dissenting.
The majority finds it perfectly logical that a teacher rightfully discharged for molesting high school girls who were his students should recover $78,000 from the school board for a lack of due process in the hearing that resulted in his rightful discharge. I do not. First, because the issue —bias of a member of the board that discharged him — was not properly before this Court, it having been disposed of in the discharge case; and, second, because the new rule adopted here by the majority —“one member biased” — is fundamentally unsound. This new rule produces a bizarre result in this case, and it will continue to produce bizarre results in the future.
The findings of fact of the school board in this matter included the following:
4. By letter dated June 4, 1984, the Superintendent submitted to the Board his recommendation for the dismissal of Eddie Ray Crump as a teacher in the Hickory Administrative School Unit on the following grounds: immorality, neglect of duty, failure to fulfill the duties and responsibilities imposed upon teachers by the General Statutes of North Carolina, and insubordination.
5. On or about April 6, 1981, while instructing Elizabeth Davis, a female high school student over whom he had authority for the purpose of driver education instruction, Eddie Ray Crump asked her questions, to wit: Do you play the field? Are you getting a new bathingsuit [sic] this summer or are you going to go skinny dipping? On the same occasion, Eddie Ray Crump used the word “crotch” and pointed to her private parts and touched her unnecessarily and intentionally on the top of her thigh and played with her hair. As a result of these actions, the student became scared of the teacher, Eddie Ray Crump.
6. As a result of the incident on April 6, 1981, a complaint was filed with the Principal of the High School, and Elizabeth *627Davis was removed from Eddie Ray Crump’s instruction and placed with another driver education instructor.
7. On April 9,1981, as a result of the incident with Elizabeth Davis on April 6, 1981, Eddie Ray Crump was instructed in writing by the Principal of the High School that “there shall be a third person in the car during the road work phase of the driver education of female students” and the “failure to cooperate with these instructions could be interpreted as insubordination.”
8. On April 2, 1982, the suggestion was made to Eddie Ray Crump by the Principal of the High School on his 1981-82 Teacher’s Performance Appraisal Instrument that he “must make an effort to follow established rules and guidelines.”
9. During the summer of 1982, while instructing Ursula “Hope” Bolick, a female high school student in driver education, the teacher, Eddie Ray Crump, grabbed her leg unnecessarily. The incident occurred while the two were in the driver education vehicle alone, in contravention of the Principal’s instructions to the teacher. The teacher also drove with Ursula Bolick alone during driver training on two other occasions.
10. In the fall of 1983, while instructing Donna Bumgardner Yoder, who was a female student at Hickory High School, the teacher, Eddie Ray Crump, on two occasions reached across the seat to adjust a yellow cushion behind her back and accidentally touched her neck. The teacher also, during driver training, called her “Honey,” although the Board found this not offensive under the circumstances.
11. During the fall of 1983, while instructing Nina Winkler, a female high school student in driver education, Eddie Ray Crump intentionally and unnecessarily put his hand under her right breast two or three times, touching her breast. As a result of this action on the part of the teacher, the student became scared to go back in the car with Mr. Crump and has not returned to driver education since the occurrence. The teacher, Eddie Ray Crump, also used the words “Goddamn” and “damn” during the instruction of the student.
12. On one or more occasions, Eddie Ray Crump instructed the following female students during the times specified, in the road work phase of their driver education while no third *628person was in the vehicle. These acts were in disobedience of the Principal’s instructions, were knowingly and wilfully done and were admitted by the teacher, Eddie Ray Crump.
a. Ursula “Hope” Bolick in the summer of 1982,
b. Sheree Raker in the fall of 1983.
Based on these findings, the school board made, inter alia, the following pertinent conclusions of law:
7. The behavior of the teacher, Eddie Ray Crump, in touching Nina Winkler’s breast on two or three occasions; in unnecessarily and intentionally grabbing Ursula Bolick’s leg; in asking Elizabeth Davis personal questions which had sexual overtones or innuendoes, referring to her “crotch,” touching the top of her thigh and playing with her hair, are offensive to the morals of the community, a bad example to the youth whose ideals a teacher is supposed to foster and elevate, and constitute immorality under the provisions of N. C. Gen. Stat. § 115C-325(e)(l)(b).
8. The actions of Eddie Ray Crump in providing instruction to two female students in the road work phase of their driver education vehicle while no third person was in the vehicle has been admitted by the teacher and was done in disregard of the express written directions of his Principal. This was a wilful refusal by the teacher, Eddie Ray Crump, to obey the reasonable directions of his Principal and constitute insubordination under the provisions of N. C. Gen. Stat. § 115C-325(e)(l)(c).
Based, inter alia, upon these findings and conclusions, the school board discharged Mr. Crump as a high school teacher.
