This document discusses a motion filed by the North Carolina State Board of Education seeking relief from prior court orders in the Leandro school funding case. It argues the motion should be denied for several reasons: 1) The court retains jurisdiction over the State Board until constitutional violations have been remedied; 2) The State Board is estopped from taking inconsistent positions from what it previously argued; 3) The motion is procedurally improper given the long history of the case and prior rulings. The State of North Carolina did not join the State Board's motion, instead filing a joint motion with Plaintiffs to have an independent consultant develop a plan to remedy violations.
Personal Resilience in Project Management 2 - TV Edit 1a.pdf
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Plaintiffs' response in opp to motion for relief (Leandro)
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TABLE OF CONTENTS
THE COURTâS RULINGS AND THE LEANDRO TENETS........................................................2
THE STATE OF NORTH CAROLINA DOES NOT JOIN
THE STATE BOARDâS MOTION.................................................................................................6
ARGUMENT...................................................................................................................................7
I. THIS COURT RETAINS JURISDICTION OVER THE STATE BOARD UNTIL
THE STATE BOARD MEETS ITS BURDEN TO SHOW THE
CONSTITUTIONAL VIOLATIONS HAVE BEEN REMEDIED ....................................7
II. THE STATE BOARDâS MOTION IS UNTIMELY ........................................................10
III. THIS COURT HAS PREVIOUSLY RULED ON THE STATE BOARDâS
CONTINUING FAILURE TO MEET ITS CONSTITUTIONAL OBLIGATIONS........10
IV. THE STATE BOARDâS MOTION IS INCONSISTENT WITH ITS PRIOR
STATEMENTS AND IS BARRED BY THE DOCTRINES OF ESTOPPEL.................14
A. The State Board represented to the Supreme Court that it âis
wrong to repeatedly harken back to the limited scope of the
evidence and issues before this Court in 2004 and in Leandro II.â ......................14
B. The facts as established by the State Boardâs own witnesses
contradict the State Boardâs current motion ..........................................................16
V. THE STATE BOARDâS RULE 12(b) MOTION SHOULD ALSO BE DENIED...........19
A. The State Boardâs Rule 12(b) motion is untimely .................................................19
B. This Courtâs established jurisdiction over the State Board and
the subject matter of this lawsuit is the law of the case........................................20
C. Subject matter jurisdiction attached at the time of the complaint..........................21
D. Law of the case: State Defendants are âultimately responsibleâ
for ensuring that North Carolina children are provided a
constitutionally-conforming education ..................................................................21
CONCLUSION..............................................................................................................................22
CERTIFICATE OF SERVICE ......................................................................................................24
APPENDIX
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This case is about one of the most important rights enumerated in the State
Constitutionâthe fundamental right of every child in North Carolina to have the equal
opportunity to obtain a sound basic education. Hoke County Bd. of Ed. v. State, 358 N.C. 605,
609, 599 S.E.2d 365, 373 (2004) (âLeandro IIâ). In 2002, this Court entered Judgment against
the State of North Carolina and the State Board of Education (collectively, the âState
Defendantsâ) for their failure to meet their constitutional obligations. Over a decade has passed
since the Supreme Court issued its unanimous decision holding that children were being denied
this right and that the State Defendants were responsible for these constitutional violations.
Leandro II, 358 N.C. at 647-48, 599 S.E.2d at 396. The Supreme Court further held that the
State Defendants are responsible for, and are required to remedy, this constitutional violation.
Id. at 638, 599 S.E.2d at 391. In July of 2013, the defendant North Carolina State Board of
Education (âState Boardâ) proclaimed to the North Carolina Supreme Court that is âbound by its
judicially mandated constitutional obligations.â See New Brief of Defendant-Appellee State
Board of Education dated July 24, 2013 (N.C. Supreme Court), p. 27 (Appendix, Tab A).
In its current motion, however, the State Board is attempting to disavow its past
commitments to the Court and the children of North Carolina and to recant its previous
statements. In addition to taking inconsistent positions to those it has previously taken in this
Court and the appellate courts, the State Board also blatantly ignores prior Orders of this Court
and asks this Court to overrule the Superior Court Judge who presided over this case for almost
20 years. The State Board and its lawyers are estopped from making a mockery of the Courts
that have dedicated over 20 years of thoughtful consideration and analysis to this case and the
children of this North Carolina. See generally Whitacre Pâship v. Biosignia, Inc., 358 N.C. 1,
591 S.E.2d 870 (2004) (outlining various estoppel doctrines âprotecting the integrity of the
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judicial process from the vagaries of litigants who may seek to manipulate itâ). Moreover, the
State Boardâs motionâfiled 20 years after the North Carolina Supreme Court affirmed the denial
of the State Boardâs previous Rule 12 motion, 13 years after the Supreme Court upheld the
Judgment against the State Board and 2 years after the Honorable Judge Howard E. Manning, Jr.
rejected some of the same arguments the State Board makes nowâis procedurally improper.
For these and the additional reasons set forth herein, the Court should deny the State
Boardâs motion and award Plaintiffs their attorneysâ fees for responding to this baseless motion.
