Deminski v. State Bd. of Educ.

Opinions

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-58

No. 60A20

Filed 11 June 2021

ASHLEY DEMINSKI, as guardian ad litem on behalf of C.E.D., E.M.D., and K.A.D.

v.

THE STATE BOARD OF EDUCATION and THE PITT COUNTY BOARD OF EDUCATION

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 269 N.C. App. 165, 837 S.E.2d 611 (2020), reversing an order

denying defendant’s motion to dismiss in part entered on 3 July 2018 by Judge Vince

M. Rozier, Jr., in Superior Court, Wake County. On 3 June 2020, the Supreme Court

allowed defendant’s petition for discretionary review of additional issues. Heard in

the Supreme Court on 23 March 2021.

Fox Rothschild LLP, by Troy D. Shelton, Matthew Nis Leerberg, and Ashley Honeycutt Terrazas, for plaintiff-appellant.

Tharrington Smith, LLP, by Deborah R. Stagner, and Poyner Spruill LLP, by Edwin M. Speas, Jr. and Caroline P. Mackie, for defendant-appellee Pitt County Board of Education.

Daniel K. Siegel and Kristi L. Graunke for ACLU of North Carolina Legal Foundation, amicus curiae.

Lisa Grafstein and Virginia Fogg for Disability Rights North Carolina, amicus curiae.

Perry Legal Services, PLLC, by Maria T. Perry, and Lawyers’ Committee for Civil Rights Under Law, by Mark Dorosin and Elizabeth Haddix, for North Carolina Advocates for Justice, amicus curiae.

Opinion of the Court

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Elizabeth L. Troutman and Jill R. Wilson, and North Carolina School Boards Association, by Allison Brown Schafer, for North Carolina School Boards Association, amicus curiae.

NEWBY, Chief Justice.

¶1 In this case we consider whether an individual may bring a claim under the

North Carolina Constitution for a school board’s deliberate indifference to continual

student harassment. As alleged, this indifference denied students their

constitutionally guaranteed right to the opportunity to receive a sound basic

education. Article I, Section 15 of the North Carolina Constitution provides that “[t]he

people have a right to the privilege of education, and it is the duty of the State to

guard and maintain that right.” Where a government entity with control over the

school is deliberately indifferent to ongoing harassment that prevents a student from

accessing his constitutionally guaranteed right to a sound basic education, the

student has a colorable claim under the North Carolina Constitution. Thus,

governmental immunity does not bar the claim. Because plaintiff’s complaint

sufficiently alleges a violation here, we hold that the trial court correctly denied

defendant’s motion to dismiss. As such, we reverse the decision of the Court of

Appeals.

¶2 Because this case involves a motion to dismiss, we take the following

allegations as true from plaintiff’s complaint. Plaintiff is the mother of three minor

children, E.M.D., K.A.D., and C.E.D. (plaintiff-students), who were students at

Lakeforest Elementary School in Pitt County. E.M.D. and K.A.D. are diagnosed with

autism. Over a period of several months during the fall semester of the 2016–2017

school year, C.E.D. was bullied and sexually harassed by other students. Throughout

the school day, Student #1 and Student #2 would grab C.E.D. by the shoulders and

push her spine so that she was in pain and had trouble breathing and swallowing.

Student #3 would stare at C.E.D., interrupt her during tests and other assignments,

and repeatedly talk to her during instructional time. The complaint also alleges the

following:

13. Student #3 sexually harassed C.E.D. repeatedly during the school day:

a. On multiple occasions, Student #3 put his hands in his pants to play with his genitals in C.E.D.’s presence;

b. On multiple occasions, Student #3 informed C.E.D. he “f**** like a gangster”;

c. On multiple occasions, Student #3 informed C.E.D. he “want[s] to f*** [another student] from night to morning”;

d. On multiple occasions, Student #3 informed C.E.D. he has “got something special for you” before putting his hands in his pants to play with his genitals;

e. On multiple occasions, Student #3 would play with his genitals and then attempt to touch C.E.D.;

f. On at least one occasion, on or about 6 October 2016, Student #3 pulled down his pants in the hallway in C.E.D.’s presence to expose his penis and wiggle it to simulate masturbation; and,

g. On at least one occasion, Student #3 pulled down his pants in the classroom in C.E.D.’s presence to expose his penis and show it to her.

....

