CLS (St. Thomas Law Clinic) Brief Defending NC School Choice

The Religious Liberty Appellate Clinic I supervise at St. Thomas has filed amicus briefs in a pair of important school choice cases. The North Carolina Supreme Court is reviewing a trial judge's invalidation of the state "opportunity scholarship" program that helped low-income students attend private K-12 schools if their families choose.  (See the Institute for Justice description of the cases.)  The issues are important not only because the program serves the commendable goal of empowering parents and families, but also because the trial court's ruling of invalidity made a hash of the "state action" doctrine, conflating religious admissions and hiring criteria by private schools with unconstitutional religious discrimination by the state.

The plaintiffs raised several challenges to the statute, including that it allows families to use their scholarship money at religious schools that allegedly discriminate by considering religious affiliation in their employment or admissions policies. The amicus brief focuses on this issue, arguing that to strike down the program on this ground would create severe tensions with the religious freedoms guaranteed by the U.S. and North Carolina constitution: schools’ freedom to maintain their religious identity, and parents’ freedom to choose a school with such an identity.

The St. Thomas news release tells you more about the amici--who include the Christian Legal Society (CLS), evangelical Christian school associations, and Catholic dioceses--and about our clinic.  The previous briefs we have filed are collected here.  3L student Jim Kovacs did an excellent job as the primary drafter of the NC brief.  And thanks to Debbie Dewart, our co-counsel in North Carolina, and Kim Colby of CLS, co-counsel on this and many other of the clinic's briefs.