              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA18-988

                                 Filed: 7 January 2020

Wake County, No. 17 CVS 15159

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

             v.

THE STATE BOARD OF EDUCATION, and the PITT COUNTY BOARD OF
EDUCATION, Defendants.


      Appeal by defendant Pitt County Board of Education from order entered 3 July

2018 by Judge Vince M. Rozier, Jr., in Superior Court, Wake County. Heard in the

Court of Appeals 13 March 2019.


      No brief filed for plaintiff-appellee.

      Tharrington Smith, LLP, by Deborah R. Stagner, for defendant-appellant Pitt
      County Board of Education.

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


      STROUD, Judge.


      The Pitt County Board of Education (“Defendant”) appeals from the trial

court’s order denying its motion to dismiss the portion of Plaintiff’s complaint alleging

violations of the right to education guaranteed under the North Carolina

Constitution. Because this case is controlled by Doe v. Charlotte-Mecklenburg Board
                               DEMINSKI V. THE STATE BD. OF EDUC.

                                           Opinion of the Court



of Education, 222 N.C. App. 359, 731 S.E.2d 245 (2012), we reverse the trial court’s

order denying Defendant’s motion to dismiss the constitutional claims in the

Plaintiff’s complaint and remand for further proceedings.

                                          I.     Background

          Plaintiff Ashley Deminski,1 on behalf of her minor children C.E.D., E.M.D.,

and K.A.D. (“Minor Plaintiffs”), initiated this action against Defendant and the State

Board of Education2 by filing a verified complaint in Superior Court, Wake County

on 11 December 2017.

          The complaint was filed in response to Defendant’s alleged “deliberate

indifference” to the “hostile academic environment” at Lakeforest Elementary School

while the Minor Plaintiffs were enrolled there. Plaintiff alleges that because of

Defendant’s conduct, the Minor Plaintiffs “were each denied their rights to a sound

basic education.”

          According to the complaint, during the 2016-2017 academic year, Defendant

allowed C.E.D. to be “repeatedly and severely bullied” by two particular students, and

to be “repeatedly harassed sexually by two other students.”                        For example, the

complaint alleges that Defendant permitted Student #1 and Student #2 to “grab

C.E.D. by the shoulders and push along [her] spine with sufficient force that [she] . . .



1   Plaintiff Ashley Deminski’s name was misspelled in the caption of the order.

2   The State Board of Education is not party to the instant appeal.

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                                   Opinion of the Court



had trouble breathing and swallowing.” This happened “each week” and “at varying

times during the school day.”

      The complaint also describes Student #3’s repeated sexual harassment of

C.E.D. for two full academic years while at Lakeforest Elementary, as follows:

                   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***s like a gangster”;

                   ....

                   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, . . . 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.

This “was in addition to other harassing conduct, including staring at C.E.D.,

interrupting C.E.D. during tests and other assignments, and repeatedly talking to

C.E.D. during instructional time.”



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                                 Opinion of the Court



      School personnel also failed to act when Student #4 would subject C.E.D. to

similar sexual harassment:

             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, . . . 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.

      Minor Plaintiffs E.M.D. and K.A.D. are diagnosed with autism, and during

their enrollment as students at Lakeforest Elementary, services were provided to

them under their Individualized Education Plans.        The complaint alleges that

Defendant allowed both E.M.D. and K.A.D. “to endure substantially the same conduct

by 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.”



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                                   Opinion of the Court



      According to the complaint, C.E.D. “repeatedly informed her teacher of each of

the acts by the four students[,]” and Plaintiff also “repeatedly notified the teacher,

Assistant Principal, and Principal in efforts to resolve the situation.” However, school

personnel’s only response was to insist that the “process” would “take time;”

meanwhile, “no substantive changes” were made, and “the bullying and harassing

conduct continued unabated.”      The uncorrected harassment continued to such a

degree that Plaintiff ultimately “obtained a transfer of the Minor Plaintiffs to a new

school.” Nevertheless, the complaint alleges that “[t]he academic performance of all

three Minor Plaintiffs fell as a result of the perpetually chaotic school environment”

at Lakeforest Elementary.

