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Silver v. Halifax County Board of Commissioners

Court of Appeals of North Carolina

September 19, 2017

LOTONYA SILVER, individually and as Guardian Ad Litem of BRIANNA SILVER, LARRY SILVER, III and DOMINICK SILVER; BRENDA SLEDGE, individually and as Guardian Ad Litem of ALICIA JONES; FELICIA SCOTT, individually and as Guardian Ad Litem of JAMIER SCOTT; HALIFAX COUNTY BRANCH #5401, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; and COALITION FOR EDUCATION AND ECONOMIC SECURITY, Plaintiffs,
v.
THE HALIFAX COUNTY BOARD OF COMMISSIONERS, Defendant.

          Heard in the Court of Appeals 19 September 2016.

         Appeal by plaintiffs from order entered 2 February 2016 by Judge W. Russell Duke, Jr. in Superior Court, Halifax County No. 15 CVS 767.

          UNC Center for Civil Rights, by Mark Dorosin and Elizabeth Haddix, for plaintiffs-appellants.

          Yarborough, Winters & Neville, by Garris Neil Yarborough; Office of County Attorney, by County Attorney M. Glynn Rollins, Jr., for defendant-appellee.

          Youth Justice Project of the Southern Coalition for Social Justice, by K. Ricky Watson, Jr. and Peggy Nicholson, for Public Schools First NC, amicus curiae.

          Legal Aid of North Carolina, Inc., by George R. Hausen, Jr.; Legal Aid of North Carolina, Inc. - Advocates for Children's Services, by Seth Ascher and Jennifer Story, for Legal Aid of North Carolina, Inc., amicus curiae.

          STROUD, Judge.

         I. Introduction

          The North Carolina Supreme Court described the State's constitutional obligation to provide each student a "sound basic education" in Leandro v. State[1], which was filed in 1997; the Halifax County Board of Education was one of several plaintiffs in that case. In Leandro I, our Supreme Court declared that the State bears the constitutional obligation to provide a "sound basic education" to each student; the Court then explained in later Leandro litigation that "by the State we mean the legislative and executive branches[.]"[2] The legislative branch is the North Carolina General Assembly; the executive branch includes the Governor, State Board of Education, and Department of Public Instruction. The Supreme Court also explained that our state courts are not well-equipped to solve the problems in North Carolina's public schools. The Court approved of the trial court's approach, which deferred to "the expertise of the executive and legislative branches of government in matters concerning the mechanics of the public education process."[3] The Supreme Court then assigned a superior court judge to oversee the efforts to improve public education in several counties, including Halifax County, and the court oversight started by Leandro still continues today.

         In this case, plaintiffs are students in the Halifax County Public Schools and organizations interested in promoting public education. They claim that despite years of Leandro court oversight, including countless hearings and orders by the trial court and two extensive opinions from the North Carolina Supreme Court, many of the educational deficiencies described in Leandro I and II still exist in Halifax County. But in this case, plaintiffs claim that the Halifax County Board of Commissioners -- alone -- bears the constitutional obligation for providing all children in the county with a sound basic education. This claim is not supported by our Supreme Court's holdings in Leandro I and II. And the courts are still ill-equipped to solve the problems of North Carolina's public schools today, while the State -- "the legislative and executive branches" -- still has the constitutional duty to provide a sound basic education for every child in North Carolina. The defendant Halifax County Board of Commissioners was created by the State, and the State has legal power to control it. Plaintiffs' complaint describes serious problems in the schools in Halifax County, but because this defendant -- the Halifax County Board of Commissioners -- does not bear the constitutional duty to provide a sound basic education, we affirm the trial court's order dismissing this action.

         II. Plaintiffs' claim

         a. Procedural background

         This case presents a question of first impression in our Court: whether North Carolina schoolchildren may assert a violation of their right to a sound basic public education, guaranteed by the North Carolina Constitution, against a local board of county commissioners for their alleged failure to adequately fund aspects of public schools. This case has come before this Court at an early stage of the proceedings, as the trial court granted defendant's motion to dismiss under Rule 12(b)(6). At this early stage, this Court must take the factual allegations from plaintiffs' complaint, and treat them as true to determine the legal question of whether the trial court properly dismissed this case. See Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013) (noting that in an appeal from a trial court's grant of a motion to dismiss under Rule 12(b)(6), "[w]e consider whether the allegations of the complaint, if treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory." (citation and quotation marks omitted)).

