Silver v. The Halifax Cty. Bd. of Commissioners , 255 N.C. App. 559 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-313
Filed: 19 September 2017
Halifax County, No. 15 CVS 767
LOTONYA 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, Plaintiffs,
v.
THE HALIFAX COUNTY BOARD OF COMMISSIONERS, Defendant.
Appeal by plaintiffs from order entered 2 February 2016 by Judge W. Russell
Duke, Jr. in Superior Court, Halifax County. Heard in the Court of Appeals 19
September 2016.
UNC Center for Civil Rights, by Mark Dorosin and Elizabeth Haddix, for
plaintiffs-appellants.
Yarborough, Winters & Neville, by Garris Neil Yarborough; Office of County
Attorney, by County Attorney M. Glynn Rollins, Jr., for defendant-appellee.
Youth Justice Project of the Southern Coalition for Social Justice, by K. Ricky
Watson, Jr. and Peggy Nicholson, for Public Schools First NC, amicus curiae.
Legal Aid of North Carolina, Inc., by George R. Hausen, Jr.; Legal Aid of North
Carolina, Inc. - Advocates for Children’s Services, by Seth Ascher and Jennifer
Story, for Legal Aid of North Carolina, Inc., amicus curiae.
STROUD, Judge.
I. Introduction
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Opinion of the Court
The North Carolina Supreme Court described the State’s constitutional
obligation to provide each student a “sound basic education” in Leandro v. State1,
which was filed in 1997; the Halifax County Board of Education was one of several
plaintiffs in that case. In Leandro I, our Supreme Court declared that the State bears
the constitutional obligation to provide a “sound basic education” to each student; the
Court then explained in later Leandro litigation that “by the State we mean the
legislative and executive branches[.]”2 The legislative branch is the North Carolina
General Assembly; the executive branch includes the Governor, State Board of
Education, and Department of Public Instruction. The Supreme Court also explained
that our state courts are not well-equipped to solve the problems in North Carolina’s
public schools. The Court approved of the trial court’s approach, which deferred to
“the expertise of the executive and legislative branches of government in matters
concerning the mechanics of the public education process.”3 The Supreme Court then
assigned a superior court judge to oversee the efforts to improve public education in
several counties, including Halifax County, and the court oversight started by
Leandro still continues today.
In this case, plaintiffs are students in the Halifax County Public Schools and
organizations interested in promoting public education. They claim that despite
1 Leandro v. State, 346 N.C. 336, 488 S.E.2d 249 (1997) (“Leandro I”).
2 Id. at 345, 488 S.E.2d at 254; Hoke Cnty. Bd. of Educ. v. State, 358 N.C. 605, 635, 599 S.E.2d
365, 389 (2004) (“Leandro II”).
3 Leandro II, 358 N.C. at 638, 599 S.E.2d at 390.
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years of Leandro court oversight, including countless hearings and orders by the trial
court and two extensive opinions from the North Carolina Supreme Court, many of
the educational deficiencies described in Leandro I and II still exist in Halifax
County. But in this case, plaintiffs claim that the Halifax County Board of
Commissioners -- alone -- bears the constitutional obligation for providing all children
in the county with a sound basic education. This claim is not supported by our
Supreme Court’s holdings in Leandro I and II. And the courts are still ill-equipped
to solve the problems of North Carolina’s public schools today, while the State -- “the
legislative and executive branches” -- still has the constitutional duty to provide a
sound basic education for every child in North Carolina. The defendant Halifax
County Board of Commissioners was created by the State, and the State has legal
power to control it. Plaintiffs’ complaint describes serious problems in the schools in
Halifax County, but because this defendant -- the Halifax County Board of
Commissioners -- does not bear the constitutional duty to provide a sound basic
education, we affirm the trial court’s order dismissing this action.
II. Plaintiffs’ claim
a. Procedural background
This case presents a question of first impression in our Court: whether North
Carolina schoolchildren may assert a violation of their right to a sound basic public
education, guaranteed by the North Carolina Constitution, against a local board of
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county commissioners for their alleged failure to adequately fund aspects of public
schools. This case has come before this Court at an early stage of the proceedings, as
the trial court granted defendant’s motion to dismiss under Rule 12(b)(6). At this
early stage, this Court must take the factual allegations from plaintiffs’ complaint,
and treat them as true to determine the legal question of whether the trial court
properly dismissed this case. See Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d
794, 796 (2013) (noting that in an appeal from a trial court’s grant of a motion to
dismiss under Rule 12(b)(6), “[w]e consider whether the allegations of the complaint,
if treated as true, are sufficient to state a claim upon which relief can be granted
under some legal theory.” (citation and quotation marks omitted)).
Brianna Silver, Larry Silver III, Dominick Silver, Alicia Jones, and Jamier
Scott (“the students”) are five students in school systems within the geographic
boundaries of Halifax County, North Carolina. Latonya Silver, Brenda Sledge, and
Felicia Scott are the students’ respective parents or legal guardians. The students
and their parents and legal guardians, as well as with two interested organizations -
- the local chapter of the National Association for the Advancement of Colored People
and the Coalition for Education and Economic Security (collectively, “plaintiffs”) --
filed a complaint against the Halifax County Board of Commissioners (“defendant” or
“the Board”) asserting that the Board’s ineffective and inefficient allocation of
financial resources resulted in a failure to provide a “sound basic education” to all
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school children within Halifax County, and that such failure violated the students’
rights under Article I, Section 15 and Article IX, Section 2 of the North Carolina
Constitution.
Plaintiffs filed their lawsuit in Halifax County Superior Court on 24 August
2015. In their complaint, plaintiffs asserted that, due to the “educational
deficiencies” in the three Halifax County school districts, “merely adding resources to
the defective three-district system cannot remedy its constitutional deficiencies.”
Plaintiffs also claim that the Board’s “decision to maintain three racially identifiable
school districts prevents students from the opportunity to receive a sound basic
education.” Plaintiffs asserted two claims for relief, both based on Article I, Section
15 and Article IX, Section 2 of the North Carolina Constitution, and requested in part:
(1) “[t]hat the Court find and conclude that Defendant’s maintenance of three
separate school districts obstructs Halifax County’s students from securing the
opportunity to receive a sound basic education;” and (2) “[t]hat the Court exercise its
equitable powers and order the Board to develop and implement a plan to remedy the
constitutional violations of its present education delivery mechanism and to ensure
that every student in Halifax County is provided the opportunity to receive a sound
basic education[.]”
Under Rule 2.1 of the General Rules of Practice for the Superior and District
Courts, this case was designated as exceptional by the Chief Justice of the Supreme
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Court of North Carolina, and a special superior court judge was designated to hear
the case. Defendant moved to dismiss plaintiffs’ complaint under Rule 12(b)(6) on 2
November 2015, asserting that the complaint failed to state a claim upon which relief
may be granted. After a hearing, the trial court granted defendant’s motion to
dismiss under Rule 12(b)(6), reasoning it is not “the constitutional responsibility of
[the Board] to implement and maintain a public education system for Halifax
County.” Plaintiffs appealed to this Court.
b. Facts as alleged by plaintiffs
We recite these factual allegations from plaintiffs’ complaint and treat them as
true for the purposes of our decision. Bridges, 366 N.C. at 541, 742 S.E.2d at 796.
Three separate school districts exist wholly within the geographical boundaries of
Halifax County: Halifax County Public Schools (“Halifax County Schools”), Weldon
City Schools (“Weldon City Schools”), and Roanoke Rapids Graded School District
(“Roanoke Rapids Schools”). This tripartite school system was created in the 1960s.
As of 2015, the student population of Halifax County Schools was 85% African-
American and 4% Caucasian; the student population of Weldon City Schools was 94%
African-American and 4% Caucasian; and the student population of Roanoke Rapids
Schools was 26% African-American and 65% Caucasian. According to plaintiffs’
complaint, the three school districts receive an unequal amount of funding, with
Roanoke Rapids Schools -- the only school district with a majority of Caucasian
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students -- receiving the most financial support. Plaintiffs allege this funding
disparity flows directly from the choices made by the Board.
Plaintiffs also allege the Board has financial responsibility for public education
in Halifax County, and has the authority to use local revenues to maintain or
supplement public school programs. Various North Carolina General Statutes assign
to local governments the responsibility to pay for certain school-related expenditures
for the school districts within its borders; the complaint alleges that the Board is
responsible for providing furniture and apparatus needs; library, science, and
classroom equipment; instructional supplies and books; and water supply and
sanitary facilities. To fund these financial responsibilities, North Carolina law allows
local governments, if they choose, to collect a one-cent sales and use tax. N.C. Gen.
Stat. § 105-463 et seq. This tax is collected by retailers and remitted to the North
Carolina Department of Revenue. N.C. Gen. Stat. §§ 105-469(a); 105-471 (2015). The
Secretary of the Department of Revenue then allocates the net proceeds of the taxes
collected to each individual county. N.C. Gen. Stat. § 105-472 (2015).
In distributing the local government sales and use tax proceeds, the General
Statutes allow the Board, by resolution, to choose one of two methods of tax
distribution: the Per Capita Method, or the Ad Valorem Method. See N.C. Gen. Stat.
§§ 105-472(b)(1)-(2) (2015). For counties that choose the Per Capita Method, the “net
proceeds of the [sales and use] tax collected in a taxing county” is distributed “to that
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county and to the municipalities in the county on a per capita basis according to the
total population of the taxing county, plus the total population of the municipalities
in the county.” N.C. Gen. Stat. § 105-472(b)(1). For counties using the Ad Valorem
Method, the “net proceeds of the [sales and use] tax collected in a taxing county” is
distributed “to that county and the municipalities in the county in proportion to the
total amount of ad valorem taxes levied by each on property having a tax situs in the
taxing county during the fiscal year next preceding the distribution.” N.C. Gen. Stat.
§ 105-472(b)(2). According to the complaint, both Roanoke Rapids Schools and
Weldon City Schools levy ad valorem “supplemental property taxes,” while Halifax
County Schools do not.
The Board distributes local sales and use tax revenue under the Ad Valorem
Method. Plaintiffs’ complaint alleges that because the Board chooses the Ad Valorem
Method, a funding disparity exists among the three school districts. Between 2006
and 2014, it is alleged that Roanoke Rapids Schools received approximately $4.5
million in local sales and use tax revenue, Weldon City Schools received
approximately $2.5 million in local sales and use tax revenue, and Halifax County
Schools received no local sales and use tax revenue, because it does not collect ad
valorem taxes and was therefore not entitled to a share of the local sales and use
taxes distributed under the Ad Valorem Method. Plaintiffs allege the Board has
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“repeatedly refused to adopt” the Per Capita Method, “preferring to maintain a public
education system that denies additional funding” to Halifax County Schools.
The Board’s choice not to adopt the Per Capita Method “exacerbates funding
disparities already in place,” according to plaintiffs, by the fact that Roanoke Rapids
Schools and Weldon City Schools collect ad valorem supplemental property tax
revenue, while Halifax County Schools does not. Roanoke Rapids Schools has
“authority to levy its own taxes,” and plaintiffs allege it set a supplemental property
tax rate at $0.21 per $100.00 of taxable property value within the school district,
which resulted in Roanoke Rapids Schools receiving approximately $15 million in
additional revenue through supplemental property taxes between 2006 and 2014.
