The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF NORTH CAROLINA
CATHERINE GULLEDGE, as
Guardian Ad Litem for A.C., a
minor, et al.,
Plaintiffs,
v. Civil Action No 1:24CV916
CABARRUS COUNTY BOARD OF
EDUCATION, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant Cabarrus County Board
of Education’s (“the Board”) motion to dismiss brought under
rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of
Civil Procedure. See ECF No. 11. For the reasons explained
below, the motion is GRANTED in part and DENIED in part.
I. Background
This case arises from student-on-student sexual abuse that
allegedly occurred at a public elementary school in Cabarrus
County, North Carolina. See ECF No. 9 at 2. Plaintiffs include
Catherine and David Gulledge and their minor child, A.C., whom
Catherine Gulledge represents as guardian ad litem. See id. at
1.
Plaintiffs allege that in October 2021, A.C. was ten years
old and “endured a series of sexual assaults, fondling, and
sexual harassment by a fellow student . . . .” Id. at 4.
Plaintiffs allege that A.C. promptly reported the first incident
to defendant Jill Staton,1 a teacher at the elementary school.
See id. As to what happened next, plaintiffs plead in the
alternative that Staton may or may not have notified the Board
of the alleged incident. See id. In any event, according to
plaintiffs, the student continued to sexually assault A.C., and
“[o]n multiple occasions spanning several weeks after the
initial incident, the [other student] grabbed, fondled, and
squeezed A.C.’s privates and repeatedly verbally harassed him by
making lewd gestures.” Id.
It was not until approximately a month later and after
“A.C. broke down and was inconsolable due to the ongoing
harassment” that school officials notified A.C.’s parents of the
alleged harassment. Id. Plaintiffs allege that around that
time, school officials developed a “safety plan” to protect A.C.
from the other student. See id. According to plaintiffs, A.C.
1 Plaintiffs called this defendant Tanya Staton in the operative
complaint. See ECF No. 9. Plaintiffs have since filed a motion
to amend the complaint (ECF No. 32) to correct her name to her
legal name of Jill Staton. That motion is GRANTED. Because
this does not change the substance of the pleadings, this
amendment does not supersede the operative complaint and motions
addressed thereto.
and the other student continued to have contact after the school
implemented the safety plan. See id. Plaintiffs allege that
before these incidents, A.C. was a normal child, but that
afterward he was “withdrawn, easily triggered, and attempted to
harm himself.” Id.
Based on these allegations, plaintiffs bring various tort
claims under North Carolina law as well as alleged violations of
42 U.S.C. § 1983; Title IX of the Education Act of 1972, 20
U.S.C. § 1681 et seq.; and the North Carolina Constitution. See
id. at 5-12. Plaintiffs also sued Staton and defendant William
Davis, “[a] public employee of [the Board] . . . [,]” in their
official and individual capacities. See id. at 1-2. However,
plaintiffs had not served those defendants when the Board filed
this motion to dismiss, and the court granted plaintiffs an
extension of time to serve them. See ECF No. 20. Therefore,
the court will address only the claims against the Board.
In its motion to dismiss, the Board asserts two primary
arguments: (1) plaintiffs’ tort claims are barred by the
Board’s sovereign immunity and should be dismissed under Rules
12(b)(1) and 12(b)(2), or in the alternative, plaintiffs’ tort
claims should be dismissed under Rule 12(b)(6) for failure to
state valid claims, see ECF No. 14 at 5-12; and (2) plaintiffs’
§ 1983, Title IX, and North Carolina constitutional claims
should be dismissed under Rule 12(b)(6) for failure to state
valid claims, see id. at 12-23.
II. Legal Standard
When faced with questions of sovereign immunity under North
Carolina law, some courts address it as a subject matter
jurisdiction issue under Rule 12(b)(1), while others treat it as
a personal jurisdiction issue under Rule 12(b)(2). See Stevens
v. Cabarrus Cty. Bd. of Educ., 514 F. Supp. 3d 797, 818
(M.D.N.C. 2021). Either way, “whether consideration is made
pursuant to Rule 12(b)(1) or (b)(2) appears to have no impact on
the method of review.” Id. at 818 n.12 (citing Pettiford v.