         Brianna Silver, Larry Silver III, Dominick Silver, Alicia Jones, and Jamier Scott ("the students") are five students in school systems within the geographic boundaries of Halifax County, North Carolina. Latonya Silver, Brenda Sledge, and Felicia Scott are the students' respective parents or legal guardians. The students and their parents and legal guardians, as well as with two interested organizations -- the local chapter of the National Association for the Advancement of Colored People and the Coalition for Education and Economic Security (collectively, "plaintiffs") --filed a complaint against the Halifax County Board of Commissioners ("defendant" or "the Board") asserting that the Board's ineffective and inefficient allocation of financial resources resulted in a failure to provide a "sound basic education" to all school children within Halifax County, and that such failure violated the students' rights under Article I, Section 15 and Article IX, Section 2 of the North Carolina Constitution.

         Plaintiffs filed their lawsuit in Halifax County Superior Court on 24 August 2015. In their complaint, plaintiffs asserted that, due to the "educational deficiencies" in the three Halifax County school districts, "merely adding resources to the defective three-district system cannot remedy its constitutional deficiencies." Plaintiffs also claim that the Board's "decision to maintain three racially identifiable school districts prevents students from the opportunity to receive a sound basic education." Plaintiffs asserted two claims for relief, both based on Article I, Section 15 and Article IX, Section 2 of the North Carolina Constitution, and requested in part: (1) "[t]hat the Court find and conclude that Defendant's maintenance of three separate school districts obstructs Halifax County's students from securing the opportunity to receive a sound basic education;" and (2) "[t]hat the Court exercise its equitable powers and order the Board to develop and implement a plan to remedy the constitutional violations of its present education delivery mechanism and to ensure that every student in Halifax County is provided the opportunity to receive a sound basic education[.]"

         Under Rule 2.1 of the General Rules of Practice for the Superior and District Courts, this case was designated as exceptional by the Chief Justice of the Supreme Court of North Carolina, and a special superior court judge was designated to hear the case. Defendant moved to dismiss plaintiffs' complaint under Rule 12(b)(6) on 2 November 2015, asserting that the complaint failed to state a claim upon which relief may be granted. After a hearing, the trial court granted defendant's motion to dismiss under Rule 12(b)(6), reasoning it is not "the constitutional responsibility of [the Board] to implement and maintain a public education system for Halifax County." Plaintiffs appealed to this Court.

         b. Facts as alleged by plaintiffs

         We recite these factual allegations from plaintiffs' complaint and treat them as true for the purposes of our decision. Bridges, 366 N.C. at 541, 742 S.E.2d at 796. Three separate school districts exist wholly within the geographical boundaries of Halifax County: Halifax County Public Schools ("Halifax County Schools"), Weldon City Schools ("Weldon City Schools"), and Roanoke Rapids Graded School District ("Roanoke Rapids Schools"). This tripartite school system was created in the 1960s.

         As of 2015, the student population of Halifax County Schools was 85% African-American and 4% Caucasian; the student population of Weldon City Schools was 94% African-American and 4% Caucasian; and the student population of Roanoke Rapids Schools was 26% African-American and 65% Caucasian. According to plaintiffs' complaint, the three school districts receive an unequal amount of funding, with Roanoke Rapids Schools -- the only school district with a majority of Caucasian students -- receiving the most financial support. Plaintiffs allege this funding disparity flows directly from the choices made by the Board.

         Plaintiffs also allege the Board has financial responsibility for public education in Halifax County, and has the authority to use local revenues to maintain or supplement public school programs. Various North Carolina General Statutes assign to local governments the responsibility to pay for certain school-related expenditures for the school districts within its borders; the complaint alleges that the Board is responsible for providing furniture and apparatus needs; library, science, and classroom equipment; instructional supplies and books; and water supply and sanitary facilities. To fund these financial responsibilities, North Carolina law allows local governments, if they choose, to collect a one-cent sales and use tax. N.C. Gen. Stat. § 105-463 et seq. This tax is collected by retailers and remitted to the North Carolina Department of Revenue. N.C. Gen. Stat. §§ 105-469(a); 105-471 (2015). The Secretary of the Department of Revenue then allocates the net proceeds of the taxes collected to each individual county. N.C. Gen. Stat. § 105-472 (2015).