Plaintiffs allege Weldon City Schools “relies on the Board to set its supplemental
property tax rate,” and the Board set the rate at $0.17 per $100.00 of taxable property
value, resulting in Weldon City Schools receiving approximately $11 million in
additional revenue through supplemental property taxes during the same time
period. In contrast, Halifax County Schools do “not have a supplemental property
tax and thus receive[ ] no additional revenue,” according to plaintiffs’ complaint.
Plaintiffs allege these funding disparities have had an appreciable effect on each of
the school districts’ facilities, quality of teachers, and learning materials, briefly
summarized below.
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The complaint alleges that many of Halifax County Schools’ buildings are in
subpar condition, resulting in: toilets flooding hallways, forcing students to walk
through sewage to travel between their lockers and classes; a ceiling occasionally
crumbling and falling onto students’ desks mid-lesson; heating and air conditioning
systems regularly failing; and school buses breaking down, affecting class schedules
and school attendance. The complaint further alleges that Weldon City Schools are
not much better off. The high school in the Weldon City School system has a mold
infestation, crumbling ceilings, an invasive pest problem, and rodents. An
elementary school in the Weldon City Schools system has bathrooms with no
bathroom stall doors and routinely has no soap in the soap dispensers. Plaintiffs
allege, in stark contrast, that Roanoke Rapids Schools have been renovated regularly;
feature computer labs, art rooms, music rooms, and physical education spaces; and
have “pristine athletic field[s].”
Plaintiffs also allege that disparities extend to the quality of the faculty in the
three school districts. They allege Halifax County Schools and Weldon City Schools
(together, the “majority-minority districts”) are “unable to attract and retain a
sufficient number of experienced, highly effective, or qualified teachers.” The
complaint alleges 40 percent and 50 percent of the school districts’ teachers,
respectively, reported that they have insufficient access to appropriate instructional
materials, while only five percent of Roanoke Rapids Schools teachers reported the
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same problems. Plaintiffs allege the majority-minority districts must resort to
teachers provided through Teach For America (“TFA”), while Roanoke Rapids Schools
have no TFA teachers placed in its schools.
Plaintiffs further allege differences between the three school districts’ learning
materials, curricular offerings, and extracurricular activities, with students in the
majority-minority districts being “frequently forced to share old and worn down
textbooks, workbooks, and other classroom materials[,]” and students are not
permitted to take those materials home, making it difficult to complete homework
assignments. Students in the majority-minority districts have minimal access to
advanced academic courses. In contrast, students in Roanoke Rapids Schools have
access to an “Outreach Academy” program designed to decrease the dropout rate,
have wide access to advanced academic placement, and can participate in
“educational inputs like extracurricular and athletic offerings[.]”
In addition, plaintiffs allege that the school funding choices made by the Board
have also had a negative impact on student test scores in the three districts. Since
2008, Halifax County Schools and Weldon City Schools have had no more than 31.7%
and 47.7%, respectively, of their students score at or above grade level on statewide
standardized tests. They allege students in these two school districts have
consistently scored significantly lower on the SAT college entrance exams than their
peers at Roanoke Rapids Schools. While students at Roanoke Rapids Schools have
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fared better, all three districts have higher dropout rates than the state average, with
half of the dropouts in Roanoke Rapids Schools being African-American, despite that
group constituting less than 25 percent of the total student population.
III. Analysis
a. The Leandro cases established a constitutional right to a sound basic
education.
“[T]he right to education provided in the state constitution is a right to a sound
basic education. Leandro I, 346 N.C. at 345, 488 S.E.2d at 254.
Plaintiffs argue that their complaint, taken as true, states a claim against
defendant for violating their rights conferred by Article I, Section 15 and Article IX,
Section 2 of the North Carolina Constitution, and the Board’s choices “deprived
Plaintiffs of their constitutionally-guaranteed opportunity to receive a sound basic
education.” “It has long been understood that it is the duty of the courts to determine
the meaning of the requirements of our Constitution.” Leandro I, 346 N.C. at 345,
488 S.E.2d at 253. To determine whether plaintiffs’ claims against the Board, if true,
constitute a violation of the North Carolina Constitution, we first consider the
language of the two constitutional provisions involved. Article I, Section 15 of the
North Carolina Constitution provides: “Education. 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 (emphasis in original). Article IX, section 2 provides:
Uniform system of schools.
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(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.
(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.
N.C. CONST. art. IX, § 2 (emphasis in original). The contours of these constitutional
provisions have been examined in two landmark opinions of our Supreme Court:
Leandro I, 346 N.C. 336, 488 S.E.2d 249; and Leandro II, 358 N.C. 605, 599 S.E.2d
365.
In Leandro I, students, their parents or legal guardians, and their school
districts4 (“the plaintiffs”), sued the State and the North Carolina State Board of
Education (“SBOE”) (collectively, “the defendants”) alleging: (1) that the children in
five relatively poor school districts had a right to adequate educational opportunities
which the defendants had denied under the then-existing school funding system; and
(2) the North Carolina Constitution “not only creates a fundamental right to an
education, but it also guarantees that every child, no matter where he or she resides,
4 One of the plaintiffs was the Halifax County Board of Education. Leandro I, 346 N.C. at 336;
488 S.E.2d at 249.
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is entitled to equal educational opportunities.” 346 N.C. at 342, 488 S.E.2d at 252.
Much like the present case, the plaintiffs in Leandro I “complain[ed] of inadequate
school facilities with insufficient space, poor lighting, leaking roofs, erratic heating
and air conditioning, peeling paint, cracked plaster, and rusting exposed pipes.” Id.
at 343, 488 S.E.2d at 252. The plaintiff school districts asserted that “they [were]
unable to compete for high quality teachers because local salary supplements in their
poor districts [were] well below those provided in wealthy districts.” Id.
After examining the plain language, purpose, and history of Article I, Section
15 and Article IX, Section 2 of the North Carolina Constitution, our Supreme Court
held these provisions provide a right to “a qualitatively adequate education[.]”
Leandro I, 346 N.C. at 345, 488 S.E.2d at 254. The Court explained:
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. For purposes of our Constitution, 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
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
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further formal education or gainful employment in
contemporary society.
Leandro I, 346 N.C. at 347, 488 S.E.2d at 255 (citations omitted).
In addition to considering the qualitative aspect inherent in the two
constitutional provisions when combined, the Supreme Court also considered
whether the equal opportunities clause of Article IX, Section 2, alone, “mandates
equality in the educational programs and resources offered the children in all school
districts in North Carolina.” See Leandro I, 346 N.C. at 348, 488 S.E.2d at 255. In
answering that question in the negative, the Court explained:
The issue here . . . is [the] plaintiffs’ contention that North
Carolina’s system of school funding, based in part on
funding by the county in which the district is located,
necessarily denies the students in plaintiffs’ relatively poor
school districts educational opportunities equal to those
available in relatively wealthy districts and thereby
violates the equal opportunities clause of Article IX,
Section 2(1). Although we have concluded that the North
Carolina Constitution requires that access to a sound basic
education be provided equally in every school district, we
are convinced that the equal opportunities clause of Article
IX, Section 2(1) does not require substantially equal
funding or educational advantages in all school
districts. . . . [W]e conclude that provisions of the current
state system for funding schools which require or allow
counties to help finance their school systems and result in
unequal funding among the school districts of the state do
not violate constitutional principles.
Leandro I, 346 N.C. at 348-49, 488 S.E.2d at 256 (emphasis added). Our Supreme
Court also addressed local responsibility for school funding, and held that differences
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in school funding between school districts resulting from local supplements do not
violate Article IX, Section 2(2):
Article IX, Section 2(2) of the North Carolina Constitution
expressly authorizes the General Assembly to require that
local governments bear part of the costs of their local public
schools. Further, it expressly provides that local
governments may add to or supplement their school
programs as much as they wish. . . . Because the North
Carolina Constitution expressly states that units of local
governments with financial responsibility for public
education may provide additional funding to supplement
the educational programs provided by the state, there can
be nothing unconstitutional about their doing so or in any
inequality of opportunity occurring as a result.
Leandro I, 346 N.C. at 349-50, 488 S.E.2d at 256 (emphasis added). This holding was
grounded, in part, in practical concerns; because the Constitution permits local
supplements, “ ‘[c]learly . . . a county with greater financial resources will be able to
supplement its programs to a greater degree than less wealthy counties, resulting in
enhanced educational opportunity for its students. [Article IX, Section 2(2)] obviously
precludes the possibility that exactly equal educational opportunities can be offered’ ”
in all school districts throughout the State. Id. at 350, 488 S.E.2d at 256 (quoting
Britt v. N.C. State Bd. of Educ., 86 N.C. App. 282, 288, 357 S.E.2d 432, 435-36 (1987))
(ellipses and brackets omitted).
Upon concluding that the plaintiffs had stated a claim upon which relief could
have been granted, our Supreme Court held that “[i]f on remand of this case to the
trial court, that court makes findings and conclusions from competent evidence to the
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effect that defendants in this case are denying children of the state a sound basic
education, a denial of a fundamental right will have been established.” Id. at 357,
488 S.E.2d at 261. Unless the State could show that its actions denying a
fundamental right were necessary to promote a compelling governmental interest,
the Court held that it would be “the duty of the [trial] court to enter a judgment
granting declaratory relief and such other relief as needed to correct the wrong while
minimizing the encroachment upon the other branches of government.” Id. (citation
omitted).
As directed by Leandro I, on remand the trial court heard extensive evidence
and ultimately entered a declaratory judgment favorable to the Leandro plaintiffs;
our Supreme Court considered the appeal of that judgment in Leandro II. Leandro
II, 358 N.C. at 612-13, 599 S.E.2d at 375. In Leandro II, our Supreme Court
encountered a “continuation of the landmark decision by this Court, [Leandro I,]
unanimously interpreting the North Carolina Constitution to recognize that the
legislative and executive branches have the duty to provide all the children of North
Carolina the opportunity for a sound basic education.” Leandro II, 358 N.C. at 609,
599 S.E.2d at 373. The Court considered, for the first time, what measures are to be
used to determine whether a student’s right to a sound basic public education had
been violated.
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While the plaintiffs in Leandro I and Leandro II hailed from many poor school
districts in North Carolina -- including Halifax County -- the evidence primarily
focused on a single district, Hoke County, which was designated as a “representative
plaintiff district.” See id. at 613, 599 S.E.2d at 375. The Court noted that the evidence
presented by the Leandro II plaintiffs included four general types of evidence: “(1)
comparative standardized test score data; (2) student graduation rates, employment
potential, post-secondary education success (and/or lack thereof); (3) deficiencies
pertaining to the educational offerings in Hoke County schools; and (4) deficiencies
pertaining to the educational administration of Hoke County schools.” Id. at 623, 599
S.E.2d at 381. The Court called the first two categories “outputs,” and the second two
categories as “inputs.” Id. “Outputs” is “a term used by educators that, in sum,
measures student performance[,]” while “inputs” is “a term used by educators that,
in sum, describes what the State and local boards provide to students attending
public schools.” Id.
