D.W. v. Onslow Cnty. Bd. of Educ. ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-770
Filed 18 April 2023
Onslow County, No. 21 CVS 4010
D.W., a minor, by and through his parent, Jessie Sanders, Petitioners,
v.
ONSLOW COUNTY BOARD OF EDUCATION, Respondent.
Appeal by petitioners from order entered 22 April 2022 by Judge Henry L.
Stevens, IV in Superior Court, Onslow County. Heard in the Court of Appeals 27
February 2023.
Legal Aid of North Carolina, Inc., by Carlton Powell, Jennifer Richelson Story,
Crystal Ingram, Celia Pistolis, and Kilpatrick Townsend & Stockton LLP, by
Carl Sanders and Callie Thomas, for petitioners-appellants.
Tharrington Smith, L.L.P, by Stephen G. Rawson, Daniel Clark, and Deborah
R. Stagner, for respondent-appellee.
Peggy D. Nicholson and Crystal Grant, for amicus curiae Duke University
School of Law Children’s Law Clinic.
Aly Martin and Hayley Lampkin Blyth, for amicus curiae Council for
Children’s Rights.
STROUD, Chief Judge.
D.W., a minor, by and through his parent, Jessie Sanders, (collectively
“Petitioners”) appeals from order entered 22 April 2022 dismissing their petition for
judicial review for lack of subject matter jurisdiction. We affirm.
D.W. V. ONSLOW CNTY. BD. OF EDUC.
Opinion of the Court
I. Background
D.W. was a fifteen-year-old student at Northside High School (“NHS”) in the
Onslow County Public School System in 2021. D.W. was a new student and felt he
was targeted by other students while riding on the bus and while in the hallways.
D.W. was accused of instigating a fight between his sister and another female
on 27 August 2021. D.W. received a five-day suspension. His mother, Sanders asked
NHS staff to assign a social worker to assist her son and to institute a behavior plan
for him. D.W. was referred to PRIDE in North Carolina, Inc., a private organization,
which provides services to individuals with mental illness, developmental
disabilities, and behavioral disorders. NHS staff told Sanders and D.W. that he
would be removed from NHS if he became involved in another fight. D.W. served the
five-day suspension from his sister’s fight and returned to school.
Two weeks later, D.W. and another student exchanged words on the school bus
to NHS on 13 September 2021. D.W. alleged the other student had called him racial
slurs. The other student proposed they meet to fight and the two boys later met in a
school bathroom to fight. The fight ended when a teacher entered the bathroom.
D.W. was issued a 10-day out-of-school suspension, and he was referred to Onslow
County Schools’ alternative school, Onslow County Learning Center (“OCLC”).
Sanders believed D.W.’s placement at OCLC would be temporary and he would
return to NHS after completing his 10-day suspension. While attending class at
OCLC, a teacher told D.W. that he was required to stay at OCLC until at least
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Opinion of the Court
January. Sanders requested an appeal hearing before members of the school board
in late September and again requested an appeal on 6 October 2021.
Respondent convened a hearing panel on 18 November 2021. Respondent
issued a written decision affirming D.W.’s placement at OCLC “until such time as he
has met his established goals[.]” Respondent sent a letter to Sanders informing her
of her purported “right to appeal the Board panel’s decision on placement at the
OCLC by filing a petition for judicial review in the Superior Court of Onslow County.”
Petitioners filed a petition for judicial review on 17 December 2021. In a later letter
dated 28 January 2022, Respondent asserted Saunders had no right to seek judicial
review of the Board’s decision.
Respondent filed a motion to dismiss on 17 February 2022. Following a
hearing on 18 April 2022, the superior court allowed the motion to dismiss for lack
of subject matter jurisdiction by order dated 22 April 2022. Petitioner appeals.
Respondent has filed a motion to dismiss Petitioner’s appeal as moot, alleging D.W.
had graduated 7 February 2023 with a regular North Carolina high school diploma
and is no longer attending the Onslow County Public School System.
II. Jurisdiction
This Court possesses jurisdiction pursuant to North Carolina General Statute
§ 7A-27(b) (2021).
