Silver v. Halifax Cty. Bd. of Comm'rs , 821 S.E.2d 755 ( 2018 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 338A17
Filed 21 December 2018
LATONYA SILVER, individually and as guardian ad litem of BRIANNA SILVER,
LARRY SILVER III, and DOMINICK SILVER; BRENDA SLEDGE, individually
and as guardian ad litem of ALICIA JONES; FELICIA SCOTT, individually and as
guardian ad litem of JAMIER SCOTT; HALIFAX COUNTY BRANCH #5401,
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED
PEOPLE; and COALITION FOR EDUCATION AND ECONOMIC SECURITY
v.
THE HALIFAX COUNTY BOARD OF COMMISSIONERS
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, ___ N.C. App. ___, 805 S.E.2d 320 (2017), affirming an order
entered on 2 February 2016 by Judge W. Russell Duke, Jr. in Superior Court, Halifax
County. Heard in the Supreme Court on 16 April 2018.
Mark Dorosin and Elizabeth Haddix for plaintiff-appellants.
Garris Neil Yarborough and M. Glynn Rollins, Jr. for defendant-appellee.
Jane R. Wettach for Children’s Law Clinic, Duke University School of Law;
Youth Justice Project of the Southern Coalition for Social Justice, by Peggy
Nicholson and K. Ricky Watson, Jr., for Public Schools First NC; and Celia
Pistolis, Aisha Forte, and Jennifer Story for Legal Aid of North Carolina, Inc.
− Advocates for Children’s Services, amici curiae.
Tin Fulton Walker & Owen, PLLC, by S. Luke Largess and Cheyenne N.
Chambers, for North Carolina Advocates for Justice, amicus curiae.
Womble Bond Dickinson (US) LLP, by Beth Tyner Jones, Rebecca C.
Fleishman, and Matthew Tilley, for North Carolina Association of County
Commissioners, amicus curiae.
JACKSON, Justice.
SILVER V. HALIFAX CTY. BD. OF COMM’RS
Opinion of the Court
In this case we consider whether plaintiffs have stated a claim for violations of
their right to receive the sound basic education guaranteed by the North Carolina
Constitution sufficient to survive defendant’s motion to dismiss pursuant to North
Carolina Rule of Civil Procedure 12(b)(6). See N.C.G.S. § 1A-1, Rule 12(b)(6) (2017).
Because we conclude that the State—and not a board of county commissioners—is
solely responsible for guarding and preserving the right of every child in North
Carolina to receive a sound basic education pursuant to the North Carolina
Constitution, we affirm the decision of the Court of Appeals.
The case sub judice is related to, yet distinguishable from, this Court’s
landmark decision in Leandro v. State, 346 N.C. 336, 488 S.E.2d 249 (1997) (Leandro
I). The plaintiffs in Leandro I were students, parents or their legal guardians, and
local boards of education from five relatively low wealth counties.1 One of the
plaintiffs was Halifax County Public Schools, a local board of education which is one
of the school systems relevant to this case but is not a party. The plaintiffs in Leandro
I sued the State and the North Carolina State Board of Education alleging that their
state constitutional rights relating to education were being violated. Id. at 342, 488
S.E.2d at 252. They sought declaratory and injunctive relief to secure their right to
1 Leandro I also featured a number of plaintiff-intervenors, who were students and
their parents or legal guardians from relatively large and wealthy counties and those
counties’ respective boards of education.
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Opinion of the Court
fundamental educational opportunities that were severely lacking allegedly due to
inadequate funding from the State. Id at 342, 488 S.E.2d at 252. In Leandro I we
concluded that “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” and that this includes a right to a
qualitatively adequate education.2 Id. at 347, 488 S.E.2d at 255. We remanded the
case to the trial court for a determination of whether the defendants in that case had
violated their constitutional duty to provide every child an opportunity to receive a
sound basic education, with instructions to the trial court to provide declaratory or
other relief if it was found that they had violated this duty. Id. at 357-58, 488 S.E.2d
at 261. Seven years later, the case returned to this Court in Hoke County Board of
Education v. State, 358 N.C. 605, 599 S.E.2d 365 (2004) (Leandro II). This Court
2 In so doing, we noted that a qualitative “sound basic education” is one that would
provide students 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.
Leandro I, 346 N.C. at 347, 488 S.E.2d at 255 (citations omitted).