After discussing the evidence in the case regarding “outputs” and “inputs,” our
Supreme Court held that the plaintiffs had made a “clear evidentiary showing” of the
inadequacy of both. See id. at 630, 599 S.E.2d 386. The Court stated:
In our view, the trial court conducted an appropriate
and informative path of inquiry concerning the issue at
hand. After determining that the evidence clearly showed
that Hoke County students were failing, at an alarming
rate, to obtain a sound basic education, the trial court in
turn determined that the evidence presented also
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demonstrated that a combination of State action and
inaction contributed significantly to the students’ failings.
Then, after concluding that the State’s overall funding and
resource provisions scheme was adequate on a statewide
basis, the trial court determined that the evidence showed
that the State’s method of funding and providing for
individual school districts such as Hoke County was such
that it did not comply with Leandro’s mandate of ensuring
that all children of the state be provided with the
opportunity for a sound basic education.
Id. at 637, 599 S.E.2d at 390. Accordingly, our Supreme Court affirmed “those
portions of the trial court’s order that conclude[d] that there [had] been a clear
showing of a denial of the established right of Hoke County students to gain their
opportunity for a sound basic education” and also affirmed the portions of the order
which required “the State to assess its education-related allocations to the county’s
schools so as to correct any deficiencies that . . . prevent[ed] the county from offering
its students the opportunity to obtain a Leandro-conforming education.” Id. at 638,
599 S.E.2d at 391.
With these principles in mind, we consider plaintiffs’ complaint. In their
complaint, plaintiffs allege that Halifax County Schools and Weldon City Schools lack
the necessary resources to provide fundamental educational opportunities to the
children in their school districts. Plaintiffs further complain of inadequate school
facilities, crumbling ceilings, leaking pipes, sewage in the hallways, and a lack of
adequate instructional materials in the majority-minority districts. These
deficiencies result from defendant’s funding choices and have led to poor test scores
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and the inability to retain qualified teachers. Plaintiffs requested, in their complaint,
that the Court “exercise its equitable powers and order the Board to develop and
implement a plan to remedy the constitutional violations of its present education
delivery mechanism and to ensure that every student in Halifax County is provided
the opportunity to receive a sound basic education.”
The educational deficiencies as described in the plaintiffs’ complaint, which we
accept as true for the motion to dismiss, are serious and intolerable. But rather than
filing this separate lawsuit, the correct avenue for addressing plaintiffs’ concerns in
the present case would appear to be through the ongoing litigation in Leandro I and
Leandro II. The Leandro cases defined not only the essential requirements for a
“sound basic education” under the North Carolina constitution, but also the entities
with the constitutional responsibility to provide that education. In addition, these
cases answer the essential question in this case of whether a local board of county
commissioners has the constitutional obligation for providing a sound basic public
education for the students in its county. The Halifax County schools are addressed
in many orders in the ongoing court supervision in the Leandro cases. As noted above,
several plaintiffs in Leandro I and II are local boards of education, including the
Halifax County Board of Education. See Leandro I, 346 N.C. at 346, 488 S.E.2d at
249; Leandro II, 358 N.C. at 605, 599 S.E.2d at 365. Furthermore, plaintiffs’
complaint refers to a 2009 consent order that “determined that students in HCPS
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were not being provided the opportunity to receive a sound basic education and
required the North Carolina Department of Public Instruction’s [sic] (‘DPI’) to
implement a ‘turnaround’ intervention plan in HCPS.” Oddly, the complaint does not
identify the case or court in which the “2009 consent order” was entered, but we
believe it is entirely appropriate for this Court to take judicial notice it was a court
order in the ongoing Leandro litigation.
On plaintiffs’ argument that this defendant -- a county board of commissioners
-- has the constitutional obligation to provide a sound basic education, we cannot lose
sight of the fact that the Leandro cases began as a declaratory judgment action with
the express purpose of determining the extent of the state constitutional right to a
sound basic education and the entities responsible for providing that education.
Leandro II, 358 N.C. at 611, 599 S.E.2d at 374. Leandro I and Leandro II determined
the correct parties and the entities legally responsible for providing a sound basic
education under the North Carolina Constitution; county commissioners were not
included as parties in either case. Leandro II addressed the responsibilities of the
various entities -- the State, the local school boards, and the State Board of Education
-- and held that the local entities, as creatures of the State, did not bear the
constitutional obligation regarding education, yet found the school boards to still be
proper parties to the ongoing litigation, since the case was based significantly on their
role as the providers of education and the outcome would have a great effect on that
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role. Leandro II, 358 N.C. at 617, 599 S.E.2d at 378. In Leandro II, the Supreme
Court also clarified that the constitutional duty is on the State, and “by the State we
mean the legislative and executive branches which are constitutionally responsible
for public education[.]” Id.. at 635, 599 S.E.2d at 389. Although the county boards of
commissioners were not parties to Leandro I or II, they are creatures of the State just
as the local school boards.
We cannot discern why deficiencies in education alleged here have not been
raised with the superior court in the ongoing Leandro II matter. And even if these
particular deficiencies cannot be addressed in the ongoing Leandro II case, plaintiffs
simply have not stated a constitutional claim against this defendant, the Halifax
County Board of Commissioners, because this defendant on its own does not have the
constitutional duty identified in Leandro I to provide a sound basic education. The
State does, and the State has total control over this defendant. We will review briefly
the basic principles of Leandro I and II specifically as applied to the plaintiffs’ claims
and the schools in Halifax County.
b. Leandro I and II established that the State is constitutionally
responsible for public education.
“[B]y the State we mean the legislative and executive branches which are
constitutionally responsible for public education.” Leandro II, 358 N.C. at 635,
599 S.E.2d at 389.
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The seminal case in North Carolina which establishes the constitutional right
to sound basic education is Leandro I, 346 N.C. at 345, 488 S.E.2d at 254, with further
analysis and clarification in Leandro II, 358 N.C. at 614-15, 599 S.E.2d at 376. The
questions of how to correct educational deficiencies and which entities bear the
responsibility for improving education have been addressed many times and in
excruciating detail in Leandro I, Leandro II, and continuing litigation that has
followed these decisions over the years.5 Leandro I, as described in Leandro II, was
“initiated as a declaratory judgment action pursuant to [N.C. Gen. Stat.] § 1-253
(2003).” Leandro II, 358 N.C. at 611, 599 S.E.2d at 374.
[T]he case included five distinct parties: (1) plaintiff school
children (and their respective guardians), (2) plaintiff local
school boards, (3) plaintiff-intervenors, (4) the State Board
of Education, and (5) the State. At that juncture, all
participants sought a decree defining what rights and
obligations were at stake, which parties had obligations,
and which parties had rights as a result of such obligations.
In Leandro, this Court, in sum, decreed that the State and
State Board of Education had constitutional obligations to
provide the state’s school children with an opportunity for
a sound basic education, and that the state’s school
children had a fundamental right to such an opportunity.
As a result of the decree, adversarial sides were clearly
5 The Supreme Court noted in Leandro II that “the ensuing trial [on remand in Leandro I]
lasted approximately fourteen months and resulted in over fifty boxes of exhibits and transcripts, an
eight-volume record on appeal, and a memorandum of decision that exceeds 400 pages. The time and
financial resources devoted to litigating these issues over the past ten years undoubtably [sic] have
cost the taxpayers of this state an incalculable sum of money. While obtaining judicial interpretation
of our Constitution in this matter and applying it to the context of the facts in this case is a critical
process, one can only wonder how many additional teachers, books, classrooms, and programs could
have been provided by that money in furtherance of the requirement to provide the school children of
North Carolina with the opportunity for a sound basic education.” Leandro II, 358 N.C. at 610, 599
S.E.2d at 373.
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drawn for four of the five parties -- plaintiff school children
and plaintiff-intervenor school children (who, under the
decree, enjoyed the right of educational opportunity),
versus the State and State Board of Education (which,
under the decree, were obligated to provide such
opportunity).
Id. at 614-15, 599 S.E.2d at 376 (citation omitted) (emphasis added). One of the
plaintiff school boards in Leandro I and II was -- and still is -- the Halifax County
Board of Education. Leandro I, 346 N.C. at 336, 488 S.E.2d at 249.
In Leandro II, the Supreme Court addressed an issue which developed after
the Leandro I ruling regarding the status of the school boards as parties, since “as
state-created entities, they enjoyed no entitlement to the right established in Leandro
-- namely, a child’s individual right of an opportunity to a sound basic education.”
Leandro II, 358 N.C. at 617, 599 S.E.2d at 378. In the Leandro I and II litigation, the
school boards being complained about were plaintiffs, not defendants, but the
Supreme Court nevertheless considered the proper constitutional role and
responsibility of the school boards as local entities which share in the provision of
public education. See Leandro II, 358 N.C. at 617, 599 S.E.2d at 378. The Supreme
Court agreed that the school boards were properly named as parties since “the
ultimate decision of the trial court was likely to: (1) be based, in significant part, on
their role as education providers; and (2) have an effect on that role in the wake of
the proceedings.” Id. In other words, the school boards are not entitled to the benefit
of the constitutional right to an education, nor do they alone bear the constitutional
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Opinion of the Court
responsibility of providing education, but since they have statutory duties to
participate as education providers, they remained as parties to the lawsuit. The
Supreme Court also noted that the very purpose of the declaratory judgment action
was
by definition, . . . premised on providing parties with a
means for courts of record to declare rights, status, and
other legal relations” among such parties. In addition,
section 1-260 of the General Statutes declares plainly that
when declaratory relief is sought, all persons shall be made
parties who have or claim any interest which would be
affected by the declaration. Thus, while the precise party
designation -- i.e., plaintiffs -- of the school boards may not
have been readily discernible at the time of the trial, the
nature of the parties’ claims was such that: (1) they sought
a declaration of rights, status, and legal relations of and
among the parties; and (2) any declaration of the rights,
status, and legal relations of and among the parties would
affect the role played by the school boards in providing the
state’s children with the opportunity to obtain a sound
basic education.
Id. at 617-18, 599 S.E.2d at 378 (citations, quotation marks, brackets, ellipses, and
emphasis omitted) (emphasis added). We have found no mention in Leandro I or II
of adding county boards of commissioners as parties.
The Supreme Court also noted in Leandro II the central roles played by the
legislative and executive branches in providing public education. Id. at 635-38, 599
S.E.2d at 389-91. In affirming the trial court’s order directing the State to reassess
educational priorities and correct “any and all education-related deficiencies[,]” the
Court noted that
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Opinion of the Court
the trial court refused to step in and direct the “nuts and
bolts” of the reassessment effort. Acknowledging that the
state’s courts are ill-equipped to conduct, or even to
participate directly in, any reassessment effort, the trial
court deferred to the expertise of the executive and
legislative branches of government in matters concerning
the mechanics of the public education process.
. . . . [W]e note that the trial court also demonstrated
admirable restraint by refusing to dictate how existing
problems should be approached and resolved. Recognizing
that education concerns were the shared province of the
legislative and executive branches, the trial court instead
afforded the two branches an unimpeded chance, “initially
at least,” see Leandro, 346 N.C. at 357, 488 S.E.2d at 261,
to correct constitutional deficiencies revealed at trial. In
our view, the trial court’s approach to the issue was sound
and its order reflects both findings of fact that were
supported by the evidence and conclusions that were
supported by ample and adequate findings of fact.