         In distributing the local government sales and use tax proceeds, the General Statutes allow the Board, by resolution, to choose one of two methods of tax distribution: the Per Capita Method, or the Ad Valorem Method. See N.C. Gen. Stat. §§ 105-472(b)(1)-(2) (2015). For counties that choose the Per Capita Method, the "net proceeds of the [sales and use] tax collected in a taxing county" is distributed "to that county and to the municipalities in the county on a per capita basis according to the total population of the taxing county, plus the total population of the municipalities in the county." N.C. Gen. Stat. § 105-472(b)(1). For counties using the Ad Valorem Method, the "net proceeds of the [sales and use] tax collected in a taxing county" is distributed "to that county and the municipalities in the county in proportion to the total amount of ad valorem taxes levied by each on property having a tax situs in the taxing county during the fiscal year next preceding the distribution." N.C. Gen. Stat. § 105-472(b)(2). According to the complaint, both Roanoke Rapids Schools and Weldon City Schools levy ad valorem "supplemental property taxes, " while Halifax County Schools do not.

         The Board distributes local sales and use tax revenue under the Ad Valorem Method. Plaintiffs' complaint alleges that because the Board chooses the Ad Valorem Method, a funding disparity exists among the three school districts. Between 2006 and 2014, it is alleged that Roanoke Rapids Schools received approximately $4.5 million in local sales and use tax revenue, Weldon City Schools received approximately $2.5 million in local sales and use tax revenue, and Halifax County Schools received no local sales and use tax revenue, because it does not collect ad valorem taxes and was therefore not entitled to a share of the local sales and use taxes distributed under the Ad Valorem Method. Plaintiffs allege the Board has "repeatedly refused to adopt" the Per Capita Method, "preferring to maintain a public education system that denies additional funding" to Halifax County Schools.

         The Board's choice not to adopt the Per Capita Method "exacerbates funding disparities already in place, " according to plaintiffs, by the fact that Roanoke Rapids Schools and Weldon City Schools collect ad valorem supplemental property tax revenue, while Halifax County Schools does not. Roanoke Rapids Schools has "authority to levy its own taxes, " and plaintiffs allege it set a supplemental property tax rate at $0.21 per $100.00 of taxable property value within the school district, which resulted in Roanoke Rapids Schools receiving approximately $15 million in additional revenue through supplemental property taxes between 2006 and 2014. Plaintiffs allege Weldon City Schools "relies on the Board to set its supplemental property tax rate, " and the Board set the rate at $0.17 per $100.00 of taxable property value, resulting in Weldon City Schools receiving approximately $11 million in additional revenue through supplemental property taxes during the same time period. In contrast, Halifax County Schools do "not have a supplemental property tax and thus receive[ ] no additional revenue, " according to plaintiffs' complaint. Plaintiffs allege these funding disparities have had an appreciable effect on each of the school districts' facilities, quality of teachers, and learning materials, briefly summarized below.

          The complaint alleges that many of Halifax County Schools' buildings are in subpar condition, resulting in: toilets flooding hallways, forcing students to walk through sewage to travel between their lockers and classes; a ceiling occasionally crumbling and falling onto students' desks mid-lesson; heating and air conditioning systems regularly failing; and school buses breaking down, affecting class schedules and school attendance. The complaint further alleges that Weldon City Schools are not much better off. The high school in the Weldon City School system has a mold infestation, crumbling ceilings, an invasive pest problem, and rodents. An elementary school in the Weldon City Schools system has bathrooms with no bathroom stall doors and routinely has no soap in the soap dispensers. Plaintiffs allege, in stark contrast, that Roanoke Rapids Schools have been renovated regularly; feature computer labs, art rooms, music rooms, and physical education spaces; and have "pristine athletic field[s]."