      Plaintiff asserted one claim for violations of Article I, section 15 and Article IX,

section 2 of the North Carolina Constitution, in that Defendant’s deliberate

indifference to the hostile academic environment at Lakeforest Elementary denied

the Minor Plaintiffs “their rights to a sound basic education.” As relief, the complaint

requested, among other things, that Defendant “be compelled to make all necessary

modifications to policy and/or personnel to bring its schools into compliance with the

School Violence Prevention Act;”; that Plaintiff recover “compensatory damages . . .

to be held in trust for the benefit of the Minor Plaintiffs”; and that the trial court

“grant any such additional and further relief as [it] deems proper and just.”




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                                         Opinion of the Court



       Defendant filed a motion to dismiss Plaintiff’s complaint for failure to state a

claim upon which relief can be granted,3 because Plaintiff’s claims were barred by the

doctrine of governmental immunity.4 The trial court denied Defendant’s motion to

dismiss Plaintiff’s constitutional claim by order entered 3 July 2018.5 Defendant

appeals the interlocutory order to this Court.

       On appeal, Defendant contends the trial court erred by denying its motion to

dismiss Plaintiff’s constitutional claim, arguing this Court “has clearly held that

public school students do not have a claim for relief under article I or article IX of the

North Carolina Constitution based on allegations of failure by school employees to

prevent harm by a third party.” Defendant maintains that Plaintiff “may not avoid

the effect of the Board’s governmental immunity by simply labeling a tort action as a

constitutional claim.” The North Carolina School Boards Association filed an amicus

brief with this Court contending the same.                  Amicus further emphasizes that

“[d]eclaring individual educational claims to be constitutional violations would be

disastrous public policy for the State and boards of education.”


3The State Board of Education likewise filed a motion to dismiss, which was granted. This order was
not appealed.

4 Defendant also filed a motion to dismiss for lack of standing under Rules 12(b)(1) and (6), asserting
that “Plaintiff Ashley Deminski has not been duly appointed by the Court to serve as guardian ad
litem for the [Minor Plaintiffs].” However, the trial court did not specify the grounds upon which its
order was based, and Defendant does not raise an argument concerning standing on appeal.

5 Plaintiff’s complaint also asserted a claim against Defendant for violation of the School Violence
Prevention Act, North Carolina General Statute § 115C-407.15 et seq., which the trial court dismissed.
Plaintiff did not appeal the trial court’s dismissal of this claim.

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                                    Opinion of the Court



                              II.    Interlocutory Appeal

      The trial court’s order denying Defendant’s motion to dismiss Plaintiff’s

constitutional claim is interlocutory in that it “does not dispose of the case, but leaves

it for further action by the trial court in order to settle and determine the entire

controversy.” Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). This

Court will not generally entertain an appeal from an interlocutory order. Doe, 222

N.C. App. at 363, 731 S.E.2d at 248. However, a party may immediately appeal an

interlocutory order where the order “deprives the appellant of a substantial right

which would be jeopardized absent a review prior to a final determination on the

merits.” Id.

      Here, Defendant argues that the trial court’s order denying its motion to

dismiss Plaintiff’s constitutional claim is immediately appealable because it affects

Defendant’s substantial right to governmental immunity. See Christmas v. Cabarrus

Cty., 192 N.C. App. 227, 230, 664 S.E.2d 649, 652 (2008) (“Cases which present

defenses of governmental or sovereign immunity are immediately appealable because

such orders affect a substantial right.”). Although the doctrine of governmental

immunity will not operate to bar a constitutional claim, for the reasoning articulated

in Doe v. Charlotte-Mecklenburg Board of Education, we conclude that Defendant’s

appeal is properly before this Court. See Doe, 222 N.C. App. at 365, 731 S.E.2d at 249

(“A failure to evaluate the validity of Plaintiff’s constitutional claims would allow



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                                      Opinion of the Court



Plaintiff to simply re-label claims that would otherwise [be] barred on governmental

immunity grounds as constitutional in nature, effectively circumventing the Board’s

right to rely on a governmental immunity bar.”).