City of Greensboro, 556 F. Supp. 2d 512, 524 n.8 (M.D.N.C.
2008)). The court is to “draw all reasonable inferences and
resolve all factual disputes in the plaintiff[s’] favor.” Id.
at 818 (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60
(4th Cir. 1993)).
When deciding a motion to dismiss under Rule 12(b)(6), “[a]
court decides whether [the pleading] standard is met by
separating the legal conclusions from the factual allegations,
assuming the truth of only the factual allegations, and then
determining whether those allegations allow the court to
reasonably infer” that the plaintiff is entitled to relief. A
Soc’y Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir.
2011).
III. Discussion
A. Tort Claims
The Board moves under Rules 12(b)(1) and 12(b)(2) to
dismiss plaintiffs’ tort claims for lack of subject matter and
personal jurisdiction based on the Board’s sovereign immunity.
See ECF No. 14 at 4-7.
Under North Carolina law, “[a] county or city board of
education is a governmental agency and its employees are not
ordinarily liable in a tort action unless the board has waived
its sovereign immunity.” Herring v. Liner, 594 S.E.2d 117, 119
(N.C. Ct. App. 2004). A board of education waives its immunity
only if it secures liability insurance that indemnifies the
board or its employees. See id. (quoting N.C. Gen. Stat. §
115C–42).
In this case, the Board submits evidence that it did not
purchase liability insurance that waived its immunity. See ECF
Nos. 12, 13. Plaintiffs concede after reviewing this evidence
that the Board did not waive its sovereign immunity. See ECF
No. 19 at 3.
Accordingly, the Board’s motion to dismiss is GRANTED as to
plaintiffs’ tort claims.
B. § 1983, Title IX, and State Constitutional Claims
1. § 1983
Plaintiffs bring § 1983 claims against the Board based on
(1) the Board’s alleged “deliberate indifference” to the threat
of harm to A.C. because the Board “facilitated and ignored
specific actions of harm[,]” and (2) “persistent and widespread”
practices of the Board that “became its official policy and/or
custom[.]” ECF No. 9 at 8. These allegations track the
language for § 1983 claims brought pursuant to Monell v. Dep’t
of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978).
“Monell permits suits against a municipality for a federal
constitutional deprivation only when the municipality undertook
the allegedly unconstitutional action pursuant to an ‘official
policy’ or ‘custom.’” Starbuck v. Williamsburg James City Cty.
Sch. Bd., 28 F.4th 529, 532-33 (4th Cir. 2022) (quoting Monell,
436 U.S. at 690-91). “[S]chool boards and municipalities are
indistinguishable for purposes of § 1983.” Riddick v. Sch. Bd.
of City of Portsmouth, 238 F.3d 518, 522 n.3 (4th Cir. 2000)
(citing Monell, 436 U.S. at 696). As with other Monell claims,
a litigant can establish the existence of a custom or policy of
a school board in four ways:
(1) through an express policy, such as
a written ordinance or regulation; (2)
through the decisions of a person with final
policymaking authority; (3) through an
omission, such as a failure to properly
train officers, that “manifest[s] deliberate
indifference to the rights of citizens”; or
(4) through a practice that is so
“persistent and widespread” as to constitute
a “custom or usage with the force of law.”
Starbuck, 28 F.4th. at 532-33 (quoting Lytle v. Doyle, 326 F.3d
463, 471 (4th Cir. 2003)).
In this case, plaintiffs allege two of these theories: (1)
deliberate indifference and (2) practices that became the
Board’s policy or custom.
(a). Deliberate indifference
The operative complaint does not say that the deliberate
indifference allegations are brought pursuant to a supervisory
liability theory. See ECF No. 9 at 7. However, the Board
defends the allegations as such, see ECF No. 14 at 12-13, and
plaintiffs acquiesce to that framing of the deliberate
indifference allegations, see ECF No. 19 at 5.
