K.H. v. Dixon

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-878

Filed 1 October 2024

Alamance County, No. 23 CVS 20

K.H. A MINOR, BY AND THROUGH HER GUARDIAN AD LITEM, DEBORAH

CLAGGETT, Plaintiff,

v.

DANIELLE L. DIXON, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, AND

ALAMANCE-BURLINGTON BOARD OF EDUCATION, Defendants.

Appeal by plaintiff from order entered 17 April 2023 by Judge Michael L.

Robinson in Alamance County Superior Court. Heard in the Court of Appeals 17

April 2024.

McMillion Law, PLLC, by Jeff McMillion, for plaintiff-appellant.

Tharrington Smith, LLP, by David B. Noland, for defendant-appellee

Alamance-Burlington Board of Education.

THOMPSON, Judge.

Deborah Claggett, on behalf of her minor granddaughter, K.H.,1 and as K.H.’s

guardian ad litem, brought action against Danielle Dixon, individually and in her

official capacity, and the Alamance-Burlington Board of Education, alleging four tort

claims and a claim that K.H. was denied her constitutional right to a sound basic

education pursuant to article I, section 15, and article IX, section 2 of the North

1 Initials are used to protect the identity of the minors referenced in this opinion.

K.H. V. DIXON

Opinion of the Court

Carolina Constitution. The Alamance-Burlington Board of Education (defendant)

filed a motion to dismiss pursuant to Rules 12(b)(1), 12(b)(2) and 12(b)(6) and an

answer to plaintiff’s complaint. The Alamance County Superior Court entered an

order granting defendant’s motion to dismiss, and plaintiff timely appealed. After

careful review, we affirm the trial court’s order dismissing plaintiff’s complaint

against defendant.

I. Factual Background and Procedural History

K.H. was a student at Broadview Middle School, located in Burlington, North

Carolina.2 On 2 November 2022, K.H. attempted to enter Danielle Dixon’s3 (Dixon)

classroom to retrieve K.H.’s bookbag. However, K.H.’s attempt was prevented by

Dixon, who used her arm to block K.H. from entering the classroom. K.H. persisted

in her efforts to enter the classroom and ultimately struck Dixon’s arm. In response,

Dixon grabbed K.H., pulled her inside the classroom, and shut the door. Once inside

the classroom, Dixon grabbed K.H. by her hair and slammed K.H. into the door before

forcefully slamming K.H. to the ground. While still clenching the back of K.H.’s head

by her hair, Dixon slammed K.H.’s head into the ground “no less than five times[.]” [

As Dixon’s assault on K.H. was occurring, other students inside the classroom

2 Broadview Middle School falls within the Alamance-Burlington Board of Education’s district

and is governed thereby.

3 Danielle Dixon is not a party to this appeal. Further, at all times relevant to this appeal,

Dixon was a teacher employed by defendant.

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were yelling and requesting Dixon “to release” K.H. and to stop attacking her. The

commotion from the attack prompted two other teachers to enter the classroom and

call for help. Despite the other teachers entering the classroom, Dixon continued

holding K.H. on the ground by the hair on the back of her head and demanding that

K.H. get out of her classroom. Following the assault, K.H. was suspended for ten days

and subsequently relocated to Ray Street Academy.

On 5 January 2023, K.H., by and through her guardian ad litem/grandmother,

Deborah Claggett, filed a complaint against defendant alleging several causes of

action including (1) assault and battery, (2) negligent hiring, retention, and

supervision of Dixon, (3) negligent infliction of emotional distress, (4) intentional

infliction of emotional distress, and (5) violations of the North Carolina Constitution

article I, section 15 and article IX, section 2.

On 16 February 2023, in response to plaintiff’s complaint, defendant

contemporaneously filed an Answer and a Motion to Dismiss. Defendant sought to

dismiss plaintiff’s complaint “pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the

North Carolina Rules of Civil Procedure[.]”

On 10 April 2023, defendant’s motion to dismiss plaintiff’s complaint was

heard during the civil session of Alamance County Superior Court. After hearing from

both parties, the court took the matter under advisement and subsequently entered

an order granting defendant’s motion to dismiss, and each of plaintiff’s claims was

dismissed with prejudice.

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Opinion of the Court

On 16 May 2023, plaintiff entered timely notice of appeal.

II. Discussion

A. Appellate Jurisdiction

As an initial matter, we must determine whether this Court has jurisdiction to

hear plaintiff’s interlocutory appeal. Plaintiff contends that the superior court’s order

granting defendant’s motion to dismiss—based on the defense of governmental

immunity—is immediately appealable. We agree.