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Opinion of the Court
reviewed, among other things, the trial court’s order on remand, which found that the
State had failed to meet its constitutional duties regarding education outlined in
Leandro I by inefficiently allocating and spending funds for education and directed
the State to remedy the deficiencies that caused this violation. Id. at 608-09, 647-48,
599 S.E.2d at 372-73, 396. We affirmed the trial court’s order, which left to the State
the “nuts and bolts” of educational resource expenditures as they relate to providing
a sound basic education while generally instructing the State to “assume the
responsibility for, and correct, those educational methods and practices that
contribute to the failure to provide students with a constitutionally-conforming
education.” Id. at 609, 599 S.E.2d at 373.
According to the factual allegations in plaintiffs’ complaint, which we take as
true for the purpose of reviewing an order on a motion to dismiss pursuant to Rule
12(b)(6), see Krawiec v. Manly, 370 N.C. 602, 604, 811 S.E.2d 542, 545 (2018) (citing
State ex rel. Cooper v. Ridgeway Brands Mfg., LLC, 362 N.C. 431, 442, 666 S.E.2d
107, 114 (2008)), plaintiffs are five children who live and attend school in Halifax
County, their respective parents or legal guardians, and two interested organizations:
the local branch of the National Association for the Advancement of Colored People
and the Coalition for Education and Economic Security. Defendant is the Halifax
County Board of Commissioners, which, plaintiffs allege, is required by the North
Carolina statutes to provide funding for each of the three local boards of education in
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Opinion of the Court
Halifax County and is authorized to maintain or supplement school programs,
facilities, and equipment for the local school boards.
In contrast to most North Carolina counties that have just one local education
area (LEA), Halifax County has three: Halifax County Public Schools (HCPS),
Weldon City Schools (WCS), and Roanoke Rapids Graded School District (RRGSD).
According to plaintiffs’ complaint, in the 2014 to 2015 school year, the student
populations of HCPS and WCS were overwhelmingly black, with HCPS’s student
population of 2988 schoolchildren 85% black and 4% white, and WCS’s student
population of 940 students 94% black and 4% white. At the same time, RRGSD’s
student population of 2929 schoolchildren was only 26% black and 65% white.
Furthermore, the vast majority of students attending school in HCPS and WCS
schools are considered “at risk.” Our decision in Leandro II recognized that students
may be considered “at risk” if, “due to circumstances such as an unstable home life,
poor socio-economic background, and other factors, [they] either enter or continue in
school from a disadvantaged standpoint, at least in relation to other students who are
not burdened with such circumstances.”3 Leandro II, 358 N.C. at 632 n.13, 599 S.E.2d
at 387 n.13.
3 In expounding upon the definition of an “at risk” student in Leandro II, we noted
that an “at risk” student generally
holds or demonstrates one or more of the following characteristics: (1) member
of low-income family; (2) participate in free or reduced-cost lunch programs; (3)
have parents with a low-level education; (4) show limited proficiency in
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SILVER V. HALIFAX CTY. BD. OF COMM’RS
Opinion of the Court
The facts alleged in plaintiffs’ complaint are, unfortunately, all too familiar to
this Court, as they mirror those of the plaintiffs in Leandro I. Plaintiffs allege that
defendant’s continued support and maintenance of this tripartite school district
system and its refusal to manage and distribute resources efficiently among the
school districts has resulted in defendant’s failure to provide the students of Halifax
County an opportunity to receive a sound basic education. They compare defendant’s
“inputs” and “outputs”4 in the HCPS and WCS districts with those in RRGSD to
bolster their allegations. As to “inputs,” plaintiffs state that HCPS and WCS school
buildings and facilities are woefully inadequate, with crumbling infrastructure and
regularly failing heating and cooling systems. Plaintiffs also include a report that
students at Northwest High School in HCPS recently have had to walk through
sewage to move between classes because of defective plumbing. In addition, HCPS
and WCS school students frequently lack textbooks and other basic curricular
English; (5) are a member of a racial or ethnic minority group; (6) live in a
home headed by a single parent or guardian.
358 N.C. at 636 n.16, 599 S.E.2d at 389 n.16.
4 In the Leandro cases we used these terms as shorthand for various actions the State
takes and the results it achieves, in educational policy to help determine whether it was
providing a sound basic education. The term “inputs” includes indicators like the amount of
funding received and its allocation, educational programs and opportunities provided to
students, teacher certification standards, and overall quality of administrators and teachers.