         Plaintiffs also allege that disparities extend to the quality of the faculty in the three school districts. They allege Halifax County Schools and Weldon City Schools (together, the "majority-minority districts") are "unable to attract and retain a sufficient number of experienced, highly effective, or qualified teachers." The complaint alleges 40 percent and 50 percent of the school districts' teachers, respectively, reported that they have insufficient access to appropriate instructional materials, while only five percent of Roanoke Rapids Schools teachers reported the same problems. Plaintiffs allege the majority-minority districts must resort to teachers provided through Teach For America ("TFA"), while Roanoke Rapids Schools have no TFA teachers placed in its schools.

         Plaintiffs further allege differences between the three school districts' learning materials, curricular offerings, and extracurricular activities, with students in the majority-minority districts being "frequently forced to share old and worn down textbooks, workbooks, and other classroom materials[, ]" and students are not permitted to take those materials home, making it difficult to complete homework assignments. Students in the majority-minority districts have minimal access to advanced academic courses. In contrast, students in Roanoke Rapids Schools have access to an "Outreach Academy" program designed to decrease the dropout rate, have wide access to advanced academic placement, and can participate in "educational inputs like extracurricular and athletic offerings[.]"

         In addition, plaintiffs allege that the school funding choices made by the Board have also had a negative impact on student test scores in the three districts. Since 2008, Halifax County Schools and Weldon City Schools have had no more than 31.7% and 47.7%, respectively, of their students score at or above grade level on statewide standardized tests. They allege students in these two school districts have consistently scored significantly lower on the SAT college entrance exams than their peers at Roanoke Rapids Schools. While students at Roanoke Rapids Schools have fared better, all three districts have higher dropout rates than the state average, with half of the dropouts in Roanoke Rapids Schools being African-American, despite that group constituting less than 25 percent of the total student population.

         III. Analysis

         a. The Leandro cases established a constitutional right to a sound basic education.

         "[T]he right to education provided in the state constitution is a right to a sound basic education. Leandro I, 346 N.C. at 345, 488 S.E.2d at 254.

         Plaintiffs argue that their complaint, taken as true, states a claim against defendant for violating their rights conferred by Article I, Section 15 and Article IX, Section 2 of the North Carolina Constitution, and the Board's choices "deprived Plaintiffs of their constitutionally-guaranteed opportunity to receive a sound basic education." "It has long been understood that it is the duty of the courts to determine the meaning of the requirements of our Constitution." Leandro I, 346 N.C. at 345, 488 S.E.2d at 253. To determine whether plaintiffs' claims against the Board, if true, constitute a violation of the North Carolina Constitution, we first consider the language of the two constitutional provisions involved. Article I, Section 15 of the North Carolina Constitution provides: "Education. 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 in original). Article IX, section 2 provides:

         Uniform system of schools.

(1) General and uniform system: term. -- The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students.
(2) Local responsibility. -- The General Assembly may assign to units of local government such responsibility for the financial support of the free public schools as it may deem appropriate. The governing boards of units of local government with financial responsibility for public education may use local revenues to add to or supplement any public school or post-secondary school program.

N.C. Const. art. IX, § 2 (emphasis in original). The contours of these constitutional provisions have been examined in two landmark opinions of our Supreme Court: Leandro I, 346 N.C. 336');">346 N.C. 336, 488 S.E.2d 249; and Leandro II, 358 N.C. 605');">358 N.C. 605, 599 S.E.2d 365.

         In Leandro I, students, their parents or legal guardians, and their school districts[4] ("the plaintiffs"), sued the State and the North Carolina State Board of Education ("SBOE") (collectively, "the defendants") alleging: (1) that the children in five relatively poor school districts had a right to adequate educational opportunities which the defendants had denied under the then-existing school funding system; and (2) the North Carolina Constitution "not only creates a fundamental right to an education, but it also guarantees that every child, no matter where he or she resides, is entitled to equal educational opportunities." 346 N.C. at 342, 488 S.E.2d at 252. Much like the present case, the plaintiffs in Leandro I "complain[ed] of inadequate school facilities with insufficient space, poor lighting, leaking roofs, erratic heating and air conditioning, peeling paint, cracked plaster, and rusting exposed pipes." Id. at 343, 488 S.E.2d at 252. The plaintiff school districts asserted that "they [were] unable to compete for high quality teachers because local salary supplements in their poor districts [were] well below those provided in wealthy districts." Id.