Id. at 638, 599 S.E.2d at 390-91.
When the Leandro cases were decided, North Carolina’s laws regarding school
district finance were essentially the same as they are now, and Halifax County
schools were organized just as they are now. Leandro II noted that Leandro I
carefully distinguished the responsibilities and rights of the “five distinct parties: (1)
plaintiff school children (and their respective guardians), (2) plaintiff local school
boards, (3) plaintiff-intervenors, (4) the State Board of Education, and (5) the State.”
Leandro II, 358 N.C. at 614, 599 S.E.2d at 376. Although county commissioners
levied property taxes and budgeted funds for schools at the time of the Leandro cases,
just as they do now, the county commissioners for the counties in which the plaintiff
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Opinion of the Court
local school boards were located were not parties to Leandro I, nor were they
discussed, at least not initially. Leandro I, 346 N.C. at 336, 488 S.E.2d at 249.
In Leandro II, the Supreme Court stressed that the duty to provide a sound
basic education is the State’s duty, but the local entities, including the school boards,
are simply creatures of the State. Leandro II, 358 N.C. at 635, 599 S.E.2d at 389. In
fact, the trial court had even excluded “the Hoke County School System from
responsibility for correcting allocation deficiencies” because the “Local Educational
Area” was a “subdivision of the State created solely by the State:”6
Concerning the State’s argument that the trial court
erred in concluding that the State was liable for its failings
in Hoke County schools, we note that the trial court later
modified this portion of its order to exclude the Hoke
County School System from responsibility for correcting
allocation deficiencies, reasoning that since the [Local
Educational Area, hereinafter LEA] was a subdivision of
the State created solely by the State, it held no authority
beyond that accorded it by the State. As a consequence of
the LEA’s limited authority, the trial court concluded 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 to students.
6 The term “local education agency,” or “LEA,” was first described in a Leandro II trial court
order as follows: “In its data collection system, the State of North Carolina uses the term local
education agency (‘LEA’) instead of the more familiar term school district. Accordingly, the Court’s
reference to school districts will use the term LEA so as to match up with the data.” Hoke Cnty. Bd.
of Educ. v. State, No. 95 CVS 1158, 2000 WL 1639686, at *28 (N.C. Super. Oct. 12, 2000) (unpublished),
aff’d in part as modified, rev’d in part, 358 N.C. 605, 599 S.E.2d 365 (2004) (“Leandro II”). In Leandro
II, the Supreme Court used the acronym “LEA,” but defined it as “Local Educational Area” instead.
Leandro II, 358 N.C. at 623, 599 S.E.2d at 381. But regardless of how an “LEA” is defined, Leandro I
and II clearly placed the constitutional responsibility to provide a sound basic education on the State
and not any local entity. See Leandro II, 358 N.C. at 635-36, 599 S.E.2d at 389.
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In the State’s view, any holding that renders the
State, and by the State we mean the legislative and
executive branches which are constitutionally responsible
for public education, accountable for local school board
decisions somehow serves to undermine the authority of
such school boards. This Court, however, fails to see any
such cause and effect. By holding the State accountable for
the failings of local school boards, the trial court did not
limit either: (1) the State’s authority to create and empower
local school boards through legislative or administrative
enactments, or (2) the extent of any powers granted to such
local school boards by the State. Thus, the power of the
State to create local agencies to administer educational
functions is unaffected by the trial court’s ruling, and any
powers bestowed on such agencies are similarly unaffected.
In short, 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. In
our view, such a conclusion bears no effect whatsoever on
the local school board’s ability to continue in administering
those functions it currently oversees or to be given broader
and/or more independent authority. As a consequence, we
hold that the State’s argument concerning a diminished
role for local school boards as a result of the trial court’s
ruling is without merit.
Id. at 635-36, 599 S.E.2d at 388-89.
The plaintiffs’ complaint here seeks to invoke the constitutional rights
established by Leandro I, but then asks the trial court to assign that constitutional
responsibility to the defendant county commissioners alone -- despite the Supreme
Court’s very specific rulings on the allocation of the constitutional duties from
Leandro I in Leandro II. Leandro II, 358 N.C. at 617, 599 S.E.2d at 378 (“While it is
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true that the school boards are not among those endowed with [the constitutional
right to a sound basic education] . . ., the school boards were properly maintained as
parties because the ultimate decision of the trial court was likely to: (1) be based, in
significant part, on their role as education providers; and (2) have an effect on that
role in the wake of the proceedings.”). Plaintiffs allege:
Defendant Halifax County Board of Commissioners
(“Board” or “Defendant”) is constitutionally obligated to
structure a system of public education that meets the
qualitative mandates established by the North Carolina
Supreme Court in Leandro v. State (“Leandro I”) and Hoke
County v. State (“Leandro II”). The Board must provide a
system that ensures the opportunity to receive a sound
basic education to every child in Halifax County. But
instead . . . of complying with Leandro’s mandate, it has
chosen to maintain and fund an inefficient three-district
system that divides its children along racial lines into
“good” and “bad” school districts. By choosing to maintain
three racially identifiable and inadequately funded school
districts to serve this low-income community’s declining
population of fewer than seven thousand students, the
Board violates the constitutional rights of its
schoolchildren.
Other allegations of the plaintiff’s complaint seem to recognize the State’s role
-- through the State Board of Education and North Carolina Department of Public
Instruction -- in securing the constitutional rights to education in Halifax County,
but then seek to assign that obligation, once again, to defendant and solely to
defendant, although no case has ever assigned this duty to a board of county
commissioners:
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17. A 2009 consent order between HCPS and the
State Board of Education determined that students in
HCPS were not being provided the opportunity to receive a
sound, basic education and required the North Carolina
Department of Public Instruction’s [sic] (“DPI”) to
implement a “turnaround” intervention plan in HCPS.
18. Because of persistently low student
achievement, DPI also implemented a turnaround plan in
WCS.
19. The limited academic improvement in both
HCPS and WCS since the implementation of the DPI
turnaround plans demonstrates that the Board’s education
delivery mechanism is an insurmountable impediment to
addressing the ongoing violation of Halifax County
schoolchildren’s constitutional right to the opportunity to
receive a sound basic education.
And although the trial court, and this Court, must take the factual allegations
of the complaint as true, the courts do not accept allegations of legal conclusions as
correct for a motion to dismiss under Rule 12(b)(6).
[T]he sufficiency of a claim to withstand a motion to
dismiss is tested by its success or failure in setting out a
state of facts which, when liberally considered, would
entitle plaintiff to some relief. In testing the legal
sufficiency of the complaint the well pleaded material
allegations of the complaint are taken as admitted; but
conclusions of law or unwarranted deductions of facts are
not admitted. In [Sutton v. Duke, 277 N.C. 94, 102-03 176
S.E.2d 161, 166 (1970)], the Supreme Court quoted the
following passage from 2A Moore’s Federal Practice § 12.08
(2d ed. 1968) in stating the rule as to when dismissal is
proper: “ ‘A [complaint] may be dismissed on motion if
clearly without any merit; and this want of merit may
consist in an absence of law to support a claim of the sort
made or of facts sufficient to make a good claim, or in the
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Opinion of the Court
disclosure of some fact which will necessarily defeat the
claim.’ ” (Emphasis added).
Boyce v. Boyce, 60 N.C. App. 685, 687, 299 S.E.2d 805, 806-07 (1983) (citations,
quotation marks, and emphasis omitted). Many allegations of plaintiffs’ complaint
are allegations of legal conclusions which purport to be based upon Leandro I and II.
For example, the complaint alleges that “Defendant Halifax County Board of
Commissioners (‘Board’ or ‘Defendant’) is constitutionally obligated to structure a
system of public education that meets the qualitative mandates established by the
North Carolina Supreme Court in Leandro v. State (‘Leandro I’) and Hoke County v.
State (‘Leandro II’)[,]” but this is an allegation of a legal conclusion and it is not
correct. This allegation of the constitutional responsibilities under the Leandro cases
is simply not the law, as noted above.
Again, if the 2009 consent order has been violated as the complaint alleges, the
court that entered the order should address the violation. At this early pleading
stage, the only thing clear from plaintiffs’ complaint is that their factual allegations
regarding substandard school facilities and poor educational opportunities and
outputs are essentially the same ones raised and addressed in Leandro I, Leandro II,
and the Leandro court supervision of the provision of public education in Halifax
County is still ongoing.
c. The ongoing court supervision in Leandro includes Halifax County.
“The State must step in with an iron hand and get the mess straight.”
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Hoke Cnty. Bd. of Educ. v. State, No. 95 CVS 1158, 2002 WL 34165636 (N.C.
Super. Ct. Apr. 4, 2002) (“Judge Manning 2002 Memorandum”).
Court supervision of education which began in Leandro I is still continuing,
and the Halifax County Board of Education is a party to that litigation, although the
defendant here and the other boards of education in Halifax County are not. Trial
court orders after Leandro I and Leandro II have emphasized the responsibility of the
State and soundly rejected arguments that the constitutional responsibility may be
shifted to a local entity. For example, in an order issued in 2002 -- just one of many
orders issued in that litigation -- Judge Howard E. Manning, Jr. summarized the local
and state entities involved in providing education and their statutory and
constitutional responsibilities. See Judge Manning 2002 Memorandum, 2002 WL
34165636. Halifax County was one of the counties specifically addressed by this 2002
order. Id. While orders issued by lower courts are not binding precedent on this
Court, we cannot improve upon Judge Manning’s summary of Leandro I and his
overview of the statutory framework assigning responsibilities in education, so we
quote that order at length and with the portions Judge Manning emphasized in all
capital letters as it was written:
[ ] WHO IS RESPONSIBLE FOR SEEING THAT THESE
BASIC EDUCATIONAL NEEDS OF ALL CHILDREN
ARE MET IN EACH CLASSROOM AND SCHOOL IN
NORTH CAROLINA? THE ANSWER IS FOUND IN
LEANDRO.
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Because we conclude that the General Assembly, under
Article IX, Section 2(1), has the duty of providing the
children of every school district with access to a sound basic
education, we also conclude that it has inherent power to
do those things reasonably related to meeting that
constitutionally prescribed duty. Leandro, p. 353.
THE STATE OF NORTH CAROLINA IS ULTIMATELY
RESPONSIBLE TO ENSURE THAT THE
CONSTITUTIONAL GUARANTEE TO EACH CHILD OF
THE OPPORTUNITY TO RECEIVE A SOUND BASIC
EDUCATION IS MET. THE STATE OF NORTH
CAROLINA ALSO HAS THE INHERENT POWER TO DO
THOSE THINGS REASONABLY RELATED TO
MEETING THAT CONSTITUTIONAL DUTY.
In attempting to meet its constitutional duty to provide
each child with the equal opportunity to obtain a sound
basic education and to provide a General and Uniform
System of schools, the Legislature has enacted legislation
creating a system for delivering educational services to
children, governance for that system, and has delegated
responsibilities to local boards of education. The
Legislature has also adopted educational goals and
standards that this Court may properly consider in
determining whether any children are being denied their
right to a sound basic education. Leandro, p. 355.