THE COURTâS RULINGS AND THE LEANDRO TENETS
Leandro I
More than 23 years ago, in May of 1994, Plaintiffs filed this action against the State
Defendants. Plaintiffs alleged that the North Carolina Constitution guaranteed certain
educational rights that were being denied to North Carolinaâs school-aged children. The State
Defendants moved to dismiss Plaintiffsâ claims under Rules 12(b)(1), (2) and (6) on the grounds
that Plaintiffsâ claims to educational adequacy under the State Constitution were ânonjusticiable
political questions.â Leandro v. State, 122 N.C. App. 1, 11, 468 S.E.2d 543, 550 (1996) revâd
346 N.C. 336, 488 S.E.2d 249 (1997) (â[t]he State contends in the alternative that plaintiff
partiesâ educational adequacy claims present nonjusticiable political questions, and the trial court
should have dismissed these claims for lack of jurisdiction pursuant to Rules 12(b)(1) and
12(b)(2)â). The trial court denied the State Defendantsâ motion, and the State Defendants
appealed that ruling. The Court of Appeals âdid not reach the âpolitical questionâ issue,â but the
Supreme Court did address it in its unanimous 1997 opinion. Leandro v. State, 346 N.C. 336,
344-45, 488 S.E.2d 249, 253 (1997) (âLeandro Iâ).
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In Leandro I, the Supreme Court held:
It has long been understood that it is the duty of the courts to determine
the meaning of the requirements of our Constitution. When a government
action in challenged as unconstitutional, the courts have a duty to
determine whether that action exceeds constitutional limits. . . .
Defendantsâ argument is without merit.
Id. (internal citations omitted, emphasis added). The Supreme Court then declared that the
Constitution âguarantee[s] every child of this state an opportunity to receive a sound basic
educationâ in a public school. 346 N.C. at 347, 488 S.E.2d at 255. Leandro I made plain that
the Constitution requires the State Defendants to ensure that each and every child, regardless of
age, need, or district, has access to a sound basic education in a public school. 346 N.C. at 345,
488 S.E.2d at 254 (âan education that does not serve the purpose of preparing students to
participate and compete in the society in which they live and work is devoid of substance and is
constitutionally inadequateâ). The Court defined a âsound basic educationâ as:
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 studentâs
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 or vocational skills to
enable the student to compete on an equal basis with others in further
formal education or gainful employment in contemporary society.
346 N.C. at 347, 488 S.E.2d at 255.
The Supreme Court remanded the case for a determination as to whether the State
Defendants were, in fact, denying this fundamental constitutional right to the children. 346 N.C.
at 357, 488 S.E.2d at 261.
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Liability Judgment and Leandro II
The trial proceedings continued for over a year, involved more than 40 witnesses, and
included hundreds of exhibits. The Court issued four memoranda of decision collectively
totaling over 400 pages of findings of fact and conclusions of law. On April 4, 2002, the Court
entered a liability judgment against the State Defendants (incorporating the previous memoranda
of decision) (collectively, the âLiability Judgmentâ) finding serious and continuing constitutional
violations. With some modifications, the Liability Judgment was unanimously affirmed by the
Supreme Court in Leandro II.
The Court found, and the Supreme Court unanimously affirmed, that the State
Defendants were constitutionally obligated to provide each and every child the opportunity to
attend a public school with access to the following:
First, that every classroom be staffed with a competent, certified, well-
trained teacher who is teaching the standard course of study by
implementing effective educational methods that provide differentiated,
individualized instruction, assessment and remediation to the students in
that classroom.
Second, that every school be led by a well-trained competent Principal
with the leadership skills and the ability to hire and retain competent,
certified and well-trained teachers who can implement an effective and
cost-effective instructional program that meets the needs of at-risk
children so that they can have the opportunity to obtain a sound basic
education by achieving grade level or above academic performance.
Third, that every school be provided, in the most cost effective manner,
the resources necessary to support the effective instructional program
within that school so that the educational needs of all children, including
at-risk children, to have the equal opportunity to obtain a sound basic
education, can be met.
Liability Judgment, pp. 109-10; Leandro II, 358 N.C. at 636, 599 S.E.2d at 389.
The Court also found, and the Supreme Court unanimously affirmed, that the State
Defendants had not provided, and were not providing, competent certified teachers, well-trained
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competent principals, and the resources necessary to afford all children, including those at-risk,
an equal opportunity to obtain a sound basic education, and that the State Defendants were
responsible for these constitutional violations. See Liability Judgment, p. 110, Leandro II, 358
N.C. at 647-48, 599 S.E.2d at 396.
In addition, the Court found, and the Supreme Court unanimously affirmed, that âthe
State of North Carolina is ultimately responsible for providing each child with access to a sound
basic education and that this responsibility cannot be abdicated by transferring
responsibility to local boards of education.â Liability Judgment, p. 110; Leandro II, 358 N.C.
at 635, 599 S.E.2d at 389 (emphasis added). This is the law of the case. It is ultimately the State
Defendantsâ responsibility to ensure that each child has the opportunity to a Leandro-conforming
education. The Supreme Court, interpreting Article IX, Section 2 of the State Constitution, has
held that the State Defendants may not shift the blame for the constitutional violations onto the
local districts.
Moreover, the Court ordered the State Defendants to address and correct the
constitutional violations. Leandro II, 358 N.C. at 648-49, 599 S.E.2d at 396-97.