                               III.     Standard of Review

      Upon appeal from the denial of a defendant’s motion to dismiss under Rule

12(b)(6), this Court must review de novo “whether, as a matter of law, the allegations

of the complaint are sufficient to state a claim upon which relief may be granted.”

Christmas, 192 N.C. App. at 231, 664 S.E.2d at 652 (ellipsis and brackets omitted).

This Court “must consider the allegations in the plaintiff’s complaint to be true,

construe the complaint liberally, and only reverse the trial court’s denial of a motion

to dismiss if the plaintiff is entitled to no relief under any set of facts which could be

proven in support of the claim.” Doe, 222 N.C. App. at 366, 731 S.E.2d at 250

(quotation marks and brackets omitted).

                             IV.      The Right to Education

A.     Governmental Immunity

      Under the doctrine of governmental immunity, county boards of education are

often shielded “entirely from having to answer for [their] conduct at all in a civil suit

for damages.” See Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678

S.E.2d 351, 354 (2009). As our Supreme Court has made clear, however, the doctrine

of governmental immunity will not “stand as a barrier to North Carolina citizens who



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                                  Opinion of the Court



seek to remedy violations of their rights guaranteed by the Declaration of Rights”

under the North Carolina Constitution. Corum v. University of North Carolina, 330

N.C. 761, 785-86, 413 S.E.2d 276, 291 (1992).

      It is, therefore, well settled that an individual may bring a direct claim under

the North Carolina Constitution where the individual’s constitutional rights have

been abridged, but she is otherwise without an adequate remedy under state law—

for example, when her common law claim would be barred by the doctrine of

governmental immunity. Id. at 782, 413 S.E.2d at 289; see also Craig, 363 N.C. at

340, 678 S.E.2d at 355 (“Plaintiff’s common law cause of action for negligence does

not provide an adequate remedy at state law when governmental immunity stands

as an absolute bar to such a claim. But . . . plaintiff may move forward in the

alternative, bringing his colorable claims directly under our State Constitution based

on the same facts that formed the basis for his common law negligence claim.”).

      Accordingly, a colorable direct constitutional claim will survive a Rule 12(b)(6)

motion to dismiss, notwithstanding the doctrine of governmental immunity. Craig,

363 N.C. at 340-41, 678 S.E.2d at 355-56. We now consider whether Plaintiff has

stated such a claim here.

B.    Leandro v. State of North Carolina

      The North Carolina Constitution explicitly guarantees the “right to a free

public education.” Leandro v. State of North Carolina, 346 N.C. 336, 345, 488 S.E.2d



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                                         Opinion of the Court



249, 254 (1997). Specifically, 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. Const. art. I, § 15. Article IX, section 2 further provides

that “[t]he General Assembly shall provide . . . for a general and uniform system of

free public schools, . . . wherein equal opportunities shall be provided for all students.”

Id. art. IX, § 2(1).6

        In the landmark decision of Leandro v. State of North Carolina, our Supreme

Court considered whether the right to education under Article I, section 15 and

Article IX, section 2 has “any qualitative content, that is, whether the state is

required to provide children with an education that meets some minimum standard

of quality.” 346 N.C. at 345, 488 S.E.2d at 254. The Supreme Court answered “in the

affirmative,” and concluded that

                the right to education provided in the state constitution is
                a right to a sound basic education. 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

6 Based on Hoke County Board of Education v. State of North Carolina, 358 N.C. 605, 599 S.E.2d 365
(2009) (Leandro II), and Silver v. Halifax County Board of Commissioners, 371 N.C. 855, 821 S.E.2d
755 (2018), our dissenting colleague notes, “the State is a necessary party to the instant action but has
not been joined as such.” We did not address this issue for two reasons. First, it was not raised by the
parties. Second, even if the Plaintiff’s claims fell within the constitutional right to a sound basic
education, Silver v. Halifax County did not give this Court the authority to direct sua sponte that the
State be added as a party. In Silver, the Supreme Court did not suggest that the State must be added
as a party, despite its clear recognition of the State’s duty: “[W]e are not confronted by a civil action
that is merely imperfect, but rather we have been presented with an action that must fail because
plaintiffs simply cannot obtain their preferred remedy against this particular defendant on the basis
of the claim that they have attempted to assert in this case. The allegations in plaintiffs’ complaint,
if true, are precisely the type of harm Leandro I and its progeny are intended to address. In keeping
with Leandro, however, the duty to remedy these harms rests with the State, and the State alone.” 371
N.C. at 869, 821 S.E.2d at 764 (emphasis added).

