Parent can sue school district over failure to respond to bullying 

A mother who says that her three children were repeatedly bullied and sexually harassed at school will be able to sue the Pitt County School Board for interfering with her children’s constitutional right to a sound basic education, the North Carolina Supreme Court has unanimously ruled, overruling a decision by the state’s Court of Appeals. 

Ashley Deminski sued the state and the Pitt County boards of education on behalf of her three children, alleging that educators engaged in deliberate indifference to a hostile academic environment at the elementary school where they were enrolled. She says the school system allowed one of her children to be repeatedly and severely bullied by two particular students and repeatedly sexually harassed by two other students. The two other children, both of whom have been diagnosed with autism, also allegedly suffered similar sexual harassment. 

The school boards moved to dismiss the lawsuit. Wake County Superior Court Judge Vince Rozier denied the Pitt County school board’s motion, and the board appealed, arguing that public school students don’t have a claim for relief under the state’s constitution based on allegations that school employees failed to prevent harm by a third party. 

In January 2020, a divided panel of the state’s Court of Appeals agreed with the school board and reversed the denial of the motion to dismiss. The majority found that North Carolina’s appellate courts had never recognized abuse—even repeated abuse or an abusive classroom environment—as a violation of the constitutional right to a sound basic education, and that right is thus satisfied so long as such an education has, in fact, been afforded. 

Deminski appealed based on a dissent from that ruling, and in a June 11 opinion written by Chief Justice Paul Newby, the Supreme Court unanimously reversed, holding that Deminski had stated a valid claim for violation of her children’s constitutional rights. 

The state constitution requires “the government to provide an opportunity to learn that is free from continual intimidation and harassment which prevent a student from learning,” Newby wrote. “In other words, the government must provide a safe environment where learning can take place.” 

A plaintiff alleging a cause of action under the state constitution needs to show three things, Newby said. First, a state actor must have violated an individual’s constitutional rights. Second, the claim must be colorable—it must present facts sufficient to support an alleged violation of those rights. Finally, there must be no other adequate state remedy. 

Newby wrote that the school’s alleged deliberate indifference to ongoing student harassment created an environment in which the plaintiff children could not learn, and so Deminski had thus alleged a colorable claim of a violation of her children’s constitutional rights. 

“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,” Newby wrote. “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, Newby said, indicates that the government entity knew about the circumstances infringing on a student’s constitutional right and failed to take adequate action to address those circumstances. 

Troy Shelton, Matthew Leerberg, and Ashley Terrazas of Fox Rothschild in Raleigh represented Deminski pro bono on the appeal to the Supreme Court. Shelton said that Deminski, through her counsel, proposed the “deliberate indifference” standard as the standard the court should adopt because it’s a clear standard that’s already used in several other jurisdictions, and so it was one that the court was already familiar with and would feel comfortable that it could trust. 

“Part of our appellate strategy was to litigate the case in such a way that regardless of your judicial philosophy and perspective, the principles we’re advocating for are principles that we think every parent, every lawyer, and every judge should be able to agree with, and we were thrilled to see that that’s exactly what happened,” Shelton said. 

Shelton said that one element of the deliberate indifference standard is that the state actor’s response has to be unreasonable. 

“Here, the school just ignored it, and doing nothing will always be an unreasonable response. I think that’s a clear standard,” Shelton said. “The fact that we’re pursuing damages in this case will hopefully get the attention of schools. Schools can’t just sit on their hands and do nothing, because if they sit on their hands and do nothing, they may be facing a big judgment at the end of the day.” 

Because the factual allegations in the case involved behavior that went very far beyond typical cases of bullying, it will be up to future cases to sort out when exactly bullying becomes so bad that a school must reasonably do something about it. But the court’s ruling will allow such cases to start going forward. Shelton said that parents have brought similar arguments in federal cases and consistently lost on that issue because federal courts have found that North Carolina’s courts hadn’t recognized such claims as valid. Those cases are all now bad law after the Deminski ruling, Shelton said. 

Deborah Stagner of Tharrington Smith in Raleigh and Eddie Speas and Caroline Mackie of Poyner Spruill in Raleigh represented the Pitt County School Board. Stagner provided a written statement on behalf of the school board. 

“At this time, the North Carolina Supreme Court has decided that the allegations of Ms. Deminski’s complaint constitute a claim that can withstand a motion to dismiss. Pitt County Schools denies the allegations of Ms. Deminski’s complaint and will aggressively defend itself as the litigation continues. While Pitt County Schools is deeply disappointed in the North Carolina Supreme Court’s decision, which ignores administrative procedures put in place by the General Assembly, prematurely involves the courts in school discipline, and expands legal risk for all K-12 school systems in North Carolina, Pitt County Schools believes that it will ultimately prevail in this litigation.” 

The case also attracted amicus curiae briefs from the ACLU of North Carolina Legal Foundation, Disability Rights North Carolina, the North Carolina Advocates for Justice, and the North Carolina School Boards Association. 

The 16-page decision is Deminski v. State Board of Education (Lawyers Weekly No. 010-057-21). The full text of the opinion is available online at nclawyersweekly.com. 

Follow David Donovan on Twitter @NCLWDonovan