“Generally, there is no right of immediate appeal from interlocutory orders and

judgments.” Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735,

736 (1990). However, an interlocutory order or judgment which affects a substantial

right is immediately appealable. Id. at 726, 392 S.E.2d at 736. Moreover, “[t]his Court

has repeatedly held that appeals raising issues of governmental or sovereign

immunity affect a substantial right sufficient to warrant immediate appellate

review.” Kawai Am. Corp. v. Univ. of N.C. at Chapel Hill, 152 N.C. App 163, 165, 567

S.E.2d 215, 217 (2002) (citation omitted). However, the scope of appellate review is

limited.

While “interlocutory orders raising issues of governmental or sovereign

immunity affect a substantial right sufficient to warrant immediate appellate

review[,]” this immediate appellate review only applies to the “denial of a motion to

dismiss under Rules 12(b)(2), 12(b)(6), and 12(c), or a motion for summary judgment

under Rule 56.” Hinson v. City of Greensboro, 232 N.C. App. 204, 209, 753 S.E.2d 822,

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826 (2014) (citations omitted). Therefore, “[w]e cannot review a trial court’s order

denying a motion to dismiss under Rule 12(b)(1)[,]” id. (citation omitted), because a

“Rule 12(b)(1) motion based on sovereign immunity is neither immediately

appealable pursuant to N.C. Gen. Stat. § 1-277(b), nor affects a substantial right.”

Horne v. Town of Blowing Rock, 223 N.C. App. 26, 29, 732 S.E.2d 614, 616 (2012)

(citation omitted).

Here, defendant filed a motion to dismiss plaintiff’s complaint pursuant,

collectively, to Rule 12(b)(1), 12(b)(2), and 12(b)(6). As it relates to plaintiff’s tort

claims, the trial court granted defendant’s motion to dismiss because plaintiff’s

complaint “d[id] not sufficiently demonstrate a basis for waiver of [defendant]’s

sovereign immunity as required under Rules 12(b)(1)–(2).” Regarding plaintiff’s

constitutional claim, the trial court granted defendant’s motion to dismiss because

plaintiff’s “[c]omplaint f[ell] short of alleging facts giving rise to the type of claims

contemplated in Deminski v. State Bd. of Educ., and therefore [was] insufficient

under Rule 12(b)(6).” Considering this in light of our holdings in Horne and Hinson,

we may properly review plaintiff’s appeal of the trial court’s order granting

defendant’s 12(b)(2) and 12(b)(6) motions to dismiss.

B. Sovereign Immunity

On appeal, plaintiff contends that the “trial court erred by dismissing the

plaintiff’s claims under the theory of sovereign immunity because a school board trust

is a de facto insurance policy.” We do not agree.

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Opinion of the Court

The doctrine of sovereign immunity is a well-established “principle of

jurisprudence, resting on grounds of sound public policy, that a state may not be sued

in its own courts or elsewhere unless it has consented by statute to be sued or has

otherwise waived its immunity from suit.” Can Am S., LLC v. State of N.C., 234 N.C.

App. 119, 125, 759 S.E.2d 304, 309 (2014) (citation omitted). “By application of this

principle, a subordinate division of the state or an agency exercising statutory

governmental functions may be sued only when and as authorized by statute.” Id.

(citation omitted). This Court has indicated that “[s]overeign immunity is not merely

a defense to a cause of action; it is a bar to actions that requires a plaintiff to establish

a waiver of immunity.” Id. Therefore, “the trial court must determine whether the

complaint specifically alleges a waiver of governmental immunity.” Id. (citation

omitted). “[P]recise language alleging that the State has waived the defense of

sovereign immunity is not necessary, but, rather, the complaint need only contain

sufficient allegations to provide a reasonable forecast of waiver[,]” and if a plaintiff

fails to allege such waiver, “the complaint fails to state a cause of action.” Id. (citations

omitted).

To determine whether the trial court properly granted defendant’s Rule

12(b)(2) motion to dismiss based on sovereign immunity, “we must consider: (1)

whether plaintiff sufficiently pleaded that defendant[ ] waived [its] sovereign

immunity; and (2) whether defendant[ ] expressly or impliedly waived sovereign

immunity.” Id. at 126, 759 S.E.2d at 309.

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Opinion of the Court

“As a general rule, the doctrine of governmental, or sovereign immunity bars

actions against, inter alia, the state, its counties, and its public officials sued in their

official capacity.” Lail v. Cleveland Cty. Bd. of Educ., 183 N.C. App. 554, 558, 645

S.E.2d 180, 184 (2007) (citation omitted). “A county or city board of education is a

governmental agency, and therefore may not be liable in a tort action except insofar

as it has duly waived its immunity from tort liability pursuant to statutory

authority.” Id. N.C. Gen. Stat. § 115C-42 provides a method in which a local board of

education may waive its immunity. More specifically,

[a]ny local board of education, by securing liability

insurance as hereinafter provided, is hereby authorized

and empowered to waive its governmental immunity from

liability for damage by reason of death or injury to person

or property caused by the negligence or tort of any agent or

employee of such board of education when acting within the

scope of his authority or within the course of his

employment. Such immunity shall be deemed to have been

waived by the act of obtaining such insurance, but such

immunity is waived only to the extent that said board of

education is indemnified by insurance for such negligence

or tort.