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             devoid of substance and is constitutionally inadequate.

Id.   Our Supreme Court proceeded to more particularly define a “sound basic

education” as

             one that will provide the student with at least: (1) sufficient
             ability to read, write, and speak the English language and
             a sufficient knowledge of fundamental mathematics and
             physical science to enable the student to function in a
             complex and rapidly changing society; (2) sufficient
             fundamental knowledge of geography, history, and basic
             economic and political systems to enable the student to
             make informed choices with regard to issues that affect the
             student personally or affect the student’s community,
             state, and nation; (3) sufficient academic and vocational
             skills to enable the student to successfully engage in post-
             secondary education or vocational training; and (4)
             sufficient academic and vocational skills to enable the
             student to compete on an equal basis with others in further
             formal education or gainful employment in contemporary
             society.

Id. at 347, 488 S.E.2d at 255.

       In Doe v. Charlotte-Mecklenburg Board of Education, the plaintiff sued her

local school board, alleging a violation of her constitutional right to education. 222

N.C. App. at 361, 731 S.E.2d at 247. The plaintiff’s claims were based upon

             sexual abuse that she suffered at the hands of Defendant
             Richard Priode, her band teacher at South Mecklenburg
             High School. According to Plaintiff’s complaint, Defendant
             Priode made sexual advances towards her and eventually
             induced her to engage in various types of sexual activity,
             including oral sex and vaginal intercourse, with him both
             on and off school grounds. Defendant Priode was later
             arrested, charged, and entered a plea of guilty to taking
             indecent liberties with a child as a result of his involvement


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                                   Opinion of the Court



              with Plaintiff.

Id. Based upon these facts, the plaintiff in Doe asserted these claims:

                      In her complaint, Plaintiff asserted claims against
              Defendant Board for negligent hiring, supervision, and
              retention; negligent infliction of emotional distress; and
              violation of Plaintiff’s rights to an education and to proper
              educational opportunities as guaranteed by N.C. Const.
              art. I, § 15 and N.C. Const. art. IX, § 1, and her right to
              obtain a safe education as guaranteed by N.C. Const. art.
              I, § 19. According to Plaintiff, the Board should have
              recognized the signs that Defendant Priode posed a threat
              to her and taken action to prevent the sexual abuse which
              she suffered at his hands. More specifically, Plaintiff
              alleged, with respect to her constitutional claims, that:
                             40. As a separate and distinct cause of
                      action, Plaintiff sues the Defendants for
                      violating her constitutional rights pursuant to
                      North Carolina State Constitution in the
                      following particulars:
                             a. Violation of Article I[,] Section 15 on
                      the grounds that the Defendant allowed the
                      conduct as alleged in this complaint and that
                      this conduct deprived the Plaintiff of her right
                      to an education that is free from harm:
                             b. Violation of Article IX[,] Section 1 in
                      that the Plaintiff was denied educational
                      opportunities free from physical harm or
                      psychological abuse; and
                             c. Violation of Article I[,] Section 19 in
                      that the Plaintiff has been deprived of her
                      liberty, interest and privilege in an education
                      free from abuse or psychological harm as
                      alleged in this complaint.

Id. (alterations in original).




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                                       Opinion of the Court



       This Court concluded that the constitutional right to education did not

encompass claims arising from abuse of a student, even on school premises. Id. at

370. 731 S.E.2d at 252-53. We noted Leandro’s enumeration of the right to education

was strictly confined to the intellectual function of academics, and that neither this

Court nor our Supreme Court had extended that right “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.   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.7

       Because the psychological harm in Doe was alleged to have been suffered as

the result of a “negligent failure to remain aware of and supervise the conduct of

public school employees,” id. at 371, 731 S.E.2d at 253, rather than of any inadequacy

in the “nature, extent, and quality of the educational opportunities made available

to” the plaintiff, the allegations failed to state a claim for violation of the

constitutional right to education. Id. at 370, 731 S.E.2d at 253 (emphasis added). We

therefore reversed the trial court’s denial of the defendant’s motion to dismiss that

claim. Id. at 372, 731 S.E.2d at 254.