Leandro II, 358 N.C. at 631-32, 599 S.E.2d at 386-87. The term “outputs” generally is
considered to measure overall student performance, and includes indicators such as
comparative standardized test score data, student graduation rates, employment potential,
and post-secondary education success (or a lack of post-secondary education participation).
Id. at 623, 599 S.E.2d at 381.
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materials, with teachers relying on donations from parents to purchase books and
other basic classroom necessities. Meanwhile, plaintiffs point out that the facilities
at RRGSD schools are well kept and regularly renovated, and students have access
to Advanced Placement classes and many other curricular and extra-curricular
activities that are not available to HCPS and WCS students. Plaintiffs argue that
funding disparities make it extremely difficult for HCPS and WCS to attract and
retain quality, or even fully licensed, teachers and administrators, with these schools
commonly resorting to hiring teachers from the Teach for America program or
teachers with little or no experience. The percentage of fully licensed teachers in
these districts ranges from 63 to 89%. In contrast, 95 to 100% of the teachers in
RRGSD schools are fully licensed.
Plaintiffs claim this disparity in inputs is largely attributable to the way
defendant has structured its system of local sales tax distribution pertaining to
education. Pursuant to legislation enacted by the General Assembly, each year
defendant selects one of two methods by which local sales tax revenues are
distributed within the county to provide additional funding to the local school
districts. Defendant may use either the per capita method, in which local sales tax
revenue is divided between defendant and all municipalities within the county on a
per capita basis using the resident population of each, N.C.G.S. § 105-472(b)(1)
(2017), or the ad valorem method, in which local sales tax revenue is divided between
all “taxing entities” in the county, including municipalities and eligible LEAs, id. §
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105-472(b)(2) (2017). Defendant routinely chooses to employ the ad valorem method,
which plaintiffs allege netted RRGSD $4.5 million in local sales and use tax revenue
and WCS $2.5 million in local sales and use tax revenue between 2006 and 2014.
HCPS, which does not have a supplemental property tax and is therefore not a taxing
entity, receives no money pursuant to the ad valorem method of distribution.
Plaintiffs claim that defendant’s continued use of the ad valorem method, as opposed
to the per capita method, routinely leaves HCPS with fewer resources to increase
“inputs” and exacerbates existing funding disparities, which in turn reduces the
chance that students in HCPS schools will receive a sound basic education. Differing
supplemental property tax rates similarly result in disparate funding between the
three LEAs within the county.
Plaintiffs’ complaint also alleges large disparities in “outputs.” Plaintiffs point
out that since 2002, the students in HCPS and WCS schools have scored anywhere
from 15 to 30% lower than students in RRGSD schools on end-of-course tests and that
a majority of students in HCPS and WCS schools score below grade level in
standardized statewide end-of-grade exams. HCPS and WCS students consistently
score 150 to 250 points lower than RRGSD students on the SAT college entrance
exam. Students in HCPS and WCS schools are much more likely than students in
RRGSD schools to be suspended, with HCPS having suspended a higher percentage
of high school students than any other school district in the state during the 2013 to
2014 school year.