N.C. Gen. Stat. § 115C-42 (2023). Furthermore, “a school board can only waive its

governmental immunity where it procures insurance through a company or

corporation licensed and authorized to issue insurance in this State or a qualified

insurer as determined by the Department of Insurance.” Lail, 183 N.C. App. at 560–

61, 645 S.E.2d at 185.

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Opinion of the Court

In this case, plaintiff failed to sufficiently plead that defendant waived its

sovereign immunity. While “[t]he requirement that a plaintiff specifically allege

waiver of governmental immunity does not mandate that a complaint use any

particular language[,]” Can Am S. LLC, 234 N.C. App. at 126, 759 S.E.2d at 310

(ellipsis and citation omitted), plaintiff’s complaint was required to, “consistent with

the concept of notice pleading, . . . allege facts that, if taken as true, are sufficient to

establish a waiver by the State of sovereign immunity.” Id. However, plaintiff’s only

contention regarding a defense of sovereign immunity was that “[d]efendant Board

failed to provide a safe learning environment free of harassment and intimidation as

required by N.C. Const. art[icle] I, [section] 15 and N.C. Const. art[icle] IX[,] [section]

2, which precludes the [d]efendant Board and their agents from governmental

immunity.” Thus, plaintiff’s contention falls short of establishing that defendant

waived its sovereign immunity. Because plaintiff failed to sufficiently plead that

defendant waived its sovereign immunity, we need not address the second prong of

the Rule 12(b)(2) motion to dismiss analysis.

Consequently, we hold that the trial court did not err in dismissing plaintiff’s

tort claims—assault and battery; negligent hiring, retention, and supervision;

negligent infliction of emotional distress; and intentional infliction of emotional

distress—against defendant pursuant to Rule 12(b)(2) because defendant had not

waived its sovereign immunity; therefore, the trial court did not have personal

jurisdiction over defendant.

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Opinion of the Court

C. Constitutional Claim

Next, plaintiff contends that the trial court erred in granting defendant’s Rule

12(b)(6) motion to dismiss because “plaintiff had stated a proper claim for violation of

the North Carolina Constitution against [defendant].” We do not agree.

This Court reviews a Rule 12(b)(6) motion to dismiss de novo. Bobbitt v.

Eizenga, 215 N.C. App. 378, 379, 715 S.E.2d 613, 615 (2011) (italics omitted). “The

standard of review of an order granting a 12(b)(6) motion is whether the complaint

states a claim for which relief can be granted under some legal theory when the

complaint is liberally construed and all the allegations included therein are taken as

true.” Id. at 379–80, 715 S.E.2d at 615 (citation omitted). Accepting that “the

complaint’s material factual allegations are taken as true[,]” a trial court may

properly grant a motion to dismiss if one of the following conditions is satisfied: “(1)

the complaint on its face reveals that no law supports the plaintiff’s claim; (2) the

complaint on its face reveals the absence of facts sufficient to make a good claim; or

(3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim.”

Id. at 380, 715 S.E.2d at 615.

It is noteworthy that although sovereign immunity generally bars an action

against the State unless the State has consented to suit or otherwise waived its

immunity, “the doctrine of sovereign immunity will not stand as a barrier to North

Carolina citizens who seek to remedy violations of their rights guaranteed under the

North Carolina Constitution.” Coastal Conservation Ass’n v. State of N.C., 285 N.C.

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App. 267, 279, 878 S.E.2d 288, 298 (2022). As such, “a direct constitutional claim will

survive a Rule 12(b)(6) motion to dismiss, notwithstanding the doctrine of sovereign

or governmental immunity.” Id. To determine whether a plaintiff’s complaint has

sufficiently alleged a claim for which relief may be granted under our state

constitution, we must apply a three-part test. Id.

“First, to allege a cause of action under the North Carolina Constitution, a

state actor must have violated an individual’s constitutional rights. Second, the claim

must be colorable.” Id. (citations omitted). To be a colorable claim, “the claim must

present facts sufficient to support an alleged violation of a right protected by the State

Constitution.” Id. And third, “there must be no adequate state remedy. No adequate

state remedy exists when state law does not provide for the type of remedy sought by

the plaintiff.” Id. (internal quotation marks, brackets, and citations omitted). Our

Supreme Court has indicated that “when there is a clash between [ ] constitutional

rights and sovereign immunity, the constitutional rights must prevail.” Craig v. New

Hanover Cty. Bd. of Educ., 363 N.C. 334, 339, 678 S.E.2d 351, 355 (2009) (emphasis

omitted) (citation omitted). As such, a claim that is barred by sovereign immunity is

not an adequate remedy, because “to be considered adequate in redressing a

constitutional wrong, a plaintiff must have at least the opportunity to enter the

courthouse doors and present his claim.” Id. at 339–40, 678 S.E.2d at 355.