15. Student #4, perhaps encouraged by Student #3’s lewd conduct going unaddressed, sexually harassed C.E.D. repeatedly:

a. On multiple occasions, Student #4 would tell C.E.D. and other students that he and C.E.D. were dating and intimate;

b. On at least one occasion, Student #4 rolled a piece of paper to approximate a penis and made motions simulating masturbation while in C.E.D.’s presence; and,

c. On at least one occasion, on or about 21 October 2016, Student #4 rolled a piece of paper to approximate a penis, put it in his pants, walked over to C.E.D. and attempted to show C.E.D. how to insert himself into C.E.D.’s vagina. When C.E.D. attempted to get away from Student #4 and move to another seat, Student #4 attempted to reposition himself to attempt to get under where C.E.D. would be sitting.

¶3 Meanwhile, E.M.D. and K.A.D. were also enrolled in classes with student #3.

Both children experienced similar treatment from Student #3, “including sexual

conduct, constant verbal interruptions laced with vulgarity, and physical violence

including knocking students’ items onto the floor, throwing objects, and pulling books

and other items off shelves onto the ground.”

¶4 C.E.D. repeatedly informed her teacher about the incidents with all four

students. C.E.D also informed plaintiff, and plaintiff repeatedly notified the teacher,

assistant principal, and principal of the situation. Defendant, the Pitt County Board

of Education, also knew of the incidents.1 Nonetheless, while school personnel

insisted that there was a “process” that would “take time,” the bullying and

harassment continued with no real change. On one occasion, attempting to resolve

Student #3’s harassment of C.E.D., school personnel adjusted Student #3’s schedule

to give him additional time in E.M.D. and K.A.D.’s classes.

¶5 In October 2016, plaintiff transferred C.E.D., E.M.D., and K.A.D. to a new

school, which was initially designated as a transfer only for the 2016–2017 school

year. The transfer was later modified to be valid for as long as plaintiff and plaintiff-

students resided at their then-current address.

¶6 On 11 December 2017, plaintiff filed a complaint in Superior Court, Wake

County, based on the allegations above. Plaintiff brought a claim under Article I,

1 Plaintiff also named the State Board of Education as a defendant in this action. Both

parties moved to dismiss at the trial court, and that court granted the State Board of Education’s motion in full. Thus, the Pitt County Board of Education is the only defendant to this appeal. “Defendant” in this opinion refers only to the Pitt County Board of Education.

Section 15, and Article IX, Section 2 of the North Carolina Constitution.2 Plaintiff’s

complaint alleges:

31. Article I, Section 15 and Article IX, Section 2 of the North Carolina State Constitution jointly guarantee each child the right to a “sound basic education.” . . . .

32. The [plaintiff-students] were each denied their rights to a sound basic education as a result of being in a hostile academic environment where they were subjected to verbal and physical harassment, and in C.E.D.’s case to physical abuse and prolonged sexual harassment.

33. Defendants had substantial control over the harassing conduct.

34. The harassing conduct was severe and discriminatory.

35. Defendants had actual knowledge of the harassing conduct.

36. Defendants exhibited deliberate indifference to the harassing conduct.

37. The [plaintiff-students] were each damaged as a result of the Defendants’ violations . . . .

Plaintiff seeks compensatory and punitive damages, a permanent injunction

preventing defendant from assigning or requiring plaintiff-students to attend

Lakeforest Elementary, attorneys’ fees, and any additional relief that the trial court

deems proper and just.

2 Plaintiff also brought a claim for defendant’s alleged violation of the North Carolina

School Violence Prevention Act (SVPA). The trial court granted defendant’s motion to dismiss that claim. Plaintiff did not appeal that portion of the trial court order.

¶7 Defendant moved to dismiss, arguing in part that the constitutional claim is

barred by the defense of sovereign or governmental immunity. The trial court denied

defendant’s motion in part, allowing the claim under the North Carolina Constitution

to proceed. Defendant appealed.

¶8 A divided panel of the Court of Appeals reversed the trial court’s order denying

defendant’s motion to dismiss. Deminski v. State Bd. of Educ., 269 N.C. App. 165,

166, 837 S.E.2d 611, 612 (2020). The Court of Appeals first determined that

defendant’s appeal from the trial court’s denial of the motion to dismiss, though

interlocutory, was immediately appealable. Id. at 169, 837 S.E.2d at 614. In doing so,

the Court of Appeals reasoned that the trial court’s denial affected defendant’s

substantial right to the defense of governmental immunity, should it apply here. Id.