In terms of assessing compliance with Leandro, the Court found, and the Supreme Court
unanimously affirmed, that one metric for evaluation are educational âoutputs.â Test score
performance data in certain subject areasâe.g., end-of-grade (âEOGâ) and end-of-course
(âEOCâ) test scoresâare evidence of whether children are receiving a Leandro-conforming
education. Leandro II, 358 N.C. at 623-25, 599 S.E.2d at 381-86. While test scores are not the
only factor, they are an important component in assessing whether the State Defendants are
meeting their constitutional obligation to provide all children with a sound basic education. Id.
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The foregoing has been the law since April 4, 2002, when the Liability Judgment was
entered.
Leandro III
In 2013, the Supreme Court confirmed that the Liability Judgment and the mandates of
Leandro I and Leandro II remain âin full force and effect.â Specifically, this Court entered an
Order on July 18, 2011 concerning legislative enactments about North Carolinaâs pre-
kindergarten program, N.C. Pre-K. The Stateâbut not the State Boardâappealed the Courtâs
Order. The State Board filed briefs, both in the Court of Appeals and in the Supreme Court,
urging the courts to affirm the trial courtâs Order. On November 8, 2013, the Supreme Court
dismissed the Stateâs appeal. In the dismissal order, the Supreme Court held, âOur mandates in
Leandro and Hoke County [Leandro II] remain in full force and effect.â Hoke County Bd. of
Ed. v. State, 367 N.C. 156, 160, 749 S.E.2d 451, 455 (2013) (emphasis added).
THE STATE OF NORTH CAROLINA DOES NOT JOIN THE
STATE BOARDâS MOTION
At a status conference in March of 2017, this Court asked the Parties to submit filings
containing the Partiesâ views on the remaining issues and the status of this case. The State Board
filed this motion, asserting that âthere is no ongoing [Constitutional] violation.â State Boardâs
Brief, p. 52. The State of North Carolina, however, did not join the State Boardâs motion, but
instead filed a joint motion with Plaintiffs to present a path forward. That Joint Motion
acknowledges that â[i]n order to address the Stateâs constitutional obligations and the Plaintiff
Partiesâ ongoing concerns in the most efficient and effective manner possible, Plaintiff Parties
and the State believe that a comprehensive approach is required.â Joint Motion at ¶ 8.
Specifically, the State of North Carolina and Plaintiffs proposed to recommend to the Court an
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independent, outside consultant to develop a comprehensive, detailed plan of actions that should
be taken to remedy the existing constitutional violations and provide every child the opportunity
for a sound basic education. After months of working together to identify, research, interview
and select what they believe to be the best choice, the State and Plaintiffs have recommended a
consultant to advise the parties and the Court on a Leandro-compliance plan. The State Board
has not participated in any of these efforts.
ARGUMENT
I. THIS COURT RETAINS JURISDICTION OVER THE STATE BOARD UNTIL
THE STATE BOARD MEETS ITS BURDEN TO SHOW THE
CONSTITUTIONAL VIOLATIONS HAVE BEEN REMEDIED.
The State Board cites two divorce cases for the proposition that âchanged circumstancesâ
can be grounds to relieve it of its ongoing constitutional obligations under the prior orders in this
case. State Boardâs Brief, p. 10 (citing Condellone v. Condellone, 137 N.C. App. 547, 528
S.E.2d 639 (2000), disc. review denied, 352 N.C. 672, 545 S.E.2d 420 (2000) (whether plaintiffâs
co-habitation with adult male was a change in circumstance sufficient to grant relief from
alimony order); Hogue v. Hogue, __ N.C. App. __, 795 S.E.2d 607 (2016) (whether partiesâ
reconciliation supports relief from equitable distribution order). This is not a domestic case.
This is a case about the constitutional rights of all North Carolina children and the State Boardâs
ongoing violation of those rights.
Once a violation of a fundamental constitutional right is established, the defendant is
required to implement remedial measures to correct it. On April 4, 2002, this Court ordered the
State Defendants to develop and implement a remedial framework to address and correct the
constitutional violations. Liability Judgment at p. 111 (¶ 4). In 2004, the Supreme Court
affirmed and held that the State Defendants must implement a remedial plan to âcorrectâ the
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deficiencies. Leandro II, 358 N.C. at 638, 599 S.E.2d at 391 (affirming that âthere has been a
clear showing of a denial of the established rightâ and affirming âportions of the order that
require the State to . . . correct any deficienciesâ). The relevant question, therefore, is not
whether circumstances have changed since the Supreme Court ruled against the State
Defendants. The relevant question is whether the State Defendants have, in fact, cured the
constitutional violations. The State Defendants bear the burden to prove that (i) they have
developed and implemented a Leandro remedial plan, and (ii) that such plan is sufficient to
remedy the constitutional violations.
The fact that the State Board bears this burden is uncontroverted. The State Board
previously conceded to the Court of Appeals in this case that it has âalways [been] the Stateâs
burden to come forward with a remedial plan and demonstrate to the court that it would
adequately address the previously determined constitutional violation.â Brief of Defendant-
Appellee State Board of Education dated April 25, 2012 (North Carolina Court of Appeals) at pp.
34-35 (Appendix, Tab B). Once a violation of a fundamental constitutional right has been
established (in any context), it is the defendantâs burden to prove to the Court that it has
remedied the wrong. See, e.g., Everett v. Pitt County Bd. of Educ., 678 F.3d 281, 289 (4th Cir.
