dissenting.
I would hold that In re Jackson, 84 N.C. App. 167, 352 S.E.2d 449 (1987), is no longer controlling authority following our Supreme Court’s decision in Leandro v. State, 346 N.C. 336, 488 S.E.2d 249 (1997). I believe that Leandro and appellate decisions applying Leandro establish that the state constitutional right to education is a fundamental right. 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 under Rule 12(b)(6).
The North Carolina constitution explicitly guarantees the right to a free public 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. In Leandro, our Supreme Court concluded that “the intent of the' framers [of the North Carolina constitution] was that every child have a fundamental right to a sound basic education which would prepare the child to participate fully in society as it existed in his or her lifetime.” 346 N.C. at 348, 488 S.E.2d at 255 (emphasis added). The Court then confirmed that when a plaintiff presents competent evidence that a defendant is “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. This year, the Supreme Court reconfirmed the fundamental nature of this right in Wake Cares, Inc. v. Wake County Bd. of Educ., 363 N.C. 165, 172, 675 S.E.2d 345, 350 (2009).
The 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. Moreover, in Hoke County Bd. of Educ. v. State, 358 N.C. 605, 620, 599 S.E.2d 365, 379. (2004), the Court concluded that “the constitutional right articulated in Leandro is vested in them all[,]” referring to all children in North Carolina regardless of age or the need of the particular child. It seems unlikely to me that the Supreme Court intended that a right “vested in” all North Carolina children would actually refer only to school financing. Finally, Wake Cares did not involve school financing, but rather the school calendar, and yet the Supreme Court again recited the fundamental nature of the right to education in North Carolina.
*376The Supreme Court explained in Leandro that once children present evidence, that they are being denied a sound basic education, the burden shifts — as it does with all fundamental rights — to the defendants “to establish that their actions denying this fundamental right are ‘necessary to promote a compelling governmental interest.’ ” 346 N.C. at 357, 488 S.E.2d at 261 (quoting Town of Beech Mountain v. County of Watauga, 324 N.C. 409, 412, 378 S.E.2d 780, 782, cert. denied, 493 U.S. 954, 107 L. Ed. 2d 351, 110 S. Ct. 365 (1989)). According to the Court, “[i]f defendants are unable to do so, it will then be the duty of the 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.
In contrast to Leandro, Jackson states that “[a] student’s right to an education may be constitutionally denied when outweighed by the school’s interest in protecting other students, teachers, and school property, and in preventing the disruption of the educational system.” Jackson, 84 N.C. App. at 176, 352 S.E.2d at 455. The Court added that “[r]easonable regulations punishable by suspension do not deny the right to an education ....” Id. (emphasis added). This general weighing approach permitting reasonable regulations to outweigh the right to education more closely resembles a rational basis test than the scrutiny applicable to a fundamental right that was mandated by Leandro. See Joseph W. Goodman, Leandro v. State and the Constitutional Limitation on School Suspensions and Expulsions in North Carolina, 83 N.C.L. Rev. 1507 (Sept. 2005) (observing that the Court in Jackson “seemingly applied a lower rational basis standard”). Indeed, defendants acknowledge that Jackson applied the lesser rational basis test.
Because Jackson used a rational basis test to evaluate the deprivation of education resulting from a suspension, I do not believe its holding can control in this case. Instead, we should be applying the strict scrutiny standard set out in Leandro. Here, plaintiff alleged that because she was given a long-term suspension, was not provided an alternative education program, and was not given access to other public educational services, she has been completely denied access to a public education. She has further alleged that defendants cannot demonstrate that this action was necessary to promote a compelling governmental interest “because it was not necessary to completely deprive [plaintiff] of all educational services during her period of long-term suspension, even if it was necessary to remove her from [her high school] for the remainder of the year.”