As the majority recognizes, the complaint filed in this action by Mr. Crump was such that alleged within one pleading were two actions. The two causes of action were pending simultaneously, the first being an appeal of an administrative hearing which resulted in his discharge from employment, and the other being a section 1983 civil rights action for compensatory monetary damages against the school board and punitive damages against its members individually. The cases were severed, and as the majority has indicated, the judicial review of the board’s decision to discharge *629Mr. Crump on the basis of immorality and insubordination proceeded separately.
Mr. Crump argued in the prior discharge case that the school board was biased. In his petition for judicial review of his discharge, he alleged, inter alia, “that the action of the Board of Education in dismissing the plaintiff was biased.” Judge Claude Sitton directly addressed that issue in his judgment in the discharge case. The order states: “The court further finds and concludes that the action of the Board to dismiss Crump was not biased . . . but instead was based on substantial evidence viewing the record as a whole.” Thus, Judge Sitton’s order directly addressed and disposed of Mr. Crump’s allegation of bias.
Mr. Crump excepted to this particular finding and conclusion. In his entry of appeal filed with the Court of Appeals, Mr. Crump assigned as the first error that there was not substantial evidence in the whole record to support “the Superior Court’s Findings and Conclusions that the findings, inferences and conclusions of the Board of Education . . . are not biased.” Thus, this issue was before the Court of Appeals in Crump I.
As it turned out, the plaintiff neglected to brief this assignment. Assignments of error not briefed are deemed abandoned on appeal. N.C.R. App. P. 28 (1990).
The Court of Appeals affirmed the judgment of the trial court, and we denied a petition for a writ of certiorari to review that decision. Thus, the courts of North Carolina have determined, with finality, as the majority concedes, that the plaintiff was rightly discharged. It is also apparent that the issue of school board bias has been decided and disposed of conclusively.
In the section 1983 action now before us, the school board contended that the plaintiff’s due process claim was precluded by Judge Sitton’s disposition of the previous case. Judge Robert Gaines denied the defendants’ summary judgment motion on the basis that the plaintiff’s due process claim was not foreclosed by the resolution of the other case. It is inescapable that Judge Gaines erred in this regard. The bias issue had indeed been precluded by the order of Judge Sitton resolving the other case, which order was affirmed by the Court of Appeals and on which this Court denied discretionary review. It is my view, therefore, that the issue of bias by one or more members of the school board is not *630properly before this Court. It was precluded by the determination of that very issue between these very same parties, on these very same pleadings, in the case in which plaintiff’s discharge was judicially reviewed and upheld. The proper forum to have addressed any unfairness in the hearing was in the action in which it was raised, litigated, and decided —the discharge action — not in this action for an after-the-fact award of money damages.
The failure to recognize the procedural bar has led the majority to the strange position of allowing Mr. Crump to recover $78,000 in damages for a due process violation occurring in the hearing that it acknowledges resulted in his rightful discharge, uninfluenced by board member bias. A teacher who has been found to be guilty of the charges made against him, which charges were serious enough to justify dismissal, and whose discharge has been judicially affirmed on appeal, now reaps the benefits of a $78,000 jury verdict.
How the majority can conclude that there have been damages to Mr. Crump sufficient to support a $78,000 jury verdict mystifies me. Deprivation of Mr. Crump’s interest in his continued employment, and such reputation as was inseparably intertwined with his interest in continued employment, formed the sole basis for his allegations of a due process violation. But there is no dispute that the board properly discharged Mr. Crump upon substantial evidence in the record and without bias. Where the deprivation of an interest is proper, there can be no allowable damages arising from that deprivation, for no damages in fact can be caused by a proper deprivation. See, e.g., Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 286, 50 L. Ed. 2d 471, 483 (1977) (“it [is] necessary to . . . distinguishO between a result caused by a constitutional violation and one not so caused”).
Without doubt, if the procedure used to discharge a career teacher violates due process, then a discharge decision caused by the invalid procedure would itself be invalid. Conversely, if a discharge is finally determined on appeal to be valid, then it must follow that the process underlying that decision caused no harm. The majority opinion today stands for the deviate proposition that a procedure impermissibly deprived plaintiff of protected interests valued at $78,000 but that ultimate deprivation of those same interests by that same invalid procedure was proper, as finally determined on appeal. This position violates all standards of legal reason.
*631The majority recognizes that the plaintiff in this action did not seek compensatory damages from the individual members of the board, and its decision limits recovery of compensatory damages to the school board as an entity. Since the jury returned no punitive damages against the individuals, the individuals suffer no pecuniary liability in this case. I am concerned, however, that the majority opinion presumably would allow recovery of compensatory damages against all individual board members when properly pled and when the bias of any single member is proven. Like Judge Wells below, I find this “one-member bias” rule creates bizarre results.
