Silver v. The Halifax Cty. Bd. of CommissionersÂ

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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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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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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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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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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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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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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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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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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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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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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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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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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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.

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 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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McGEE, C.J., dissenting

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

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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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McGEE, C.J., dissenting

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