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SILVER V. HALIFAX CTY. BD. OF COMM’RS
Opinion of the Court
In August 2016, plaintiffs commenced this action alleging that defendant has
violated plaintiffs’ fundamental constitutional right to receive the sound basic
education guaranteed in Article I, Section 15 and Article IX, Section 2 of the North
Carolina Constitution. Plaintiffs requested that the trial court issue a declaratory
judgment and use its equitable powers to order defendant to develop and implement
a plan to cure the alleged violation. Defendant filed a motion to dismiss pursuant to
Rule 12(b)(6) for failure to state a claim upon which relief can be granted. In
February 2016, the trial court granted defendant’s motion to dismiss, noting that no
provision of the North Carolina Constitution affirmatively requires a board of county
commissioners to implement and maintain a public education system in the county
in which it sits, thereby absolving the board of any constitutional duty to provide its
students the opportunity to receive a sound basic education. Plaintiffs appealed to
the Court of Appeals, asserting that defendant is constitutionally responsible for
securing a child’s right to a sound basic education. After reviewing the plain language
of our constitution and our decisions in the Leandro cases, the Court of Appeals
affirmed the decision of the trial court in a divided decision, holding that the State,
standing alone, has the obligation to provide a sound basic education to the children
of North Carolina. Silver v. Halifax Cty. Bd. of Comm’rs, ___ N.C. App. ___, ___, 805
S.E.2d 320, 323 (2017). The Court of Appeals determined that plaintiffs’ correct
course of action would be to have their concerns addressed in the ongoing Leandro
proceedings. Id. at ___, 805 S.E.2d at 329-330. Chief Judge McGee dissented, writing
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Opinion of the Court
that she would hold that plaintiffs have properly stated a claim against defendant
and that a board of county commissioners may be held responsible for ensuring that
schoolchildren have the opportunity to receive a sound basic education. Id. at ___,
805 S.E.2d at 344 (McGee, C.J., dissenting). Chief Judge McGee reasoned that the
responsibility for providing the right to a sound basic education is the result of the
assignment of powers over education to a local entity by the General Assembly
pursuant to Article IX, Section 2(2). Id. at ___, 805 S.E.2d at 345 (McGee, C.J.,
dissenting). In October 2017, plaintiffs appealed to this Court as of right pursuant
to N.C.G.S. § 7A-30(2) to obtain review of the Court of Appeals’ determination that
the trial court appropriately dismissed their complaint.
On appeal from an order dismissing a claim pursuant to Rule 12(b)(6), we
conduct de novo review. Krawiec, 370 N.C. at 606, 811 S.E.2d at 546 (citing Arnesen
v. Rivers Edge Golf Club & Plantation, Inc., 368 N.C. 440, 448, 781 S.E.2d 1, 8 (2015)).
An action will be dismissed pursuant to Rule 12(b)(6) if the complaint “[f]ail[s] to state
a claim upon which relief can be granted.” N.C.G.S. § 1A-1, Rule (12)(b)(6). We have
determined that a complaint fails to state a claim and will be dismissed when: “(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.”
Krawiec, 370 N.C. at 606, 811 S.E.2d at 546 (quoting Wood v. Guilford County, 355
N.C. 161, 166, 558 S.E.2d 490, 494 (2002)). In conducting our review of a complaint
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dismissed pursuant to Rule 12(b)(6), we take all of the factual allegations stated in
plaintiffs’ complaint as true. Id. at 604, 811 S.E.2d at 545 (citing Ridgeway Brands,
362 N.C. at 442, 666 S.E.2d at 114).
The trial court dismissed plaintiffs’ constitutional claim for failure to state a
claim upon which relief can be granted pursuant to Rule 12(b)(6) on the basis that
plaintiffs could not have their constitutional rights enforced by defendant because
defendant does not possess any constitutional duties relating to public education.
Plaintiffs contend that, along with the State, a board of county commissioners is
obliged to provide the opportunity for the children of North Carolina to receive a
sound basic education. We disagree.
In analyzing defendant’s constitutional duties with respect to providing a
sound basic education, first we must carefully consider the pertinent language of the
constitution itself. Section 15 of the North Carolina Declaration of Rights states: “The
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. The provision more relevant
to the case sub judice, Article IX, Section 2, entitled “Uniform system of schools”
states:
(1) General and uniform system: term. — The General Assembly
shall provide by taxation and otherwise for a general and uniform
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.
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(2) Local responsibility. — The General Assembly may assign to
units of local government such responsibility for the financial support of
the free public schools as it may deem appropriate. The governing
boards of units of local government with financial responsibility for
public education may use local revenues to add to or supplement any
public school or post-secondary school program.
Id. art. IX, § 2. Acting together, these two sections of Article I and Article IX create
a mandate that guarantees every child in the state the opportunity to receive a sound
basic education. We interpret our constitution and our statutes in the same manner,
meaning that if the language in the instrument is clear and unambiguous on its face,
we do not search for meaning elsewhere. State ex rel. Martin v. Preston, 325 N.C.
