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Bullied student can’t sue school district for rights violation

Bullied student can’t sue school district for rights violation

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A lawsuit brought by a mom who argues that her children were denied their right to a sound education under the state constitution because of persistent sexual harassment and bullying at school should have been dismissed because the children’s school district was shielded by the doctrine of governmental immunity, a divided panel of the North Carolina Court of Appeals has ruled.

Ashley Deminski filed suit against the state and the Pitt County boards of education on behalf of her three minor children. She claims that educators engaged in “deliberate indifference” to the “hostile academic environment” at Lakeforest Elementary School while her children were enrolled there.

During the 2016-2017 school year, the school system allowed one of the children to be “repeatedly and severely bullied” by two particular students, who frequently grabbed the girl by the shoulders and pushed her hard enough to impact her breathing. 

Her daughter was also “repeatedly harassed sexually by two other students,” Deminski alleged. On multiple occasions, one student put his hands in his pants to play with his genitals in the girl’s presence; in some instances, he would then try to touch her. On at least one occasion, he pulled down his pants in her daughter’s presence and exposed himself to her, Deminski alleges, in addition to other harassing conduct including staring at her during assignments and repeatedly talking to her during class.

The other two children endured similar harassment, Deminski said, causing all three to be denied their rights to a sound basic education because the school system failed to stop the harassment.

The county moved to dismiss the lawsuit. Wake County Superior Court Judge Vince Rozier denied the motion and the county appealed, arguing that case law established that public school students don’t have a claim for relief under the North Carolina Constitution based on allegations of failure by school employees to prevent harm by a third party.

Judge Donna Stroud agreed, reversing the denial of the county’s motion.

“Neither this Court nor our Supreme Court has recognized abuse, even repeated abuse, or an abusive classroom environment as a violation of the constitutional right to education,” Stroud wrote for the majority.

The state constitution explicitly guarantees the right to a free public education, and in 1997 the state’s highest court ruled in Leandro v. State of North Carolina that the right has “a qualitative content,” Stroud explained.

In Leandro, the court recognized that “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.”

But that constitutional right to education does have limitations, Stroud noted.

In its 2012 ruling in Doe v. Charlotte-Mecklenburg Board of Education, the Court of Appeals dismissed a plaintiff’s claims against the county school board based on sexual abuse that she suffered at the hands of her band teacher, concluding that the constitutional right to education did not encompass claims arising from abuse of a student—even on school premises.

“Simply put, the right guaranteed to students under the North Carolina Constitution is the opportunity to receive a Leandro-compliant education, and that right is satisfied so long as such an education has, in fact, been afforded,” Stroud wrote.

Doe’s holding left Deminski without recourse, Stroud said. Although the abuse alleged by Deminski was perpetrated by other students instead of a school employee, the claims were otherwise essentially the same. 

“As in Doe, the Plaintiff alleges that school personnel were aware or should have been aware of the abuse the Minor Plaintiffs suffered at school but they failed to prevent it,” Stroud said. “Both alleged that the abuse they suffered deprived them of their constitutionally protected right to a sound basic education … The fact that the complaint in this case goes into more factual detail about the abuse and how it harmed the Minor Plaintiffs’ educational opportunities does not change the result.”

To date, no state appellate court has extended the constitutional right to education beyond matters that directly relate to the nature, extent, and quality of the educational opportunities made available to students in the public school system.

“The factual allegations of Plaintiff’s complaint, which we consider for purposes of a motion to dismiss as true, are extremely disturbing; no child should be subjected to this sort of harassment at school or anywhere else,” Stroud wrote. “The alleged failure of school personnel to take immediate action to protect the Minor Plaintiffs is troubling, but we cannot distinguish this case from Doe.”

Judge Valerie Zachary dissented. Finding Doe “manifestly distinguishable,” she said the conduct alleged by Deminski violated the constitutional standard established in Leandro.

“Plaintiff’s complaint reveals that the hostile classroom environment at Lakeforest Elementary School was such that there was a persistent, two-year-long interruption of the Minor Plaintiffs’ daily test-taking, assignment, and instructional opportunities,” Zachary wrote. “Taking these allegations as true, as we must, Plaintiff’s claim falls squarely within the constitutional deprivation that was contemplated in Leandro.”

Durham attorney T. Greg Doucette, who represented Deminski, said an appeal to the Supreme Court is in the works.

“Based on the precedents, I understand where the Court of Appeals is coming from, but we were hoping the court would recognize that this was a materially different case,” he said. “What was done to [Deminski’s] kids was crazy. We were hoping to be able to get some form of quick relief and that didn’t happen. Now, we’d still like some kind of remedy for those children but we also have the bigger picture of how do we stop this from happening to other kids in the future.”

The state’s highest court needs to speak on the issue, Doucette added, and provide clarity about the scope of the constitutional right to education.

Deborah R. Stagner of Tharrington Smith in Raleigh, who represented the county, did not respond to a request for comment.

The 25-page decision is Deminski v. The State Board of Education (Lawyers Weekly No. 011-006-20). The full text of the opinion is available online at

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