Diamond v. Charlotte-Mecklenburg County Board of Education

742 S.E.2d 302, 227 N.C. App. 17, 35 I.E.R. Cas. (BNA) 1230, 2013 WL 1882264, 2013 N.C. App. LEXIS 477
CourtCourt of Appeals of North Carolina
DecidedMay 7, 2013
DocketNo. COA12-690
StatusPublished

This text of 742 S.E.2d 302 (Diamond v. Charlotte-Mecklenburg County Board of Education) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diamond v. Charlotte-Mecklenburg County Board of Education, 742 S.E.2d 302, 227 N.C. App. 17, 35 I.E.R. Cas. (BNA) 1230, 2013 WL 1882264, 2013 N.C. App. LEXIS 477 (N.C. Ct. App. 2013).

Opinion

BRYANT, Judge.

Where the trial court dismissed petitioner’s petition for judicial review of a Charlotte-Mecklenburg County Board of Education (School Board) decision to terminate her position after she used physical force on a misbehaving student, we affirm the order of the trial court.

On 2 February 2011, the students of Bailey Middle School, where petitioner worked as an academic facilitator, were evacuated due to a bomb threat. During the evacuation, after students had been removed to the school’s track and field area, one seventh grade student repeatedly disregarded teacher instructions. He refused to put away his soda, refused to sit down and responded to teacher requests to behave with various inappropriate verbal assaults, causing continuing disruption.

After unsuccessful attempts to change the student’s behavior, the student’s teacher approached petitioner for assistance. Petitioner first advised the teacher to try to ignore the student and to instruct the other students to do the same. After this approach proved unsuccessful, petitioner approached the student, told him he needed to cooperate, and provided him with the option of either sitting down or relocating to a nearby fence, where he would be removed from the other students.

The student used offensive language in responding to petitioner, stating that he would not do “any f — g thing she f- — g told him to do.” Petitioner led the student to the fence by his arm, but the student continued to behave disruptively. Petitioner then slapped the student across his face.

The next day, 3 February 2011, petitioner was suspended with pay pending an investigation into the incident. After an investigation, in a letter dated 2 September 2011, the Superintendent recommended petitioner’s dismissal to the School Board based on: (1) failure to abide by the North Carolina Code of Professional Practice and Conduct for North [19]*19Carolina Educators, as required by the Charlotte-Mecklenburg Board of Education, by committing an “abusive act” against a student, (2) failure to fulfill the duties and responsibilities imposed on teachers by the North Carolina statutes by failing to maintain order and discipline, and (3) insubordination.

Petitioner met with the Superintendent to respond to the recommendation of dismissal, at which time they discussed the charges and petitioner informed the Superintendent that she believed her actions fell under an exception to the prohibition on the use of physical force, articulated in N.C.G.S. § 115C-391(a) (repealed 2011). The exception permits an educator to bypass the standard procedure for using physical force on a student, in limited circumstances. N.C. Gen. Stat. § 115C-391 (repealed 2011).

After the meeting, the Superintendent issued a letter notifying petitioner of his intent to recommend her dismissal to the Board of Education. Petitioner then requested review of her dismissal by an independent case manager, pursuant to N.C.G.S. § 115C-325(j2).

At the hearing, the case manager concluded that the termination was justified because, although N.C.G.S. § 155C-391 might apply to an evacuation such as the one here, petitioner’s actions were not reasonably calculated to maintain order and thus the exception did not apply. The case manager emphasized that there was no threatened harm to the student himself or to another person, and that his outbursts did not create a safety concern.

Petitioner requested a hearing before the School Board to further challenge the Superintendent’s dismissal recommendation. After the presentation of oral and written testimony, the School Board unanimously upheld the dismissal recommendation on 15 September, 2011.

Petitioner then filed a Petition for Judicial Review pursuant to N.C.G.S. § 115C-325(n). In response, respondents, the School Board and the individually named School Board members, filed a Motion to Dismiss on 28 November 2011. Judge A. Robinson Hassell heard the Petition for Judicial Review on 9 February 2011 and granted respondents’ motion to dismiss in an order dated 24 February 2012. In the order, he concluded that the termination decision was not based on an error of law and that evidence existed to support the School Board’s decision under either a de novo or a whole record standard of review.

Petitioner appeals.

[20]*20On appeal, petitioner raises the following issues: whether the trial court erred in concluding that the School Board’s decision was (I) supported by substantial evidence and thus was not arbitrary and capricious and (II) not based on an error of law regarding the School Board’s application of N.C.G.S. § 115C-391 to petitioner’s use of physical force.

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Petitioner first argues that the trial court incorrectly concluded that the School Board’s decision was supported by substantial evidence. We disagree.

North Carolina General Statutes, section 150B-51 governs judicial review of a school board’s actions. It permits reversal or modification of a school board decision when the substantial rights of a petitioner “may have been prejudiced because the findings, inferences, conclusions, or decisions are . . . [unsupported by substantial evidence ... in view of the entire record as submitted[.]” N.C. Gen. Stat. § 150B-51(b)(5) (2011).

A court reviews the final decision of the School Board for lack of evidence under N.C.G.S. § 150B-51 pursuant to a whole record standard of review, basing its findings on the final decision of the School Board and the official record. N.C.G.S. § 150B-51(c). “The ‘whole record’ test does not allow the reviewing court to replace the Board’s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.” Thompson v. Wake County Bd. of Educ., 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977). Rather, the whole record test requires that the court consider both the evidence justifying the School Board’s decision and any contradictory evidence to determine whether the School Board’s decision was supported by substantial evidence. Id. In other words, “review is limited to determining whether the superior court correctly decided that the Board’s decision to dismiss plaintiff . . . was supported by substantial evidence in light of the whole record.” Crump v. Bd. of Educ., 79 N.C. App. 372, 373, 339 S.E.2d 483, 484 (1986) (citation omitted). Substantial evidence exists when “a reasonable mind might accept [the evidence] as adequate to support a conclusion.” Thompson, 292 N.C. at 414, 233 S.E.2d at 544 (citations omitted).

This court need not determine that substantial evidence existed for each of the three stated reasons for petitioner’s dismissal; it is sufficient that any one of the reasons for her dismissal is supported by substantial [21]*21evidence, provided that she was notified of the reason. Crump, 79 N.C. App. at 374, 339 S.E.2d at 485 (citation omitted).

In reaching its decision to recommend dismissal, the School Board accepted the case manager’s findings of fact. Using those factual findings, we will first consider whether petitioner’s termination on the basis of “failure to fulfill the duties and responsibilities imposed upon teachers by the general statutes of this State” is supported by substantial evidence.

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Related

Crump v. Board of Education
339 S.E.2d 483 (Court of Appeals of North Carolina, 1986)
Richardson v. N.C. Dept of Public Instruction Licensure Section
681 S.E.2d 479 (Court of Appeals of North Carolina, 2009)
Thompson v. Wake County Board of Education
233 S.E.2d 538 (Supreme Court of North Carolina, 1977)

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742 S.E.2d 302, 227 N.C. App. 17, 35 I.E.R. Cas. (BNA) 1230, 2013 WL 1882264, 2013 N.C. App. LEXIS 477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diamond-v-charlotte-mecklenburg-county-board-of-education-ncctapp-2013.