The court notes that “it is not clear whether the law
recognizes school board liability under § 1983 for a failure to
supervise.” Mathis v. Caswell Cty. Sch. Bd. of Educ., No.
1:20cv92, 2021 WL 1109466, at *12 (M.D.N.C. Mar. 23, 2021); see
also Evans v. Griffin, No. 1:14CV1091, 2018 WL 1578153, at *7
(M.D.N.C. Mar. 28, 2018) (“It is unclear whether the law
recognizes municipal liability under § 1983 for a failure to
supervise.”). Nonetheless, for purposes of this motion, the
court will address the deliberate indifference allegations under
the supervisory liability framework put forth by the Board.
The United States Court of Appeals for the Fourth Circuit
“[r]ecognizing that supervisory liability can extend ‘to the
highest levels of state government,’ [has] noted that liability
ultimately is determined ‘by pinpointing the persons in the
decisionmaking chain whose deliberate indifference permitted the
constitutional abuses to continue unchecked.’” Shaw v. Stroud,
13 F.3d 791, 798 (4th Cir. 1994) (quoting Slakan v. Porter, 737
F.2d 368, 376 (4th Cir. 1984)). Therefore, that court
established three factors to impose supervisory liability for
deliberate indifference:
“[A] pervasive and unreasonable risk” of
constitutional injury to citizens like the plaintiff;
(2) that the supervisor’s response to that knowledge
was so inadequate as to show “deliberate indifference
to or tacit authorization of the alleged offensive
practices,”; and (3) that there was an “affirmative
causal link” between the supervisor’s inaction and the
particular constitutional injury suffered by the
plaintiff.
Shaw, 13 F.3d at 799.
The first element requires a plaintiff to show that a
supervisor had knowledge of a subordinate’s conduct and that the
conduct posed pervasive and unreasonable risk of constitutional
injury to the plaintiff. See id. “Establishing a ‘pervasive’
and ‘unreasonable’ risk of harm requires evidence that the
conduct is widespread, or at least has been used on several
different occasions and that the conduct engaged in by the
subordinate poses an unreasonable risk of harm of constitutional
injury.” Id. (quoting Slakan, 737 F.2d at 373-74).
The second element, deliberate indifference, may be
demonstrated by showing a supervisor’s “continued inaction in
the face of documented widespread abuses.” Id. (quoting Slakan,
737 F.2d at 373). A plaintiff assumes a heavy burden of proof
for this element. See id.
The final element, causation, requires an “affirmative
causal link” between a supervisor’s inaction and a plaintiff’s
injuries. See id. (quoting Slakan, 737 F.2d at 376). This
element includes actual and proximate causation. See id.
In this case, plaintiffs allege that the Board showed
deliberate indifference to the risk of harm to A.C. because,
under one theory of plaintiffs’ case, Staton reported the first
incident of sexual abuse against A.C. to the Board. See ECF No.
9 at 4. Even so, plaintiffs allege, the Board took no action,
allowing the abuse to continue for several weeks. See id. The
school then implemented a safety plan, but A.C. continued to
have contact with the offending student. See id.
The Board argues that this claim fails because, according
to plaintiffs’ allegations, the Board had no knowledge of the
alleged abuse, responded appropriately by implementing a safety
plan, and the abuse ceased when the school implemented the
safety plan:
[Plaintiffs] fail to show that the Board had
actual or constructive knowledge of the risk
of sexual misconduct by the alleged
[a]ssailant prior to November 2021, that the
Board responded inadequately (by
establishing and implementing a safety plan
(in November 2021), or that abusive
misconduct by the [a]ssailant continued
after the safety plan was implemented.
ECF No. 14 at 13. However, the Board’s argument depends on the
assumption that it had no knowledge of the initial assault
against A.C in October 2021, of which A.C. allegedly informed
Staton. To draw that inference against plaintiffs at this stage
would be inappropriate.