Applying the first part of the test to the instant case, we conclude that plaintiff

successfully alleged that a state actor violated K.H.’s constitutional rights. Here,

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plaintiff alleged that defendant “failed to provide a safe learning environment free of

harassment and intimidation as required by N.C. Const. art[icle] I, [section] 15 and

N.C. Const. art[icle] IX[,] [section] 2, which precludes the [d]efendant Board and their

agents from governmental immunity.” Defendant, Alamance-Burlington Board of

Education, “as a government entity, is a government actor.” Deminski v. State Bd. of

Educ., 377 N.C. 406, 414, 858 S.E.2d 788, 794 (2021). Thus, we turn to the second

part of the test.

Under the second part of the test, we must determine if plaintiff “alleged a

colorable constitutional claim.” Id. Article I, section 15 states, “[t]he people have a

right to the privilege of education, and it is the duty of the State to guard and

maintain that right.” N.C. Const. art. I, § 15. And, article IX, section 2 states, “[t]he

General Assembly shall provide by taxation and otherwise for a general and uniform

school system of free public schools, which shall be maintained at least nine months

in every year, and wherein equal opportunities shall be provided for all students.”

N.C. Const. art. IX, § 2. Our Supreme Court has stated that, article I, section 15 and

article IX, section 2 of our state constitution “work in tandem . . . to guarantee every

child of this state an opportunity to receive a sound basic education in our public

schools.” Deminski, 377 N.C. at 412, 858 S.E.2d at 793. Pursuant to Leandro,

a ‘sound basic education’ 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

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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.

Leandro v. State of North Carolina, 346 N.C. 336, 347, 488 S.E.2d 249, 255 (1997).

Finally, “[t]aken together, [a]rticle I, [s]ection 15 and [a]rticle IX, [s]ection 2 require

the government to provide an opportunity to learn that is free from continual

intimidation and harassment which prevent a student from learning. In other words,

the government must provide a safe environment where learning can take place.”

Deminski, 377 N.C. at 412–13, 858 S.E.2d at 793 (emphasis added).

Looking to our case precedent for guidance, we find that the instant case is

readily distinguishable from Deminski. In Deminski, the plaintiff, mother of minors

E.M.D., K.A.D., and C.E.D. (plaintiff-students), alleged that during a several-month

period, her daughter, C.E.D., was repeatedly subjected to bullying and sexual

harassment by other students. Id. at 407, 858 S.E.2d at 790. As a result of enduring

this conduct for months without relief from school personnel, the plaintiff filed a

complaint pursuant to article I, section 15, and article IX, section 2 of the North

Carolina Constitution. Id. at 409, 858 S.E.2d at 791. In her complaint, the plaintiff’s

allegations—regarding the bullying and sexual harassment that C.E.D. was

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subjected to—included the phrases, “on multiple occasions,” “repeatedly[,]” and “[o]n

at least one occasion[,]” id. at 407–09, 858 S.E.2d at 790–91, which indicates that the

bullying and harassment occurred more than once. Additionally, the plaintiff alleged

that one of the students that had been bullying and sexually harassing C.E.D. was

also enrolled in classes with E.M.D. and K.A.D., and that their experiences in class

with this student included “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 and onto the ground.”

Id. at 409, 858 S.E.2d at 791 (emphasis added). The Deminski plaintiff’s complaint

indicated that she had “repeatedly notified the teacher, assistant principal, [the]

principal” and “the Pitt County Board of Education” (collectively referred to

hereinafter as “school personnel”) of the incidents and was told that “there was a

‘process’ ” and that it would “take time.” Id. (emphasis added). The defendant moved

to dismiss plaintiff’s complaint, the trial court denied the motion, and defendant

appealed the trial court’s denial. Id. at 410, 858 S.E.2d 792. Ultimately, defendant’s

motion to dismiss made its way to our Supreme Court. Id. at 411, 858 S.E.2d at 792.

Based on the allegations found in the plaintiff’s complaint, our Supreme Court found

that the plaintiff had alleged a colorable constitutional claim to survive the

defendant’s motion to dismiss, because “the school’s deliberate indifference to ongoing

student harassment created an environment in which plaintiff-students could not

learn[,]” and that “the right to a sound basic education rings hollow if the structural

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right exists but in a setting that is so intimidating and threatening to students that

they lack a meaningful opportunity to learn.” Id. at 414, 858 S.E.2d at 794 (emphasis

added).