         After examining the plain language, purpose, and history of Article I, Section 15 and Article IX, Section 2 of the North Carolina Constitution, our Supreme Court held these provisions provide a right to "a qualitatively adequate education[.]" Leandro I, 346 N.C. at 345, 488 S.E.2d at 254. The Court explained:

Article I, Section 15 and Article IX, Section 2 of the North Carolina Constitution combine to guarantee every child of this state an opportunity to receive a sound basic education in our public schools. For purposes of our Constitution, a "sound basic education" is 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.

Leandro I, 346 N.C. at 347, 488 S.E.2d at 255 (citations omitted).

         In addition to considering the qualitative aspect inherent in the two constitutional provisions when combined, the Supreme Court also considered whether the equal opportunities clause of Article IX, Section 2, alone, "mandates equality in the educational programs and resources offered the children in all school districts in North Carolina." See Leandro I, 346 N.C. at 348, 488 S.E.2d at 255. In answering that question in the negative, the Court explained:

The issue here . . . is [the] plaintiffs' contention that North Carolina's system of school funding, based in part on funding by the county in which the district is located, necessarily denies the students in plaintiffs' relatively poor school districts educational opportunities equal to those available in relatively wealthy districts and thereby violates the equal opportunities clause of Article IX, Section 2(1). Although we have concluded that the North Carolina Constitution requires that access to a sound basic education be provided equally in every school district, we are convinced that the equal opportunities clause of Article IX, Section 2(1) does not require substantially equal funding or educational advantages in all school districts. . . . [W]e conclude that provisions of the current state system for funding schools which require or allow counties to help finance their school systems and result in unequal funding among the school districts of the state do not violate constitutional principles.

Leandro I, 346 N.C. at 348-49, 488 S.E.2d at 256 (emphasis added). Our Supreme Court also addressed local responsibility for school funding, and held that differences in school funding between school districts resulting from local supplements do not violate Article IX, Section 2(2):

Article IX, Section 2(2) of the North Carolina Constitution expressly authorizes the General Assembly to require that local governments bear part of the costs of their local public schools. Further, it expressly provides that local governments may add to or supplement their school programs as much as they wish. . . . Because the North Carolina Constitution expressly states that units of local governments with financial responsibility for public education may provide additional funding to supplement the educational programs provided by the state, there can be nothing unconstitutional about their doing so or in any inequality of opportunity occurring as a result.

Leandro I, 346 N.C. at 349-50, 488 S.E.2d at 256 (emphasis added). This holding was grounded, in part, in practical concerns; because the Constitution permits local supplements, " '[c]learly . . . a county with greater financial resources will be able to supplement its programs to a greater degree than less wealthy counties, resulting in enhanced educational opportunity for its students. [Article IX, Section 2(2)] obviously precludes the possibility that exactly equal educational opportunities can be offered' " in all school districts throughout the State. Id. at 350, 488 S.E.2d at 256 (quoting Britt v. N.C. State Bd. of Educ., 86 N.C.App. 282, 288, 357 S.E.2d 432, 435-36 (1987)) (ellipses and brackets omitted).

         Upon concluding that the plaintiffs had stated a claim upon which relief could have been granted, our Supreme Court held that "[i]f on remand of this case to the trial court, that court makes findings and conclusions from competent evidence to the effect that defendants in this case are denying children of the state a sound basic education, a denial of a fundamental right will have been established." Id. at 357, 488 S.E.2d at 261. Unless the State could show that its actions denying a fundamental right were necessary to promote a compelling governmental interest, the Court held that it would be "the duty of the [trial] court to enter a judgment granting declaratory relief and such other relief as needed to correct the wrong while minimizing the encroachment upon the other branches of government." Id. (citation omitted).

