King ex rel. Harvey-Barrow v. Beaufort

• Decision Date: 20 October 2009
• Docket Number: No. COA08-1038.,COA08-1038.
• Citation: 683 S.E.2d 767
• Parties: Viktoria KING, a minor, by and through her parent, Revondia HARVEY-BARROW, Plaintiff-Appellant v. BEAUFORT COUNTY BOARD OF EDUCATION; Jeffrey Moss, Superintendent, Beaufort County Schools, in his official capacity, Defendants-Appellees.
• Court: North Carolina Court of Appeals

683 S.E.2d 767

Viktoria KING, a minor, by and through her parent, Revondia HARVEY-BARROW, Plaintiff-Appellant v. BEAUFORT COUNTY BOARD OF EDUCATION; Jeffrey Moss, Superintendent, Beaufort County Schools, in his official capacity, Defendants-Appellees.

No. COA08-1038.

Court of Appeals of North Carolina.

October 20, 2009.

Appeal by plaintiff and cross-appeal by defendants from order entered on 16 May 2008 by Judge William C. Griffin, Jr., in Beaufort County Superior Court. Heard in the Court of Appeals 11 February 2009.

Advocates for Children's Services, Legal Aid of North Carolina, Inc., by Erwin Byrd, Keith Howard, and Lewis Pitts; and Children's Law Clinic, Duke University School of Law, by Jane Wettach, for plaintiff-appellant.

Tharrington Smith, L.L.P., by Curtis H. Allen III and Robert M. Kennedy, Jr., Raleigh, for defendant-appellees.

Roberts & Stevens, P.A., by Christopher Z. Campbell and K. Dean Shatley, II, Asheville, on behalf of North Carolina School Boards Association; and North Carolina School Boards Association, by Allison B. Schafer, Raleigh, amicus curiae.

CALABRIA, Judge.

Viktoria King ("plaintiff") was a tenth grade student at Southside High School in Beaufort County during the 2007-2008 school year. On 18 January 2008, a fight involving numerous students occurred, and plaintiff was one of the students involved. As a result, plaintiff was subsequently suspended for ten days, beginning 24 January 2008. Additionally, the principal of Southside High School recommended to Beaufort County School Superintendent Jeffrey Moss ("the superintendent") a long-term suspension for plaintiff for the remainder of the school year. The superintendent followed this recommendation and suspended plaintiff for the remainder of the 2007-2008 school year.

On 20 February 2008, plaintiff filed an action seeking declaratory relief from the Beaufort County Superior Court, alleging the Beaufort County Board of Education and the superintendent ("defendants") violated her constitutional rights. Specifically, plaintiff alleged defendants' failure to provide an alternative education program for a student given a long-term suspension violated her constitutional right to a free public education. Plaintiff also filed a Motion for Temporary Restraining Order and Preliminary Injunction asking the trial court to order defendants to provide plaintiff with access to educational services during her period of suspension. This motion was denied and the trial court dismissed plaintiff's complaint, pursuant to N.C. Gen.Stat. § 1A-1, Rules 12(b)(6) and 12(b)(7) (2007) of the North Carolina Rules of Civil Procedure. However, the trial court refused to dismiss plaintiff's complaint pursuant to Rule 12(b)(1). Plaintiff appeals the dismissal of her complaint. Defendants cross-appeal the court's denial of their Motion to Dismiss pursuant to Rule 12(b)(1).

I. Dismissal pursuant to Rule 12(b)(6)

Plaintiff argues that the trial court erred by allowing defendants' Motion to Dismiss for failing to state a claim for which relief can be granted, pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6). We disagree.

On a Motion to Dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is "whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory[.]" Harris v. NCNB, 85 N.C.App. 669, 670, 355 S.E.2d 838, 840 (1987) (citation omitted). The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief. See Dixon v. Stuart, 85 N.C.App. 338, 354 S.E.2d 757 (1987). A superior court's decision to dismiss a complaint under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure is reviewed de novo by this Court. Leary v. N.C. Forest Prods., Inc., 157 N.C.App. 396, 400, 580 S.E.2d 1, 4 (2003).