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Opinion of the Court
III. Respondent’s Motion to Dismiss as Moot
In this case, the entire substantive issue on appeal is subject matter
jurisdiction. Petitioner contends the Superior Court has subject matter jurisdiction
under North Carolina General Statute § 115C-45(c) (2021) to review the Board’s
ruling; Respondent disagrees. Respondent also filed a motion to dismiss this appeal
as moot, and mootness also raises an issue of subject matter jurisdiction. See Yeager
v. Yeager, 228 N.C. App. 562, 565-66, 746 S.E.2d 427, 430 (2013) (“[A] moot claim is
not justiciable, and a trial court does not have subject matter jurisdiction over a non-
justiciable claim[.]” (citing, inter alia, Sharpe v. Park Newspapers of Lumberton, Inc.,
317 N.C. 579, 585-86, 347 S.E.2d 25, 30 (1986))). As a result, we believe it is prudent
first to consider whether we can address the substantive legal jurisdictional issue—
subject matter jurisdiction under Section 115C-45(c)—before the jurisdictional issue
based upon facts that develop “during the course of the proceedings” raised by a
motion to dismiss as moot. In re Peoples, 296 N.C. 109, 148, 250 S.E.2d 890, 912
(1978).
Whenever, during the course of litigation it develops
that the relief sought has been granted or that the
questions originally in controversy between the parties are
no longer at issue, the case should be dismissed, for courts
will not entertain or proceed with a cause merely to
determine abstract propositions of law. Benvenue Parent-
Teacher Association v. Nash County Board of Education,
275 N.C. 675, 170 S.E.2d 473 (1969); Crew v. Thompson,
266 N.C. 476, 146 S.E.2d 471 (1966); In re Assignment of
School Children, 242 N.C. 500, 87 S.E.2d 911 (1955);
Savage v. Kinston, 238 N.C. 551, 78 S.E.2d 318 (1953); 1
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Opinion of the Court
Strong’s N.C. Index 3rd Actions § 3, Appeal & Error § 9
(1976).
Unlike the question of jurisdiction, the issue of
mootness is not determined solely by examining facts in
existence at the commencement of the action. If the issues
before a court or administrative body become moot at any
time during the course of the proceedings, the usual
response should be to dismiss the action. Allen v. Georgia,
166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949 (1897); People ex
rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, cert.
denied 344 U.S. 824, 73 S.Ct. 24, 97 L.Ed. 642 (1952); 20
Am.Jur.2d Courts § 81 (1965).
Id. at 147-48, 250 S.E.2d at 912. Thus, “the usual response should be to dismiss” as
moot based upon facts that develop during the course of litigation, if the issue is
actually moot and there is no other justification to rule upon the issue, because courts
should rule only on real controversies. Id. at 148, 250 S.E.2d at 912.
In this scenario—where mootness and the substantive issue of jurisdiction
under North Carolina General Statute § 115C-45(c) both involve subject matter
jurisdiction—we will address mootness before the substantive jurisdictional issue. In
this type of scenario, if a court did not address mootness first, it would have
unfettered discretion to choose to issue what may be an advisory opinion or to dismiss
an appeal and avoid addressing the substantive issue based on factual mootness. But
we should not “determine abstract principles of law” if the case has become moot. Id.
at 147-48, 250 S.E.2d at 912.
Here, on 21 February 2023, Respondent filed a motion to dismiss this appeal
as moot, contending “[o]n 7 February 2023, D.W. graduated early from the Onslow
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Opinion of the Court
County Schools, having earned all necessary credits to receive his diploma under
North Carolina law and State Board policy.” According to the affidavit of the
principal of Swansboro High School filed with Respondent’s motion, D.W. was
certified for “early graduation” based upon his “completion of the requirements for
graduation and receipt of a high school diploma.” In addition, his transcript “reflects
his graduation from Swansboro High School” and the “Onslow County Learning
Center program does not appear on his transcript or his diploma.” Respondent
contends this appeal became moot upon D.W.’s graduation since this court’s ruling
can no longer provide “any meaningful relief for D.W. in this case[.]” Respondent also
argues the public interest exception to mootness should not apply in this case. And
if the issue of mootness were clear, we would allow Respondent’s motion to dismiss
as moot, assuming without deciding the public interest exception would not apply.
But in this case, the facts alleged to support the motion to dismiss as moot are
disputed, and this Court cannot resolve factual disputes. See, e.g., Johnston v. State,
224 N.C. App. 282, 302, 735 S.E.2d 859, 873 (2012) (“Normally, the appellate courts
do not engage in fact finding.” (citation and quotation marks omitted)). According to
Petitioner:
D.W. began the 2022-2023 school year at Swansboro
High School as a junior with an identified disability
requiring an Individualized Education Program (IEP). He
still required several classes to complete his junior year, let
alone satisfy all requirements for graduation from high
school. And yet after a single semester and despite his
disability, Respondent now asserts that D.W. has not only
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Opinion of the Court
satisfied all graduation requirements, but also has
graduated from high school. To accomplish this feat,
Respondent pushed D.W. through completing multiple
semester-long courses out of sequence and via virtual
platforms that included no direct instruction, ultimately
“graduating” him upon awarding credit for an English
course completed in seven days without access to critical
and required special education services.