         As directed by Leandro I, on remand the trial court heard extensive evidence and ultimately entered a declaratory judgment favorable to the Leandro plaintiffs; our Supreme Court considered the appeal of that judgment in Leandro II. Leandro II, 358 N.C. at 612-13, 599 S.E.2d at 375. In Leandro II, our Supreme Court encountered a "continuation of the landmark decision by this Court, [Leandro I, ] unanimously interpreting the North Carolina Constitution to recognize that the legislative and executive branches have the duty to provide all the children of North Carolina the opportunity for a sound basic education." Leandro II, 358 N.C. at 609, 599 S.E.2d at 373. The Court considered, for the first time, what measures are to be used to determine whether a student's right to a sound basic public education had been violated.

          While the plaintiffs in Leandro I and Leandro II hailed from many poor school districts in North Carolina -- including Halifax County -- the evidence primarily focused on a single district, Hoke County, which was designated as a "representative plaintiff district." See id. at 613, 599 S.E.2d at 375. The Court noted that the evidence presented by the Leandro II plaintiffs included four general types of evidence: "(1) comparative standardized test score data; (2) student graduation rates, employment potential, post-secondary education success (and/or lack thereof); (3) deficiencies pertaining to the educational offerings in Hoke County schools; and (4) deficiencies pertaining to the educational administration of Hoke County schools." Id. at 623, 599 S.E.2d at 381. The Court called the first two categories "outputs, " and the second two categories as "inputs." Id. "Outputs" is "a term used by educators that, in sum, measures student performance[, ]" while "inputs" is "a term used by educators that, in sum, describes what the State and local boards provide to students attending public schools." Id.

         After discussing the evidence in the case regarding "outputs" and "inputs, " our Supreme Court held that the plaintiffs had made a "clear evidentiary showing" of the inadequacy of both. See id. at 630, 599 S.E.2d 386. The Court stated:

In our view, the trial court conducted an appropriate and informative path of inquiry concerning the issue at hand. After determining that the evidence clearly showed that Hoke County students were failing, at an alarming rate, to obtain a sound basic education, the trial court in turn determined that the evidence presented also demonstrated that a combination of State action and inaction contributed significantly to the students' failings. Then, after concluding that the State's overall funding and resource provisions scheme was adequate on a statewide basis, the trial court determined that the evidence showed that the State's method of funding and providing for individual school districts such as Hoke County was such that it did not comply with Leandro's mandate of ensuring that all children of the state be provided with the opportunity for a sound basic education.

Id. at 637, 599 S.E.2d at 390. Accordingly, our Supreme Court affirmed "those portions of the trial court's order that conclude[d] that there [had] been a clear showing of a denial of the established right of Hoke County students to gain their opportunity for a sound basic education" and also affirmed the portions of the order which required "the State to assess its education-related allocations to the county's schools so as to correct any deficiencies that . . . prevent[ed] the county from offering its students the opportunity to obtain a Leandro-conforming education." Id. at 638, 599 S.E.2d at 391.

         With these principles in mind, we consider plaintiffs' complaint. In their complaint, plaintiffs allege that Halifax County Schools and Weldon City Schools lack the necessary resources to provide fundamental educational opportunities to the children in their school districts. Plaintiffs further complain of inadequate school facilities, crumbling ceilings, leaking pipes, sewage in the hallways, and a lack of adequate instructional materials in the majority-minority districts. These deficiencies result from defendant's funding choices and have led to poor test scores and the inability to retain qualified teachers. Plaintiffs requested, in their complaint, that the Court "exercise its equitable powers and order the Board to develop and implement a plan to remedy the constitutional violations of its present education delivery mechanism and to ensure that every student in Halifax County is provided the opportunity to receive a sound basic education."

