Schools & School Boards – Constitutional – Sound Basic Education – Student-on-Student Harassment – Deliberate Indifference

The plaintiff-elementary school students allege that the defendant-local school board was deliberately indifferent to harassment by other students that was so severe as to deprive plaintiffs of their constitutional right to a sound basic education. Plaintiffs have stated a claim for violation of their state constitutional rights, and sovereign or governmental immunity cannot bar such claims.

We reverse the Court of Appeals’ decision, which reversed the trial court’s denial of the school board’s motion to dismiss on the basis of governmental immunity.

Allegations

Plaintiff-student C.E.D. was physically bullied by Students #1 and #2, and she was sexually harassed by Students #3 and #4. C.E.D.’s siblings, plaintiffs E.M.D. and K.A.D., experienced similar sexual harassment by Student #3.

Despite repeated complaints by C.E.D. and her plaintiff-mother, school personnel insisted that there was a “process” that would “take time.” Meanwhile, the bullying and harassment continued.

Ultimately, the mother transferred the children to a different school.

Analysis

The trial court denied the school board’s motion to dismiss, but our Court of Appeals reversed. In the Court of Appeals’ view, N.C. Const. art. 1, § 15 extends no further than the availability of a sound basic education. However, 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.

Article I, § 15 provides, “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.” This 1986 provision was intended to mark a new and more positive role for state government. It requires a commitment to social betterment through educational opportunities.

Article IX, § 2 implements the right to education: “The 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.”

Taken together, Article I, § 15 and Article IX, § 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.

In order to allege a cause of action under the North Carolina Constitution, a complaint must allege (1) that a state actor violated an individual’s constitutional rights, (2) a colorable claim and (3) that there is no adequate state remedy. A claim that is barred by sovereign or governmental immunity is not an adequate remedy.

Here, the complaint alleged that the school board failed to protect the plaintiff-students’ constitutionally guaranteed right to education by being deliberately indifferent to harassment by other students. The allegations support plaintiffs’ contention that the government did not “guard and maintain” the students’ right to a sound, basic education. Finally, the remedy sought here—monetary damages and a permanent injunction barring defendant from requiring the plaintiff-students to attend Lakeforest Elementary—cannot be redressed through other means.

Thus, the complaint alleges a colorable constitutional claim for which no other adequate state-law remedy exists. Therefore, sovereign or governmental immunity cannot bar plaintiffs’ claim.

Doe v. Charlotte-Mecklenburg Board of Education, 222 N.C. App. 359, 731 S.E.2d 245 (2012), in which the Court of Appeals found no colorable state-constitutional claim based on a teacher’s sexual activity with a high school student, is not binding on this court. Moreover, it is distinguishable in that the allegations here both go directly to the nature, extent and quality of the educational opportunities made available to the plaintiff-students, as well as indicate that the government failed to guard and maintain their constitutional right to a sound basic education.

Reversed in part; discretionary review improvidently allowed in part.

Deminski v. State Board of Education (Lawyers Weekly No. 010-057-21, 16 pp.) (Paul Newby, C.J.) Appealed from the Superior Court in Wake County (Vince Rozier, J.) On appeal from the Court of Appeals. Troy Shelton, Nis Leerberg and Ashley Honeycutt Terrazas for plaintiffs; Deborah Stagner, Edwin Speas and Caroline Mackie for defendant; Daniel Siegel, Kristi Graunke, Lisa Grafstein, Virginia Fogg, Maria Perry, Mark Dorosin, Elizabeth Haddix, Elizabeth Troutman, Jill Wilson and Allison Brown Schafer for amici curiae. 2021-NCSC-58