2012) (in school desegregation context, the burden is on governmental actors to prove that
underlying violation has been remedied). It is part of the judiciaryâs ultimate responsibility to
âassess the effectivenessâ of remedial plans in addressing the underlying liability and securing
constitutional compliance. Green v. Cty Sch. Bd. of New Kent County, 391 U.S. 430, 439 (1968).
Once liability has been established, the courtâs jurisdiction is not withdrawn unless and
until there is a finding that the defendant state actors have wholly remedied the constitutional
violation, and the burden of proving that the remedy has been achieved ârests on the defendants.â
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School Bd. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987). For example, after over a decade of
minimal integration progress required by Brown v. Bd. of Educ., 347 U.S. 483 (1954), the U.S.
Supreme Court clarified the role of the lower courts to direct and monitor school officials as they
fashion and implement remedies:
It is incumbent upon the school board to establish that its proposed plan
promises meaningful and immediate progress toward disestablishing state-
imposed segregation. It is incumbent upon the district court to weigh that
claim in light of the facts at hand and in light of any alternatives which
may be shown as more feasible and more promising in their effectiveness .
. . . Moreover, whatever plan is adopted will require evaluation in practice
and the court should retain jurisdiction until it is clear that state-imposed
segregation has been completely removed.
Green, 391 U.S. at 439 (emphasis added).
Here, the State Board has not proved that a remedy sufficient to provide all children the
opportunity to a sound basic education has been achieved. To the contrary, the State Board has
admitted that all children do not have that constitutionally required opportunity. State Boardâs
July 1, 2015 Submission, at p. 45, (admitting that expanded resources âneed to be in placeâ
before âa greater number of students at risk are able to access and receive a sound basic
educationâ) (emphasis added). This Courtâs jurisdiction, therefore, remains intact. Until there is
a judicial determination that the constitutional injury has been fully addressed, the State Board
must continue to comply with the controlling orders in the case. See, e.g., Bd. of Educ. v.
Dowell, 498 U.S. 237, 249 (1991); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 439-
41 (1976).
Rule 12 and Rule 60 are not the applicable standards by which to judge the State Boardâs
compliance with this Courtâs and the Supreme Courtâs prior orders. Unless and until the State
Board meets its constitutional burden, this Court retains jurisdiction over the State Board, and its
motion must be denied.
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II. THE STATE BOARDâS MOTION IS UNTIMELY.
Even if Rule 60 were the correct standard (which it is not for the reasons set forth above),
the State Boardâs motion should nonetheless be denied because it is untimely.
The State Board seeks relief from the Courtâs prior rulings under Rule 60(b)(5) and (6).
âA motion under Rule 60(b) is addressed to the sound discretion of the trial court . . . .â Harris
v. Harris, 307 N.C. 684, 687, 300 S.E.2d 369, 372 (1983). Rule 60 expressly requires that a
motion under either (b)(5) or (b)(6) âshall be made within a reasonable time.â N.C. R. Civ. P.
60(b). Although â[w]hat constitutes a âreasonable timeâ under the rule is determined by
examining the circumstances of the individual case,â North Carolina courts have held a delay of
a year or more to be unreasonable. Brown v. Windhom, 104 N.C. App. 219, 221, 408 S.E.2d
536, 537 (1991) (holding one-year delay unreasonable); see also Jenkins v. Richmond County,
118 N.C. App. 166, 169-70, 454 S.E2d 290, 292 (1995) (same); Nickels v. Nickels, 51 N.C. App.
690, 277 S.E.2d 577 (1981), cert. denied, 303 N.C. 545, 281 S.E.2d 392 (1981) (holding same
for 23-month delay); cf. Poston v. Morgan, 83 N.C. App. 295, 301, 350 S.E.2d 108, 111 (1986)
(concluding that, â[o]n the facts of [the] case,â a four-month delay âis not an unreasonable
amount of timeâ).
The State Board filed this motion in July 2017, basing the claim for alleged âchanged
circumstancesâ on changes that took place in 2012. State Boardâs Brief at 12-19. This five-year
delay is patently unreasonable under the Rule. As a result, the State Boardâs motion is untimely
and should be denied.
III. THIS COURT HAS PREVIOUSLY RULED ON THE STATE BOARDâS
CONTINUING FAILURE TO MEET ITS CONSTITUTIONAL OBLIGATIONS.
The State Board would have this Court believe that the âREADY Accountability modelâ
has never been examined by this Court in the context of the State Boardâs constitutional
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obligations and is a sufficient âchange in circumstancesâ to warrant releasing the State Board
from those obligations. The State Board is wrong, and its argument is disingenuous, at best.
On January 21 and 22, 2015, this Court held a hearing at which:
The State Board of Education â(âSBEâ) and the Department of Public
Instruction (âDPIâ) were provided with the opportunity to report
concerning matters relating to the academic progress that our children in
the public schools of North Carolina had made during the 2013-14 school
year and an explanation of the SBEâs redefining and relabeling the
standards for academic achievement in to levels 1-5 for purposes of
defining academic achievement in grades 3-8 and in certain high school
courses.
Notice of Hearing and Order dated March 17, 2015 (the âMarch 17 Orderâ) (Appendix, Tab C).
