Attorney General Stein files motion to dismiss NCAE lawsuit against scholarship program

If granted, this will be the second failed legal attempt against the scholarship program by the NCAE

NCAE protests for more funding at the N.C. legislative building. Photo via A.P. Dillon, North State Journal

RALEIGH — A motion to dismiss has been filed in the lawsuit filed by the N.C. Association of Educators involving the that’s Opportunity Scholarship Program.

Attorney General Josh Stein filed a motion to dismiss the case Tuesday morning in Wake Superior Court. Stein filed the motion on behalf of the state and the N.C. Education Assistance Authority, which are the defendants in the suit.

The OSP funds students up to $4,200 a year for tuition at participating private schools chosen by the applicant’s family. The OSP is currently only for low-income families meeting certain income thresholds and other eligibility criteria.

Reasons for dismissal given in the motion include the N.C. Association of Educators lacking the standing to bring the lawsuit and it failing to state claims upon which relief can be granted.

One of the reasons for the dismissal motion speaks to the prior failed lawsuit brought by the NCAE in 2015 involving the Opportunity Scholarship Program. Stein’s motion to dismiss says that that NCAE’s claims are “barred by the doctrine of res judicata,” a legal measure that blocks a party from relitigating a claim where a court has previously issued a final order or judgment.

In that 2015 lawsuit, the N.C. Supreme Court ruled that the NCAE had failed to prove the program was unconstitutional. The current lawsuit, filed in 2020, uses a similar challenge and seeks to have the program as it currently operates deemed unconstitutional under the state constitution.

The motion to dismiss also mentions “collateral estoppel,” a very similar measure whereby a party is stopped from relitigating once a court has ruled.

The OSP has been an increasingly popular program — 12,284 kids took advantage of the program during the 2019–20 school year. Demand for the OSP prepandemic was already high, with 800-900 children wait-listed on an annual basis.

There were 16,656 new applicants heading into the 2020-21 school year, out of which 12,832 were eligible and offered a scholarship. More than 66%, 8,505, of those offered a scholarship accepted the funds. Altogether, there were 15,970 new and renewal recipients of OSP funds for 2020-21.

About A.P. Dillon 509 Articles
A.P. Dillon is a North State Journal reporter located near Raleigh, North Carolina. Find her on Twitter: @APDillon_