7 North Carolina General Statute § 115C-42 immunizes the State’s educational entities from liability
for harm suffered by students, short of constitutional deprivation. “[A]ny change in this doctrine
should come from the General Assembly.” See Blackwelder v. City of Winston-Salem, 332 N.C. 319,
324, 420 S.E.2d 432, 435 (1992).

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                        DEMINSKI V. THE STATE BD. OF EDUC.

                                   Opinion of the Court



      Here, the abuse was perpetrated by other students instead of a school employee

as in Doe, but the claims are 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. Both alleged that the

abuse they suffered deprived them of their constitutionally protected right to a sound

basic education. The plaintiff in Doe alleged that she was deprived of her right to an

education that is “free from physical harm or psychological abuse” under North

Carolina’s Constitution. Id. at 361, 731 S.E.2d at 247. 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. 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.

      This Court fully considered the rights addressed by Leandro v. State of North

Carolina, 346 N.C. 336, 488 S.E.2d 249 (1997), in the context of physical or

psychological abuse of a student at school in Doe and determined:

                    To date, we are not aware of any decision by either
             this Court or the Supreme Court which has extended the
             educational rights guaranteed by N.C. Const. art. I, § 15
             and N.C. Const. art. IX, § 1, beyond matters that directly
             relate to the nature, extent, and quality of the educational
             opportunities made available to students in the public
             school system.      Although the serious wrongfulness
             inherent in the actions in which Defendant Priode
             allegedly engaged should not be minimized in any way, we
             are unable to see how the allegations set out in Plaintiff’s


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                                    Opinion of the Court



               complaint state a claim for violating these constitutional
               provisions. Put another way, we are unable to discern from
               either the language of the relevant constitutional
               provisions or the reported decisions construing these
               provisions that North Carolina public school students have
               a state constitutional right to recover damages from local
               boards of education for injuries sustained as the result of a
               negligent failure to remain aware of and supervise the
               conduct of public school employees. As a result, Plaintiff’s
               complaint “on its face reveals the absence of facts sufficient
               to make a good claim” under N.C. Const. art. I, § 15 or N.C.
               Const. art. IX, § 1, such that Plaintiff has failed to state a
               claim based on those constitutional provisions upon which
               relief may be granted.

Doe, 222 N.C. App. at 370-71, 731 S.E.2d at 252-53.

      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. 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, 222 N.C. App. 359, 731 S.E.2d 245.

Accordingly, Plaintiff’s complaint stated “a defective cause of action,” and Defendant’s

motion to dismiss should have been granted. See Bigelow v. Town of Chapel Hill, 227

N.C. App. 1, 4, 745 S.E.2d 316, 319 (2013).

                                    V.     Conclusion

      For the reasons set forth above, we reverse the trial court’s denial of

Defendant’s motion to dismiss Plaintiff’s constitutional claim and remand for further

proceedings.


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                        Opinion of the Court



REVERSED AND REMANDED.

Judge INMAN concurs.

Judge ZACHARY dissents with separate opinion.




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 No. COA18-988 – Deminski v. The State Bd. of Educ.


       ZACHARY, Judge, dissenting.


       The right to education set forth in the North Carolina Constitution requires

that our State’s educational entities provide their students with an education that

meets a certain minimum standard of quality. “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.” Leandro v.

State, 346 N.C. 336, 345, 488 S.E.2d 249, 254 (1997). Because the facts alleged in

Plaintiff’s complaint establish that Defendant failed to provide Minor Plaintiffs with

the constitutionally adequate quality of education, I respectfully dissent.

                                      Discussion

       I. The Right to Education—Leandro v. State of North Carolina

       It is undisputed that our state constitution explicitly guarantees the “right to

a free public education.” Id. Specifically, 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. Const. art. I, § 15. Article IX, section 2 further

provides that “[t]he General Assembly shall provide . . . for a general and uniform

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

all students.” Id. art. IX, § 2(1).