438, 449, 385 S.E.2d 473, 478-79 (1989) (citing Elliott v. State Bd. of Equalization,
203 N.C. 749, 753, 166 S.E. 918, 920-21 (1932)).
As we read these provisions of our constitution, it is clear that no express
provision requires boards of county commissioners to provide for or preserve any
rights relating to education. Section 2(1) of Article IX requires the General Assembly
to create and maintain a system of free public schools. N.C. Const. art. IX, § 2(1)
(“The General Assembly shall provide by taxation and otherwise for a general and
uniform system of free public schools . . . .”). The constitution also notes expressly
that units of local government, such as county boards of commissioners, may bear the
burden for some of the financial needs of local education by using local revenues if
the General Assembly so allows. Id. art. IX, § 2(2) (“The General Assembly may
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assign to units of local government such responsibility for the financial support of the
free public schools as it may deem appropriate.”). Indeed, the General Assembly has
chosen to enact many statutes making county boards of commissioners responsible
for certain costs associated with LEA operations. See, e.g., N.C.G.S. § 115C-408(b)
(2017) (“[T]he facilities requirements for a public education system will be met by
county governments.”); id. §§ 115C-521(b), -524(b) (2017) (requiring boards of
commissioners to provide funds for the erection of “school buildings equipped with
suitable school furniture and apparatus” and to ensure that these buildings are in
“good repair” and “at all times in proper condition for use”); id. § 115C-522(c) (2017)
(making it the combined duty of boards of county commissioners and local school
boards “to provide suitable supplies for the school buildings . . . . includ[ing] . . . proper
window shades, blackboards, reference books, library equipment, maps, and
equipment for teaching the sciences” as well as “provide every school with a good
supply of water”). Furthermore, the legislature gives boards of county commissioners
the option to supplement monies for public education with certain taxes if they choose
to do so. Id. § 105-464 (2017) (affording “the counties and municipalities of this State
with opportunity to obtain an added source of revenue . . . by providing all counties
of the State with authority to levy a one percent (1%) sales and use tax”); id. § 115C-
501(a) (2017) (granting local taxing authorities the “authority to ascertain the will of
the voters as to whether there shall be levied and collected a special tax in the several
local school administrative units, districts, and other school areas . . . to supplement
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the funds from State and county allotments”); id. § 115C-511(a) (2017) (“If a local
school administrative unit or district has voted a tax to operate schools of a higher
standard than that provided by State and county support,” the board of county
commissioners is authorized to levy a tax on all property located in the LEA to
supplement the local current expense fund.).
Plaintiffs assert that Article IX, Section 2(2) and the statutes enacted pursuant
to this constitutional provision make local entities responsible for providing a sound
basic education. We disagree. As we noted in Leandro I, boards of county
commissioners have a long history of involvement in local education, and this notion
is ingrained in our State’s educational structure:
The idea that counties are to participate in funding their local
school districts has a long history. In 1890, for example, Chief Justice
Merriman wrote for this Court that: “the funds necessary for the support
of public schools—the public school system—are not derived exclusively
from the State. The Constitution plainly contemplates and intends that
the several counties, as such, shall bear a material part of the burden of
supplying such funds.”
Leandro I, 346 N.C. at 349, 488 S.E.2d at 256 (quoting City of Greensboro v. Hodgin,
106 N.C. 182, 187-88, 11 S.E. 586, 588 (1890)). While the framers of our state
constitution may have intended that Article IX, Section 2(2) allow for supplementing
of school funding by boards of county commissioners, it clearly does not require the
General Assembly to do so. The language utilized obviously is precatory, not
mandatory. In examining the two pertinent constitutional provisions, we note the
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importance of the framers’ choice of “shall” in subsection (1) and “may” in subsection
(2). “As used in statutes, the word ‘shall’ is generally imperative or mandatory.” State
v. Johnson, 298 N.C. 355, 361, 259 S.E.2d 752, 757 (1979) (citing Black’s Law
Dictionary 1541 (4th rev. ed. 1968)). In contrast, “may” is generally intended to
convey that the power granted can be exercised in the actor’s discretion, but the actor
need not exercise that discretion at all.5 In re Hardy, 294 N.C. 90, 97, 240 S.E.2d 367,
372 (1978) (“Ordinarily when the word ‘may’ is used in a statute, it will be construed
as permissive and not mandatory.” (first citing Felton v. Felton, 213 N.C. 194, 195
S.E. 533 (1938); and then citing Rector v. Rector, 186 N.C. 618, 120 S.E. 195 (1923))).