After the January 2015 hearing, the Court issued the March 17 Order, which contained several
findings.
First, the Court foundâafter the Ready Accountability model and the ânew curriculum
standardsâ were adoptedâthat âa definite plan of actionâ is still ânecessary to meet the
requirements and duties of the State of North Carolina with regard to its children having the
equal opportunity to obtain a sound basic education.â March 17 Order, p. 3 (emphasis added).
Second, the Court made clear its understanding that âas of today, the language utilized within the
N.C. K-12 education administration bureaucracy to describe what Leandro (and the North
Carolina Constitution) requires . . . is âcollege and career ready.ââ Id. Third, this Court held:
The Court, after listening to the testimony concerning the reason(s) for
redefine[ing] and relabeling the standards for academic achievement into
levels 1-5 for purposes of defining academic achievement in grades 3-8
and in certain high school courses, will continue to review EOG and EOC
course scores at the âoldâ level III (grade level) which is now level 4
(âcollege and career readyâ or âCCRâ) in determining whether the
children of North Carolina have obtained a sound basic education in that
course or subject for the previous year.
Id., p. 5.
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Lastly, after holding an evidentiary hearing on the ânewâ accountability system and
standards, and after ruling that Level 4, or âcollege and career ready,â is the appropriate indicator
of whether students are receiving a sound basic education as defined by our Supreme Court, the
Court held:
The bottom line is that the valid assessments of student achievement in
North Carolina show that many thousands of children in K-12 are not
performing at grade level in multiple subject areas and thus, are not
obtaining a sound basic education. This is an ongoing problem that
needs to be dealt with and corrected.
Id., p. 13 (emphasis added).
Neither the State Board nor the State of North Carolina appealed the March 17 Order. It
is well established under North Carolina law âthat no appeal lies from one Superior Court judge
to another; that one Superior Court judge may not correct another's errors of law; and that
ordinarily one judge may not modify, overrule, or change the judgment of another Superior
Court judge previously made in the same action.â Calloway v. Ford Motor Co., 281 N.C. 496,
501, 189 S.E.2d 484, 488 (1972) (citations omitted). The Supreme Court has further explained
the policy behind this rule:
The reason one superior court judge is prohibited from reconsidering the
decision of another has remained consistent for over one-hundred years.
When one party wait[s] for another [j]udge to come around and [takes its]
chances with him, and the second judge overrules the first, an unseemly
conflict is created. Given this Court's intolerance for the impropriety
referred to as judge shopping and its promotion of collegiality between
judges of concurrent jurisdiction, this unseemly conflict ... will not be
tolerated.
State v. Woolridge, 357 N.C. 544, 550, 592 S.E.2d 191, 194 (2003) (emphasis added) (internal
quotations and citations omitted).
Similarly, the Court was also keenly aware of the Read to Achieve legislation that the
State Board now touts in its motion. On May 5, 2014, the Court filed a âReport from the Court
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re: the Reading Problemâ (the âCourtâs Reportâ) (Appendix, Tab D). In its Report, the Court
reviewed the requirements and implementation of Read to Achieve at length. See Courtâs Report,
pp. 24-28. Notwithstanding the Read to Achieve legislation, the Court concluded: âWhere was
North Carolina at the beginning of the 2013-14 in terms of having successfully assessed and
taught the entering 3rd
graders to be proficient in reading? . . . Answer: Not so hot.â Courtâs
Report, p. 31. Indeed, after the passage and implementation of Read to Achieve, the Courtâs
ultimate conclusion regarding the State Boardâs constitutional compliance was as follows:
Suffice it to say that poor academic performance remains a problem in a
host of elementary, middle and high schools throughout North Carolina
and as a result, the children in those schools who are blessed with the right
to the equal opportunity to obtain a sound basic education as guaranteed
by the Constitution and as set out in Leandro, are being deprived of their
constitutional right to that opportunity on a daily basis.
Courtâs Report, p. 4.
Judge Manning carefully considered the purported âchanged circumstancesâ of the Read
to Achieve legislation, the State Boardâs adoption of the Ready Accountability model, and the
implications thereof on this case. He ruled that the new âcollege and career readyâ standard is
the appropriate standard to examine in determining whether the defendants have remedied the
constitutional violations found by the Supreme Court. As of March 17, 2015, Judge Manning
was not convinced that the defendants had met their burden and ordered further evidentiary
hearings. The State Board is now âtaking its chancesâ that a different superior court judge will
see the evidence differently. For the reasons set forth above, the State Boardâs attempt to do so
should be denied.
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IV. THE STATE BOARDâS MOTION IS INCONSISTENT WITH ITS PRIOR
STATEMENTS AND IS BARRED BY THE DOCTRINES OF ESTOPPEL.
Under North Carolina law, â[b]roadly speaking, estoppel is a bar which precludes a
person from denying or asserting anything to the contrary of that which has, in contemplation of
law, been established as the truth.â Biosignia, 385 N.C. at 13, 591 S.E. 2d at 879. The doctrines
of estoppel âsubstantially promote that ancient and overarching estoppel principle which lies at
the foundation of all fair dealings between [persons].â Biosignia, 385 N.C. at 27, 591 S.E.2d at
887. The doctrine of judicial estoppel protects the integrity of judicial proceedings and seeks to
protect the Court from exactly what the State Board is attempting to do: âplay fast and loose
with the judicial system.â 385 N.C. at 26-27, 591 S.E.2d at 887. Judicial estoppel has âinherent
flexibility as a discretionary equitable doctrine,â and is used by courts âwhere the technical
requirements of mutuality, reliance, or prejudice might renderâ other estoppel doctrines
inapplicable. Id.