       In its 1997 decision in Leandro v. State, our Supreme Court held that together,

article I, section 15 and article IX, section 2, require the State to provide North

Carolina children with a sound basic education. 346 N.C. at 345, 488 S.E.2d at 254.
                          DEMINSKI V. THE STATE BD. OF EDUC.

                                  Zachary, J., dissenting



      Nonetheless, as the majority notes, the constitutional right to education has

been narrowly interpreted in subsequent case law. See, e.g., Doe v. Charlotte-

Mecklenburg Bd. of Educ., 222 N.C. App. 359, 370, 731 S.E.2d 245, 252 (2012). The

majority, however, misconstrues this precedent as imposing an outright prohibition

against the prosecution of any such claim grounded in tort. I find no support for such

an interpretation. The post-Leandro jurisprudence does not limit the conduct that

may give rise to a claim for violation of the constitutional right to education; any such

judicial limitations have only pertained to the scope of the constitutional right that is

subject to enforcement.

      The majority’s holding rests primarily upon this Court’s analysis in Doe v.

Charlotte-Mecklenburg Board of Education. Id. The plaintiff in Doe filed suit against

her local school board, alleging a violation of her constitutional right to education. Id.

In her complaint, the plaintiff alleged that her high school’s band teacher had “made

sexual advances towards her and eventually induced her to engage in various types

of sexual activity, including oral sex and vaginal intercourse, with him both on and

off school grounds.” Id. at 361, 731 S.E.2d at 247. The plaintiff further claimed that

in allowing this conduct to occur, the school board had “violated her ‘right to an

education that was free from harm’ and ‘psychological abuse.’ ” Id. at 370, 731 S.E.2d

at 252 (emphases added) (brackets omitted).




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                                   Zachary, J., dissenting



       This Court disagreed, and determined that the constitutional right to

education is limited to “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.

       In Doe, the school board’s alleged “negligent failure to remain aware of and

supervise the conduct of public school employees” was collateral to the “nature,

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

Id. at 370-71, 731 S.E.2d at 253. Thus, absent any allegation that the school board

had failed to provide the plaintiff with a Leandro-compliant education, the school

board’s alleged negligence in allowing the illicit sexual activity to occur, though

appalling, fell short of a constitutional violation.

       The allegations presented in the case at bar are manifestly distinguishable

from those in Doe. The conduct of which Plaintiff complains violates the constitutional

ambit set forth in Leandro.

       Here, unlike in Doe, Plaintiff explicitly charges Defendant with the failure to

provide the Minor Plaintiffs with the very “nature, extent, and quality of the

educational opportunities” to which all public school students are constitutionally

entitled pursuant to Leandro. Id. at 370, 731 S.E.2d at 253. 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’



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                                DEMINSKI V. THE STATE BD. OF EDUC.

                                            Zachary, J., dissenting



daily test-taking, assignment, and instructional opportunities. Due to Defendant’s

indifference to this environment, the “academic performance of all three Minor

Plaintiffs fell . . . with the Minor Plaintiffs each suffering substantially adverse

educational consequences.”

        Taking these allegations as true, as we must, Plaintiff’s claim falls squarely

within the constitutional deprivation that was contemplated in Leandro.8 See

Leandro, 346 N.C. at 345, 488 S.E.2d at 254 (“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.”); see also

N.C. Const. art. I, § 15 (“The people have a right to the privilege of education, and it

is the duty of the State to guard and maintain that right.” (emphasis added)).

        Nevertheless, in its amicus brief to this Court, the North Carolina School

Boards Association contends that “[d]eclaring individual educational claims to be




        8 In fact, our General Assembly has also recognized, through the enactment of Chapter 115C,
Articles 27, 27A, and 29C, that providing an education of the standard guaranteed by the North
Carolina Constitution necessarily requires an environment that is conducive to learning—or at the
very least, one that does not hinder learning. See, e.g., N.C. Gen. Stat. § 115C-390.2(f) (2017) (“Board
policies shall . . . restrict[ ] the availability of long-term suspension or expulsion to . . . serious violations
of the board’s Code of Student Conduct that . . . threaten to substantially disrupt the educational
environment.”); Id. § 115C-397.1 (“Management and placement of disruptive students”); Id. § 115C-
407.17 (“Schools shall develop and implement methods and strategies for promoting school
environments that are free of bullying or harassing behavior.”); see also Leandro, 346 N.C. at 354, 488
S.E.2d at 259 (“To the extent that plaintiff[s] can produce evidence tending to show that defendants
have committed . . . violations of chapter 115C alleged in the complaints and that those violations have
deprived children . . . of the opportunity to receive a sound basic education, plaintiff[s] are entitled to
do so.”).



