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August 5, 2021

NC court: Students can use constitution to fight bullying

By GARY D. ROBERTSON

Associated Press

RALEIGH (AP) — The constitutional right of North Carolina’s children to have access to a good public school education also applies to individual students who aren’t getting help to stop classroom bullying and harassment against them, the state Supreme Court ruled Friday.

The justices’ unanimous ruling in part addresses the declaration in a landmark 1997 ruling by the court that the combination of two portions of the state constitution guarantees every child of this state an “opportunity to receive a sound basic education in our public schools.” This and another 2004 ruling in what’s known as the “Leandro” case created the basis for a separate public policy debate over how to address inequitable school funding and services not considered in Friday’s opinion.

But the right to that opportunity also must be offered as grounds for reasonable legal claims by individual students who say their rights were violated and there is no other way to seek redress, Chief Justice Paul Newby wrote.

“The right to a sound basic education rings hollow if the structural right exists but in a setting that is so intimidating and threatening to students that they lack a meaningful opportunity to learn,” Newby said in the opinion, which reverses a ruling by the state Court of Appeals to dismiss the case.

The case involved a mother and her three children. Ashley Deminski said her children, two of which are diagnosed with autism, were subject in 2016 to physical violence and sexual harassment and vulgarities by as many as four students at Lakeforest Elementary School in Pitt County. Deminski said the school’s leadership and the local school board were largely unresponsive to her concerns.

School personnel said changes would take time but no real change occurred, according to the opinion. Ultimately the three were able to transfer to another school, but Deminski sued in late 2017, citing education provisions in the North Carolina Constitution. The family sought monetary damages and an order that the children would never have to return to Lakeforest.

A trial court judge allowed the case to proceed, despite arguments by the Pitt County School Board that it was immune from the litigation as a government body. A majority on a three-judge Court of Appeals panel dismissed the case last year, citing a similar case involving the Charlotte-Mecklenburg school board and negligence claims related to a teacher’s sexual relationship with a high school student.

But Newby said the Court of Appeals’ majority decision would mean the constitutional guarantee “extends no further than an entity affording a sound basic education by making educational opportunities available.”

Instead, the constitutional right to education and the state’s duty to guard and maintain that right “extend to circumstances where a school board’s deliberate indifference to ongoing harassment prevents children from receiving an education,” he added.

Pitt County board lawyers had argued there was no cause of legal action under the constitution in cases alleging school employees had failed to prevent harm caused by a third party.

Deminski is very pleased with Friday’s ruling, attorney Troy Shelton said in an interview, calling it a victory for all North Carolina students in that “schools can’t turn a blind eye to abuse that’s happening right under their noses” and not face consequences. Deminski’s children are no longer in elementary school, Shelton said.

The case, which now returns to a trial court, received attention from outside groups. The American Civil Liberties Union of North Carolina and Disability Rights North Carolina filed briefs stating a sound basic education includes a safe learning environment.

Lawyers for the North Carolina Schools Boards Association, siding with the Pitt County board, wrote in a brief that subjecting school boards to more claims of individual injury would be financially “ruinous” to school systems.

“Recognizing a (new) constitutional claim … would extend Leandro well beyond its holding and purpose, which was to create a framework through which the state’s public school system, as a whole, could be scrutinized for constitutional adequacy,” wrote attorney Elizabeth Troutman, representing the association.

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