The positions asserted by the State Board in its current motion are contrary to the
positions the State Board has taken in this Court, the North Carolina Court of Appeals, and the
North Carolina Supreme Court. The âfactsâ as the State Board now presents them are also
contradicted by its own prior testimony. The State Board is not allowed to âblow hot and cold in
the same breathâ and its motion should be denied. Id. at 26.
A. The State Board represented to the Supreme Court that it âis wrong to
repeatedly harken back to the limited scope of the evidence and issues
before this Court in 2004 and in Leandro II.â
The State Board contends that since circumstances in Hoke County have improved, and
the Liability Judgment and rulings in this case only apply to Hoke County, it is entitled to relief
under Rule 60. This is the exact opposite of what the State Board represented previously to the
Supreme Court. As noted above, the State Board did not appeal Judge Manningâs 2011 Order
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related to NC Pre-K, but instead filed its own appellate briefs. In those appellate filings, the
State Board argued eloquently and vehemently against the very contention it now makes to this
Court.
Specifically, the State Board said that âthe Attorney General is wrong to repeatedly
harken back to the limited scope of the evidence and issues before this Court in 2004 in Leandro
II.â See New Brief of Defendant-Appellee State Board of Education dated July 24, 2013 (N.C.
Supreme Court), p. 36 (Appendix, Tab A). The State Board represented to the Supreme Court
that while the case initially focused on Hoke County,
since that time, the State has for nearly a decade made this a case about its
chosen statewide remedy. That is, there is no need to parse the language
of the Complaint or the evidence before this Court in 2004 to determine
the scope of the issues involved today, after the parties have acquiesced,
under judicial supervision, in the statewide reach of this case for years. In
other words, the parties engaged in âlitigation by consentâ of the statewide
issues.
Id. (original emphasis) (internal citations omitted). Now, today, in direct contradiction of its
statements to the Supreme Court, the State Board asks this Court to âparse the language of the
Complaint,â focus on limited improvements in Hoke Countyâas opposed to the over 300,000
children statewide who cannot read at grade levelâand relieve it of its constitutional obligations.
But as the State Board has already admitted, it has acquiesced (along with the other parties to the
litigation) in the statewide reach of this case and has litigated the case on a state-wide basis by
consent for years.
The State Board also astutely pointed out to the Supreme Court in 2013 that it would be
ânonsensicalâ for the constitutional remedies mandated by Leandro II âto apply in one area of
the State but not in others.â Id., p. 37. The State Board went on to say:
Nor would it be practical, efficient, or wise to require every locality in the
state to initiate its own lawsuit against the already taxed State Board,
seeking affirmation of the same principle for its children, which may take
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many more years. To argue otherwise ignores this Courtâs grave concern
in 2004 that too much time has already passed without a proper remedy
for at-risk children:
âŠThe children of North Carolina are our stateâs most valuable renewable
resource. If inordinate numbers of them are wrongfully being denied their
constitutional right to the opportunity for a sound basic education, our
state courts cannot risk further and continued damage because the perfect
civil action has proved elusive. . . . We cannot similarly imperil even one
more class unnecessarily.
Id., quoting Leandro II, 358 N.C. at 616, 599 S.E.2d at 377.
The State Board cannot talk out of both sides of its mouth: acquiescing in the statewide
application of this case in front of the Supreme Court, but then contending that this Court should
only consider the allegations and evidence related to Hoke County. The statewide implications
and applications of this case have been established in the course of the litigation. Indeed, the
State Board has admitted as much and is judicially estopped from taking a contrary position with
this Court.1
B. The facts as established by the State Boardâs own witnesses contradict
the State Boardâs current motion.
Similarly, the State Board is estopped from asserting facts that are contradicted by its
own prior testimony in this case. For example, the State Board touts changes implemented using
the federal Race to the Top (âRTTTâ) grant as sufficient to relieve it of future compliance with
the rulings of this case. But the State Board ignores its own testimony and admissions that the
RTTT grant funding ended in 2014-15 and that it has significantly less resources since that
1
The State Board also fails to present a complete picture of the circumstances in Hoke County. For example,
Hoke County Public Schools (HCPS) has many extraordinarily experienced and gifted teachers; it does not,
however, have the resources necessary to attract and maintain a certified, well-trained teacher in every
classroom. See Affidavit of Dr. Freddie Williamson dated January 31, 2018 (Appendix, Tab I) at ¶¶ 6, 11.
Teacher turnover in HCPS was 25.44% in 2015-16, among the highest five turnover rates in the State. Id. at ¶
7. Due to high teacher turnover, HCPS has a much higher percentage of beginning teachers (0-3 years) than
the State average. With a lack of certified teachers applying for Exceptional Childrenâs teaching positions,
HCPS has also been forced to hire lateral entry candidatesâpeople with no formal training to work with this
most at-risk populationâto fill those positions. Id. at ¶10.
