Plaintiff v. Wake County Bd. Of Educ.

• Court: North Carolina Court of Appeals
• Writing for the Court: CALABRIA, J.
• Decision Date: 19 October 2010
• Docket Number: NO.COA0 9-53 0,No. 08 CVS 000520,COA0 9-53 0,08 CVS 000520
• Citation: Watson-Green v. Wake Cnty. Bd. of Educ., No. 08 CVS 000520, NO.COA0 9-53 0 (N.C. App. Oct 19, 2010)
• Parties: Petitioner, a minor, by and through his mother and legal guardian, STACEY WATSON-GREEN, Petitioner. v. WAKE COUNTY BOARD OF EDUCATION, Respondent.

Petitioner, a minor, by and through his motherand legal guardian, STACEY WATSON-GREEN, Petitioner.

v.WAKE COUNTY BOARD OF EDUCATION, Respondent.

NO.COA0 9-53 0

No. 08 CVS 000520

NORTH CAROLINA COURT OF APPEALS

Filed: 19 October 2010

Appeal by petitioner from order entered 11 August 2008 by Judge Orlando F. Hudson, Jr., in Wake County Superior Court. Heard in the Court of Appeals 4 November 2009.

Legal Aid of North Carolina, Inc., by Suzanne Chester and Kelly Clarke, for petitioner-appellant.

Tharrington Smith, L.L.P., by Robert M. Kennedy, Jr., for respondent-appellee.

CALABRIA, J.

The petitioner, "Ryan, "¹ was suspended from the Wake County Schools for the 2007-2008 school year. He appealed his suspension to all three levels afforded by the Wake County Board of Education ("the Board"): a panel of teachers, the superintendent, and a panel of Board members. The suspension was upheld at every level. Ryan, by and through his mother and legal guardian, Stacey Watson-Green, appeals the trial court's order affirming the Board's decision upholding his long-term suspension. We affirm.

I. BACKGROUND

On 18 September 2007, Ryan, a 14-year-old student at Panther Creek High School ("Panther Creek"), was eating lunch in the cafeteria when a 16-year-old student, "Bill," approached him and insulted him. Ryan and Bill (collectively "the boys") quickly began grappling and punching each another. Ryan told Bill, "When you get off of me, I'll punch you in your face."

Two teacher assistants, Chris Kingston ("Mr. Kingston") and Steven Klein ("Mr. Klein") (collectively "the teacher assistants"), attempted to break up the fight. They spent about 60 seconds trying to get the boys to stop fighting. Ryan heard at least one of the teacher assistants telling him to stop fighting. Other teachers arrived and tried to separate the boys. Approximately 2 0 seconds after the teachers separated the boys, as Mr. Klein held Bill, Ryan hit Bill's face and Mr. Klein sustained an injury to his nose from also being hit.

Panther Creek Assistant Principal Greg Welsh ("Mr. Welsh") interviewed the boys as well as other witnesses and documented their statements ("the witness statements"). The school resource officer for Panther Creek, Officer Shauna Geyer ("Officer Geyer"), of the Cary Police Department, reviewed the witness statements and interviewed Mr. Klein. Officer Geyer completed an incident report ("incident report") for Panther Creek and charged both boys. Billwas charged as an adult with the misdemeanor of disorderly conduct and Ryan was charged as a juvenile for assault on a school employee and disorderly conduct. Ryan was suspended for violating four policies of the Board by Panther Creek Principal Rodney Nelson ("Principal Nelson"). One of the policies, 6425.3A ("Policy 6425.3A"), provided for long-term suspension for students in grades 6-12 who assault school employees. On 19 September 2007, Principal Nelson found that Ryan violated Policy 6425.3A. Ryan was suspended for 10 days with a recommendation to the Wake County Public School superintendent ("the superintendent") for a long-term suspension. (R pp. 8-10) The suspension was imposed pursuant to N.C. Gen. Stat. § 115C-391(c):

The principal of a school, with the prior approval of the superintendent, shall have the authority to suspend for periods of times in excess of 10 school days but not exceeding the time remaining in the school year, any pupil who willfully violates the policies of conduct established by the local board of education. The pupil or his parents may appeal the decision of the principal to the local board of education.

N.C. Gen. Stat. § 115C-391(c) (2007).