¶9 The Court of Appeals next recognized that an individual may bring a direct

claim under the North Carolina Constitution where her rights have been abridged

but she is without an adequate state law remedy. Id. at 170, 837 S.E.2d at 615 (citing

Corum v. Univ. of N.C., 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992)). The Court of

Appeals also recognized that the right to education as provided in the North Carolina

Constitution includes the right to a sound basic education. Id. at 171–72, 837 S.E.2d

at 615–16 (citing Leandro v. State, 346 N.C. 336, 345, 488 S.E.2d 249, 254 (1997)).

The Court of Appeals then compared the present case to Doe v. Charlotte-

Mecklenburg Board of Education, 222 N.C. App. 359, 731 S.E.2d 245 (2012)

(concluding that the plaintiff’s complaint alleging constitutional violations under,

inter alia, Article I, Section 15 was insufficient to state a colorable constitutional

claim). Though Doe involved claims of negligence arising from a teacher’s sexual

relationship with a high school student, the Court of Appeals concluded that, similar

to its understanding of Doe, “abuse . . . or an abusive classroom environment” does

not violate a constitutional right to education. Deminski, 269 N.C. App. at 174, 837

S.E.2d at 617. In the Court of Appeals’ view, the constitutional guarantee extends no

further than an entity affording a sound basic education by making educational

opportunities available. Id. at 173, 837 S.E.2d at 616.

¶ 10 The dissenting opinion, however, would have concluded that plaintiff’s

complaint sufficiently alleged that defendant failed to provide plaintiff-students with

the constitutionally guaranteed opportunity to receive a sound basic education. Id. at

176, 837 S.E.2d at 618 (Zachary, J., dissenting). The dissent opined that unlike in

Doe, plaintiff’s complaint here alleged a colorable constitutional claim based on the

school’s deliberate indifference to the hostile classroom environment. Id. at 177, 837

S.E.2d at 619. Thus, the dissenting opinion would have affirmed the trial court’s

order. Id. at 178, 837 S.E.2d at 619.

¶ 11 Plaintiff appealed to this Court based on the dissenting opinion at the Court of

Appeals.3 Plaintiff argues that defendant’s failure to intervene here denied plaintiff-

students their constitutional right to the opportunity to receive a sound basic

education. Thus, plaintiff contends that the complaint presented sufficient

allegations of a colorable constitutional claim to survive defendant’s motion to

dismiss. We agree. The right to the “privilege of education” and the State’s duty to

“guard and maintain” that right extend to circumstances where a school board’s

deliberate indifference to ongoing harassment prevents children from receiving an

education. N.C. Const. art. I, § 15.

¶ 12 This Court reviews de novo a trial court’s order on a motion to dismiss. Bridges

v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013). When reviewing a motion

to dismiss, an appellate court considers “whether the allegations of the complaint, if

treated as true, are sufficient to state a claim upon which relief can be granted under

some legal theory.” Coley v. State, 360 N.C. 493, 494–95, 631 S.E.2d 121, 123 (2006)

(quoting Thompson v. Waters, 351 N.C. 462, 463, 526 S.E.2d 650, 650 (2000)).

¶ 13 Article I, Section 15 provides that “[t]he people have a right to the privilege of

education, and it is the duty of the State to guard and maintain that right.” N.C.

3 Additionally, plaintiff petitioned this Court to review whether the Court of Appeals

properly determined that defendant had an immediate right to appeal the trial court’s interlocutory order based on the alleged substantial right of governmental immunity. This Court allowed plaintiff’s petition. We now conclude that discretionary review was improvidently allowed.

Const. art. I, § 15. This provision, added to the North Carolina Constitution in 1868,

“was intended to mark a new and more positive role for state government. Not a

restriction on what the state may do, it requires a commitment to social betterment”

through educational opportunities. John V. Orth & Paul Martin Newby, The North

Carolina State Constitution 62 (2d ed. 2013).

¶ 14 Additionally, Article IX, Section 2 implements the right to education as

provided in Article I. Specifically, Article IX, Section 2 states that “[t]he General

Assembly shall provide by taxation and otherwise for a general and uniform system

of free public schools . . . wherein equal opportunities shall be provided for all

students.” Notably, these two provisions work in tandem: “Article I, Section 15 and

Article IX, Section 2 of the North Carolina Constitution combine to guarantee every

child of this state an opportunity to receive a sound basic education in our public

schools.” Leandro, 346 N.C. at 347, 488 S.E.2d at 255. “An education that does not

serve the purpose of preparing students to participate and compete in the society in

which they live and work is devoid of substance and is constitutionally inadequate.”

