Board may be headed back to N.C. Supreme Court|Appeal expected in a case involvingsuspended student

Published 1:29 am Wednesday, October 28, 2009

By By BETTY MITCHELL GRAY
Staff Writer

Once again, the Beaufort County Board of Education is involved in a lawsuit that could affect public school systems across the state.
Lawyers for the school board are likely headed back to the N.C. Supreme Court for the second time this year following a ruling last week by the N.C. Court of Appeals in a lawsuit brought by two students expelled from school following a fight at Southside High School.
“Beaufort County seems to be in the forefront of cases with statewide significance,” said school board Chairman Robert Belcher during the board’s meeting Monday.
At issue is the right of students who receive long-term suspensions to receive an alternative education during their suspensions.
In an Oct. 20 ruling, two of three judges on the state Court of Appeals sided with the school board, saying that the ability of students subjected to long-term suspensions to receive alternative education during their suspensions should be left to the discretion of school boards. A third judge disagreed, saying that previous court decisions over school-funding issues establish that the right to education is a fundamental right.
That dissent guarantees lawyers for the students the right to appeal the case to the state’s high court. One of those lawyers said Tuesday that she intends to file such an appeal within a month.
“We will appeal,” said Jane Wettach, a lawyer with the Children’s Law Clinic at the Duke University School of Law, in an interview Tuesday. The clinic, based at Duke University in Durham, provides free legal services to low-income families in cases that involve education and other issues affecting children.
In the majority opinion, Judge Ann Marie Calabria wrote, “(T)he legislature has decreed that ‘each local board of education shall establish at least one alternative learning program and shall adopt guidelines for assigning students to alternative learning programs. … These guidelines include ‘strategies for providing alternative learning programs, when feasible and appropriate, for students who are subject to long term suspension or expulsion. … The legislature has clearly considered the issue of alternative education for students who are either suspended long term or expelled, and it did not choose to make access to alternative education mandatory. We have no authority to question this judgment.”
In a dissenting opinion, Judge Martha A. Greer wrote, “Because plaintiff has alleged that defendants’ actions have completely denied her this fundamental right and because defendants bear the burden of establishing that their actions were necessary to promote a compelling governmental interest — a burden not negated by any allegations in the complaint — I would hold that the trial court improperly dismissed the complaint. … The North Carolina constitution explicitly guarantees the right to a free public education.”
Lawyers representing the students and the school board in the case said it has implications for students suspended from schools throughout the state and could be one of the most significant cases since the 1997 case involving then-student Robert A. Leandro and others over school funding.
“This case is especially significant for large school systems that have a number of long-term suspensions,” said Trey Allen, a lawyer for the school board.
Calabria and Greer each cited the case in their decisions. Calabria wrote that decisions in that and subsequent related cases “were limited to the quality of education in the contest of school financing and did not address in any way the subject of school discipline.” Greer disagreed writing that “(t)he majority suggests that Leandro’s fundamental right analysis does not apply outside of the school financing context. Nothing in Leandro, however, suggests such a limitation.”
Wettach said the Children’s Law Clinic will seek an expanded definition of the “fundamental right to a sound basic education” in the state constitution to include students who are the subject of long-term suspensions.
“We are hopeful for a change in the law,” she said.
Meanwhile, Belcher said that a reversal of the Court of Appeals’ decision by the state high court could have serious implications for educators.
“It could mean that you have to provide educational services for some really, really bad people,” he said.
The Court of Appeals ruling involved one of two cases before the court filed on behalf of Viktoria King and Jessica Hardy, 10th-grade students at Southside High School when a fight broke out Jan. 18, 2008, at the school. As a result of the fight, they were suspended from school for 10 days beginning Jan. 24, 2008. Subsequently, then-Superintendent Jeffrey Moss followed a recommendation from then-Principal Todd Blumenreich that the students be suspended for the remainder of the 2007-2008 school year. The Court of Appeals has yet to rule in the second case.