2022.

In October 2022, the N.C. Court of Appeals issued a ruling overturning a Wake County trial judge’s decision about the case’s proceedings. Appellate judges ruled that the lawsuit amounted to a “facial” constitutional challenge of the Opportunity Scholarship Program. Such a challenge required a transfer of the case to a three-judge trial court panel.


The plaintiffs dropped their case six months later. “The Dismissal made no provision to pay any of Movants’ legal fees and costs,” according to the schools’ May 1 motion.


The schools cited Rule 45(c) of the N.C. Rules of Civil Procedure. “A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing an undue burden or expense on a person subject to the subpoena. The court shall enforce this subdivision and impose upon the party or attorney in violation of thisrequirement an appropriate sanction that may include compensating the personunduly burdened for lost earnings and for reasonable attorney’s fees.”


Opportunity Scholarship opponents did not need to target the private schools while pursuing the lawsuit, according to the motion.


“None of the Plaintiffs attended or sought to attend any of the Movant nonparty schools,” the motion explained. “This information sought is now and was then irrelevant to a facial challenge of the Opportunity Scholarship Program.”


The motion noted that the Opportunity Scholarship opponents pursued the targeted private schools despite an ongoing appeal. “By moving to compel enforcement of the subpoenas during the Appeal, [it] resulted in the nonparty school Movants responding to discovery that was unnecessary and irrelevant to Plaintiffs’ actual case. … Plaintiffs should not have imposed this undue burden on the Movants because there was no benefit to the Plaintiffs which could outweigh the burden imposed on the Movants,” the motion continued.


“Because Plaintiffs and their attorneys failed to take reasonable steps to avoid imposing this undue burden or expense on the Movants, Rule 45(c)(1) requires this Court to ‘impose upon the party or attorney in violation of this requirement an appropriate sanction that may include compensating the person unduly burdened for lost earnings and for reasonable attorney’s fees.’”


Attorney Paul “Skip” Stam signed the motion for sanctions. Stam is a board member of the John Locke Foundation, which oversees Carolina Journal.


More than 32,000 students use Opportunity Scholarships to attend private schools. The program took in almost 72,000 new applications for scholarships between Feb. 1 and March 1. Legislation approved last year dropped the program’s income requirements. Now any family in North Carolina with a school-age child can apply for a scholarship.


The Opportunity Scholarship Program survived an earlier state constitutional challenge. The state Supreme Court ruled, 4-3, in 2015 that the program could proceed.

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