Id. at 345, 488 S.E.2d at 254; see also Sneed v. Greensboro City Bd. of Educ., 299 N.C.

609, 618, 264 S.E.2d 106, 113 (1980) (“[E]qual access to participation in our public

school system is a fundamental right, guaranteed by our state constitution and

protected by considerations of procedural due process.”).

¶ 15 Further, Article I, Section 15 places an affirmative duty on the government “to

guard and maintain that right.” N.C. Const. art. I, § 15. Taken together, Article I,

Section 15 and Article IX, Section 2 require the government to provide an opportunity

to learn that is free from continual intimidation and harassment which prevent a

student from learning. In other words, the government must provide a safe

environment where learning can take place.

¶ 16 The issue here requires us to determine whether plaintiff’s complaint

sufficiently alleges a claim for relief under Article I, Section 15 and Article IX, Section

2. First, to allege a cause of action under the North Carolina Constitution, a state

actor must have violated an individual’s constitutional rights. See Corum, 330 N.C.

at 782–83, 413 S.E.2d at 289–90 (“The civil rights guaranteed by the Declaration of

Rights in Article I of our Constitution are individual and personal rights entitled to

protection against state action . . . . The fundamental purpose for its adoption was to

provide citizens with protection from the State’s encroachment upon these rights.

Encroachment by the State is, of course, accomplished by the acts of individuals who

are clothed with the authority of the State.”); id. at 783–84, 413 S.E.2d at 290 (“This

Court has recognized a direct action under the State Constitution against state

officials for violation of rights guaranteed by the Declaration of Rights. . . . The

authorities in North Carolina are consistent with the decisions of the United States

Supreme Court . . . to the effect that officials and employees of the State acting in

their official capacity are subject to direct causes of action by plaintiffs whose

constitutional rights have been violated.”).

¶ 17 Second, the claim must be colorable. See Craig v. New Hanover Cnty. Bd. of

Educ., 363 N.C. 334, 335, 678 S.E.2d 351, 352 (2009) (referencing plaintiff’s “colorable

claims” that may be brought directly under the North Carolina Constitution); Claim,

Black’s Law Dictionary (11th ed. 2019) (defining “colorable claim” as “[a] plausible

claim that may reasonably be asserted, given the facts presented and the current law

(or a reasonable and logical extension or modification of the current law)”); see also

Colorable, Black’s Law Dictionary (11th ed. 2019) (defining colorable as “appearing

to be true, valid, or right”). In other words, the claim must present facts sufficient to

support an alleged violation of a right protected by the State Constitution.

¶ 18 Third, there must be no “adequate state remedy.” Corum, 330 N.C. at 782, 413

S.E.2d at 289; see also id. at 783, 413 S.E.2d at 290 (“Having no other remedy, our

common law guarantees plaintiff a direct action under the State Constitution for

alleged violations of his constitutional freedom of speech rights.”). No adequate state

remedy exists when “state law [does] not provide for the type of remedy sought by the

plaintiff.” Craig, 363 N.C. at 340, 678 S.E.2d at 356. Moreover, a claim that is barred

by sovereign or governmental immunity is not an adequate remedy. “[T]o be

considered adequate in redressing a constitutional wrong, a plaintiff must have at

least the opportunity to enter the courthouse doors and present his claim.” Id. at 340–

41, 678 S.E.2d at 355. Notably, “when there is a clash between these constitutional

rights and sovereign immunity, the constitutional rights must prevail.” Corum, 330

N.C. at 786, 413 S.E.2d at 292; see id. at 785–86, 413 S.E.2d at 291 (“[S]overeign

immunity cannot stand as a barrier to North Carolina citizens who seek to remedy

violations of their rights guaranteed by the Declaration of Rights.”).

¶ 19 Here plaintiff alleged that defendant, the Pitt County Board of Education,

failed to protect plaintiff-students’ constitutionally guaranteed right to education

under Article I, Section 15 and Article IX, Section 2. The Pitt County Board of

Education, as a government entity, is a government actor.

¶ 20 Next we must determine whether plaintiff has alleged a colorable

constitutional claim. We have previously determined that the North Carolina

Constitution provides the right to a sound basic education. See Leandro, 346 N.C. at

345, 488 S.E.2d at 254. Here plaintiff has alleged that plaintiff-students have been

denied that right because the school’s deliberate indifference to ongoing student

harassment created an environment in which plaintiff-students could not learn.