Instead, the court accepts as true plaintiffs’ allegation
that A.C. informed Staton of the abuse in October and that
Staton conveyed the information to the Board. While plaintiffs
plead this fact in the alternative, “Rule 8(d)(2) allows a
plaintiff to plead alternate theories of a claim . . . .”
Lathon v. Wal-Mart Stores East, LP, No. 3:09cv57, 2009 WL
1172864, at *2 (E.D. Va. Apr. 29, 2009). Plaintiffs may use the
discovery process to discern which, if any, theory of
plaintiffs’ claims apply to this case. See id.
The Board argues that the court should ignore this
allegation because it is conclusory. However, this is a factual
allegation, not a legal conclusion, and “[i]n reviewing a Rule
12(b)(6) motion, a court ‘must accept as true all of the factual
allegations contained in the complaint’ and must ‘draw all
reasonable inferences [from those facts] in favor of the
plaintiff.’” Baltimore Scrap Corp. v. Exec. Risk Specialty Ins.
Co., 388 F. Supp. 3d 574, 584 (D. Md. 2019) (quoting Soc’y
Without a Name, 655 F.3d at 346).
Thus, plaintiffs adequately allege that the Board had
actual knowledge of the initial abuse against A.C. Viewing the
allegations in the light most favorable to plaintiffs, the Board
showed deliberate indifference by not implementing a safety plan
until November after A.C. suffered more abuse and had a
breakdown. The court can also infer that A.C.’s injuries
continued when he continued to have contact with the offending
student after the safety plan was implemented.
(b). Policy or Custom through Practices
Plaintiffs allege that the Board is liable under § 1983
because the Board caused A.C.’s injuries by developing practices
so persistent and widespread as to constitute a custom or usage
with the force of law. According to plaintiffs’ allegations,
these practices include:
a. Leaving minor students unattended and
unsupervised;
b. Allowing children to be harassed,
abused, and/or assaulted in and around
the classroom;
c. Disregarding their own written
policies, regarding harassment,
assault, and supervision; and
d. In other ways to be proven through
discovery of this matter.
ECF No. 9 at 8.
The Board argues that “[p]laintiffs’ ‘custom or policy’
theory is not recognized as a separate type of § 1983 claim.”
ECF No. 21 at 3. However, this argument fails because the
existence of custom or policy is the essential element of a §
1983 claim against a municipality under Monell, 436 U.S. at 658,
and Monell claims against school boards are widely recognized,
see, e.g., Starbuck, 28 F.4th at 532-33.
Accepting plaintiffs’ allegations as true, they
sufficiently allege that the Board established a custom or
policy through its practices, giving rise to liability under
Monell.
The Board’s motion to dismiss is DENIED as to plaintiffs’ §
1983 claims.2
2 Plaintiffs also bring § 1983 claims against Staton and Davis,
in both their individual and official capacities. See ECF No. 9
at 1-2. However, the Board cannot be held liable under § 1983
solely for the actions of Staton and Davis. Plaintiffs must
prove the Board’s culpability by showing that Staton and Davis
acted pursuant to a policy or custom of the Board. Therefore,
to the extent plaintiffs attempt to hold the Board liable based
on vicarious liability, those claims are DISMISSED.
2. Title IX
Plaintiffs bring claims against the Board under Title IX,
alleging that the Board acted with deliberate indifference to
known sexual harassment, thereby depriving A.C. of the
educational benefits of a federally funded school. See ECF No.
9 at 10.
Title IX provides, in relevant part, that “[n]o person in
the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance.” 20 U.S.C. § 1681(a). Title IX
claims based on student-on-student sexual harassment are
actionable against school boards, if a plaintiff can prove four
elements:
(1) she was a student at an educational
institution receiving federal funds; (2) she
suffered sexual harassment that was so
severe, pervasive, and objectively offensive
that it deprived them of equal access to the
educational opportunities or benefits
provided by her school; (3) the school,
through an official who has authority to
address the alleged harassment and to
institute corrective measures, had actual
notice or knowledge of the alleged
harassment; and (4) the school acted with
deliberate indifference to the alleged
harassment.
