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Deminski v. State Board of Education

Court of Appeals of North Carolina

January 7, 2020

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.

          Heard in the Court of Appeals 13 March 2019.

          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 No. 17 CVS 15159

          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 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 Education[2] 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] . . .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."

         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."

         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."

          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 ...


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