Notably, the right to a sound basic education rings hollow if the structural right exists

but in a setting that is so intimidating and threatening to students that they lack a

meaningful opportunity to learn. Despite the fact that plaintiff-students here were

provided with a public school to attend, plaintiff alleges that defendant was

deliberately indifferent to conduct that prevented plaintiff-students from accessing

their constitutionally guaranteed right to a sound basic education. Deliberate

indifference indicates that the government entity knew about the circumstances

infringing plaintiff-students’ constitutional right and failed to take adequate action

to address those circumstances. The alleged facts here support plaintiff’s contention

that the government did not “guard and maintain that right.” N.C. Const. art. I, § 15.

As such, plaintiff has alleged a colorable constitutional claim. See Davis ex rel.

LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 644–47, 119 S. Ct. 1661,

1672–73 (1999) (concluding that the plaintiff, a student, sufficiently stated a claim

under Title IX where the defendant, a school board with control over the conduct at

issue, was deliberately indifferent to known acts of ongoing sexual harassment).

¶ 21 Finally, looking at whether an adequate state remedy exists, here plaintiff

seeks monetary damages as well as injunctive relief through, inter alia, a permanent

injunction preventing defendant from assigning or requiring plaintiff-students to

attend Lakeforest Elementary. The remedy sought here cannot be redressed through

other means, as an adequate “state law remedy [does] not apply to the facts alleged”

by plaintiff. Craig, 363 N.C. at 342, 678 S.E.2d at 356. Thus, plaintiff has alleged a

colorable constitutional claim for which no other adequate state law remedy exists.4

Therefore, sovereign or governmental immunity cannot bar plaintiff’s claim.

4 We note that defendant successfully moved to dismiss plaintiff’s claims under the

SVPA. Defendant pled sovereign or governmental immunity as a defense to any of plaintiff’s claims to which it would apply. The SVPA claim is not before us on appeal, and therefore we

¶ 22 Nonetheless, defendant argues that the Court of Appeals correctly relied on its

precedent in Doe to reach its decision here. Doe, as an opinion from the Court of

Appeals, is not binding on this Court. Moreover, Doe is clearly distinguishable from

this case. In Doe a teacher made sexual advances on and off school grounds toward

and engaged in sexual activity with the plaintiff, a high school student. Doe, 222 N.C.

App. at 361, 731 S.E.2d at 247. The plaintiff sued the school board for negligent

infliction of emotional distress and negligent hiring, supervision, and retention. The

plaintiff also brought a claim against the defendant for violating her constitutional

right to an education under, inter alia, Article I, Section 15. Id. at 361, 731 S.E.2d at

247. In her complaint, the plaintiff merely contended that the defendant’s negligence

in hiring and overseeing the teacher violated the plaintiff’s rights.

¶ 23 At the trial court, the defendant in Doe unsuccessfully moved to dismiss the

constitutional claims. Id. at 362, 731 S.E.2d at 247–48. The Court of Appeals

reversed, however, concluding that the plaintiff’s complaint did not state a colorable

claim under the North Carolina Constitution. Id. at 371, 731 S.E.2d at 253. The Court

of Appeals determined that the constitutionally guaranteed right to a sound basic

express no opinion on the merits of that claim. We note, however, that having sought and obtained dismissal of the SVPA claim as barred by governmental immunity, defendant cannot assert that it is an adequate state remedy that would redress the harm alleged here. See Craig, 363 N.C. at 340–41, 678 S.E.2d at 355 (“[T]o be considered adequate in redressing a constitutional wrong, a plaintiff must have at least the opportunity to enter the courthouse doors and present his claim.”).

education does not extend “beyond matters that directly relate to the nature, extent,

and quality of the educational opportunities made available to students in the public

school system.” Id. at 370, 731 S.E.2d at 252–53. Here, however, plaintiff’s complaint

states a colorable claim under the North Carolina Constitution. Plaintiff has alleged

that defendant prevented plaintiff-students from accessing their constitutional right

to a sound basic education as a result of defendant’s deliberate indifference to ongoing

harassment in the classroom. Thus, plaintiff’s allegations directly impact the “nature,

extent, and quality of the educational opportunities made available” to plaintiff-

students as well as indicate that the government failed to “guard and maintain that

right.”

¶ 24 The decision of the Court of Appeals, which reversed the trial court order

denying defendant’s motion to dismiss, is reversed. As for plaintiff’s petition for

discretionary review of additional issues, we conclude that discretionary review was

improvidently allowed.

REVERSED IN PART; DISCRETIONARY REVIEW IMPROVIDENTLY

ALLOWED IN PART.