Chapter 115C of the North Carolina General Statutes is
home to many educational goals and polices, as well as the
structure of the general and uniform system of schools.
The Court has previously discussed newly enacted and
recent legislation. Additional, pertinent sections of
Chapter 115C follow and provide additional, clear and
convincing evidence that the State of North Carolina is in
fact, and in law, ultimately responsible for providing every
child with the equal opportunity to obtain a sound basic
education and that the educational goals adopted as policy
closely align with the constitutional definition of a sound
basic education[.]
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Id.
Judge Manning then listed various statutes setting forth the State’s policies
on education and the duties of the various entities in providing education, including
the following, with headings from the order in capital letters:
N.C.G.S. 115C-1. General and uniform system of schools.
STATE BOARD OF EDUCATION, N.C.G.S. 115C-12. Powers
and duties of the Board generally.
LOCAL BOARDS OF EDUCATION
115C-35, et seq.
115-36. Designation of board.
115C-47. Powers and duties generally.
GENERAL EDUCATION
115C-81. Basic Education Program.
115C-81.2. Comprehensive plan for reading achievement.
115C-105.20. School-Based Management and
Accountability Program.
N.C.G.S. 115C-105.21. Local participation in the Program.
N.C.G.S. 115C-105.27. Development and approval of school
improvement plans.
N.C.G.S. 115C-105.37. Identification of low-performing
schools.
N.C.G.S. 115C-105.37A. Continually low-performing
schools; definition; assistance and intervention;
reassignment of students.
N.C.G.S. 115C-105.38. Assistance teams; review by State
Board.
N.C.G.S. 115C-105.38A. Teacher competency assurance.
N.C.G.S. 115C-105.39. Dismissal or removal of personnel;
appointment of interim superintendent.
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N.C.G.S. 115C-105.40. Student academic performance
standards.
SAFE SCHOOLS - MAINTAINING SAFE & ORDERLY
SCHOOLS. Article 8C.
N.C.G.S. 115C-105.45. Legislative findings.
ACADEMICALLY OR INTELLECTUALLY GIFTED
STUDENTS. Article 9B.
115C-150.5. Academically or intellectually gifted students.
FUNDS FOR ACADEMICALLY GIFTED STUDENTS.
Budget Section 28.3
FINANCIAL POLICY OF THE STATE OF NORTH
CAROLINA AS IT RELATES TO THE PUBLIC SCHOOL
SYSTEM.
N.C.G.S. 115C-408. Funds under the control of the State
Board of Education.
Id.
Judge Manning then summarized the responsibilities set forth in the above
statutes:
Under Chapter 115C’s statutory scheme, the responsibility
for administering and operating a general and uniform
system of public schools is delegated to the State Board of
Education, and the local boards of education (LEAs). Thus,
by law, each LEA is statutorily responsible for providing
the children within the district with the constitutionally
mandated opportunity to receive the sound basic
education.
Under the Constitution, however, the obligation to provide
each child with the equal opportunity to obtain a sound
basic education may not be abdicated by the State of North
Carolina nor may the ultimate responsibility be
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Opinion of the Court
transferred to and placed on the LEAs.
The State acknowledges that it may not abdicate its
obligation to assure that every child has the opportunity to
a sound basic education in its brief. “But, while
emphasizing local control, the General Assembly, the State
Board of Education and the Department of Public
Instruction are not abdicating their constitutional
responsibility to provide every student with the
opportunity to acquire a sound basic education.”
It is, therefore, undisputed that the constitutional
responsibility to provide each child with the equal
opportunity to obtain a sound basic education remains with
the State of North Carolina acting through its General
Assembly. Leandro, p 353.
Id. (record citations and italic emphasis omitted).
Judge Manning completely rejected the State’s arguments which sought to
place the responsibilities upon local entities and described the State’s responsibilities
in no uncertain terms:
The bottom line is that the State of North Carolina has
consistently tried to avoid responsibility for the failures to
provide at-risk students with the equal opportunity for a
sound basic education in LEAs throughout the state by
blaming the failures on lack of leadership and effort by the
individual LEAs.
The Supreme Court in Leandro clearly and unmistakably
held to the contrary and found that the North Carolina
Constitution provides every child with the right to receive
an equal opportunity to a sound basic education and that
it was the General Assembly, under Article IX, Section 2(1)
that “has the duty of providing the children of every school
district with access to a sound basic education.” (Leandro
p. 353)
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This Court, following Leandro’s mandate, has rejected the
State of North Carolina’s flawed argument that “it” is not
responsible for educational failures in LEAs that are not
providing their at-risk children with the equal opportunity
to receive a sound basic education and has determined, just
like the Supreme Court did on July 24, 1997, that the State
is ultimately responsible and cannot abdicate its
responsibility to the LEA.
That having been said, the State’s denial of responsibility
fails as a matter of law. It is now, and always has been,
the ultimate responsibility of the State to provide the equal
opportunity to a sound basic education to all children.
(Article I, Section 15; Article IX, Section 2(1), North
Carolina Constitution)
This Court has, in accordance with Leandro,
Ordered the State, not the LEAs, to fix the
deficiencies that exist with at-risk children. This is
so because the LEAs, like the counties themselves,
are mere subdivisions of the State. The LEAs were
created by the State for its own convenience in order
to assist the State in performing its constitutional
duty to provide each and every child with the equal
opportunity to obtain a sound basic education
through its free public school system. It is up to the
Executive and Legislative Branches to provide the
solution to the constitutional deficits with at-risk
children. These branches can no longer stand back and
point their fingers at individual LEAs, such as HCSS, and
escape responsibility for lack of leadership and effort, lack
of effective implementation of educational strategies, the
lack of competent, certified, well-trained teachers
effectively teaching children, or the lack of effective
management of the resources that the State is providing to
each LEA.
The State of North Carolina must roll up its sleeves, step
in, and utilizing its constitutional authority and power over
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Opinion of the Court
the LEAs, cause effective educational change when and
where required. It does not matter whether the lack of an
equal opportunity to obtain a sound basic education is
caused by teachers, principals, lack of instructional
materials or other resources, or a lack of leadership and
effort.
The State must step in with an iron hand and get the mess
straight. If it takes removing an ineffective
Superintendent, Principal, teacher, or group of teachers
and putting effective, competent ones in their place, so be
it. If the deficiencies are due to a lack of effective
management practices, then it is the State’s responsibility
to see that effective management practices are put in place.
The State of North Carolina cannot shirk or delegate its
ultimate responsibility to provide each and every child in
the State with the equal opportunity to obtain a sound
basic education, even if it requires the State to spend
additional monies to do so.
The State of North Carolina has steadfastly represented to
this Court and to the citizens of North Carolina that the
State is “continuing to appropriate additional funds and
initiate new programs to assure that students enrolled in
North Carolina public schools are receiving the opportunity
to acquire a sound basic education.”
In the final analysis, if the State is true to its word about
providing sufficient appropriate funding for each child to
have the equal opportunity to obtain a sound basic
education, the State should be able to correct the
educational deficiencies which are denying at-risk children
the equal opportunity to obtain a sound basic education by
requiring LEAs that are not getting the job done to
implement and maintain cost-effective, successful
educational programs in their schools as required by
Leandro. If not, then the State will have to look for other
resources to get the job done.
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Opinion of the Court
Make no mistake. While the State can require the LEAs to
take corrective action, it remains the State’s responsibility,
through forceful leadership and effective management, to
show an ineffective LEA, or an ineffective school within an
LEA: (1) how to get the job done if the LEA’s leadership and
educational staff is ineffective and inept; (2) how to cost-
effectively manage the resources which the State contends
it so adequately provides to support each child’s equal
opportunity to receive a sound basic education; and (3) how
to implement effective educational programs, using
competent, well-trained certified teachers and principals.
Id. (Italics omitted; bold added).
Although plaintiffs are understandably not satisfied with the results produced
by the orders in Leandro I and II, this Court cannot create a new constitutional right
or a new claim where the Supreme Court has addressed the right in detail and the
subject of this lawsuit is already under court oversight in another case.
d. Defendant acting alone does not have the power to merge school
districts, but the State does.
“By holding the State accountable for the failings of local school boards, the
trial court did not limit either: (1) the State’s authority to create and empower
local school boards through legislative or administrative enactments, or (2) the
extent of any powers granted to such local school boards by the State.” Leandro
II, 358 N.C. at 635, 599 S.E.2d at 389.
Plaintiffs necessarily rely upon Leandro I and Leandro II for the constitutional
basis for their claim, but they also seek to distinguish this case from the Leandro
cases by focusing on the taxing authority of the counties, the allocation of local tax
revenues, and the existence of three school districts within Halifax County.
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Opinion of the Court
Certainly, local tax revenues are an important factor in education, but that does not
change our Supreme Court’s rulings in Leandro I and Leandro II. North Carolina’s
system of taxation and school finance was essentially the same when Leandro was
decided as it is now. In addition, financing of public schools is a complex system
which extends from the federal government all the way down to the local school
district, so we attempt only a brief and oversimplified overview of that system.
The constitutional duty to provide a sound basic education rests upon the
State, as directed by Leandro I, 346 N.C. at 353, 488 S.E.2d at 258, and Leandro II,
358 N.C. at 614-15, 635, 599 S.E.2d at 376, 389; obviously funding is an essential part
of that responsibility. The State carries out this duty through the budget adopted by
the General Assembly and administered through the State Board of Education and
Department of Public Instruction. At the local level, the responsibility to provide
public education is vested in the local boards of education.7 The county
commissioners have taxing authority and along with the Boards of Education, they
establish the local county budget for the schools. See, e.g., N.C. Gen. Stat. § 115C-
429 (2015) (“Approval of budget; submission to county commissioners; commissioners’
7 “[N.C. Gen. Stat.] § 115C-47. Powers and duties generally. In addition to the powers and
duties designated in G.S. 115C-36, local boards of education shall have the power or duty: (1) To
Provide the Opportunity to Receive a Sound Basic Education.--It shall be the duty of local boards of
education to provide students with the opportunity to receive a sound basic education and to make all
policy decisions with that objective in mind, including employment decisions, budget development, and
other administrative actions, within their respective local school administrative units, as directed by
law.” N.C. Gen. Stat. § 115C-47(1) (2015).
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Opinion of the Court
action on budget”). If a board of education believes the funds appropriated by a county
to be inadequate, the remedy is in N.C. Gen. Stat. § 115C-431 (2015) (“Procedure for
resolution of dispute between board of education and board of county
commissioners”), which sets forth the exclusive process for mediation and litigation,
if necessary. If the mediation fails, ultimately a jury may determine the proper
budget for the schools. Id. Of course, federal funding and regulation also play
important roles in public education. But regardless of the taxing authority of the
county, the Leandro cases have answered the question of who bears the constitutional
responsibility and have addressed issues of school funding at great length.
Plaintiffs also stress the existence of three school districts within Halifax
County: Halifax County Schools, Weldon City Schools, and Roanoke Rapids Schools.