Doe v. Fairfax Cty. Sch. Bd., 1 F.4th 257, 263-64 (4th Cir.
2021) (citing Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629,
646-47 (1999)).
The Board raises two primary arguments in its motion to
dismiss these claims. First, it argues, as it did for the §
1983 claims, that “the allegations do not establish that the
Board had actual knowledge of student-on-student harassment
before the alleged incidents . . . .” ECF No. 14 at 17.
Second, the Board argues “the allegations certainly belie the
conclusion that the Board was deliberately indifferent[,]”
because the Board contends, its response to the alleged report
of harassment was reasonable. See id. These arguments fail.
With respect to the first argument, plaintiffs allege
actual knowledge. As discussed above, plaintiffs alleged the
Board’s actual knowledge in the alternative to its allegation
that Staton did not convey the information to the Board. This
is acceptable at the pleading stage.
Even so, the Board argues that “the incident that was
allegedly reported . . . is described [in the operative
complaint] as the ‘first incident,’ . . . and [p]laintiffs
allege no other information regarding what this ‘first incident’
entailed.” Id. at 18. Therefore, plaintiffs argue that, even
if Staton provided actual knowledge to the Board, plaintiffs
allegations are insufficient.
The court can glean from the allegations what plaintiffs
mean by “first incident.” Specifically, plaintiffs allege as
follows:
24. Beginning in October of 2021, A.C.
endured a series of sexual assaults,
fondling, and sexual harassment by a fellow
student (the “Assailant”).
25. In October of 2021, A.C. promptly
reported the first incident to Staton, a
teacher at [the elementary school].
26. Upon information and belief, Staton did
not report A.C.’s incident to Plaintiff
Parents, [school] administration, CCB, or
law enforcement. In the alternative, Staton
did report the incident to [school]
administration, CCB and/or law enforcement,
yet the school took no action to help A.C.
and stop the harassment.
27. After the initial incident, the
assailant continued to harass and assault
A.C.
ECF No. 9 at 4. A reasonable inference to draw from these
allegations is that the first incident refers to the first of
the “series of sexual assaults, fondling, and sexual harassment”
that allegedly occurred in October 2021. These allegations
establish that the Board had actual knowledge of the alleged
harassment before implementing the safety plan in November,
after the harassment allegedly continued unabated.
As to the Board’s second argument, that its response to the
alleged harassment was reasonable and not deliberately
indifferent, the Board contends that it responded within weeks,
if not days, of learning of the harassment. See ECF No. 14 at
18. The Board notes that in successful Title IX cases, “[m]ost
often, those cases involved allegations of complete inaction in
the face of known harassment[.]” Id. at 19 (quoting Facchetti
v. Bridgewater Coll., 175 F. Supp. 3d 627, 638-39 (W.D. Va.
2016)). However, that is what plaintiffs allege: that the
Board knew of the harassment in October 2021 and took no action
until November 2021 when continued harassment allegedly caused
A.C. to break down and become inconsolable. Whether the Board’s
response was deliberately indifferent is a factual issue that
cannot be resolved at the pleading stage.
The Board’s motion to dismiss is DENIED as to plaintiffs’
Title IX claims.
3. State Constitutional Claims
Plaintiffs assert claims under Article I, §§ 15 and 19 and
Article IX, § I of the North Carolina Constitution. See ECF No.
9 at 8.
Article I, § 15 provides that “[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.
Article I, § 19 provides in relevant part that “[n]o person
shall be . . . in any manner deprived of his life, liberty, or
property, but by the law of the land.” N.C. Const. art. I, §
19. Article IX, § 1 provides that “[r]eligion, morality, and
knowledge being necessary to good government and the happiness
of mankind, schools, libraries, and the means of education shall
forever be encouraged.” N.C. Const. art. IX, § 1.
North Carolina provides a private cause of action against
state actors for violations of the state constitution when there
is no adequate state law remedy to enforce the right. See Corum
v. Univ. of N.C., 413 S.E.2d 276, 289 (N.C. 1992). These are
referred to as a “Corum claims.” Washington v. Cline, 898
S.E.2d 667, 668-69 (N.C. 2024).
