Deminski v. The State Board Of Education, et al.

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Opinion Filed June 11, 2021
Attorney for the Case Troy D. Shelton Matthew Nis Leerberg
Amicus Brief Writers Mark Dorosin Elizabeth Haddix Maria Perry
Court NC Supreme Court
Docket No. 60A20

The issues presented in Deminski that were addressed in the NCAJ’s brief were: (1) whether the right to education, as guaranteed under Article I, Section 15 of the North Carolina Constitution, includes the right to access a sound basic education (SBE); (2) whether a violation of the education right unrelated to the characteristics of a SBE is actionable; and (3) whether sovereign immunity is available to government actors as a defense to a Section 15 claim.

Since the NC Supreme Court’s opinion in Craig v. New Hanover Co. BOE, which recognized a student’s right to bring suit directly under the NC Constitution for violation of the right to education where no adequate remedy at law otherwise existed, the NC Court of Appeals has been interpreting Craig and prior Leandro rulings to only provide an actionable right where the education claim relates to the qualities of a SBE. This position has resulted in violations arising from the educational environment being struck down on appeal to the NC Court of Appeals, despite research and past incidents that evidence the importance of a safe and secure learning environment to a student’s ability to learn, and despite the common sense conclusion that a qualitatively sound education is meaningless where a student is denied the opportunity to receive/obtain it due to certain actions or inaction of the school involved. Finally, schools boards have filed interlocutory appeals for the purpose of seeking review of denial of MTDs based on sovereign immunity prior to a student’s Section 15 claim being fully developed or prosecuted.

The NC Court of Appeals should not allow interlocutory appeal for this reason because the NC Supreme Court has previously addressed the inapplicability of this defense in Section 15 cases. The NC Supreme Court has also opined sovereign immunity is a creation of the courts, not a constitutional right, therefore it may not be asserted to shield a government actor from liability on a student’s claim for violation of the constitutional education right given such takes precedence over the common law sovereign immunity doctrine. Likewise, the NC Court of Appeals has engaged in reconciliation of the facts in constitutional education rights cases unrelated to the qualities of a SBE. This reconciliation deprives a student of the opportunity to develop and present his/her case to a jury for determination on the merits, should said student survive other pre-trial motions, as contemplated by the NC Supreme Court in Craig.