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                             DEMINSKI V. THE STATE BD. OF EDUC.

                                       Zachary, J., dissenting



constitutional violations would be disastrous public policy for the State and boards of

education.” Of course, the same could be said for any constitutional violation that the

private right of action endeavors to deter.

       Moreover, it would be credulous to differentiate, for constitutional purposes,

between a student whose teacher refuses to teach math and a student whose teacher

fails to intervene when other students’ harassing and disruptive behavior prevents

her from learning it.9 In the latter instance, the instructional environment may be

so disordered, tumultuous, or even violent that the student is denied the opportunity

to receive a sound basic education. Cf. King v. Beaufort Cty. Bd. Of Educ., 364 N.C.

368, 376, 704 S.E.2d 259, 264 (2010) (“The primary duty of school officials and

teachers . . . is the education and training of young people. Without first establishing

discipline and maintaining order, teachers cannot begin to educate their students.”

(citation omitted)).

       This is precisely what Plaintiff has alleged in the instant case. At this stage

in the proceedings, Plaintiff’s allegations must be taken as true, and the trial court

did not err by allowing her the opportunity to produce a forecast of evidence tending

to prove the same. I would therefore affirm the trial court’s order denying Defendant’s

motion to dismiss Plaintiff’s constitutional claim. Accordingly, I respectfully dissent.


       9  I would emphasize that “[n]one of the preceding cases contains any suggestion that the
fundamental right to the opportunity for a sound basic education is limited to any particular context.”
King v. Beaufort Cty. Bd. of Educ., 364 N.C. 368, 381, 704 S.E.2d 259, 267 (2010) (Timmons-Goodson,
J., concurring in part and dissenting in part).

                                                  5
                           DEMINSKI V. THE STATE BD. OF EDUC.

                                   Zachary, J., dissenting



      II. Silver v. Halifax County Board of Commissioners

      Lastly, I note that the State is a necessary party to the instant action, but has

not been joined as such.

      Historically, our courts have expressed no issue with a county board of

education being a proper party to a claim alleging violation of various constitutional

rights related to education. See, e.g., id. at 378, 704 S.E.2d at 265; Craig v. New

Hanover Cty. Bd. of Educ., 363 N.C. 334, 678 S.E.2d 351 (2009); Sneed v. Bd. of Educ.,

299 N.C. 609, 264 S.E.2d 106 (1980); see also N.C. Gen. Stat. § 115C-47(1) (2017) (“It

shall be the duty of local boards of education to provide students with the opportunity

to receive a sound basic education . . . .”). As our Supreme Court explained in Hoke

County Board of Education v. State, the appropriateness of joining a local board of

education as a party to a claim alleging a violation of article I, section 15 rests upon

the reality that any resulting decision is “likely to: (1) be based, in significant part,

on their role as education providers; and (2) have an effect on that role in the wake of

the proceedings.” 358 N.C. 605, 617, 599 S.E.2d 365, 378 (2004) (“Leandro II”); see

also id. at 617, 599 S.E.2d at 377-78 (“[T]he school boards clearly held a stake in the

trial court’s determination of whether or not the student plaintiffs were being denied

their right to an opportunity to obtain a sound basic education.”).

      Proper parties notwithstanding, our Supreme Court recently held in Silver v.