Although the Board does not raise this issue, the court
notes that plaintiffs bring their Corum claims under § 1 of
Article IX when they should have brought the claim under § 2 of
that Article: For cases of deliberate indifference to student-
on-student harassment, the North Carolina Supreme Court has
recognized a cause of action under Article I, § 15 and Article
IX, § 2. See Deminski on Behalf of C.E.D. v. State Bd. of
Educ., 858 S.E.2d 788, 793 (N.C. 2021). “Article IX, Section 2
implements the right to education as provided in Article I.”
Id.
The correct provision, Article IX, § 2, provides that
“[t]he General Assembly shall provide by taxation and otherwise
for a general and uniform system of free public schools . . .
wherein equal opportunities shall be provided for all students.”
N.C. Const. art. IX, § 2. That provision and Article I, § 15
“work in tandem” because “Article I, Section 15 and Article IX,
Section 2 of the North Carolina Constitution combine to
guarantee every child of this state an opportunity to receive a
sound basic education in our public schools.” Deminski, 858
S.E.2d at 793 (quoting Leandro v. State, 488 S.E.2d 249, 254
(N.C. 1997)). Therefore, “[t]aken together, Article I, Section
15 and Article IX, Section 2 require the government to provide
an opportunity to learn that is free from continual intimidation
and harassment which prevent a student from learning.” Id.
Although plaintiffs bring the claim under the wrong
constitutional provision, the court will construe the Corum
claims as ones brought under Article I, § 15 and Article IX, §
2 of the North Carolina Constitution, as the basis for the claim
is clear on the face of the complaint. See West v. Mayorkas,
No. JKB-23-01661, 2024 WL 3878375, at *4 n.3 (D. Md. Aug. 20,
2024) (citing Nester v. Hampton Inn Princeton, Civ. No. 1:13-
03336, 2013 WL 5425123, at *4 (S.D.W. Va. Sept. 26, 2013)).
The Board argues for dismissal of the claims for two
reasons: (1) “The allegations do not establish a colorable
Corum claim[]” and (2) “[a]n adequate state remedy exists.” ECF
No. 14 at 20-21.
(a). Sufficiency of Allegations
The Board argues that plaintiffs fail to state valid Corum
claims because this case is distinguishable from Deminski, 858
S.E.2d at 788, the case that recognized a claim under the state
constitution for student-on-student harassment.
In Deminski, the mother of three minor children alleged
that over a period of several months, students bullied her
children and made crude sexual remarks and gestures toward them.
See id. at 790-91. The school board knew of the incidents but
allowed the harassment to persist. See id. at 791. The Supreme
Court of North Carolina held that the mother alleged a colorable
claim under the North Carolina Constitution because she “alleged
that defendant prevented plaintiff-students from accessing their
constitutional right to a sound basic education as a result of
defendant’s deliberate indifference to ongoing harassment in the
classroom.” Id. at 795.
The Board argues that this case is different because “there
is no allegation that: (a) any school administrator had any
knowledge of the incidents; or (b) that a report was made and
ignored.” See ECF No. 14 at 20. However, as discussed above,
plaintiffs allege that the Board had actual knowledge and that
the Board failed to intervene before A.C. allegedly endured more
abuse. These allegations are sufficient to state a claim under
Deminski. Whether the allegations are true and “prevented [A.C]
from accessing [his] constitutional right to a sound basic
education” are factual determinations that cannot be resolved at
this stage.
(b). Adequate State Remedies
In establishing the Corum cause of action, the North
Carolina Supreme Court explained, “in the absence of an adequate
state remedy, one whose state constitutional rights have been
abridged has a direct claim against the State under our
Constitution.” 413 S.E.2d at 289. “[A]n adequate remedy is one
that meaningfully addresses the constitutional violation, even
if the plaintiff might prefer a different form of relief.”
