IN THE SUPREME COURT OF NORTH CAROLINA
No. 290A24
Filed 14 August 2026
K.H., A MINOR, BY AND THROUGH HER GUARDIAN AD LITEM, JOHN
HARTMAN
v.
DANIELLE L. DIXON, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY,
AND ALAMANCE-BURLINGTON BOARD OF EDUCATION
Appeal pursuant to N.C.G.S. § 7A-30(2) (2023) from the decision of a divided
panel of the Court of Appeals, 296 N.C. App. 62 (2024), affirming an order entered on
17 April 2023 by Judge Michael L. Robinson in Superior Court, Alamance County.
Heard in the Supreme Court on 17 September 2025.
Fox Rothschild LLP, by Matthew Nis Leerberg, Nathan W. Wilson, and
Margaret McCall Reece, for plaintiff-appellant.
Tharrington Smith LLP, by David B. Noland and Joshua E. Renz, for
defendant-appellee Alamance-Burlington Board of Education.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Elizabeth L.
Troutman and William A. Robertson, for North Carolina School Boards
Association, amicus curiae.
EARLS, Justice.
K.H. (Katherine)1 was a student at a public middle school in the AlamanceBurlington School District in the fall of 2022. She alleges that one day that semester,
1 A pseudonym to protect the minor’s privacy and for ease of reading.
K.H. V. DIXON
Opinion of the Court
her teacher violently attacked her in her classroom in front of other students, and
that the Alamance-Burlington Board of Education (the Board) responded by first
suspending Katherine, then revoking that suspension after news outlets covered the
attack, and then transferring Katherine to an alternative school without her input.
In addition to suing her teacher, Ms. Danielle Dixon, for these alleged events,
Katherine sued the Board for its allegedly inadequate hiring and supervision of Ms.
Dixon and its response to Ms. Dixon’s actions. In particular, Katherine brought a
Corum claim directly under the North Carolina Constitution, asserting that the
Board’s conduct infringed on her constitutional right to the opportunity to access a
sound basic education and that she lacked another adequate state law remedy. See
Corum v. Univ. of N.C., 330 N.C. 761, 782 (1992).
We agree with Katherine that her complaint against the Board states a
colorable constitutional claim and that she lacks an adequate other state remedy for
the Board’s actions. See Deminski ex rel. C.E.D. v. St. Bd. of Educ., 377 N.C. 406, 413
(2021) (summarizing the three Corum elements as applied to an individual
constitutional claim under Article I, Section 15 and Article IX, Section 2 of our state
constitution). Although the “fundamental right” to “equal access to participation in
our public school system,” Sneed v. Greensboro City Bd. of Educ., 299 N.C. 609, 618
(1980), does not generally hold school districts liable for the intentional torts of their
teachers, it does make local authorities responsible for responding reasonably to such
incidents once they occur. Failing to do so may constitute “deliberate[ ] indifferen[ce]
-2-K.H. V. DIXON
Opinion of the Court
to conduct that prevent[s schoolchildren] from accessing their constitutionally
guaranteed right to a sound basic education.” Deminski, 377 N.C. at 414. Katherine’s
allegations, if proved, would support the conclusion that the Board responded
unreasonably to Ms. Dixon’s assault when it suspended Katherine and then
transferred her to a new school, and that its deliberate indifference to the situation
impaired Katherine’s academic performance and caused her to suffer negative
educational consequences.
Because Katherine’s complaint did state a Corum claim, the trial court erred
by granting the Board’s motion to dismiss this claim under Civil Procedure Rule
12(b)(6). We reverse the Court of Appeals’ contrary decision and remand this action
for further proceedings consistent with this opinion.
I. Background
A. The Assault and the Board’s Response
Katherine’s complaint alleged the following, which we assume to be true in
reviewing the decision to grant the Board’s Rule 12(b)(6) motion to dismiss. E.g.,
Jones v. J. Kim Hatcher Ins. Agencies, 387 N.C. 489, 492 (2025).
