ASHELY DEMINSKI, as guardian ad litem on behalf of C.E.D., E.M.D., and K.A.D., Plaintiffs,
THE STATE BOARD OF EDUCATION, and the PITT COUNTY BOARD OF EDUCATION, Defendants.
in the Court of Appeals 13 March 2019.
by defendant Pitt County Board of Education from order
entered 3 July 2018 by Judge Vince M. Rozier, Jr., in
Superior Court, Wake County No. 17 CVS 15159
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.
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 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.
Ashley Deminski,  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
Education by filing a verified complaint in Superior
Court, Wake County on 11 December 2017.
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
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] . . .had trouble breathing and
swallowing." This happened "each week" and
"at varying times during the school day."
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.
"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
personnel also failed to act when Student #4 would subject
C.E.D. to similar sexual harassment:
Student #4, perhaps encouraged by Student #3's lewd
conduct going unaddressed, sexually harassed C.E.D.
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.
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."
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.
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."
Defendant filed a motion to dismiss Plaintiff's complaint
for failure to state a claim upon which relief can be
granted,  because Plaintiff's claims were barred
by the doctrine of governmental immunity. The trial court
denied Defendant's motion to dismiss Plaintiff's
constitutional claim by order entered 3 July
2018. Defendant appeals the interlocutory order
to this Court.
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 ...