Plaintiffs allege that “Defendant’s continued maintenance of three inadequately and
inefficiently resourced and racially identifiable school districts prevents students in
Halifax County from obtaining the opportunity to receive a sound basic education.”
In the Request for Relief, plaintiffs ask:
1. That the Court find and conclude that
Defendant’s maintenance of three separate school districts
obstructs Halifax County’s students from securing the
opportunity to receive a sound basic education;
2. That the Court find and conclude that
Defendant’s maintenance of three separate school districts
denies at-risk students in Halifax County the opportunity
to receive a sound basic education;
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Opinion of the Court
3. That the Court exercise its equitable powers
and order the Board to develop and implement a plan to
remedy the constitutional violations of its present
education delivery mechanism and to ensure that every
student in Halifax County is provided the opportunity to
receive a sound basic education.
As a practical matter, plaintiffs are asking this Court to require that the three
school systems be merged, and we must take as true plaintiffs’ allegations that having
a single school district in Halifax County would allow a more equitable allocation of
tax revenues and a better school administration. But the relief requested in Request
3 as quoted above is essentially what the court is already doing in the ongoing
Leandro I and Leandro II litigation. Beyond that, even if merger of the local
administration units in Halifax County would ameliorate the problems noted by
plaintiffs, this defendant does not, on its own, have the authority to provide that
relief. Under N.C. Gen. Stat. § 115C-67 (2015):
City school administrative units may be
consolidated and merged with contiguous city school
administrative units and with county school
administrative units upon approval by the State Board of
Education of a plan for consolidation and merger submitted
by the boards of education involved and bearing the
approval of the board of county commissioners.
County and city boards of education desiring to
consolidate and merge their school administrative units
may do so by entering into a written plan which shall set
forth the conditions of merger. . . .
The plan referred to above shall be mutually agreed
upon by the city and county boards of education involved
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Opinion of the Court
and shall be accompanied by a certification that the plan
was approved by the board of education on a given day and
that the action has been duly recorded in the minutes of
said board, together with a certification to the effect that
the public hearing required above was announced and held.
The plan, together with the required certifications, shall
then be submitted to the board of county commissioners for
its concurrence and approval. After such approval has
been received, the plan shall be submitted to the State
Board of Education for the approval of said State Board
and the plan shall not become effective until such approval
is granted. Upon approval by the State Board of Education,
the plan of consolidation and merger shall become final and
shall be deemed to have been made by authority of law and
shall not be changed or amended except by an act of the
General Assembly. The written plan of agreement shall be
placed in the custody of the board of education operating
and administering the public schools in the merged unit
and a copy filed with the Secretary of State.
Boards of Education can be merged in other ways. For example, a “city board
of education” may dissolve itself:
If a city board of education notifies the State Board
of Education that it is dissolving itself, the State Board of
Education shall adopt a plan of consolidation and merger
of that city school administrative unit with the county
school administrative unit in the county in which the city
unit is located; provided, however, if a city school
administrative unit located in more than one county
notifies the State Board of Education that it is dissolving
itself, the State Board shall adopt a plan that divides the
city unit along the county line and consolidates and merges
the part of the city unit in each county with the county unit
in that county and the plans shall take effect on the same
day. The plans shall be prepared and approved in
accordance with G.S. 115C-67 as provided by general law,
and G.S. 115C-68 as provided by general law, as applicable,
except that the county and city boards of education and the
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Opinion of the Court
boards of commissioners shall not participate by preparing,
entering into, submitting, or agreeing to a plan, and the
plan shall not be contingent upon approval by the voters.
N.C. Gen. Stat. Ann. § 115C-68.2 (2015).
In other words, the General Assembly has adopted a comprehensive set of
statutes addressing the organization and merger of school districts, and the State
retains the power to control the school districts and counties. Plaintiffs argue that
only the county commissioners can initiate a merger plan for the school districts, but
they acknowledge in their reply brief that such a plan must still be approved by the
State and cannot be accomplished by the county commissioners alone. Plaintiffs here
ask this Court to overlook the complex statutory framework governing educational
administration and finance and to take on the role of the legislature in correcting the
deficiencies in Halifax County by ordering the consolidation of the three school
districts. In addition, plaintiffs ask the Court to order defendants to make this
merger happen without the participation as parties of all three Boards of Education
in Halifax County and the entities comprising “the State” vested with the
constitutional and statutory responsibilities to provide education. Under Leandro I
and II, this Court does not have that authority, and this defendant -- the Halifax
County Board of Commissioners -- does not have that constitutional duty described
in Leandro I or even the ability on its own to do what the plaintiffs ask. Although the
Board of Commissioners surely has statutory duties related to education, still the
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Opinion of the Court
State and all of the school boards within Halifax County would be necessary parties
to any lawsuit seeking consolidation of the school boards.
e. Counties are creatures of the State.
“ [C]ounties are merely instrumentalities and agencies of the State
government.” Martin Cnty. v. Wachovia Bank & Trust Co., 178 N.C. 26, 31-
32, 100 S.E. 134, 137 (1919).
Leandro II stressed that the constitutional duty is upon the State and not the
school boards, which are creatures of the State. Leandro II, 358 N.C. at 635, 599
S.E.2d at 389. Counties do not differ from local school boards in this regard. Counties
are also creatures of and instrumentalities of the State, with specific statutorily-
assigned roles, but ultimately created by and controlled by the State:
Counties are creatures of the General Assembly and serve
as agents and instrumentalities of State government.
Counties are subject to almost unlimited legislative
control, except to the extent set out in the State
Constitution. The powers and functions of a county bear
reference to the general policy of the State, and are in fact
an integral portion of the general administration of State
policy.
Counties serve as the State’s agents in
administering statewide programs, while also functioning
as local governments that devise rules and provide
essential services to their citizens.
Stephenson v. Bartlett, 355 N.C. 354, 364-65, 562 S.E.2d 377, 385 (2002) (citations,
quotation marks, and brackets omitted).
This Court clearly has stated that: In the exercise of
ordinary governmental functions, counties are simply
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Opinion of the Court
agencies of the State constituted for the convenience of
local administration in certain portions of the State’s
territory, and in the exercise of such functions they are
subject to almost unlimited legislative control except where
this power is restricted by constitutional provision. As
such, a county’s powers[,] both express and implied, are
conferred by statutes, enacted from time to time by the
General Assembly. A county is not, in a strict legal sense,
a municipal corporation, as a city or town. It is rather an
instrumentality of the State, by means of which the State
performs certain of its governmental functions within its
territorial limits.
Lanvale Props., LLC v. Cnty. of Cabarrus, 366 N.C. 142, 150, 731 S.E.2d 800, 807
(2012) (citations, quotation marks, brackets, and ellipses omitted).
The North Carolina Constitution does not limit the State in its control over
local educational matters, including county taxation or school district organization,
in any manner which would allow the State to abdicate its duties under Leandro I
and II to provide a sound basic education or to give the defendant here a
constitutional duty to provide a sound basic education. The General Assembly can
create counties, change their boundaries, and prescribe their duties:
The General Assembly shall provide for the
organization and government and the fixing of boundaries
of counties, cities and towns, and other governmental
subdivisions, and, except as otherwise prohibited by this
Constitution, may give such powers and duties to counties,
cities and towns, and other governmental subdivisions as
it may deem advisable.
N.C. Const. art. VII, § 1.
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Opinion of the Court
Our Supreme Court has long recognized the plenary power of the General
Assembly over counties and over the creation and organization of school districts:
In [a previous] case the Legislature had authorized the
establishment of a graded school in two public school
districts of Robeson County, subject to the will of the people
to be ascertained in an election to be held. The board of
commissioners undertook by order to include additional
territory within the district. Denying this authority to be
in the board of county commissioners, and speaking to the
question, the Court said: “That it is within the power and
is the province of the Legislature to subdivide the territory
of the State and invest the inhabitants of such subdivisions
with corporate functions, more or less extensive and varied
in their character, for the purposes of government, is too
well settled to admit of any serious question. Indeed, it
seems to be a fundamental feature of our system of free
government that such a power is inherent in the legislative
branch of the government, limited and regulated, as it may
be, only by the organic law. The Constitution of the State
was formed in view of this and like fundamental principles.
They permeate its provisions, and all statutory enactments
should be interpreted in the light of them when they apply.
“It is in the exercise of such power that the
Legislature alone can create, directly or indirectly,
counties, townships, school districts, road districts, and the
like subdivisions, and invest them, and agencies in them,
with powers corporate or otherwise in their nature, to
effectuate the purposes of the government, whether these
be local or general, or both. Such organizations are
intended to be instrumentalities and agencies employed to
aid in the administration of the government, and are
always under the control of the power that created them,
unless the same shall be restricted by some constitutional
limitation. Hence, the Legislature may, from time to time,
in its discretion, abolish them, enlarge or diminish their
boundaries, or increase, modify or abrogate their powers[.”]
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Opinion of the Court
“Whenever such agencies are created, whatever
their purpose or the extent or character of their powers,
they are the creatures of the legislative will and subject to
its control, and such agencies can only exercise such powers
as may be conferred upon them and in the way and manner
prescribed by law[.]”
“[The Boards of County Commissioners] powers as
the county board of education are derived from public
school laws[.]”
The decisions of this Court through the years since
have been uniform in holding that the mandate of Art. IX
of the Constitution of North Carolina for the establishment
and maintenance of a general and uniform system of public
schools is upon and exclusively within the province of the
General Assembly. Laws passed in obedience to such
mandate have been repeatedly approved and upheld by the
decisions of this Court.
Moore v. Bd. of Educ. of Iredell Cnty., 212 N.C. 499, 501-02, 193 S.E. 723, 733-34
(1937) (citations omitted).
This Court has recognized the extent of the power the General Assembly has
over counties: “The power to create, abolish, enlarge or diminish the boundaries of a
county is vested exclusively in the legislature.” Rowe v. Walker, 114 N.C. App. 36,
41, 441 S.E.2d 156, 159 (1994), aff’d per curiam, 340 N.C. 107, 455 S.E.2d 160 (1995).
There are some constitutional prohibitions which prevent certain actions by the State
regarding counties, but there is no constitutional prohibition on the State’s power
that would change the responsibility of the county commissioners in any manner
relevant to this case.
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Opinion of the Court
Speaking of the counties of this State, this Court has said .
. . [t]hese counties are not, strictly speaking, municipal
corporations at all, in the ordinary acceptance of that term.
They have many of the features of such corporations, but
they are usually termed quasi-public corporations. In the
exercise of ordinary governmental functions, they are
simply agencies of the State, constituted for the
convenience of local administration in certain portions of
the State’s territory; and, in the exercise of such functions,
they are subject to almost unlimited legislative control,
except when the power is restricted by constitutional
provisions. . . . The weight of authority is to the effect that
all the powers and functions of a county bear reference to
the general policy of the state, and are in fact an integral
portion of the general administration of state policy.
Martin v. Bd. of Comm’rs of Wake Cnty., 208 N.C. 354, 365, 180 S.E. 777, 783 (1935)
(citations and quotation marks omitted).