Respondent supplied D.W. with deficient
educational services while he was suspended and, upon his
return to school, Respondent now again tries to deprive
D.W. of his constitutional right to “the privilege of
education” while avoiding its duty “to guard and maintain
that right” by attempting to rush him out of school to avoid
this Court’s review. N.C. Const. Art. I, § 15. D.W. has not
received the education he is owed by the State and has not
completed the requirements to graduate from high school.
Thus, the issue before this Court is not moot.
(Emphasis in original.)
Petitioner goes on to discuss the details of D.W.’s transcript and notes that he
had “only taken and passed English I[;]” he was “enrolled concurrently in English III
and in English IV[;]” he was enrolled in English II “in a virtual platform with no
instruction[,]” and he “reportedly completed this semester-long course in just seven
days, after which OCS [Onslow County Schools] ‘graduated’ him the following day.”
(Emphasis in original.) Petitioner further alleges his IEP team “just met on 27
January 2023 and determined” he needed “an increase in his special education
services,” but OCS did not provide the “ninety-five daily minutes of special education
services or his weekly thirty-minute counseling sessions required by his IEP[.]”
According to the affidavit of D.W.’s mother, she did not “learn that D.W. had been
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Opinion of the Court
graduated or that he was no longer eligible to receive his special education services
until” she was informed by her attorney on 21 February 2023.1 D.W.’s mother also
alleges as of 8 March 2023, neither she nor D.W. has received “a final report card or
his diploma[,]” although the principal informed her D.W. would have to “’walk the
stage’ later this year” to get the diploma.
The competing affidavits filed with and in response to the motion to dismiss
raise a factual dispute as to whether D.W. had met the requirements to graduate
from Swansboro High School. Notably, since this factual dispute focuses on D.W.’s
time at Swansboro High School, it does not relate to D.W.’s course of study or
opportunity to progress towards graduation while on disciplinary reassignment at
OCLC, which Petitioners here have not challenged.
We assume Respondent would likely challenge Petitioner’s contentions as to
D.W.’s graduation, but based upon the information before this Court, there is a
factual dispute raised by the competing affidavits. This Court cannot adjudicate
factual disputes. See, e.g., Johnston, 224 N.C. App. at 302, 735 S.E.2d at 873
(explaining appellate courts generally “do not engage in fact finding”). According to
Petitioners, as of the end of January, D.W.’s mother, Sanders, was not aware of any
possibility of D.W. being able to graduate before the usual end of the school year, and
she did not learn of his alleged graduation until less than a week before the argument
1 Oral argument of this case was held less than one week later, on 27 February 2023.
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of this appeal. D.W.’s mother contends Respondent rushed to push D.W. through a
semester-long English class, without any of the special education services required
by his IEP, in one week, alone in a room on a computer, allowing Respondent to end
its obligation to provide special education services to D.W. and to file its motion to
dismiss D.W.’s appeal as moot.
Because there is a factual dispute regarding whether D.W. has actually
completed his high school education and graduated, we deny Respondent’s motion to
dismiss this appeal as moot.
IV. Subject Matter Jurisdiction Under Relevant Statutes
Having addressed Respondent’s motion to dismiss the appeal as moot, we now
turn to the substantive issue of jurisdiction under North Carolina General Statute §
115C-45(c), which depends on the interpretation of Sections 115C-390.7(e) and 115C-
390.1(b)(7) in this case. See N.C. Gen. Stat. § 115C-45(c) (granting an appeal to
superior court of a local board of education review of a final administrative decision
on, inter alia, “[t]he discipline of a student under G.S. 115C-390.7”); N.C. Gen. Stat.
§ 115C-390.7(e) (2021) (exempting “[d]isciplinary reassignments” from long-term
suspensions in a section specifically on such suspensions); N.C. Gen. Stat. § 115C-
390.1(b)(7) (2021) (providing an initial definition for “Long-term suspension”). We
first explain the standard of review and then analyze the relevant statutes.
A. Standard of Review
“Whether a trial court has subject-matter jurisdiction is a question of law,
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Opinion of the Court
reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d
590, 592 (2010) (citation omitted).
B. Analysis
We now analyze de novo whether the trial court had subject matter jurisdiction
in this case. Id. We first explain the rules of statutory construction and then apply
those rules to the relevant statutes here.