Askew v. City of Kinston, 902 S.E.2d 722, 728 (N.C. 2024)
(quoting Washington v. Cline, 898 S.E.2d 667, 671 (N.C. 2024)).
This is meant to “ensure that every right does indeed have a
remedy in our court system.” Id. (quoting Washington, 898
S.E.2d at 668–69). Thus, “Corum offers a common law cause of
action when existing relief does not sufficiently redress ‘a
violation of a particular constitutional right[.]’” Id.
(quoting Corum, 413 S.E.2d at 276).
In this case, the Board argues that an adequate state law
remedy existed under North Carolina General Statute § 115C-
407.15, which, among other things, prohibits “bullying or
harassing behavior” at schools. North Carolina school boards
are required to adopt a policy prohibiting such behavior. See
id. § 115C-407.16. This policy must include provisions defining
the consequences for a person who commits an act of bullying or
harassment, and provisions creating procedures for reporting
bullying or harassment and for investigating those reports. See
id. at (b)(5)-(6).
The Board adopted a policy that requires prompt
investigation of bullying or harassment when a student files a
written complaint. See Cabarrus County Schools Policy Code
1720/4015/7225, Discrimination, Harassment and Bullying
Complaint Procedure at D.1. The investigator must make findings
as to whether the student’s complaint is substantiated and, if
so, identify ways to redress the issue. See id. at D.3. If a
complainant is not satisfied with the results of the
investigation, the complainant may appeal to the Board. See id.
at D.4.
Under the general “judicial” functions of school boards, an
appeal shall lie to the local school board from any “final
administrative decision” regarding “[a]n alleged violation of a
specified federal law, State law, State Board of Education
policy, State rule, or local board policy . . . .” N.C. Gen.
Stat. § 115C-45(c)(2). The statute defines a “final
administrative decision” as “a decision of a school employee
from which no further appeal to a school administrator is
available.” See id. at (c). Under narrow circumstances, a
decision of the school board may be further appealed to the
North Carolina Superior Court. See id.
The Board argues that these provisions provided plaintiffs
an adequate state law remedy because they gave plaintiff access
to the courts. See ECF No. 14 at 23. The North Carolina
Supreme Court has held otherwise. In Deminski, the North
Carolina School Boards Association, acting as an amicus curiae,
made this argument. See Br. of N.C. Sch. Bd. Ass’n as Amicus
Curiae, at *5-6, Deminski, 2020 WL 6049465. Even so, the court
held that because the plaintiff sought monetary damages and
injunctive relief, “[t]he remedy sought here cannot be redressed
through other means, as an adequate ‘state law remedy [does] not
apply to the facts alleged’ by plaintiff.” Deminski 858 S.E.2d
at 794 (quoting Craig v. New Hanover Cty. Bd. of Educ., 678
S.E.2d 351, 356 (N.C. 2009)). The same is true here.
The question under Corum is whether state law permits a
remedy for “constitutional injuries.” Gonzalez v. Bennett, No.
5:24-CT-3139-FL, 2025 WL 818556, at *9 (E.D.N.C. Mar. 13, 2025)
(quoting Craig, 678 S.E.2d at 356). In this case, the alleged
constitutional injury is the Board’s deliberate indifference to
ongoing harassment in the classroom. The Board’s policy for
addressing claims of harassment does not provide a remedy
against the Board for this alleged constitutional injury. It
also does not follow that plaintiffs would be required to appeal
claims against the Board to the Board before having access to
the courts.
The Board’s motion is DENIED as to plaintiffs’ claims
brought under the North Carolina Constitution.
Iv. Conclusion
For the above reasons, the Board’s motion to dismiss (ECF
No. 11) is GRANTED as to plaintiffs’ state law tort claims, and
DENIED as to the rest of plaintiffs’ claims. Plaintiffs’ motion
to amend the operative complaint to correct Staton’s first name
(ECF No. 32) is GRANTED.
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED this 7th day of May, 2025.
BNTER:
Rautd A Dols
David A. Faber
Senior United States District Judge
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