         The educational deficiencies as described in the plaintiffs' complaint, which we accept as true for the motion to dismiss, are serious and intolerable. But rather than filing this separate lawsuit, the correct avenue for addressing plaintiffs' concerns in the present case would appear to be through the ongoing litigation in Leandro I and Leandro II. The Leandro cases defined not only the essential requirements for a "sound basic education" under the North Carolina constitution, but also the entities with the constitutional responsibility to provide that education. In addition, these cases answer the essential question in this case of whether a local board of county commissioners has the constitutional obligation for providing a sound basic public education for the students in its county. The Halifax County schools are addressed in many orders in the ongoing court supervision in the Leandro cases. As noted above, several plaintiffs in Leandro I and II are local boards of education, including the Halifax County Board of Education. See Leandro I, 346 N.C. at 346, 488 S.E.2d at 249; Leandro II, 358 N.C. at 605, 599 S.E.2d at 365. Furthermore, plaintiffs' complaint refers to a 2009 consent order that "determined that students in HCPS were not being provided the opportunity to receive a sound basic education and required the North Carolina Department of Public Instruction's [sic] ('DPI') to implement a 'turnaround' intervention plan in HCPS." Oddly, the complaint does not identify the case or court in which the "2009 consent order" was entered, but we believe it is entirely appropriate for this Court to take judicial notice it was a court order in the ongoing Leandro litigation.

         On plaintiffs' argument that this defendant -- a county board of commissioners -- has the constitutional obligation to provide a sound basic education, we cannot lose sight of the fact that the Leandro cases began as a declaratory judgment action with the express purpose of determining the extent of the state constitutional right to a sound basic education and the entities responsible for providing that education. Leandro II, 358 N.C. at 611, 599 S.E.2d at 374. Leandro I and Leandro II determined the correct parties and the entities legally responsible for providing a sound basic education under the North Carolina Constitution; county commissioners were not included as parties in either case. Leandro II addressed the responsibilities of the various entities -- the State, the local school boards, and the State Board of Education -- and held that the local entities, as creatures of the State, did not bear the constitutional obligation regarding education, yet found the school boards to still be proper parties to the ongoing litigation, since the case was based significantly on their role as the providers of education and the outcome would have a great effect on that role. Leandro II, 358 N.C. at 617, 599 S.E.2d at 378. In Leandro II, the Supreme Court also clarified that the constitutional duty is on the State, and "by the State we mean the legislative and executive branches which are constitutionally responsible for public education[.]" Id.. at 635, 599 S.E.2d at 389. Although the county boards of commissioners were not parties to Leandro I or II, they are creatures of the State just as the local school boards.

         We cannot discern why deficiencies in education alleged here have not been raised with the superior court in the ongoing Leandro II matter. And even if these particular deficiencies cannot be addressed in the ongoing Leandro II case, plaintiffs simply have not stated a constitutional claim against this defendant, the Halifax County Board of Commissioners, because this defendant on its own does not have the constitutional duty identified in Leandro I to provide a sound basic education. The State does, and the State has total control over this defendant. We will review briefly the basic principles of Leandro I and II specifically as applied to the plaintiffs' claims and the schools in Halifax County.

         b. Leandro I and II established that the State is constitutionally responsible for public education.

         "[B]y the State we mean the legislative and executive branches which are constitutionally responsible for public education." Leandro II, 358 N.C. at 635, 599 S.E.2d at 389.

The seminal case in North Carolina which establishes the constitutional right to sound basic education is Leandro I, 346 N.C. at 345, 488 S.E.2d at 254, with further analysis and clarification in Leandro II, 358 N.C. at 614-15, 599 S.E.2d at 376. The questions of how to correct educational deficiencies and which entities bear the responsibility for improving education have been addressed many times and in excruciating detail in Leandro I, Leandro II, and continuing litigation that has followed these decisions over the years.[5] Leandro I, as described in Leandro II, was "initiated as a declaratory judgment action pursuant to [ N.C. Gen. Stat.] § 1-253 (2003)." Leandro II, 358 N.C. at 611, 599 S.E.2d at 374.

[T]he case included five distinct parties: (1) plaintiff school children (and their respective guardians), (2) plaintiff local school boards, (3) plaintiff-intervenors, (4) the State Board of Education, and (5) the State. At that juncture, all participants sought a decree defining what rights and obligations were at stake, which parties had obligations, and which parties had rights as a result of such obligations. In Leandro, this Court, in sum, decreed that the State and State Board of Education had constitutional obligations to provide the state's school children with an opportunity for a sound basic education, and that the state's school children had a fundamental right to such an opportunity. As a result of the decree, adversarial sides were clearly drawn for four of the five parties -- plaintiff school children and plaintiff-intervenor school children (who, under the decree, enjoyed the right of educational opportunity), versus the State and State Board of Education (which, under the decree, were obligated to provide such opportunity).