Plaintiff argues that the trial court erred by relying on In re Jackson, 84 N.C.App. 167, 352 S.E.2d 449 (1987) in assessing her claims. Plaintiff believes that Jackson is no longer viable after the decisions of the North Carolina Supreme Court in Leandro v. State of North Carolina, 346 N.C. 336, 488 S.E.2d 249 (1997) and Hoke Cty. Bd. of Educ. v. State, 358 N.C. 605, 599 S.E.2d 365 (2004). Both Leandro and Hoke addressed the qualitative aspects of a public education, determining that N.C. Const. art. I, § 15 and N.C. Const. art. IX, § 2 "combine to guarantee every child of this state an opportunity to receive a sound basic education in our public schools." Leandro, 346 N.C. at 347, 488 S.E.2d at 255. Specifically, the Leandro and Hoke Courts were attempting to remedy significant funding disparities between school districts statewide that were depriving students in poorer districts the opportunity to receive quality education. Leandro set out the essential pieces of what it considered to be a sound basic education, which 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.

Id. The problems addressed in these cases were limited to the quality of education in the context of school financing and did not address in any way the subject of school discipline.

Neither the Leandro nor the Hoke decision provides any guidance on how the fundamental right for an opportunity to receive a sound basic education applies in the context of student discipline. The last pronouncement specifically on the issue was by this Court in Jackson. "Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same Court is bound by that precedent, unless it has been overturned by a higher court." In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Jackson specifically dealt with the issue of long term student suspensions without access to alternative education, and found the arrangement to be acceptable. "Reasonable regulations punishable by suspension do not deny the right to an education but rather deny the right to engage in the prohibited behavior." Jackson, 84 N.C.App. at 176, 352 S.E.2d at 455. The Court went on to say:

A student's right to an education may be constitutionally denied when outweighed by the school's interest in protecting other students, teachers, and school property, and in preventing the disruption of the educational system. As a general rule, a student may be constitutionally suspended or expelled for misconduct whenever the conduct is of a type the school may legitimately prohibit, and procedural due process is provided.

Id. This pronouncement applies directly to the plaintiff's situation and justifies the decision to suspend her until the 2008-2009 school year.

The disposition of students who have been expelled or suspended long term is ultimately a decision involving the administration of the public schools, a decision which is best left to the Legislature. As the Court noted in Jackson,

[A] juvenile court judge does not have the power to legislate or to force school boards to do what he thinks they should do. Our legislature did not impose upon the public schools or other agency a legal obligation to provide an alternative forum for suspended students, and a court may not judicially create the obligation.

Id. at 178, 352 S.E.2d at 456. This statement is echoed in Leandro. "[T]he administration of the public schools of the state is best left to the legislative and executive branches of government." Leandro, 346 N.C. at 357, 488 S.E.2d at 261. Since the decision in Jackson the Legislature has decreed that "[e]ach local board of education shall establish at least one alternative learning program and shall adopt guidelines for assigning students to alternative learning programs." N.C. Gen.Stat. § 115C-47(32a) (2007). These guidelines include "strategies for providing alternative learning programs, when feasible and appropriate, for students who are subject to long term suspension or expulsion." Id. The Legislature has clearly considered the issue of alternative education for students who are either suspended long term or expelled, and it did not choose to make access to alternative education mandatory. We have no authority to question this judgment.

There is nothing in either Leandro or Hoke that indicates that the Supreme Court intended to disturb precedent or change the standard of review regarding school discipline. Plaintiff's claims do not address the qualitative aspect of her education, as in Leandro, but deal instead with her right to access the public education system. Without a clear indication from a higher court or the Legislature that Jackson is no longer good law, we are bound by precedent. The trial court, relying on Jackson, properly dismissed plaintiff's complaint under Rule 12(b)(6) for failure to state a claim on which relief can be granted. Because dismissal was proper on these grounds, we need not consider plaintiff's additional Rule 12(b)(6) claims.

II. Dismissal pursuant to Rule 12(b)(7)

Although it is not relevant to our disposition of this case, w...