1. Rules of Statutory Construction
In our analysis, we are guided by several well-established principles of
statutory construction. “The principal goal of statutory construction is to accomplish
the legislative intent.” Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517
(2001) (citation omitted). “The best indicia of that intent are the [plain] language of
the statute . . . , the spirit of the act and what the act seeks to accomplish.” Concrete
Co. v. Bd. of Comm’rs, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980) (citations
omitted). “[S]tatutes in pari materia must be read in context with each other.” Cedar
Creek Enters. v. Dep’t of Motor Vehicles, 290 N.C. 450, 454, 226 S.E.2d 336, 338 (1976)
(citation omitted).
“When construing legislative provisions, this Court looks first to the plain
meaning of the words of the statute itself[.]” State v. Ward, 364 N.C. 157, 160, 694
S.E.2d 729, 731 (2010) (citation omitted). “Interpretations that would create a
conflict between two or more statutes are to be avoided, and statutes should be
reconciled with each other whenever possible.” Taylor v. Robinson, 131 N.C. App. 337,
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338, 508 S.E.2d 289, 291 (1998) (internal citations, quotation marks, and ellipses
omitted).
Further, “where a literal interpretation of the language of a statute will lead
to absurd results, or contravene the manifest purpose of the Legislature, as otherwise
expressed, the reason and purpose of the law shall control.” State v. Beck, 359 N.C.
611, 614, 614 S.E.2d 274, 277 (2005) (internal quotation marks omitted) (quoting
Mazda Motors v. Sw. Motors, 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979)).
Our Supreme Court has examined the court’s proper application of generally
applicable statutes to more specific, special statutes and held:
Where there is one statute dealing with a subject in general
and comprehensive terms, and another dealing with a part
of the same subject in a more minute and definite way, the
two should be read together and harmonized, if possible,
with a view to giving effect to a consistent legislative policy;
but, to the extent of any necessary repugnancy between
them, the special statute, or the one dealing with the
common subject matter in a minute way, will prevail over
the general statute, according to the authorities on the
question, unless it appears that the legislature intended to
make the general act controlling; and this is true a fortiori
when the special act is later in point of time, although the
rule is applicable without regard to the respective dates of
passage.
McIntyre v. McIntyre, 341 N.C. 629, 631, 461 S.E.2d 745, 747 (1995) (citations
omitted).
2. Statutory Construction Analysis
Turning to the relevant statutes in this case, North Carolina General Statute
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§ 115C-390.1(b)(7) defines long-term suspension as:
The exclusion for more than 10 school days of a student
from school attendance for disciplinary purposes from the
school to which the student was assigned at the time of the
disciplinary action. If the offense leading to the long-term
suspension occurs before the final quarter of the school
year, the exclusion shall be no longer than the remainder
of the school year in which the offense was committed. If
the offense leading to the long-term suspension occurs
during the final quarter of the school year, the exclusion
may include a period up to the remainder of the school year
in which the offense was committed and the first semester
of the following school year.
N.C. Gen. Stat. § 115C-390.1(b)(7) (emphasis supplied).
North Carolina General Statute § 115C-390.7(e) was enacted in 2011 and
specifically exempts disciplinary reassignment from the provisions of long-term
suspensions, providing:
Disciplinary reassignment of a student to a full-time
educational program that meets the academic
requirements of the standard course of study established
by the State Board of Education as provided in G.S. 115C-
12 and provides the student with the opportunity to make
timely progress towards graduation and grade promotion
is not a long-term suspension requiring the due process
procedures described in G.S. 115C-390.8.
N.C. Gen. Stat. § 115C-390.7(e) (emphasis supplied).
Contrary to Petitioners’ arguments, the clear intent of the General Assembly
is expressed in the plain language of North Carolina General Statute § 115C-390.7(e).
The General Assembly reaffirms the doctrine that certain student disciplinary
decisions are properly made in the classroom or upon review before the
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Opinion of the Court
superintendent and the school board, and not in the courtroom. As the trial court
properly found: “[A]lthough reassignment of a student from the attendance of his
regular high school to any other school is by definition a ‘long-term suspension’, it is
not a ‘long-term suspension’ requiring judicial review as provided in the due process
procedures described in NCGS 115C-309.8 for other long-term suspensions.”
The superior court correctly concluded the plain and more specific language of
the 2011 amendment in North Carolina General Statute § 115C-390.7(e) controls
under these facts and is properly viewed as a specified exception to the general
definition of “long-term suspension” in North Carolina General Statute § 15C-
390.1(b)(7). See Electric Service v. City of Rocky Mount, 20 N.C. App. 347, 350, 201
S.E.2d 508, 510 (1974) (When a general statute conflicts with a more specific, special
statute, the “special statute is viewed as an exception to the provisions of the general
statute[.]”), aff’d 285 N.C. 135, 203 S.E.2d 838 (1974).