The State has created, abolished, merged, and changed the boundaries of
counties many times throughout North Carolina’s history. See generally David Leroy
Corbitt, The Formation of the North Carolina Counties 1663-1943, State Department
of Archives and History (1950). In fact, the General Assembly created Halifax
County in 1758 from a portion of Edgecombe County. See Martin Cty. v. Wachovia
Bank & Trust Co., 178 N.C. 26, 31-32, 100 S.E. 134, 137 (1919), (“[T]he boundary of
Martin County is the low-water mark on the south side of the river. This appears
from ch. 4, Laws 1729; 25 St. Records, 212; 2 Rev. Stat. 164; which boundary is
recognized by the subsequent acts creating Edgecombe County out of Tyrrell, Laws
1741, ch. 7; 23 St. Records, 164; 2 Rev. Stat. 124; the act creating Halifax [C]ounty
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SILVER V. HALIFAX CNTY. BD. OF COMM’RS
Opinion of the Court
out of the territory of Edgecombe, Laws 1758, ch. 13; 23 St. Records, 496; 2 Rev. Stat.
133; and, finally, the act creating Martin County out of Halifax and Tyrrell, Laws
1774, ch. 32; 25 St. Records, 976; 2 Rev. Stat. 145. Indeed, it has been the usual
procedure by the act establishing new counties that where a river or other stream is
the dividing line said river has remained within the limits of the county from which
the new county has been taken. But counties are merely instrumentalities and
agencies of the State government.”).
The General Assembly has in the past adopted legislation to accomplish the
merger of school districts within a county. At oral argument, plaintiffs noted the
constitutional limitations of N.C. Const. Art. II, § 24(1)(h) on local legislation
“changing the lines of school districts[,]” but our courts have held that the type of
legislation which could address the merger of school systems in Halifax County is not
unconstitutional. For example, in Guilford Cnty. Bd. of Educ. v. Guilford Cnty. Bd.
of Elections, 110 N.C. App. 506, 508, 430 S.E.2d 681, 683 (1993), the Guilford County
Board of Education sought a declaratory judgment that a law entitled “An Act to
Consolidate All of the School Administrative Units in Guilford County or to Provide
for the Two City School Administrative Units in that County to have Boundaries
Coterminous With the Cities, Subject to a Referendum” was unconstitutional as a
local act. The Act in question was adopted to address the same types of problems
with education opportunities as alleged by plaintiffs here:
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Opinion of the Court
The Act recited that it was promulgated in order to better
pursue the Guilford County school administrative units’
common goals of excellence and equity in educational
opportunity for all children “regardless of where the
children reside or attend school within Guilford County, in
order that the needs of all children attending school in
Guilford County are met, regardless of the children’s race,
gender, or social or economic condition.”
Id.
This Court found the law to be constitutional and not a “local act” even though
it dealt only with Guilford County:
The simple fact that the Act affects only Guilford
County, rather than all of the counties in North Carolina,
does not compel the conclusion that it is a local act. The
number of counties excluded or included is not necessarily
determinative, and a statute may be general even if it
includes only one county. For the purposes of legislating,
the General Assembly may and does classify conditions,
persons, places and things, and classification does not
render a statute “local” if the classification is reasonable
and based on rational difference of situation or condition.
We agree with the trial court that the Act meets the
definition of a general law under both the Adams and the
Emerald Isle tests. The students in Guilford County are a
class which reasonably warrants special legislative
attention and the provisions of the Act apply uniformly to
all of the students. In deciding to consolidate the school
administrative units of Guilford County, the Legislature
made a rational distinction reasonably related to the Act’s
purpose to pursue the goals of excellence and equity in
educational opportunity for all children of Guilford County.
Merely because other counties in the State may have
similar goals or needs does not preclude the General
Assembly from passing legislation designed to address the
needs of all students in a single county. Thus, we hold that
the Act withstands the reasonable classification analysis.
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Opinion of the Court
Application of the general public welfare analysis
which the Supreme Court recognized in Emerald Isle also
leads to the conclusion that the Act is a constitutional
general law. Legislation which promotes equitable access
to educational opportunity among all children attending
public schools even in a single county is rationally related
to the overall purpose of excellence and equity in our school
system, which in turn promotes the general welfare of all
citizens. Our Constitution specifically provides that
religion, morality, and knowledge being necessary to good
government and the happiness of mankind, schools,
libraries, and the means of education shall forever be
encouraged.
Id. at 513-14, 430 S.E.2d at 686-87 (citations, quotation marks, and brackets omitted).
The State may, by legislation, allow school districts or local governments
authority to merge or change school districts, but the General Assembly still retains
the power to change or revoke that authority. See, e.g., Kings Mountain Bd. of Educ.
v. N. Carolina State Bd. of Educ., 159 N.C. App. 568, 572, 583 S.E.2d 629, 633 (2003)
(“The ability to create the boundaries of a school district is vested solely within the
power of the legislature, however. Thus, a municipality may not expand its school
district boundaries without an express or implied delegation of legislative authority.”
(Citations omitted)). Indeed, consistent with Article IX, Section 2(2), the General
Assembly has, by statute, assigned to units of local government the financial
responsibility for many aspects of the free public schools. Our General Assembly has
assigned to local governments, such as the Board, responsibility for: (1) “facilities
requirements” for “a public education system,” N.C. Gen. Stat. § 115C-408(b) (2015);
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Opinion of the Court
(2) “the cost[s] of . . . buildings, equipment, and apparatus” that the “boards of
commissioners . . . find to be necessary[,]” N.C. Gen. Stat. § 115C-521(b) (2015); (3)
school buses and service vehicles, N.C. Gen. Stat. § 115C-249(a)-(b) (2015); (4)
suitable supplies for the school buildings, including “instructional supplies, proper
window shades, blackboards, reference books, library equipment, maps, and
equipment for teaching the sciences,” N.C. Gen. Stat. § 115C-522(c) (2015); and (5)
providing “every school with a good supply of water,” N.C. Gen. Stat. § 115C-522(c)
(2015). Local boards of county commissioners are also responsible for “keep[ing] all
school buildings in good repair,” and ensuring that school buildings are “at all times
in proper condition for use.” N.C. Gen. Stat. § 115C-524(b) (2015).8
The General Assembly created Halifax County and granted it any powers it
may have; and the General Assembly retains its power to carry out its constitutional
obligations under Leandro I and II to provide a sound basic education in Halifax
County, regardless of the current arrangement of the school districts. In conclusion,
Leandro I has answered the question of the State’s constitutional obligation to
provide a sound basic education, and defendant on its own simply does not have the
8 Some of the statutes listed above dictate that the financial responsibilities are to be shared
between the “local boards of education” and the “tax-levying authorities.” See, e.g., N.C. Gen. Stat. §
115C-522(c); N.C. Gen. Stat. § 115C-524(b). The definition of “tax-levying authority” provided in the
General Statutes includes, as relevant here, “the board of county commissioners of the county or
counties in which an administrative unit is located[.]” N.C. Gen. Stat. § 115C-5(10) (2015).
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Opinion of the Court
power or authority to do what plaintiffs ask. Accordingly, the trial court’s order
granting defendant’s motion to dismiss is affirmed.
IV. Conclusion
For the foregoing reasons, the trial court’s order granting defendant’s motion
to dismiss is affirmed.
AFFIRMED.
Judge INMAN concurs.
Chief Judge McGEE dissents with separate opinion.
-2-
No. COA16-313 – Silver v. Halifax Cnty. Bd. of Comm’rs
McGEE, Chief Judge, dissenting.
This case requires us to decide whether a board of county commissioners has a
constitutional duty to provide for a sound basic public education, consistent with
Leandro v. State, 346 N.C. 336, 488 S.E.2d 249 (1997) (“Leandro I”) and Hoke Cnty.
Bd. of Educ. v. State, 358 N.C. 605, 599 S.E.2d 365 (2004) (“Leandro II”), when aspects
of the funding of public education have been statutorily assigned to those boards,
consistent with Article IX, Section 2(2) of the North Carolina Constitution. The case
arrives at this Court at a very early stage of the proceedings; the trial court granted
defendant’s motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6).
Accepting plaintiff’s factual allegations as true for the purposes of this
appeal – as we must, see Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796
(2013) – and for the reasons that follow, I conclude that plaintiffs have stated a claim
against defendant, and that a board of county commissioners is a proper defendant
in a lawsuit seeking to assert a schoolchild’s right to a sound basic public education
under the North Carolina Constitution, when the inability to receive such an
education is alleged to have resulted from actions or inactions of the board. This
conclusion is not foreclosed by Leandro I or Leandro II, neither of which decided the
question we confront in this case. I respectfully dissent from the majority’s contrary
holding.
I.
SILVER V. HALIFAX CNTY. BD. OF COMM’RS
McGEE, C.J., dissenting
Plaintiffs argue that their complaint, taken as true, states a claim against
defendant for a violation of the rights conferred by Article I, Section 15 and Article
IX, Section 2 of the North Carolina Constitution, and the Board’s choices “deprived
plaintiffs of their constitutionally-guaranteed opportunity to receive a sound basic
education.” “It has long been understood that it is the duty of the courts to determine
the meaning of the requirements of our Constitution.” Mason v. Dwinnell, 190 N.C.
App. 209, 217, 600 S.E.2d 58, 63 (2008) (citation omitted). The majority aptly
describes the facts and holdings of our Supreme Court in Leandro I and Leandro II,
which need not be repeated at length. While the Supreme Court’s interpretation of
Article I, Section 15 and Article IX, Section 2 in Leandro I, and its analysis of what
evidence is sufficient to prove a violation of the right to a sound basic education in
Leandro II, provide guidance to this Court, neither of those decisions answers the
precise question posited in this case – whether a local board of county commissioners
may be held responsible for providing a sound basic public education for the students
within their county. That question was not at issue in Leandro I nor Leandro II. See
Leandro I, 356 N.C. at 341-42, 488 S.E.2d at 251; Leandro II, 358 N.C. at 609-10, 599
S.E.2d at 373-74. After examining the constitutional text, the applicable General
Statutes, and our Supreme Court’s precedent on the matter, I would hold that
plaintiffs have asserted allegations in their complaint that, if true, state a claim upon
which relief may be granted against defendant.
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I begin with the fundamental principle, established by our Supreme Court in
Leandro I, 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.” Leandro I, 346 N.C. at 347, 488 S.E.2d
at 255. This right is enforceable against the State and the State Board of Education,
as our Supreme Court held in Leandro I and Leandro II. See N.C. CONST. art. I, § 15
(“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. IX, § 2(1) (“The General
Assembly shall provide by taxation and otherwise for a general and uniform system
of free public schools”); Leandro I, 346 N.C. at 357, 488 S.E.2d at 255. The
enforceability of the right, however, does not end there. Under Article IX, Section
2(2), boards of county commissioners have a role to play, if the General Assembly so
instructs, as they may be assigned part of the responsibility for financial support of
the public schools: “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.” N.C. CONST. art. IX §2(2); see also Leandro I, 346 N.C. at 349, 488
S.E.2d at 256 (“Article IX, Section 2(2) of the North Carolina Constitution expressly
authorizes the General Assembly to require that local governments bear part of the
costs of their local public schools.”).