In a situation where only one board member is biased and does not reveal his bias to plaintiff at the hearing, the other board members may be as ignorant of that member’s bias as is plaintiff. It is not fair to subject these innocent board members to individual liability on a monetary judgment, much less the damage to their individual reputations, based upon the unrevealed, personal opinions of a fellow member. In a due process case such as the case before us, where the controlling principle is fundamental fairness, it is ironic that innocent, volunteer, uncompensated public servants performing a civic duty can be subjected to group liability and public embarrassment or humiliation for the bias of one of their number. Under the majority opinion, this financial obligation may be to a teacher who was guilty of the serious charges made against him and who would have been dismissed even without the participation of the biased member in the decision-making process. Thus, under the trial court’s interpretation of the law, the individual members of the board may be exposed to joint and several liability without total, or even majority, guilt. That concept is fundamentally unfair and could have a marked chilling effect on the participation of citizens on these elected, uncompensated boards.
The “one-member bias” rule of the majority could, and no doubt will, adversely affect the willingness of boards of education to dismiss bad teachers. Every citizen who serves on a local board of education faces a dilemma. Every board member doing his or her job will surely know about teacher misconduct, particularly in the especially egregious cases. He or she knows that he will be called upon to decide dismissal cases, as he is a member of the only entity empowered to dismiss teachers. Yet, by doing his or her duty, the board member becomes subject to the threat of lawsuits and individual liability for monetary awards.
*632Moreover, a board member may want to reeuse himself or herself simply out of fear that someone else on the board has formed a bias and has not disclosed it. Though he may feel comfortable hearing the case himself, the member risks the public humiliation of being found to have deprived someone of his civil rights if even one of his fellow board members is biased. Board members will be disinclined to continue their services.
Furthermore, the majority rule creates a disincentive to board action against a bad teacher. A teacher whose conduct is unquestionably harmful to children may escape discharge or even discipline for his misconduct out of fear of subsequent bias claims. No school board member can take comfort in the fact that a jury might agree with him that he made the right decision when he chose to fire the teacher. The majority rule prevents the board from presenting the evidence that the board member heard to the jury. At the very best, the majority’s open invitation for rightfully discharged teachers to bring bias claims against school boards will place a financial burden on school boards, consuming significant public resources in defending such cases even when the school boards prevail.
In adopting the one-member bias rule, the majority relies upon the United States Third Circuit Court case of Berkshire Employees Ass’n v. NLRB, 121 F.2d 3235 (3rd Cir. 1941). Assuming, without conceding, that Berkshire was correctly decided, it is easily distinguishable from the case at bar. The relief afforded in Berkshire was simply a new hearing. Ironically, this hearing was to be conducted by the remaining commission members who had previously heard the case and were theoretically subject to the tainting influence of the biased board member. The same is true of each of the three cases relied upon by the majority panel of the Court of Appeals in reaching its decision on this same issue.
In a case such as Berkshire where plaintiff is only seeking the remedy of a new hearing, a one-member bias rule might be appropriate. In such an instance, the finding of guilt or innocence of the underlying charges is irrelevant — the new hearing will determine that issue. Where, as here, monetary damage is the subject of the action brought by a rightfully discharged teacher, a more restrictive rule is called for. The permanent relief of money damages should be determined only after resolving the difficult issue of whether there was bias and, if so, determining whether that bias *633affected the result — that is, whether the plaintiff would not have been dismissed absent that bias. Under the majority opinion, a jury may find liability against the board and its members individually if only a single member was biased; if that bias was unknown to the other members; and without regard to the impact, if any, of that bias on the board’s final decision.
The commonly held notion that juries will generally reach a proper result cannot be relied upon in this type of case. The jury is not allowed to hear the evidence considered by the board against the person charged, it may not consider whether the dismissal was justified, nor may it even hear the board’s findings of fact and conclusions to aid it in determining whether the discharge was based upon adequate findings or upon the board’s bias.
I cannot presume that the members of a school board were incapable of fairly deciding this solely by virtue of their association with a board member who was allegedly biased. It is completely unnecessary to do so in order to assure that justice is done. We do not even presume bias on the part of jurors in serious criminal cases. The United States Supreme Court has held that, when the facts of a particular case give rise to a risk of juror bias, the juror is not presumed to be biased, and the defendant is given an opportunity at a hearing to establish actual bias of the juror. Smith v. Phillips, 455 U.S. 209, 71 L. Ed. 2d 78 (1982).