On 25 September 2007, Ryan appealed the recommendation for long-term suspension and requested a school-level hearing ("school-level hearing"). The school-level hearing was held on 18 October 2007 before a panel of three Panther Creek teachers ("the panel"). Ryan and Panther Creek were each represented by counsel at the school-level hearing and presented evidence, called witnesses, and made legal arguments. The panel found that Ryan violated Policy 6425.3A and affirmed Principal Nelson's recommendation for a long-term suspension and offered an alternative educational placement at the Richard Millburn School ("Millburn"). An issue of discrepancy in punishments was raised by Ryan at the close of the school-level hearing.

Following the school-level hearing, Ryan appealed the decision of the panel to the superintendent. On 1 November 2007, the Discipline Review Committee reviewed the information gathered by the panel and recommended to uphold Ryan's long-term suspension for the remainder of the 2007-08 school year. The superintendent approved the recommendation on 2 November 2007.

On 14 November 2007, Ryan appealed the superintendent's decision to the Board. A three-member panel of the Board heard Ryan's appeal on 29 November 2007 ("the Board-level hearing"). Ryan and Panther Creek were each represented by counsel at the Board-level hearing. After considering the evidence, the Board upheld Ryan's long-term suspension.

Ryan sought judicial review of the Board's decision in Superior Court alleging the superintendent and the Board upheld Principal Nelson's decision despite the lack of substantial evidence, numerous due process violations in the decision-making process, and the denial of the fundamental right to an education. Ryan also alleged the decision was arbitrary and capricious. Ryan requested that the Board reverse his suspension, remove all references to the suspension from his record, and permit him to return to school immediately.

On 11 August 2008, the trial court, sitting without a jury, affirmed the Board's decision upholding Ryan's long-term suspension. The trial court concluded, in pertinent part: (1) there was substantial evidence to support a finding that Ryan willfully behaved in such a manner that could reasonably cause physical injury to a school employee and that he was not acting in self-defense; (2) the decision of the Board upholding Ryan's longterm suspension was not arbitrary, capricious, or an abuse of discretion; (3) the Board did not commit an error of law and acted within its statutory authority in upholding Ryan's long-term suspension; (4) the Board did not violate Ryan's procedural or substantive due process rights under the United States and North Carolina Constitutions; and (5) Ryan's long-term suspension did not infringe on his right to an opportunity to receive a sound, basic education. Ryan appeals.

II. STANDARDS OF REVIEW

Pursuant to N.C. Gen. Stat. § 115C-391(e), an appeal of a local school board's decision regarding a suspension of a student for a period of time in excess of ten school days but not exceeding the time remaining in the school year is subject to judicial review in accordance with Article 4 of Chapter 150B of the General Statutes, part of the Administrative Procedures Act ("APA").

In re Alexander v. Cumberland Cty. Bd. of Educ., 171 N.C. App. 649, 653, 615 S.E.2d 408, 412-13 (2005) (citing N.C. Gen. Stat. § 115C-391(c), (e) (2003)). In reviewing a school board's decision upholding a long-term suspension, a court may reverse or modify the decision:

if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or

(6) Arbitrary, capricious, or an abuse of discretion.

N.C. Gen. Stat. § 150B-51(b)(1)-(6) (2007). "A de novo standard of review applies to asserted errors under subsections (1) through (4) of N.C.G.S. § 150B-51(b), while errors under subsections (5) and (6) of this statute are reviewed under the whole record test." Davis v. Macon Cty. Bd. of Educ, 178 N.C. App. 646, 652, 632 S.E.2d 590, 594 (2006). "When conducting de novo review, the court considers the matter anew and may freely substitute its own judgment for the board's." Moore v. Charlotte-Mecklenburg Bd. of Educ, 185 N.C. App. 566, 572, 649 S.E.2d 410, 415 (2007). "

The whole record test, by contrast, requires the reviewing court to examine all competent evidence and determine whether the board's decision is supported by 'substantial evidence.'" Id. (citing Davis, 178 N.C. App. at 652, 632 S.E.2d at 594).

Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Therefore, if we conclude there is substantial evidence in therecord to support the Board's decision, we must uphold it. We note that while the whole-record test does require the court to take into account both the evidence justifying the agency's decision and the contradictory evidence from which a different result could be reached, the test does not allow the reviewing court to replace the [] Board's judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.

Meads v. N.C. Dep't of Agric, 349 N.C. 656, 663, 509 S.E.2d 165, 170 (1998) (internal citations and quotations omitted).

As to appellate review of a superior court order regarding an agency decision, "the appellate court examines the trial court's order for error[s] of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly."

ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)).

In the instant case, there is no dispute that the trial court exercised...