PEFNC Submits Amicus Brief Supporting Funding Structure for Opportunity Scholarship Program

Filing asks the Court to dismiss Governor Cooper’s claim that requiring forward-funding for the Program in the state’s base budget is unconstitutional

Raleigh (February 8, 2018) – Last week, Parents for Educational Freedom in North Carolina (PEFNC) submitted an amicus curiae brief in litigation between Governor Roy Cooper and the North Carolina General Assembly. The brief, officially submitted on January 31, was filed in support of the statutory requirement that Opportunity Scholarship forward-funding is included in the state’s base budget. PEFNC President Darrell Allison also filed an affidavit in the case, available here.

“Enough is enough,” said Darrell Allison. “The Governor’s efforts to pull the Opportunity Scholarship Program into yet another lawsuit is very disappointing and disheartening. Forward-funding of the Opportunity Scholarship Program is crucial to its success,” said Allison. “Our filing shows the Court not only why this law is constitutional, but how history has shown that—but for having this budgeting procedure in place—the desperate hopes and dreams of these families will be dashed.”

Governor Cooper has challenged the law requiring that forward-funding for the Opportunity Scholarship Program be included in the state’s base budget, arguing this requirement unconstitutionally infringes upon his executive authority to recommend his own budget.

“I’m afraid the Governor is choosing politics over parents. His opposition to parental school choice has been reported on—or directly quoted in—more than 162 news stories, viewed and heard over 8 million times by readers and listeners. He campaigned aggressively against the Program and has continued his relentless assault since assuming office,” Allison said. “In fact, within his inaugural budget recommendations to the North Carolina General Assembly, Governor Cooper cut all future funding for the Opportunity Scholarship Program, which would have essentially killed it by preventing new families the opportunity to apply. Despite the practical and necessary reasons for forward-funding legislation, it appears the Governor seeks to, with his amended filing, cloak his well-established intention to dismantle the Opportunity Scholarship Program under the guise of a constitutional argument,” Allison added.

“We hope that the Court dismisses the Governor’s lawsuit,” Allison said. “The General Assembly passed a funding mechanism for the Opportunity Scholarship Program that attempts to provide stability and certainty to participating parents and schools. The intent was not to constrain the Governor’s ability to develop his recommended budget, and it doesn’t; instead, the funding mechanism was intended to establish a baseline process by which low-income families across this state can gain access to a program designed specifically for their children. Further, forward-funding by statutory appropriation is a model already used in higher education in North Carolina to provide stability for state-funded financial aid programs. Rather than filing another lawsuit, the Governor should put the needs of underprivileged children and parents above politics and personal preference. Though such preferences and policy may be appropriate for political discussion, they are not appropriate to guide the judicial action in this case.”

Established by state lawmakers in 2013, the Opportunity Scholarship Program provides low-income children with private school scholarships of up to $4,200. More than 6,775 students currently use Opportunity Scholarships to attend over 400 nonpublic schools across North Carolina. In 2015, the North Carolina Supreme Court upheld the program’s constitutionality. In 2016, to meet anticipated demand, lawmakers voted to increase program funding by $10 million annually through the 2028-29 school year. In 2017, the General Assembly enacted the provision requiring that forward-funding for the program is included in the state’s base budget.

The amicus brief, affidavit, and motion for leave to file can be accessed as one document here.


PEFNC is a statewide organization that supports greater educational options through parental school choice, such as public charter schools and the Opportunity Scholarship Program. Our mission is to inform parents of the benefits of expanded options and empower them to exercise freedom in meeting their children’s needs, regardless of race, national origin, income or religion.