Here, plaintiff alleged that defendant violated her constitutional rights to

education by failing “to provide an environment free of physical abuse, verbal abuse,

harassment, and hostility[,]” and “failed to provide a safe learning environment for

learning to take place.” To support these allegations, plaintiff stated that

[d]efendant Board and their agents [ ] failed in their

constitutional requirements by:

a. [s]howing a deliberate indifference to the hostile

environment by failing to provide an adequately staffed

learning environment;

b. [s]howing a deliberate indifference to this

environment by hiring [d]efendant Dixon to a teaching

position without an active and valid teaching license under

North Carolina law;

c. [s]howing a deliberate indifference to this

environment by allowing [d]efendant Dixon to continue

teaching after multiple issues within her classroom;

d. [f]ailing to terminate a teacher after the teacher did

not obtain proper licensure required under North Carolina

law; and

e. [a]llowing a teacher to be in [a] position of authority

over students without proper licensure required under

North Carolina law.

Plaintiff further alleged that K.H. “suffered educational consequences” and that

K.H.’s “academic performance . . . was placed in peril when she was physically abused

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by a teacher of the [d]efendant[,]” and “forced to move schools without her input.”

While it is plaintiff’s contention that defendant’s negligent acts and omissions

deprived her of her constitutional right to a sound basic education, we fail to see how

these allegations give rise to the type of claims contemplated in Deminski. Unlike the

allegations found in the Deminski complaint, here, plaintiff’s complaint is entirely

devoid of any allegation that would suggest that plaintiff was subjected to repeated

or ongoing issues with Dixon. Despite plaintiff’s allegation that “Dixon had multiple

issues within her classroom with other students and disciplinary actions by the

[p]rincipal[,]” plaintiff’s complaint is entirely predicated on the singular attack by

Dixon that occurred on 2 November 2022. Furthermore, it is unclear from the

complaint what the “multiple issues within [Dixon’s] classroom” were; instead, this

is a vague statement that does not illustrate what impact these “multiple issues . . .

with other students” had on K.H.’s ability to receive an education. Whereas in

Deminski, it is abundantly clear from the allegations that the constant bullying,

sexual harassment, and disruptive behaviors that C.E.D. and her sisters were

subjected to usurped their “opportunity to learn [in an environment] that [wa]s free

from continual intimidation and harassment[.]” Id. at 412–13, 858 S.E.2d at 793

(emphasis added). The allegations in Deminski make it clear that the incidents giving

rise to the cause of action were happening to C.E.D. and her sisters, as opposed to the

current case where the allegation states there were “multiple issues with other

students[,]” not K.H.

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Another distinguishing feature between the instant case and Deminski is that

in this case, plaintiff’s complaint lacks any allegation that plaintiff reported to, or in

any way notified, defendant or any school personnel about the “multiple issues within

[Dixon’s] classroom[.]” The only instance in which it is alleged that anyone was made

aware of Dixon’s conduct is found in plaintiff’s statement of facts where plaintiff

alleged that two teachers entered the classroom after hearing the “yelling and

commotion” caused by Dixon’s attack on plaintiff on 2 November 2022. In contrast,

the plaintiff in Deminski alleged that she had “repeatedly notified the teacher,

assistant principal, [the] principal . . . and [d]efendant, Pitt County Board of

Education” of the incidents that were occurring and was told that “there was a process

that would take time[.]” Id. at 409, 858 S.E.2d at 791 (internal quotation marks

omitted).

Finally, plaintiff’s complaint is without any allegation that being transferred

to Ray Street Academy in any way failed to provide K.H. the constitutional right to

the sound basic education described in Leandro. See Leandro, 346 N.C. at 347, 488

S.E.2d at 255 (defining what a ‘sound basic education’ is). Nowhere in the complaint

did plaintiff allege that she had appealed defendant’s decision to relocate K.H. to Ray

Street Academy, nor did plaintiff allege that K.H. was precluded from re-entering

Broadview Middle School at a later date.

In sum, we conclude that plaintiff has failed to allege a colorable constitutional

claim because “[plaintiff’s] complaint on its face reveals the absence of facts sufficient

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to make a good claim[.]” Bobbitt, 215 N.C. App. at 380, 715 S.E.2d at 615. As such,

we conclude that the trial court did not err in granting defendant’s Rule 12(b)(6)

motion to dismiss plaintiff’s constitutional claim.

III. Conclusion

Based on the foregoing discussion, we hold that the trial court properly granted

defendant’s motion to dismiss pursuant to Rule 12(b)(2) and 12(b)(6). The trial court

was without personal jurisdiction over defendant because defendant had not waived

its sovereign immunity, thus dismissing plaintiff’s tort claims pursuant to Rule

12(b)(2) was proper. Plaintiff failed to allege a colorable constitutional claim, and the

trial court properly dismissed plaintiff’s constitutional claim pursuant to Rule

12(b)(6). For these reasons, we affirm the trial court’s order granting defendant’s

motion to dismiss.

