Opinion: Daily Journal

Court ruling helps make the case for expanding parental choice

Arguments about school choice often focus on academic outcomes. That makes sense. But the case for increased parental access to choice involves more than just academics.

In some cases, parents seek alternatives to schools where their children face ongoing safety and security risks.

A recent ruling from the N.C. Court of Appeals highlights the importance of ensuring easy parental access to educational alternatives. In Deminski v. The State Bd. of Educ., a 2-1 majority of judges agreed that our state constitution does not protect students from “alleged ‘deliberate indifference’ to the ‘hostile academic environment’” at a Pitt County elementary school.

More specifically, the court’s majority agreed that three students could not argue in court that “repeated” and “severe” bullying and ongoing sexual harassment at school violated their state constitutional rights. Plaintiffs’ lawyers had contended that the abuse deprived the students of access to a sound basic education.

I’ll spare you details of the lewd conduct spelled out in the court opinion. It goes far beyond nasty playground taunts and pulling of pigtails. Even the judges ruling against the students labeled the alleged behavior “extremely disturbing.” “[N]o child should be subjected to this sort of harassment at school or anywhere else,” according to the majority opinion.

The students’ attorneys argued that teachers and principals failed to take any action against ongoing abuse from four classmates. “[S]chool personnel’s only response was to insist that the ‘process’ would ‘take time’; meanwhile, ‘no substantive changes” were made, and ‘the bullying and harassing conduct continued unabated,’” according to the majority opinion.

After as much as two years of abuse, the targeted students eventually transferred to a new school. By that time, their academic performance “fell as a result of the perpetually chaotic school environment.” Their lawsuit sought money damages. It also called for the school to bring its personnel into compliance with the state School Violence Prevention Act.

A trial judge ruled in July 2018 that the constitutional claims could proceed against the local school board and State Board of Education. Eighteen months later, the Appeals Court’s Jan. 7 ruling overturned that initial decision.

The majority opinion relied on previous court rulings. Those included a case in which a Mecklenburg County high school student argued her education rights had been violated because of an inappropriate sexual relationship with a band teacher. Courts had rejected that case.

The Appeals Court majority’s bottom line in Deminski: “Neither this Court nor our Supreme Court has recognized abuse, even repeated abuse, or an abusive classroom environment as a violation of the constitutional right to education.”

One dissenter, Judge Valerie Zachary, offered an alternative view.

“Plaintiff explicitly charges Defendant with the failure to provide the Minor Plaintiffs with the very ‘nature, extent, and quality of the educational opportunities’ to which all public school students are constitutionally entitled pursuant to Leandro,” wrote Zachary, mentioning the high-profile Leandro decision. The N.C. Supreme Court’s 1997 decision in that case confirmed the state’s responsibility to provide students with access to a sound basic education.

“Plaintiff’s complaint reveals that the hostile classroom environment at Lakeforest Elementary School was such that there was a persistent, two-year-long interruption of the Minor Plaintiffs’ daily test-taking, assignment, and instructional opportunities,” Zachary added. “Due to Defendant’s indifference to this environment, the ‘academic performance of all three Minor Plaintiffs fell . . . with the Minor Plaintiffs each suffering substantially adverse educational consequences.’”

“Taking these allegations as true, as we must, Plaintiff’s claim falls squarely within the constitutional deprivation that was contemplated in Leandro,” she concluded.

Zachary challenged her colleagues’ assertion that a guarantee of a sound basic education would not include freedom from “repeated abuse.”

“[I]t would be credulous to differentiate, for constitutional purposes, between a student whose teacher refuses to teach math and a student whose teacher fails to intervene when other students’ harassing and disruptive behavior prevents her from learning it,” according to the dissent. “In the latter instance, the instructional environment may be so disordered, tumultuous, or even violent that the student is denied the opportunity to receive a sound basic education.”

“This is precisely what Plaintiff has alleged in the instant case,” Zachary added. “At this stage in the proceedings, Plaintiff’s allegations must be taken as true, and the trial court did not err by allowing her the opportunity to produce a forecast of evidence tending to prove the same.”

The dissent goes on to suggest that state government itself should be added as a defendant in the case. That’s because the state bears the ultimate responsibility under Leandro to provide access to a sound basic education.

Since Deminski produced a split ruling from the Appeals Court, the students could pursue their claims to the N.C. Supreme Court. It’s unclear how North Carolina’s highest court would rule.

Regardless of the case’s constitutional merits, Deminski reminds us that some school settings do not work for some students. If those looking out for the welfare of the three students in the case had easier access to an accessible, affordable alternative, it’s unlikely they would have been forced to endure two years of abuse before making a move.

One can’t help but think that similar concerns about school learning environments motivate many parents. Those concerns likely influenced some of the thousands of N.C. parents who have enrolled their children in public charter schools, private schools, and homeschools.

The sad case of three abused Pitt County elementary students offers another reminder of the importance of promoting parental school choice.

Mitch Kokai is senior political analyst for the John Locke Foundation.