If we assume, arguendo, that the General Assembly declined to exercise its Article
IX, Section 2(2) discretion and assign financial responsibilities to the local boards of
county commissioners or allow them to levy taxes for education, boards of county
commissioners could not exercise any authority over local education. It is inapposite
then to suggest, as plaintiffs have, that boards of county commissioners have some
5 We do recognize that this Court occasionally reads the word “may” to carry the same
meaning as “shall” when such an interpretation “will best express the legislative intent” and
“it is employed in a statute to delegate a power, the exercise of which is important for the
protection of public or private interests.” Puckett v. Sellars, 235 N.C. 264, 268, 69 S.E.2d 497,
500 (1952); see also Johnston v. Pate, 95 N.C. 68, 71 (1886) (observing that “[t]he term ‘may’
is often construed as mandatory when the statute is intended to give relief” or “when a statute
directs the doing of a thing for the sake of justice or the public good”). Here we see no reason
to define “may” in the context of Article IX, Section 2(2) to be mandatory, as the provision
was not intended to provide any party with relief or protect public or private rights or
interests. Indeed, the purpose of the provision is to promote efficiency, as it gives the General
Assembly a mechanism to supplement the costs and financial administration of the education
system that it is required to set up and maintain.
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inherent constitutional duty to provide a sound basic education, much less any other
constitutional power related to education. If they did possess such inherent powers,
then a situation like the one described above—in which the General Assembly has
granted no financial responsibility to local units of government—would leave a board
of county commissioners in the impossible situation of perpetually violating the
constitution by not providing a sound basic education while lacking the means to do
so.
Justice Story’s ideas of constitutional construction from his seminal opinion in
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816), provide a useful analog. In
Hunter’s Lessee the United States Supreme Court was tasked with, inter alia,
deciding whether it could hear a case on direct appeal from a state court without the
case first passing through the lower federal courts. Id. at 323-24. The Court
determined that it could. Recognizing that the Constitution stated that Congress
“shall” (i.e., must) create a Supreme Court but merely “may” (i.e., can) create inferior
courts, id. at 328, the Supreme Court reasoned that inferior courts need not be
created at all. If Congress did not create inferior courts, the Supreme Court, whose
“judicial power (which includes appellate power) shall extend to all cases,” id. at 338,
would naturally be able to hear cases on appeal directly from the states because the
vested federal judicial power over the Constitution and laws of the United States
would have to be exercised in some way and arise from somewhere, id. at 338-39.
“Any other construction, upon this supposition,” Justice Story wrote, “would involve
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this strange contradiction, that a discretionary power vested in congress, and which
they might rightfully omit to exercise, would defeat the absolute injunctions of the
constitution in relation to the whole appellate power.” Id. at 340. The same general
reasoning may be applied to the case sub judice, as the General Assembly may refuse
to grant any financial responsibility to local entities, thereby making it impossible for
said local entities to carry out any education related duties, much less provide a sound
basic education. This leaves the State, and the State alone, with the power to create
and maintain a system of public education, which includes effectuating the right to a
sound basic education. Just as “congress may lawfully omit to establish inferior
courts, it might follow, that in some of the enumerated cases the judicial power could
nowhere exist,” id. at 330, the General Assembly may lawfully refuse to grant power
concerning education to local governments, which, if plaintiffs’ claims were correct,
would create a situation in which a local government entity would have a
constitutional duty to act without the means to do so. We cannot read our constitution
to permit such a contradiction.
It has been suggested by both plaintiffs and the Court of Appeals dissent that
the constitutional duty to provide a sound basic education is vested in or delegated to
a unit of local government when the General Assembly enacts a law giving it financial
responsibility concerning public education. This reasoning has been foreclosed by our
decision in Leandro II. There we affirmed the order of the trial court which found
that the State, “and by the State we mean the legislative and executive branches
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which are constitutionally responsible for public education,” was not providing a
sound basic education to Hoke County students because it failed to ensure that
available resources were being allocated appropriately. Leandro II, 358 N.C. at 635,
599 S.E.2d at 389. The State contended that it could not be exclusively responsible
for providing the opportunity for a sound basic education because the Hoke County
Board of Education was at least in part responsible for this failure to properly allocate
resources and provide a sound basic education. Id. at 635, 599 S.E.2d at 389. We
concluded otherwise, noting that the State was responsible for providing a sound
basic education and “the trial court’s ruling simply placed responsibility for the school
board’s actions on the entity—the State—that created the school board and that
authorized the school board to act on the State’s behalf.” Id. at 635, 599 S.E.2d at
389.