Halifax County Board of Commissioners that the State must be joined as a party



                                             6
                             DEMINSKI V. THE STATE BD. OF EDUC.

                                        Zachary, J., dissenting



defendant to any otherwise valid claim alleging a violation of article I, section 15.10

See generally 371 N.C. 855, 821 S.E.2d 755 (2018). Indeed, the text of article I, section

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.” N.C. Const. art. I, § 15 (emphasis

added). Thus, “to the extent that a county, as an agency of the State, hinders the

opportunity for children to receive a sound basic education, it is the State’s

constitutional burden to take corrective action.” Silver, 371 N.C. at 868, 821 S.E.2d

at 764.

       Therefore, although Defendant is indeed a proper party to the instant action,11

the holding in Silver directs that the State will shoulder the “ultimate responsibility,”


       10

                Necessary parties must be joined in an action. Proper parties may be
                joined. . . . A necessary party is one who is so vitally interested in the
                controversy that a valid judgment cannot be rendered in the action
                completely and finally determining the controversy without his
                presence. A proper party is one whose interest may be affected by a
                decree, but whose presence is not essential in order for the court to
                adjudicate the rights of others.

Carding Devs. v. Gunter & Cooke, 12 N.C. App. 448, 451-52, 183 S.E.2d 834, 837 (1971) (citations
omitted).
        11 For instance, Plaintiff’s complaint seeks relief from Defendant in the form of a “permanent

[injunction] from assigning any of the Minor Plaintiffs to attend Lakeforest Elementary School,” as
well as a mandatory injunction “to make all necessary modifications to policy and/or personnel to bring
[Defendant’s] schools into compliance with the School Violence Prevention Act.” In that the General
Assembly has delegated to county boards of education a corresponding statutory duty to provide
students with the opportunity to receive a sound basic education, see N.C. Gen. Stat. § 115C-47(1),
Defendant does, “on its own, have the authority to provide [this] relief.” Silver v. Halifax Cty. Bd. of
Comm’rs, 255 N.C. App. 559, 587, 805 S.E.2d 320, 339 (2017), aff’d, 371 N.C. 855, 821 S.E.2d 755
(2018); e.g., Sneed, 299 N.C. at 611, 619, 264 S.E.2d at 109, 114 (requiring the defendant Greensboro
City Board of Education to amend its “constitutionally infirm” fee waiver policy); cf. Silver, 371 N.C.
at 861, 868, 821 S.E.2d at 759-60, 764 (affirming the trial court’s Rule 12(b)(6) dismissal of the



                                                    7
                             DEMINSKI V. THE STATE BD. OF EDUC.

                                        Zachary, J., dissenting



and hence, must be joined as a necessary party. Id. at 866-67, 821 S.E.2d at 762-63.

Plaintiff, however, did not join the State as a defendant, as Silver requires. Our

Supreme Court did not issue its decision in Silver until 21 December 2018—one year

after Plaintiff filed her complaint in the instant case, and nearly two months after

briefs were filed in this Court.

       Accordingly, although I would affirm the trial court’s denial of Defendant’s

motion to dismiss Plaintiff’s constitutional claim, I would remand the matter with

instruction for the trial court to allow Plaintiff the opportunity to join the State as a

party to the instant action. See, e.g., City of Albemarle v. Sec. Bank & Tr. Co., 106

N.C. App. 75, 77, 415 S.E.2d 96, 98 (1992) (“The absence of a necessary party under

Rule 19, N.C. Rules of Civil Procedure, does not merit dismissal of the action.”); see

also White v. Pate, 308 N.C. 759, 764, 304 S.E.2d 199, 203 (1983) (“Any such defect[,]

[that is, absence of a necessary party,] should be corrected by the trial court ex mero

motu in the absence of a proper motion [to join the necessary party] by a competent

person.”).




plaintiffs’ claims for declaratory judgment and injunctive relief against the Halifax County Board of
Commissioners for its alleged violation of the plaintiffs’ constitutional right to education, which the
plaintiffs alleged was caused by the Board’s method of distributing local sales tax revenue, because (1)
a board of county commissioners is not responsible for affording children the opportunity to receive a
sound basic education, and (2) the General Assembly had already provided a statutory remedy for the
allegedly inadequate funding of which the plaintiffs complained (citing N.C. Gen. Stat. § 115C-431)).

                                                   8
DEMINSKI V. THE STATE BD. OF EDUC.

        Zachary, J., dissenting




                  9
