- Associated Press - Friday, April 11, 2014

RALEIGH, N.C. (AP) - Republican legislative leaders plan to ask the North Carolina Supreme Court to allow a new program using taxpayer money for tuition at K-12 private or religious schools to begin this fall while litigation challenging it works its way through court.

Senate leader Phil Berger and House Speaker Thom Tillis announced Friday that they intended to file paperwork with the state’s highest court asking for a stay on a preliminary injunction issued by a Superior Court judge in February. The word comes one day after two parents who support what the law calls “opportunity scholarships” sought a similar stay.

The judge found the program should be stopped while the courts hear two lawsuits filed by citizens and associations representing teachers and local school boards who say the program is unconstitutional.

In issuing the injunction, Superior Court Judge Robert Hobgood cited the state constitution’s requirement that taxpayer funding for primary and secondary schools should be used exclusively for running “a uniform system of free public schools.”

The preliminary injunction, which is being appealed, was issued days before a lottery would determine which students got to share in $10 million. The grants are supposed to provide up to $4,200 each annually for as many as 2,400 students in low-income families who are currently attending public schools.

Tills and Berger also announced that they were considering using powers under a new law enacted last year that would allow them to defend the private grant program in court without relying on Attorney General Roy Cooper, a Democrat. Cooper’s chief deputy wrote Berger and Tillis late last month telling them they had decided not to appeal the preliminary injunction and instead would focus on the actual lawsuits.

The legislative leaders are worried any decision similar to what Hobgood cited could prevent the use of more than $400 million in state funds annually for education-related programs such as pre-kindergarten, Smart Start and grants for students attending private colleges.

“As if it isn’t bad enough that a single trial court’s ruling could trap underprivileged children in schools that don’t fit their needs for another school year, it could also potentially wipe out programs to help students all across North Carolina,” the legislative leaders said in a news release.

Grayson Kelley, the chief deputy attorney general, wrote March 31 that the scholarship program required a great deal of administrative preparations by the State Educational Assistance Authority, which would distribute the awards. The administrative costs would be wasted if courts ultimately deem the scholarships unconstitutional, Kelley said.

The law allowing legislators to defend the program without involvement from the attorney general stems from Republican legislative leaders’ fears that Cooper, who has criticized some state laws in the past, won’t defend Republican initiatives fervently. Cooper has said he is able to put his personal views aside in order to perform his professional duties.

In response to Friday’s statement, Cooper spokeswoman Noelle Talley said the Attorney General’s Office “is continuing to defend the state in this litigation.”

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