The interrelationship between the State and local school boards discussed in
Leandro II is comparable to that between the State and a county board of
commissioners and is useful to our analysis in this case. In Moore v. Board of
Education, 212 N.C. 499, 193 S.E. 732 (1937), this Court noted that local school
boards are agencies of the State, with the General Assembly having close to plenary
power over them. Id. at 502, 193 S.E. at 733-34 (stating that local governmental
organizations, including school boards, “are intended to be instrumentalities and
agencies employed to aid in the administration of the government” and “are the
creatures of the legislative will and subject to its control, and such agencies can only
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exercise such powers as may be conferred upon them and in the way and manner
prescribed by law”). Like local school boards, counties and their respective boards of
county commissioners also are “creatures of the General Assembly and serve as
agents and instrumentalities of State government.” Stephenson v. Bartlett, 355 N.C.
354, 364, 562 S.E.2d 377, 385 (2002). “[A] county’s ‘powers . . . both express and
implied, are conferred by statutes, enacted from time to time by the General
Assembly.’ ” Lanvale Props., LLC v. County of Cabarrus, 366 N.C. 142, 150, 731
S.E.2d 800, 807 (2012) (ellipsis in original) (quoting Martin v. Board of Comm’rs of
Wake Cty., 208 N.C. 354, 365, 180 S.E. 777, 783 (1935); id. at 150, 731 S.E.2d at 807
(stating that a county is “an instrumentality of the State, by means of which the State
performs certain of its governmental functions within its territorial limits” (quoting
Martin, 208 N.C. at 365, 180 S.E. at 783)). If, according to Leandro II, the General
Assembly may not delegate or shift some of its responsibility to provide an
opportunity for a sound basic education to a local school board, an agency of the State,
then it follows that the General Assembly also may not pass this same responsibility
on to a county board of commissioners, also an agency of the State. The trial court’s
order at issue in Leandro II found “that the State bore ultimate responsibility for the
actions and/or inactions of the local school board, and that it was the State that must
act to correct those actions and/or inactions of the school board that fail to provide a
Leandro-conforming educational opportunity,” and we upheld this determination.
358 N.C. at 635, 599 S.E.2d at 389 (emphasis added). Following this reasoning, any
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complications born of the incompetence or obstinance of a county board of county
commissioners relating to the finances of local education are the “ultimate
responsibility” of the State, which must step in and ameliorate the errors.6
Plaintiffs have expressed concern that a determination that only the State is
responsible for providing children the opportunity to receive a sound basic education
will give local governments the ability to disregard their obligations relating to
education by allowing them to refuse to provide funds for, among other things, books,
6 Defendant argues that our decision in King v. Beaufort County Board of Education,
364 N.C. 368, 704 S.E.2d 259 (2010), is irreconcilable with our holding today. In King we
held that a student who is suspended and denied access to alternative education must be
given a reason why he or she is not allowed to participate in an alternative education
program. Id. at 370, 704 S.E.2d at 260-61. Plaintiffs assert that because the local school
board in King was the only proper defendant in the litigation, a local entity may be
responsible for providing a sound basic education to students. We disagree, as King does not
stand for such a broad proposition. Notwithstanding our decision in Leandro II, in which we
noted that the State may not delegate its overall responsibility of providing a sound basic
education to local school boards, King is not controlling here and may be distinguished from
the Leandro decisions and the present case.
King is, primarily, a decision regarding school discipline, based upon statutes enacted
by the General Assembly which require LEAs to offer at least one alternative education
program and create strategies for assigning long-term suspended students to it when feasible
and appropriate. King clearly expressed that there is no fundamental right to an alternative
education. 364 N.C. at 372, 704 S.E.2d at 261 (“In acknowledging a statutory right to
alternative education, we stress that a fundamental right to alternative education does not
exist under the state constitution.”). The State, in its discretion and outside the Leandro
mandate that requires it to provide every child an opportunity for a sound basic education,
has chosen to provide for the continued schooling of children who have misbehaved and been
removed from the schoolhouse. King was not concerned with the local board of education
providing a sound basic education to its students but rather with how the statutorily created
right to receive an alternative education was to be preserved. As such, we held that “insofar
as the General Assembly has provided a statutory right to alternative education, a suspended
student excluded from alternative education has a state constitutional right to know the
reason for her exclusion.” Id. at 372, 704 S.E.2d at 261 (emphasis added).