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McGEE, C.J., dissenting
Consistent with Article IX, Section 2(2), the General Assembly has, by statute,
assigned to units of local government the financial responsibility for many aspects of
the free public schools. The General Assembly has assigned to boards of county
commissioners, such as the Board in this case, responsibility for, inter alia: (1)
“facilities requirements” for “a public education system,” N.C. Gen. Stat. § 115C-
408(b) (2015); (2) “the costs of . . . buildings, equipment, and apparatus” that the
“boards of commissioners . . . find to be necessary,” N.C. Gen. Stat. § 115C-521(b)
(2015); (3) school buses and service vehicles, N.C. Gen. Stat. § 115C-249(a)-(b) (2015);
(4) suitable supplies for the school buildings, including “instructional supplies, proper
window shades, blackboards, reference books, library equipment, maps, and
equipment for teaching the sciences,” N.C. Gen. Stat. § 115C-522(c) (2015); and
(5) providing “every school with a good supply of water,” N.C. Gen. Stat. § 115C-522(c)
(2015). Local boards of county commissioners are also responsible for “keep[ing] all
school buildings in good repair,” and ensuring that school buildings are “at all times
in proper condition for use.” N.C. Gen. Stat. § 115C-524(b) (2015).9
Article I, Section 15 and Article IX, Section 2 “combine” to impose on the State
the responsibility to provide for a sound basic education for the children of North
9 Some of the statutes listed above dictate that the financial responsibilities are to be shared
between the “local boards of education” and the “tax-levying authorities.” See, e.g., N.C. Gen. Stat. §
115C-522(c); N.C. Gen. Stat. § 115C-524(b). The definition of “tax-levying authority” provided in the
General Statutes includes, as relevant here, “the board of county commissioners of the county or
counties in which an administrative unit is located[.]” N.C. Gen. Stat. § 115C-5(10) (2015).
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McGEE, C.J., dissenting
Carolina. Leandro I, 346 N.C. at 347, 488 S.E.2d at 255. Also, pursuant to the explicit
terms of Article IX, Section 2(2), the State may assign to local boards of county
commissioners – in the Constitution’s language, the “units of local government” –
financial responsibility for public schools. N.C. CONST. art. IX, §2(2). Given this
right, established in Leandro I, and this assignment authority provided by the
Constitution, I would hold that the guarantee of a sound basic education follows the
assignment of financial responsibility, if made by the General Assembly. When the
General Assembly assigns to boards of county commissioners the financial
responsibility for aspects of public education, such as adequate facilities, equipment,
water supplies, and learning materials, North Carolina schoolchildren must be able
to pursue a declaratory action against those boards to assert that it has failed to
adequately fund the aspects of public schooling assigned to it, and that such a failure
has resulted in the lack of “an opportunity to receive a sound basic education in our
public schools.” Leandro I, 346 N.C. at 347, 488 S.E.2d at 255.
With these principles in mind, I consider plaintiffs’ complaint in the present
case. In their complaint, plaintiffs allege that Halifax County Schools and Weldon
City Schools lack the necessary resources to provide fundamental educational
opportunities to the children in their school districts. Plaintiffs further complain of
inadequate school facilities, crumbling ceilings, leaking pipes, sewage in the
hallways, and a lack of adequate instructional materials in the majority-minority
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McGEE, C.J., dissenting
districts. These deficiencies, plaintiffs allege, are a direct result of defendant’s
funding choices, and have led to poor test scores by the schoolchildren and the
inability to retain qualified teachers. Plaintiffs requested, in their complaint, that
the court “exercise its equitable powers and order the Board to develop and
implement a plan to remedy the constitutional violations of its present education
delivery mechanism and to ensure that every student in Halifax County is provided
the opportunity to receive a sound basic education.” I would hold that, to the extent
plaintiffs’ complaint asserts that the children’s inability to receive a sound basic
public education is a result of the Board’s inadequate funding of buildings, supplies,
and other resources, responsibility for which was assigned to it by the General
Assembly pursuant to Article IX, Section 2(2) of the North Carolina Constitution,
plaintiffs have stated a claim upon which relief may be granted to assert their
constitutional rights to a sound basic public education.
II.
The majority makes a variety of thoughtful arguments as to why plaintiffs’
claims are foreclosed by our Supreme Court’s holdings in Leandro I and Leandro II.
I disagree, and briefly address those arguments. The majority opinion first asserts
that the Leandro cases “began as a declaratory judgment action with the express
purpose of determining the extent of the state constitutional right to a sound basic
education and the entities responsible for providing that education,” and that
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McGEE, C.J., dissenting
“Leandro I and Leandro II determined the correct parties and the entities legally
responsible for providing a sound basic education under the North Carolina
Constitution.” (emphasis in original) (citing Leandro II, 358 N.C. at 611, 599 S.E.2d
at 374). However, the Court in Leandro II did not decide such a sweeping question;
as explained by the Court, the Leandro cases were
initiated as a declaratory judgment action . . . [, and]
commenced in 1994 when select students from
Cumberland, Halifax, Hoke, Robeson, and Vance Counties,
their respective guardians ad litem, and the corresponding
local boards of education, denominated as plaintiffs, sought
declaratory and other relief for alleged violations of the
educational provisions of the North Carolina Constitution
and the North Carolina General Statutes.
Leandro II, 358 N.C. at 611, 599 S.E.2d at 374. Our Supreme Court never stated that
it was determining the entire or exclusive group of entities responsible for providing
a sound basic education. Rather, the Court determined the discrete legal question
presented to it: whether the plaintiffs in that case “[had] a right to adequate
educational opportunities which [was] being denied them by defendants[, the State
of North Carolina and the State Board of Education,] under the current school
funding system.” Leandro I, 346 N.C. at 341, 488 S.E.2d at 252. Leandro I and
Leandro II do not address whether other entities may be responsible under our
Constitution for a sound basic public education.
It is not surprising that the Leandro Courts did not address whether boards of
county commissioners had any responsibility for a sound basic education under our
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McGEE, C.J., dissenting
Constitution, nor is it surprising that those Courts did not hold that a board of county
commissioners may be held responsible if a student’s inability to obtain a sound basic
education is due to the board’s funding decisions. No board of county commissioners
was a party to that litigation, and the Court was not asked to determine whether a
board of county commissioners had that responsibility. That question remains
unanswered by our Courts.
The majority opinion holds that all of the deficiencies alleged in plaintiffs’
complaint, including poor educational performance, inadequate buildings, and lack of
school supplies at the three school systems located within Halifax County, have
already been addressed within the context of Leandro I and Leandro II, and that “if
the 2009 consent order” that was entered by the superior court on remand from our
Supreme Court’s decision in Leandro I “has been violated, the court which entered
that order should address the violation.” However, as the majority opinion notes, the
Board was not a party to the Leandro litigation. Therefore, the 2009 consent order –
along with all of the ongoing supervision in that case – does not, and cannot, bind the
Board or force it to act. While the Halifax County Board of Education was a party to
the Leandro litigation, it was a plaintiff, not a defendant.
The majority suggests a path forward for plaintiffs, writing that “rather than
filing this separate lawsuit, the correct avenue for addressing plaintiffs’ concerns in
the present case would appear to be through the ongoing litigation in Leandro I and
8
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McGEE, C.J., dissenting
Leandro II.” (emphasis added). 10 But the Leandro cases’ sole focus was on the
funding provided by the State, not the local revenues collected and disbursed by
boards of county commissioners, including the Board in the present case. It is these
revenues that plaintiffs allege the Board is failing to disburse to the three school
systems in Halifax County consistent with the constitutional right to a public
education in the schools in this State. I do not see how plaintiffs, who were not parties
in Leandro, could assert a claim in the ongoing Leandro litigation against defendant,
also not a party in Leandro, seeking a larger portion of local revenues, which were
not at issue in Leandro.
The plain language of Article IX, Section 2(2) clearly recognizes “local
responsibility” in public education, and provides that if the General Assembly assigns
to “units of local government such responsibility for the financial support of the free
public schools,” those units of local government may use “local revenues to add to or
supplement any public school[.]” N.C. CONST. ART. IX §2(2). The drafters of the
Constitution contemplated that local revenues, which do not originate from the State,
could be used to fund aspects of public education. As explained above, at this early
stage in the proceedings plaintiffs have sufficiently alleged that the local boards of
county commissioners must disburse these local revenues in a way that does not
10 Note that the majority does not definitively determine that plaintiffs may obtain relief
through the suggested avenue. Just as the obligations of county commissioners was not at issue in
Leandro I or Leandro II, whether plaintiffs may assert some sort of claim in the ongoing Leandro court
supervision is not an issue presented for adjudication in the present case.
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McGEE, C.J., dissenting
violate the constitutional right to a sound basic education established by our Supreme
Court in Leandro I, and must be able to be held accountable for their failure to do so.
III.
The majority opinion states that, “[a]s a practical matter, plaintiffs are asking
this Court to require that the three school systems [in Halifax County] be merged,
and notes that defendant “does not, on its own, have the authority to provide that
relief.” See generally Section III(d), supra. I concur in that assessment, as I too,
believe that plaintiffs have requested something – the merging of the three school
systems geographically located in Halifax County – that defendant and this Court
have no authority to provide. However, plaintiffs also requested that the court
“exercise its equitable powers and order the Board to develop and implement a plan
to remedy the constitutional violations . . . to ensure that every student in Halifax
County is provided the opportunity to receive a sound basic public education,” and
have also requested “such other and further relief as the [c]ourt may deem just and
proper.”
This prayer for relief is broad and if, on remand, the trial court were to make
findings and conclusions from competent evidence that the Board had violated a
student’s right to a sound basic education, the trial court would be able, as our
Supreme Court held in Leandro I after declaring a right to a sound basic education,
to “enter[] a judgment granting declaratory relief and such other relief as needed to
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McGEE, C.J., dissenting
correct” the constitutional violation. Leandro I, 346 N.C. at 357, 488 S.E.2d at 261
(citation omitted).11 The trial court would be entrusted with the duty to fashion an
appropriate remedy which “minimiz[ed] the encroachment upon the other branches
of government,” including the Board and the General Assembly. Id. (citation
omitted).
IV.
I respectfully dissent from the majority opinion’s conclusion that the Board is
not constitutionally responsible for public education, not even for those aspects of
public education the General Assembly has seen fit to statutorily assign financial
responsibility for, consistent with Article IX, Section 2(2) of the North Carolina
Constitution. I would hold that plaintiffs have stated a claim upon which relief may
be granted, to the extent that their complaint alleges that the schoolchildren are
unable to receive a sound basic public education, and that inability is a result of the
Board’s inadequate funding of buildings, supplies, and other resources, responsibility
for which was assigned to the Board by the General Assembly consistent with Article
IX, Section 2(2) of the North Carolina Constitution. I would therefore reverse the
trial court’s order granting defendant’s motion to dismiss pursuant to N.C.G.S. § 1A-
1, Rule 12(b)(6), and remand for further proceedings. I respectfully dissent.
11 It is important to note that this discussion is not focused on the right to a sound basic
education – and whether such a right may be enforceable against the Board – but rather on what
remedy may be available once a violation of that right is established.
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12