Solid authority from a number of other states holds that the presence and vote of a biased member does not invalidate a result if the required majority exists without reference to the disqualified vote. The general rule applied in these cases has been stated as follows;
It has generally been held that the vote of a council or board member who is disqualified because of interest or bias in regard to the subject matter being considered may not be counted in determining the necessary majority for valid action. . . . It is also the rule that where the required majority exists without the vote of the disqualified member, his presence and vote will not invalidate the result ....
Anderson v. City of Parsons, 209 Kan. 337, 342, 496 P.2d 1333, 1337 (1972); accord Vanelli v. Reynolds School Dist., 667 F.2d 773, 780 n.13 (9th Cir. 1982); Murach v. Planning & Zoning Com’n, 196 Conn. 192, 203, 491 A.2d 1058, 1065-66 (1985) (quoting 56 Am. *634Jur. 2d Municipal Corporations § 172, at 225 (1971)); Board of Comrs. v. Thompson, 216 Ga. 348, 349, 116 S.E.2d 737, 738 (1960); see also Annot., “What constitutes requisite majority of members of municipal council voting on issue,” 43 A.L.R.2d 698, 751 § 27[b] (1955) (“[generally, . . . where the required majority exists without the vote of a disqualified member, his presence and vote will not invalidate the result”). Admittedly, these cases do not deal with the dismissals of teachers specifically, but then, neither does the Berkshire line of cases relied on by the majority. These authorities do, however, stand for the proposition that if the biased member’s presence is not required for a quorum and if his vote was not necessary to form a majority, the board action remains valid and damages should not be awarded.
I believe that the court should utilize a sequence of shifting burdens to govern bias suits. Through this process, the judicial review of the party’s discharge and his section 1983 claim for damages could be disposed of in a single action. The process begins with the presumption that the action of the board is correct. N.C.G.S. § 115C-44(b) (1987). The initial burden is on the plaintiff (the party charging bias) to demonstrate that one or more members of the board possessed a disqualifying personal bias. Upon a presentation of specific facts demonstrating a disqualifying personal bias, the presumption is rebutted, and the burden shifts to the board to demonstrate that the bias did not affect the outcome. The board discharges this burden by demonstrating either that no board member was actually biased or that, after eliminating the votes of the biased board members as well as the votes of the board members whose votes were influenced by the biased members, there remains a sufficient number of untainted, affirmative votes to sustain the action. If the board discharges this burden, the due process claim fails, and the party would not be entitled to a new hearing and may not collect damages from the board.
Under this sequence of shifting burdens, the court should direct a verdict dismissing the due process claim if (1) the party, as a matter of law, fails to discharge its initial burden of rebutting the board member’s presumption of honesty and integrity; or (2) the board, as a matter of law, discharges its burden of demonstrating that the bias did not affect the outcome. If the claim survives the directed verdict stage, then the court should instruct the jury in accordance with the above-described sequence of shifting burdens.
*635The United States Supreme Court has endorsed this sequence of shifting burdens to resolve claimed constitutional violations. In Mt. Healthy City Bd. of Educ. v. Doyle, a teacher contended that his nonrenewal was in retaliation for the exercise of his first amendment rights to free speech. The Court delineated the following procedure for resolving the case:
Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was ... a “motivating factor” in the Board’s decision not to rehire him. Respondent having carried that burden, however, the district court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent’s reemployment even in the absence of the protected conduct.
Mt. Healthy, 429 U.S. at 287, 50 L. Ed. 2d at 484. The Court ultimately remanded the case to the trial court to determine if the board satisfied its burden.
Relying on Mt. Healthy, a federal claims court in Salisbury v. Housing Authority of Newport, 615 F. Supp. 1433, 1444 (E.D. Ky. 1985), applied the sequence of shifting burdens to a due process claim of bias. See Kendall v. Board of Education of Memphis City, 627 F.2d 1, 6, n.6 (6th Cir. 1980) (shifting burdens applicable to due process claim). The court in Salisbury held that, despite the dismissed employee’s showing that the tribunal was biased, her due process claim would fail if the housing authority demonstrated that “she would have been terminated if the hearing had been held before an impartial decisionmaker.” Salisbury v. Housing Authority of Newport, 615 F. Supp. at 1444. The court ultimately referred the case to a United States magistrate to act as special master to determine whether the employee was entitled to recover damages.
Mt. Healthy delineated the general rule in favor of such a sequence of shifting burdens, and Salisbury applied the sequence to due process claims of bias. This Court has employed a sequence of shifting burdens in both criminal and civil matters. See State v. Cofield, 324 N.C. 452, 379 S.E.2d 834 (1989); Pickerell v. Trucking Co., 322 N.C. 363, 370, 368 S.E.2d 582, 586 (1988).
I vote to reverse the Court of Appeals.