Petitioners do not argue D.W.’s assignment to OCLC fails to meet the
requirements from North Carolina General Statute § 115C-12 or that D.W.’s
disciplinary reassignment does or did not provide him with the “opportunity to make
timely progress towards graduation and grade promotion.” N.C. Gen. Stat. § 115C-
390.7(e). Petitioners’ argument is overruled.
V. Conclusion
The General Assembly specifically exempted a “disciplinary reassignment”
complying with the specific requirements of North Carolina General Statute § 115C-
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12 from being defined and treated as a “long-term suspension.” See N.C. Gen. Stat.
§ 115C-390.7(e) and N.C. Gen. Stat. § 115C-390.1(b)(7). The trial court’s order
dismissing Petitioners’ petition for judicial review for lack of subject matter
jurisdiction is affirmed. It is so ordered.
AFFIRMED.
Judge STADING concurs.
Judge TYSON concurs in result only by separate opinion.
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No. COA22-770 – D.W. v. Onslow Cnty. Bd. of Educ.
TYSON, Judge, concurring in the result.
I concur in the result to affirm the superior court’s order. The trial court
properly found: “although reassignment of a student from the attendance of his
regular high school to any other school is by definition a ‘long-term suspension’, it is
not a ‘long-term suspension’ requiring judicial review as provided in the due process
procedures described in NCGS 115C-309.8 for other long-term suspensions.” The
clear intent of the General Assembly, as is expressed in the plain language of N.C.
Gen. Stat. § 115C-390.7(e) (2021), reaffirms the doctrine that certain student
disciplinary decisions are properly made in the classroom or upon review before the
superintendent and the school board, and not in the courtroom. Id.
We all agree the superior court correctly concluded Petitioner’s disciplinary
reassignment is unchallenged on either of the two bases set forth in N.C. Gen. Stat.
§ 115C-390.7(e), which exempts judicial review of disciplinary reassignments in
compliance with the statute. Id. The sole proper holding and mandate is to affirm
the superior court’s order as the law of the case.
“Subject matter jurisdiction is a prerequisite for the exercise of judicial
authority over any case or controversy.” Shell Island Homeowners Ass’n v.
Tomlinson, 134 N.C. App. 286, 290, 517 S.E.2d 401, 403-04 (1999) (citing Harris v.
Pembaur, 84 N.C. App. 666, 353 S.E.2d 673 (1987)).
The majority’s opinion correctly states: “it is prudent first to consider whether
we can address the substantive legal jurisdictional issue—subject matter jurisdiction
D.W. V. ONSLOW CNTY. BD. OF EDUC.
TYSON, J., concurring in the result
under Section 115C-45(c)—before the jurisdictional issue based upon facts that
develop ‘during the course of the proceedings’ raised by a motion to dismiss as moot.
In re Peoples, 296 N.C. 109, 148, 250 S.E.2d 890, 912 (1978).” “[A] moot claim is not
justiciable, and a trial court does not have subject matter jurisdiction over a non-
justiciable claim[.]” Yeager v. Yeager, 228 N.C. App. 562, 566, 746 S.E.2d 427, 430
(2013)(citing, inter alia, Sharpe v. Park Newspapers of Lumberton, Inc., 317 N.C. 579,
585-86, 347 S.E.2d 25, 30 (1986)).
It is a waste of judicial economy to examine unresolved factual disputes, which
are wholly unnecessary to resolve the sole issue properly before us: whether the trial
court possesses subject matter jurisdiction for judicial review of their petition. Any
further discussion of any factual disputes on a motion to dismiss as moot is
unnecessary and an advisory obiter dicta. Petitioners do not argue D.W.’s
disciplinary assignment to OCLC fails to meet the requirements from N.C. Gen. Stat.
§ 115C-12 or that D.W.’s disciplinary reassignment does or did not provide him with
the “opportunity to make timely progress towards graduation and grade promotion[.]”
N.C. Gen. Stat. § 115C-390.7(e).
The trial court properly concluded it lacked subject matter jurisdiction for
judicial review of a “[d]isciplinary reassignment of a student to a full time educational
program.” Id. As such, it is unnecessary to reach Petitioners or Respondent’s
arguments on mootness or the factual dispute of D.W.’s purported high school
graduation or award of a high school diploma. I vote to affirm the superior court’s
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TYSON, J., concurring in the result
order.
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