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funding ran out to try to provide children the opportunity for a sound basic education. For
example, the State Board notes in its motion that during the RTTT funding, the Department of
Public Instruction (âDPIâ) served 118 low-performing schools and districts through the District
and School Transformation team, and this evidences a change in the State Boardâs ability to
âidentify at-risk students and support their academic development.â State Boardâs Brief, p. 39.
State Board witnesses previously testified, however, that since the RTTT funding ended, DPI lost
over half the staffâfrom 147 to 57âdedicated to serving those low performing schools.
Testimony of Dr. Nancy Barbor (State Board witness), 7/23/2015, p. 525 (Appendix, Tab E). In
fact, the State Board admitted there are now more schools rated âDâ or âFâ than the current DPI
District and School Transformation team can serve. Dr. Rebecca Garland (State Board witness),
7/21/2015, p. 160 (Appendix, Tab F).
Similarly, RTTT funding was used to develop and implement a New Teacher Support
Program as a means of implementing effective teaching, which the State Board contends in its
motion that it has done. An independent evaluation of that program concluded that students in
the Stateâs lowest performing schools taught by teachers who participated in the New Teacher
Support Program made significantly larger achievement gains in elementary and middle school
mathematics and reading than students who were taught by other novice teachers. Dr. Lynn
Johnson, (State Board witness) 7/22/2015, p. 234 (Appendix, Tab G). The State Board
previously testified in Court, however, that the program is no longer funded. Dr. Rebecca
Garland, 7/21/2015, pp. 147-148 (Appendix, Tab F).
The State Boardâs description of changes in the teacher evaluation system as ensuring
âcompliance with the remedial order requiring an effective teacher in every classroomâ is also
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contradicted by previous testimony.2
The Court best explained the fallacy of the State Boardâs
position during the testimony of the State Boardâs witness, Dr. Thomas Tomberlin:
Q: . . . if Johnny would have met expected growth, each one of those teachers
theoretically would be judged as effective, correct?
A: Yes.
Q: Johnny is still not at grade level.
A: Thatâs right.
THE COURT: . . . Heâs already screwed. He canât read in the third grade
and heâs not making any progress. Heâs down the tubes. So her question
and my question is, all this rating stuff doesnât do Johnny any good if the
teacher becomes effective, because Johnny has simply kept from
drowning. In other words, heâs held on to the life raft so that he doesnât
go backwards. What Johnny needs to do is Johnny needs to exceed the
computerâs expected growth in order for him to at least try to catch up
with the pack.
A: I do not disagree.
THE COURT: Thatâs why we both got the back of our necks up, because
just saying they are effective. They are not effective with Johnny because
they havenât moved him. They kept him from sliding backwards and
get[ting] eaten by the sharks, but they havenât improved his life on the
road to getting him to grade level in plain English.
A: I agree [with] that . . . .
Testimony of Dr. Thomas R. Tomberlin, 7/22/2015 pp. 345-346 (Appendix, Tab H) (emphasis
added).
The State Board is bound by these previous representations (made under oath and/or
subject to Rule 11) to this Court and the Supreme Court. The State Boardâs motion directly
2
The State Boardâs motion is also contradicted by its previous filings in this Court, wherein it admitted that the
public schools will not be able to âcompete with other employment and career opportunitiesâ unless the State
can âoffer comparable salaries and benefits to attract bright, committed individuals to enter the profession.â
State Boardâs July 1, 2015 Submission, at pp. 45-46. The State Board further admitted that it is unable to
recruit and retain sufficient numbers of qualified teachers to satisfy demand. Id. at p. 7 (âNorth Carolina needs
approximately 11,000 new teachers each year in order to satisfy demand, but this demand is not being met
through the public and private educator programs, lateral entry, or the importation of teachers from other states
and countries.â)
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contradicts the facts and the position of the State Board established in prior filings and
proceedings. The well-established doctrines of estoppel prohibit what the State Board is trying
to do, and its motion should be denied.
V. THE STATE BOARDâS RULE 12(b) MOTION SHOULD ALSO BE DENIED.
The State Board purports to base its motion for Relief in part on Rule 12(b)(1) (â[l]ack of
jurisdiction over the subject matter, Rule 12(b)(2) (â[l]ack of jurisdiction over the personâ) and
Rule 12(b)(6) (â[f]ailure to state a claim upon which relief can be grantedâ). The State Boardâs
motion is untimely, factually and legally unsupportable, and has previously been denied by our
Supreme Court. For these reasons, the Court should deny the motion.
A. The State Boardâs Rule 12(b) motion is untimely.
Rule 12 provides that a âmotion making any of these defenses shall be made before
pleading if a further pleading is permitted. . . . If a pleading sets forth a claim for relief to which
the adverse party is not required to serve a responsive pleading, he may assert at the trial any
defense in law or fact to that claim for relief.â N.C.R.C.P. 12(b) (emphasis added). Here, the
time for the State Board to make a Rule 12 motion was before answering the Complaint. As
explained further below, the State Board did exactly that in 1994. The State Board has subjected
itself to the personal jurisdiction of this Court for over twenty years. Its Rule 12(b)(2) motion is
frivolous.
Moreover, this case has already proceeded through trial, and judgment has been entered.