AFFIRMED.

Judge MURPHY concurs in part and dissents in part.

Judge ARROWOOD concurs.

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MURPHY, Judge, concurring in part and dissenting in part.

I concur in the Majority’s holding that the trial court did not err in dismissing

Plaintiff’s tort claims pursuant to Rule 12(b)(2), as Defendant did not waive its

sovereign immunity. However, I respectfully dissent from the Majority’s holding that

the trial court did not err in dismissing Plaintiff’s direct constitutional claim pursuant

to Rule 12(b)(6), as Plaintiff’s allegations, when taken as true under our proper

standard of review, are clearly sufficient to support an alleged violation of

Defendant’s right to “an opportunity to receive a sound basic education in our public

schools[]” protected by Article I, § 15, and Article IX, § 2, of our State Constitution.

See Deminski, 377 N.C. at 412 (recognizing that Article I, § 15, and Article IX, § 2,

“work in tandem . . . to guarantee every child of this state an opportunity to receive a

sound basic education in our public schools”).

“[W]here there is a right, there is a remedy.” Kinsley v. Ace Speedway Racing,

Ltd., __ N.C. __, __ (2024), slip op. at 7. In Corum v. Univ. of N.C., 330 N.C. 761

(1992), our Supreme Court “created” “a common law cause of action when existing

relief does not sufficiently redress a violation of a particular constitutional right[,]”

now known as “Corum claims[,]” “[t]o ensure that every right does indeed have a

remedy in our court system[.]” Id. at __, slip op. at 7; see also Askew v. City of Kinston,

__ N.C. __, 902 S.E.2d 722, 728, 733 (2024).

Sovereign immunity is no defense to a valid Corum claim. Id. at __, slip op. at

7. And while Plaintiff’s tort claims are barred by the doctrine of sovereign immunity,

K.H. V. DIXON

MURPHY, J., concurring in part and dissenting in part

under Corum, “[P]laintiff may move forward in the alternative, bringing [her]

colorable claims directly under our State Constitution based on the same facts that

formed the basis for [her] common law . . . claim[s].” Craig, 363 N.C. at 340 (emphasis

added).

Our Supreme Court “made clear in Deminski, at the motion to dismiss stage,

whether a claim is ‘colorable’ focuses entirely on the allegations in the complaint.”

Kinsley, __ N.C. at __, slip op. at 9 (citing Deminski, 377 N.C. at 412). “Those

allegations are treated as true and the Court examines whether the allegations, if

proven, constitute a violation of a right protected by the North Carolina

Constitution.” Id. at __, slip op. at 9 (marks omitted); see Deminski, 377 N.C. at 413

(marks omitted) (recognizing “colorable claim” as “a plausible claim that may

reasonably be asserted, given the facts presented and the current law (or a reasonable

and logical extension or modification of the current law)”). We do “not predetermine

the likelihood that plaintiff will win other pretrial motions, defeat affirmative

defenses, or ultimately succeed on the merits of [her] case.” Craig, 363 N.C. at 341;

cf. Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 654

(1999) (“The issue is not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claims.”).

“To . . . accord every injury its proper redress, Corum requires courts to

disaggregate the rights violated, the constitutional harms alleged, and the

appropriate remedy on the facts of the particular case.” Askew, __ N.C. at __

2

K.H. V. DIXON

MURPHY, J., concurring in part and dissenting in part

(emphasis added) (internal marks omitted). Instead of viewing Plaintiff’s allegations

wholistically to determine whether they would “present facts sufficient to support an

alleged violation of a right [to an opportunity to receive a sound basic education]

protected by the State Constitution[,]” Kinsley, __ N.C. at __, slip op. at 8, the Majority

treats Deminski as establishing a factual floor for colorable Corum claims in this

context. Instead, Deminski is one application of the Corum test to one specific set of

factual allegations supporting an alleged violation of the right to an opportunity to

receive sound basic education and not an end point on the spectrum.

The Majority’s apparent “fail[ure] to see how [Plaintiff’s] allegations” that

Defendant’s “negligent acts and omissions deprived her of her constitutional right to

a sound basic education[] . . . give rise to the type of claims contemplated in

Deminski[]” rests solely on its determination that—unlike in Deminski—Plaintiff did

not allege that she “was subjected to repeated or ongoing issues with Dixon[]” but to

a mere “singular attack” by her teacher. Majority at 15 (emphasis in original). This

holding ignores Plaintiff’s allegations that Defendant “show[ed] a deliberate

indifference” to the hostile learning environment created by Dixon’s lack of “an active

and valid teaching license under North Carolina law[]”; Defendant’s failure to

terminate Dixon after she “did not obtain proper licensure required under North

Carolina law;” and Defendant’s placement of Dixon “in a position of authority over

students without proper licensure” in their entirety. These factual circumstances not

present in Deminski are alleged here and therefore require our consideration.

