RALEIGH, N.C. — A North Carolina appeals court decided Friday that students who were approved for publicly-funded scholarships to attend private schools this fall can receive the money even though a trial court judge had earlier struck down the program as unconstitutional.
Superior Court Judge Robert Hobgood last month called a halt to disbursement of the public money when he ruled the Opportunity Scholarships program approved by the General Assembly in 2013 was unconstitutional.
Nearly 1,900 students in low-income families qualified for and accepted program grants of up to $4,200 for private schools, but none of the money had been given out at the time of Hobgood's ruling. Some parents seeking to uphold the new law filed motions to have the funds unfrozen pending the appeal on the heart of the case.
In a short order signed by the court's clerk, North Carolina's intermediate appeals court stayed the portion of Hobgood's order blocking the disbursement of funds to the applicants who accepted scholarships as of Aug. 21. The portion of the order that otherwise halts the program permanently pending the appeal remains in effect, the appeals court said.
Darrell Allison, president of Parents for Educational Freedom in North Carolina, said the disbursement would relieve parents who worried their children could be forced to return to the public schools after moving to private schools. Hundreds of the approved students had already been certified as being enrolled in their new schools.
"I'm glad that parents and the children that made the switch are not going to suffer for it," said Rep. Paul Stam, R-Wake, a longtime advocate for taxpayer-funded private school scholarships. Senate leader Phil Berger, R-Rockingham, also praised Friday's decision.
The order can be appealed to the state Supreme Court, but it wasn't immediately clear whether the plaintiffs — including teachers, parents and school board groups — would do that. The Supreme Court in May removed an earlier order from Hobgood freezing the new program temporarily while issues raised in two lawsuits could be fully considered at this summer's trial.
Bob Orr, a former Supreme Court justice representing the North Carolina School Boards Association and others who sued the state, called Friday's order a "half a loaf" for each side. But he said by re-opening program coffers, it raises questions about how the state would recoup the funds should the appeals courts ultimately void the program.
"Once the money goes out, it's hard to get it back," said Burton Craige, an attorney representing another set of plaintiffs, backed by the North Carolina Association of Educators and N.C. Justice Center. "And this creates new and additional uncertainty for parents, students and schools."
The General Assembly set aside $10 million last year to give scholarships for up to 2,400 students who would be newcomers to private schools. The children had to qualify for the federal free or reduced-price school lunch program. More than 300 private schools were expected to collect vouchers for the grants.
Hobgood found the program was unconstitutional because it sent money to schools that can discriminate by religion. He also said it disrupted North Carolina's uniform public education system and gave public dollars to private schools unaccountable for educational achievement. Program proponents say it gives poor students in routinely low-performing public schools a better chance to succeed.
Those arguments will be briefed for the appeals courts regardless of the outcome of the immediate scholarship order issue.