To the extent that the State Board contends that the non-Hoke County Plaintiffâs claims are
subject to dismissal under Rule 12, as noted above, the State Board has acquiesced in the state-
wide application of the rulings in this case since at least 2004. For all of these reasons, the State
Boardâs motion is untimely and should be dismissed.
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B. This Courtâs established jurisdiction over the State Board and the
subject matter of this lawsuit is the law of the case.
After the Complaint was filed in 1994, the State Board, along with the State of North
Carolina, moved to dismiss all of Plaintiffsâ claims pursuant to Rules 12(b)(1), (2) and (6). The
State Board contended that the Complaint failed to state a claim, and that Plaintiffsâ claims to
educational adequacy under the State Constitution were ânonjusticiable political questions.â
Leandro v. State, 122 N.C. App. 1, 11, 468 S.E.2d 543, 550 (1996) revâd 346 N.C. 336, 488
S.E.2d 249 (1997) (â[t]he State contends in the alternative that plaintiff partiesâ educational
adequacy claims present nonjusticiable political questions, and the trial court should have
dismissed these claims for lack of jurisdiction pursuant to Rules 12(b)(1) and 12(b)(2)â). The
Supreme Court directly addressed these issues in its unanimous 1997 Leandro I opinion:
It has long been understood that it is the duty of the courts to determine
the meaning of the requirements of our Constitution. When a government
action in challenged as unconstitutional, the courts have a duty to
determine whether that action exceeds constitutional limits. . . .
Defendantsâ argument is without merit.
Leandro v. State, 346 N.C. 336, 344-45, 488 S.E.2d 249, 253 (1997) (internal citations omitted,
emphasis added). The Supreme Courtâs ruling denying the State Boardâs Rule 12 motion is the
law of the case. Tennessee-Carolina Transp., Inc. v. Strick Corp., 286 N.C. 235, 239, 210
S.E.2d 181, 183 (1974) (âThe decision by the Supreme Court on a prior appeal constitutes the
law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal.â);
Hayes v. City of Wilmington, 243 N.C. 525, 537, 91 S.E.2d 673, 682 (1956). The State Boardâs
attempt to get a second bite at the apple, 20 years after the Supreme Court rejected its arguments,
is improper, and its motion should be denied.
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C. Subject matter jurisdiction attached at the time of the complaint.
The State Boardâs request for dismissal under Rule 12(b)(1) misunderstands the most
basic nature of subject matter jurisdiction and when it attaches. As the North Carolina Supreme
Court has explained,
Once the jurisdiction of a court or administrative agency attaches, the
general rule is that it will not be ousted by subsequent events. This is true
even when the events are of such a nature that they would have prevented
jurisdiction from attaching in the first instance. . . . Jurisdiction is not a
light bulb which can be turned off or on during the course of the trial.
Once a court acquires jurisdiction over an action it retains jurisdiction over
that action throughout the proceeding. If the converse of this were true, it
would be within the power of the defendant to preserve or destroy
jurisdiction of the court at his own whim.
In re Peoples, 296 N.C. 109, 146, 250 S.E.2d 890, 911 (1978) (internal quotation marks,
citations omitted, emphasis added). As stated above, the North Carolina Supreme Court held in
Leandro I that any argument that this Court lacks subject jurisdiction over this matter âis without
merit.â Leandro I, 346 N.C. at 344-45, 488 S.E.2d at 253. The jurisdiction cannot be ousted by
subsequent events.
D. Law of the case: State Defendants are âultimately responsibleâ for
ensuring that North Carolina children are provided a
constitutionally-conforming education.
The State Board appears to suggest that the enactment of Gen. Stat. § 115C-47(1) â
which, according to the State Board, provides that âlocal boards of education now share
responsibility by statute ⊠for the provision of the opportunity of a sound basic educationâ â
somehow affects the State Defendantsâ constitutional obligations to North Carolinaâs children.
See State Boardâs Brief at 52-53. The State Boardâs suggestion is without merit.
The State Board ignores the established law of the case. This Court already found, and
the Supreme Court unanimously affirmed, that the State Defendants, not the local boards of
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education, were âultimately responsibleâ under the North Carolina Constitution for ensuring that
all children had âaccess to a sound basic education.â Liability Judgment, p. 110; Leandro II, 358
N.C. at 365, 599 S.E.2d at 389. This fundamental constitutional âresponsibility cannot be
abdicated by transferring responsibility to the local boards of education.â Id. The Supreme
Court, interpreting Article IX, Section 2 of the Constitution, has already held in this case that the
State Defendants may not shift the blame for constitutional violations onto the local districts,
whether by policy, statute, or otherwise.
The fact that local boards of education may now âshare[]â a statutory obligation to help
ensure that children receive an appropriate education says nothing about whether the State
Defendants have met their constitutional obligations, for which they (not the local boards of
education) have the ultimate responsibility. The holding that the State Defendants bear this
constitutional responsibility is the law of the case, see, e.g., Tennessee-Carolina Transp., 286
N.C. at 239, 210 S.E.2d at 183, and the State Boardâs untimely attempt to shift responsibility
should be soundly rejected.
CONCLUSION
For reasons set forth herein, the Court should deny the State Boardâs Motion for Relief
and award Plaintiffs their reasonable attorneysâ fees and costs incurred in responding to the
motion.