3

K.H. V. DIXON

MURPHY, J., concurring in part and dissenting in part

In her complaint, Plaintiff alleged that Defendant hired and retained Dixon,

who did not have a teaching license at any time during the events giving rise to this

action, to teach and supervise students in the inadequately staffed school that

Plaintiff, a student under Defendant’s care and control, attended:

9. [Dixon] is currently employed as a teacher for Defendant

Board and was hired on [12 September] 2022[] and

maintained her teaching position at Broadview Middle

School . . . .

10. . . . Dixon was issued a North Carolina Teachers License

. . . on [5 November] 2012[,] and that license expired on [30

June] 2015.

11. During all times relevant to this action, [Dixon] was

working as a teacher for Defendant Board with a license

that expired seven years before being hired and was not

updated before [Dixon] began teaching full time for

Defendant Board.

12. Defendant Board[] . . . failed to properly search and

determine if [Dixon] was a properly licensed teacher in

good standing.

13. Defendant Board[] . . . failed to follow up on [Dixon’s]

teaching licensure status and allowed [Dixon] to teach

without a proper state licensure.

14. . . . [D]uring the time frame of [Dixon] being hired by

Defendant [B]oard until [2 November] 2022, [Dixon] had

multiple issues within her classroom with other students

and disciplinary actions by the Principal of Broadview

Middle School, all while not being licensed to be a teacher

in North Carolina.

15. . . . [A]t the time of this writing, there are over 15 open

teaching positions at Broadview Middle School.

4

K.H. V. DIXON

MURPHY, J., concurring in part and dissenting in part

Plaintiff further alleged that Dixon, who Defendant had hired to teach at Broadview

Middle School without a valid teaching license, assaulted Plaintiff, a student whom

Defendant had placed in Dixon’s care:

17. Minor Plaintiff, who had an assigned teacher of [Dixon],

attempted to walk into her assigned classroom to retrieve

her bookbag, when [Dixon] blocked her path with her arm

while Minor Plaintiff was approximately three inches away

and still moving forward.

18. Minor Plaintiff was unable to avoid any contact with

[Dixon] because of the close proximity when [Dixon] moved

her arm in the path of Minor Plaintiff. This caused Minor

Plaintiff to strike [Dixon] in her arm.

19. [Dixon] then grabbed Minor Plaintiff and pulled her

inside of the classroom while closing the door.

20. Once inside the classroom, [Dixon] grabbed Minor

Plaintiff by the hair and slammed Minor Plaintiff into the

door with enough force to break a broom that was located

between Minor Plaintiff and the wall and door area.

21. [Dixon] then grabbed the Minor Plaintiff by the hair on

the back of her head and forcefully slammed Minor

Plaintiff to the ground.

22. [Dixon] then, while still holding onto the Minor

Plaintiff’s hair and back of her head, slammed Minor

Plaintiff’s head into the ground . . . .

....

26. Minor [Plaintiff’s] head was slammed into the ground

no less than five . . . times by [Dixon] . . . .

27. During the assault and battery[,] . . . the students inside

of the classroom began yelling for [Dixon] to release the

Minor Plaintiff and stop her . . . attack . . . .

5

K.H. V. DIXON

MURPHY, J., concurring in part and dissenting in part

28. Upon the yelling and commotion caused by [Dixon’s]

continued attack on the Minor Plaintiff, two other teachers

entered the room and called for help.

29. [Dixon], even after the two other teachers entered the

classroom, continued to hold Minor [Plaintiff] to the ground

by the hair on the back of her head and yelled for the Minor

[Plaintiff] to get out of her classroom.

30. . . . [Dixon] was entrusted to maintain the safety of the

children she was teaching and order [in] said classroom . .

..

As a result of this attack, Plaintiff alleged that she suffered physical, academic, and

emotional consequences:

33. The attack on Minor Plaintiff resulted in her hair being

pulled out, bruises, and ongoing emotional distress which

was directly caused by [Dixon’s] attack.

34. . . . Minor Plaintiff was initially suspended for 10 days

by the Defendant Board Superintendent, Dr. Dain Butler,

until video of the altercation was made available to local

news outlets, when the decision was reversed[,] and Minor

Plaintiff was placed in Ray Street Academy.

35. Minor Plaintiff was not allowed to continue her

academic education at Broadview Middle School and was

forced to change her schools and livelihood . . . .