Id. at 614-15, 599 S.E.2d at 376 (citation omitted) (emphasis added). One of the plaintiff school boards in Leandro I and II was -- and still is -- the Halifax County Board of Education. Leandro I, 346 N.C. at 336, 488 S.E.2d at 249.

         In Leandro II, the Supreme Court addressed an issue which developed after the Leandro I ruling regarding the status of the school boards as parties, since "as state-created entities, they enjoyed no entitlement to the right established in Leandro -- namely, a child's individual right of an opportunity to a sound basic education." Leandro II, 358 N.C. at 617, 599 S.E.2d at 378. In the Leandro I and II litigation, the school boards being complained about were plaintiffs, not defendants, but the Supreme Court nevertheless considered the proper constitutional role and responsibility of the school boards as local entities which share in the provision of public education. See Leandro II, 358 N.C. at 617, 599 S.E.2d at 378. The Supreme Court agreed that the school boards were properly named as parties since "the ultimate decision of the trial court was 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." Id. In other words, the school boards are not entitled to the benefit of the constitutional right to an education, nor do they alone bear the constitutional responsibility of providing education, but since they have statutory duties to participate as education providers, they remained as parties to the lawsuit. The Supreme Court also noted that the very purpose of the declaratory judgment action was

by definition, . . . premised on providing parties with a means for courts of record to declare rights, status, and other legal relations" among such parties. In addition, section 1-260 of the General Statutes declares plainly that when declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration. Thus, while the precise party designation -- i.e., plaintiffs -- of the school boards may not have been readily discernible at the time of the trial, the nature of the parties' claims was such that: (1) they sought a declaration of rights, status, and legal relations of and among the parties; and (2) any declaration of the rights, status, and legal relations of and among the parties would affect the role played by the school boards in providing the state's children with the opportunity to obtain a sound basic education.

Id. at 617-18, 599 S.E.2d at 378 (citations, quotation marks, brackets, ellipses, and emphasis omitted) (emphasis added). We have found no mention in Leandro I or II of adding county boards of commissioners as parties.

         The Supreme Court also noted in Leandro II the central roles played by the legislative and executive branches in providing public education. Id. at 635-38, 599 S.E.2d at 389-91. In affirming the trial court's order directing the State to reassess educational priorities and correct "any and all education-related deficiencies[, ]" the Court noted that

the trial court refused to step in and direct the "nuts and bolts" of the reassessment effort. Acknowledging that the state's courts are ill-equipped to conduct, or even to participate directly in, any reassessment effort, the trial court deferred to the expertise of the executive and legislative branches of government in matters concerning the mechanics of the public education process.
. . . . [W]e note that the trial court also demonstrated admirable restraint by refusing to dictate how existing problems should be approached and resolved. Recognizing that education concerns were the shared province of the legislative and executive branches, the trial court instead afforded the two branches an unimpeded chance, "initially at least, " see Leandro, 346 N.C. at 357, 488 S.E.2d at 261, to correct constitutional deficiencies revealed at trial. In our view, the trial court's approach to the issue was sound and its order reflects both findings of fact that were supported by the evidence and conclusions that were supported by ample and adequate findings of fact.

Id. at 638, 599 S.E.2d at 390-91.

         When the Leandro cases were decided, North Carolina's laws regarding school district finance were essentially the same as they are now, and Halifax County schools were organized just as they are now. Leandro II noted that Leandro I carefully distinguished the responsibilities and rights of the "five distinct parties: (1) plaintiff school children (and their respective guardians), (2) plaintiff local school boards, (3) plaintiff-intervenors, (4) the State Board of Education, and (5) the State." Leandro II, 358 N.C. at 614, 599 S.E.2d at 376. Although county commissioners levied property taxes and budgeted funds for schools at the time of the Leandro cases, just as they do now, the county commissioners for the ...


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