Private schools targeted in Opportunity Scholarship lawsuit seek sanctions | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    Sixteen private schools targeted for documents and depositions in a recently dismissed lawsuit over Opportunity Scholarships are seeking sanctions against the plaintiffs.

    In a motion filed May 1 in Wake County Superior Court, the schools' attorney asked for sanctions to cover fees and costs of more than $25,000.

    Plaintiffs led by Tamika Walker Kelly of the N.C. Association of Educators filed paperwork on April 19 dropping their three-year-old lawsuit challenging the Opportunity Scholarship Program. In that notice, the plaintiffs' lawyers indicated that "all parties agree that each side will bear their own costs."

    The schools seeking sanctions against Kelly and her fellow plaintiffs and lawyers were not parties to the lawsuit. Six private schools in Durham County and 10 private schools in Cumberland County are non-party "movants" in the context of the May 1 request. They seek money to cover attorneys' fees and costs associated with subpoenas the plaintiffs pursued during the lawsuit's discovery process.

    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 this requirement an appropriate sanction that may include compensating the person unduly 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 notes 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. Stam is a board member of the John Locke Foundation, which oversees Carolina Journal.


    More than 25,000 N.C. students use Opportunity Scholarships this year to attend 544 private schools. The state awarded more than $133 million in scholarships for the 2022-23 academic year, according to data from the N.C. State Education Assistance Authority.

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