Plaintiff further alleged, inter alia, that Defendant, whose responsibility it was

to train, supervise, hire, and discipline Dixon, “failed to properly train [Dixon]

regarding appropriate interaction with minor children;” “failed to properly

investigate whether [Dixon] had a valid and active teaching license;” “failed to

properly investigate whether [Dixon] had the emotional capacity to be an effective

teacher of minor children;” “failed to properly investigate whether [Dixon] had any

6

K.H. V. DIXON

MURPHY, J., concurring in part and dissenting in part

prior training in how to appropriately interact with minor children;” “failed to

properly supervise [Dixon] during Board[-]sanctioned academic classes” in which

Dixon “was tasked with teaching . . . [students] whose parents had entrusted their

minor children to the Defendant Board and its employees, including during the

aforementioned actions of [Dixon];” and “failed to intervene when there was . . .

evidence of past issues with [Dixon’s] teaching and actions towards other minor

students of her class at Broadview[.]” Furthermore, “Defendant Board was aware, or

should have been aware, [because] of past previous behaviors that [Dixon] was

predisposed to commit and/or [was] committing the type of acts alleged herein . . . .”

Plaintiff incorporated each of these allegations underlying her various tort

claims into her Corum claim “as if fully set forth[]” and alleged, inter alia, the

following:

63. Article I, Section 15[,] and Article IX, Section 2[,] of the

North Carolina Constitution require Defendant Board and

their Agents to provide a sound basic education and to

guard and maintain [citizens’] right [to that education].

64. Defendant Board and their agents are required by the

North Carolina Constitution to provide a safe environment

for students to learn free of verbal abuse, physical abuse,

hostility, and harassment.

65. Defendant Board and [Dixon], as previously stated

throughout this complaint, have failed to provide an

environment free of physical abuse, verbal abuse,

harassment, and hostility.

66. Defendant Board and [Dixon] have failed to provide a

safe learning environment for learning to take place.

7

K.H. V. DIXON

MURPHY, J., concurring in part and dissenting in part

67. Defendant Board and their agents have failed in their

constitutional requirements by:

a. Showing a deliberate indifference to the hostile

environment by failing to provide an adequately

staffed learning environment;

b. Showing a deliberate indifference to this

environment by hiring [Dixon] to a teaching position

without an active and valid teaching license under

North Carolina law[];

c. Showing a deliberate indifference to this

environment by allowing [Dixon] to continue

teaching after multiple issues within her classroom;

d. Failing to terminate [Dixon] after the teacher did

not obtain proper licensure required under North

Carolina law; and

e. Allowing a teacher to be in [a] position of authority

over students without proper licensure required

under North Carolina law.

....

70. The academic performance of Minor Plaintiff was

placed in peril when she was physically abused by a

teacher of the Defendant Board, initially suspended for the

conduct of [Dixon], [and] then [had] the suspension

rescinded but then [was] forced to move schools without her

input. Minor Plaintiff suffered educational consequences

from the Defendant’s actions.

Taken as true, Defendant was deliberately indifferent to the hostile

environment it created when it placed an individual with no valid teaching license in

a position of authority to instruct academic classes and to supervise children in its

public school; failed to adequately staff that school; failed to investigate, train, assess,

8

K.H. V. DIXON

MURPHY, J., concurring in part and dissenting in part

or ensure that Dixon had the requisite academic, emotional, and social qualifications

to teach, supervise, and care for students in that school; and failed to take action

when Dixon’s concerning behaviors first arose. As a result, this unlicensed

individual, whose ability or inability to properly, safely, and adequately teach and

supervise students that Defendant remained deliberately indifferent to, attacked

Plaintiff, a student under her supervision, before, during, and after two teachers

finally responded after being alerted of the attack by students’ yelling. Thereafter,

Plaintiff was suspended from the school that she attended and forced to interrupt her

academic year to move to another school.

A sound basic education is not just one “that is free from continual intimidation

and harassment which prevent a student from learning,” Majority at 12 (quoting

Deminski, 377 N.C. at 412-13), but—as the Majority recognizes—

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.

9

K.H. V. DIXON

MURPHY, J., concurring in part and dissenting in part

Leandro, 346 N.C. at 347.

The aggregate of Plaintiff’s allegations, including the facts underlying her

common law claims which were incorporated by reference within her Corum claim,

are sufficient to support an alleged violation of Defendant’s right to an opportunity to

receive a sound basic education in our public schools protected by Article I, § 15, and

Article IX, § 2, of our State Constitution, because, if true, Defendant’s deliberate

indifference to the hostile environment created by placing an unlicensed person in a

position of authority over Plaintiff deprived Plaintiff of that right.

I agree with the Majority that Plaintiff’s allegations are sufficient under the

first prong of the Corum test. Furthermore, as the Majority holds, Plaintiff’s common

law actions are barred by sovereign immunity; thus, no adequate state remedy exists

for Plaintiff’s injuries under the third prong of the Corum test. For the foregoing

reasons, however, I would hold that Plaintiff’s allegations are also sufficient under

the second prong of the Corum test and reverse the order dismissing Plaintiff’s Corum

claim under Rule 12(b)(6). I respectfully dissent in part.

10