*377I would hold that these allegations are sufficient to state a claim for violation of plaintiff’s constitutional right to an education.1 Even if defendants’ long-term suspension of plaintiff for fighting could be deemed justified under the constitution, plaintiff’s allegations are still sufficient to draw into question whether defendants’ decision to completely bar plaintiff from a public school education for an extended period was “narrowly tailored” to serve its compelling governmental interest regarding school discipline. See Stephenson v. Bartlett, 355 N.C. 354, 377, 562 S.E.2d 377, 393 (2002) (“Under strict scrutiny, a challenged governmental action is unconstitutional if the State cannot establish that it is narrowly tailored to advance a compelling governmental interest.”).
Defendants should have to show that in order to meet their compelling interest, it was not only necessary to suspend plaintiff from her high school, but also to preclude her from obtaining her education through an alternative school program or access to other public educational services. I would, therefore, hold that plaintiff has stated a claim for violation of her constitutional right to a sound, basic, education. See Copper ex rel. Copper v. Denlinger, 193 N.C. App. 249, 286, 667 S.E.2d 470, 494 (2008) (observing that School Board may be able to demonstrate at summary judgment stage that no constitutional violation had occurred, but that “[a]t the Rule 12(b)(6) stage, however, the Board has not established that plaintiffs have failed to state a claim for relief’), appeal dismissed in part and disc. review granted, 363 N.C. .124, 672 S.E.2d 686 (2009).
The majority, however, asserts that “[t]he disposition of students who have been expelled or suspended long term is ultimately a decision involving the administration of the public schools, a decision which is best left to the Legislature.” In Leandro, the Supreme Court soundly rejected the defendants’ claim that “educational adequacy claims” should not be decided by the courts: “When a government action is challenged as unconstitutional, the courts have a duty to determine whether that action exceeds constitutional limits.” 346 N.C. at 345, 488 S.E.2d at 253. Later in its opinion, the Court noted the need to give “every reasonable deference to the legislative and executive branches when considering whether they have established and are administering a system that provides the children of the various *378school districts of the state a sound basic education[,]” but stressed that “the judicial branch has its duty under the North Carolina Constitution.” Id. at 357, 488 S.E.2d at 261. Since plaintiff has sufficiently alleged that her constitutional right to education has been denied, I believe it is the duty of the courts to address that issue. We do not defer to the other branches of government or to local governments in matters involving the constitution.
The trial court, however, further concluded that no constitutional claim'was available because an adequate alternative state remedy exists. See Corum v. Univ. of N.C., 330 N.C. 761, 782, 413 S.E.2d 276, 289 (“Therefore, in the absence of an adequate state remedy, one whose state constitutional rights have been abridged has a direct claim against the State under our Constitution.”), cert. denied sub nom. Durham v. Corum, 506 U.S. 985, 121 L. Ed. 2d 431, 113 S. Ct. 493 (1992). The trial court pointed to a student’s right to appeal a suspension under N.C. Gen. Stat. § 115C-391(e) (2007). Essentially, plaintiff’s claim is that she must be provided with alternative education opportunities even if she is removed from her high school as a result of a long-term suspension. I agree with the majority opinion that an administrative appeal of her long-term suspension would not provide plaintiff with an opportunity to present this claim or obtain the desired relief. See Craig v. New Hanover County Bd. of Educ., 363 N.C. 334, 340, 678 S.E.2d 351, 355 (2009) (holding that adequate alternative state remedy “must provide the possibility of relief under the circumstances”). Just as the majority opinion concludes that plaintiff’s claim was not precluded by a failure to exhaust her administrative remedies, I would hold that she had no adequate alternative state remedy that would preclude her constitutional claim.
Consequently, I would hold that plaintiff has sufficiently alleged a violation of her fundamental right to education. Since no adequate alternative state remedy exists, she is entitled to pursue her constitutional claim in the courts. I concur in the majority’s holding that defendants were not entitled to a dismissal of plaintiff’s claim under Rules 12(b)(1) and 12(b)(7). I would, therefore, hold that the trial court erred in dismissing plaintiff’s complaint and must respectfully dissent.
. I simply cannot accept the trial court’s determination that a one-semester suspension is only a “temporary” halt of educational services that does not implicate Leandro. While for adults, five months might fly by, five months in the education of a child is not a minor deprivation.