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equipment, school transportation, and maintenance or construction of school
facilities. In effect, plaintiffs say county governments would thus be allowed to
abandon their fiscal responsibility regarding education with impunity and pass their
alleged constitutional duties along to the State. This is not the case. Plaintiffs’ line
of reasoning is arguably sound only if one presupposes that counties have such
constitutional duties in the first place, and we have determined that they do not.
Furthermore, irrespective of a county’s constitutional powers relating to education,
no entity is free to ignore the mandates of the General Assembly. Nothing in this
opinion should be read to suggest that a county board of commissioners, or any other
local entity with duties imposed by General Assembly enactments, may ignore
statutory requirements laid out by the legislature. Furthermore, to the extent that a
county, as an agency of the State, hinders the opportunity for children to receive a
sound basic education, it is the State’s constitutional burden to take corrective action.
It is important to note that the legislature has provided statutory relief from
inadequate funding in an LEA if a local board of education determines that the funds
appropriated to it by the county board of commissioners are “not sufficient to support
a system of free public schools.” N.C.G.S. § 115C-431 (2017) (titled “Procedure for
resolution of dispute between board of education and board of county
commissioners.”). This process involves the chairs of both the local board of education
and the board of county commissioners jointly meeting with a mediator to “make a
good-faith attempt to resolve the differences that have arisen between them,” but if
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they cannot and a subsequent attempt at mediation fails, the local board of education
may file an action in superior court where a jury may decide the appropriate budget
for the school year. Id. § 115C-431(a)-(c). Plaintiffs note that there is no similar
statutory action against boards of county commissioners available to parents or
students seeking to vindicate their right to a sound basic education. If a local school
board chooses not to pursue a section 115C-431 action, plaintiffs contend that relief
from the courts is the only manner by which they may vindicate their right to a sound
basic education as it pertains to county funding of local schools. Again, plaintiffs’
claim is untenable because it assumes that a county board of commissioners has some
constitutional duty to provide a sound basic education in the first instance. As we
concluded above, county boards of commissioners have no such duty, so plaintiffs are
precluded from asserting constitutional claims against them concerning this specific
constitutional right.
If a section 115C-431 course of action is deficient, as plaintiffs have suggested,
parents and students are still free to assert a child’s constitutional right to receive a
sound basic education directly against the State. The Court of Appeals suggested
this very remedy, opining that the correct avenue for relief in this case would be for
plaintiffs to raise the issues alleged in their complaint with the superior court
overseeing the ongoing Leandro litigation, Silver, ___ N.C. App. at ___, 805 S.E.2d at
329-30, but plaintiffs contend that this, too, is inadequate. Plaintiffs maintain that
this Court’s decisions in the Leandro cases are concerned with the scope of the right
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to a sound basic education and whether the amount and spending of resources
provided by the State properly guarantee this right. Plaintiffs further claim that
intervention in the Leandro case is procedurally impractical because that litigation
has been in a remedial phase for nearly fifteen years and no substantive rulings have
issued in Leandro aside from a decision pertaining to pre-kindergarten programs in
2011. Regardless of the feasibility of intervention in the Leandro litigation, plaintiffs
have not advanced any reason—and we can find none—why they cannot bring an
action directly against the State in order to cure the alleged constitutional violations.
In Leandro II we noted that “[t]he children of North Carolina are our state's
most valuable renewable resource. If inordinate numbers of [students] are
wrongfully being denied their constitutional right to the opportunity for a sound basic
education, our state courts cannot risk further and continued damage because the
perfect civil action has proved elusive.” Leandro II, 358 N.C. at 616, 599 S.E.2d at
377. This Court’s statement in Leandro II remains true today. However, here, we
are not confronted by a civil action that is merely imperfect, but rather we have been
presented with an action that must fail because plaintiffs simply cannot obtain their
preferred remedy against this particular defendant on the basis of the claim that they
have attempted to assert in this case. The allegations in plaintiffs’ complaint, if true,
are precisely the type of harm Leandro I and its progeny are intended to address. In
keeping with Leandro, however, the duty to remedy these harms rests with the State,
and the State alone. Accordingly, we affirm the decision of the Court of Appeals that
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affirmed the trial court's order dismissing the action for failure to state a claim upon
which relief can be granted.
AFFIRMED.
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