In the fall of 2022, Katherine was a student at Broadview Middle School, a
public school in the Alamance-Burlington School District. Danielle Dixon was one of
Katherine’s assigned teachers. Ms. Dixon’s teaching license expired in 2015, and she
was not licensed at the time she was assigned to be Katherine’s teacher. On 2
November 2022, when Katherine “was attending school” and “attempted to walk into
-3-K.H. V. DIXON
Opinion of the Court
her assigned classroom to retrieve her bookbag,” “[Ms. Dixon] blocked [Katherine’s]
path with her arm.” Katherine was only “approximately three inches away and still
moving forward” when Ms. Dixon put out her arm, and because of that “close
proximity,” Katherine “was unable to avoid any contact” and ran into Ms. Dixon’s
arm.
After that contact, Ms. Dixon “grabbed [Katherine] and pulled her inside of the
classroom while closing the door.” She then proceeded to violently beat Katherine.
First, “[Ms. Dixon] grabbed [Katherine] by the hair and slammed [Katherine] into the
door with enough force to break a broom that was located between [Katherine] and
the wall and door area.” Ms. Dixon then “forcefully slammed [Katherine] to the
ground” by her hair. Ms. Dixon then continued to “slam[ ] [Katherine’s] head into the
ground” at least four more times while grasping the back of Katherine’s head and
hair. During the assault, students inside the classroom “began yelling” for Ms. Dixon
to release Katherine and stop harming her. Upon hearing this “yelling and
commotion,” “two other teachers entered the room and called for help.” Katherine
“attempted to defend herself but was unable to because of [Ms.] Dixon’s large size and
age advantage.”
The complaint also included still images that allegedly capture the unfolding
assault, apparently taken by a student onlooker. The images similarly show a teacher
figure pinning a student figure to the wall behind a classroom door, forcing the
student to the floor, grasping the student’s head and hair while the student’s legs are
-4-K.H. V. DIXON
Opinion of the Court
splayed out, and appearing to yell at another teacher figure who approached her
during the assault.
After the attack, Katherine experienced bruises, hair loss from where Ms.
Dixon had grabbed her, and ongoing emotional distress. The superintendent for the
Board, Dr. Dain Butler, initially suspended Katherine for ten days. But when “video
of the altercation was made available to local news outlets,” the Board reversed that
decision. Still, Katherine was not allowed to return to Broadview Middle School.
Instead, she was transferred to Ray Street Academy, an alternative school, without
her input or consent. This cumulative disruption, starting with the assault and
followed by the suspension and transfer, meant that Katherine “was forced to change
her schools,” her “academic performance . . . was placed in peril,” and she “suffered
educational consequences.”
B. The Complaint and Subsequent Proceedings
On 5 January 2023, Katherine, by and through her guardian ad litem, sued
Ms. Dixon in her individual and official capacities, as well as the Board. Against both
defendants, Katherine brought claims for damages for assault and battery, negligent
infliction of emotional distress, intentional infliction of emotional distress, and
violations of the North Carolina Constitution Article I, Section 15, and Article IX,
Section 2. Against the Board specifically, she also brought a claim of negligent hiring,
retention, and supervision of Ms. Dixon. Katherine alleged that, in addition to
teaching without an active teacher’s license and attacking Katherine, “[Ms.] Dixon
-5-K.H. V. DIXON
Opinion of the Court
had multiple issues within her classroom with other students and [faced] disciplinary
actions by the Principal of Broadview Middle School,” and that the Board failed to
investigate whether Ms. Dixon “had the emotional capacity” and adequate training
to teach minor children.
The Board moved to dismiss the complaint on 21 February 2023. As grounds
to dismiss Katherine’s tort claims under Civil Procedure Rules 12(b)(1) and 12(b)(2),
the Board invoked sovereign immunity, arguing that those claims were barred
because the Board had not waived its immunity up to the extent of its insurance
coverage under N.C.G.S. § 115C-42. The Board also moved to dismiss Katherine’s
constitutional claim under Rule 12(b)(6) for failure to state a claim.
The trial court agreed and dismissed Katherine’s tort claims against the Board
because “the Complaint does not sufficiently demonstrate a basis for waiver of the
Board’s sovereign immunity as required under Rules 12(b)(1)–(2).” The trial court
also granted the Board’s motion to dismiss Katherine’s constitutional claim under
Rule 12(b)(6) because “the Complaint falls short of alleging facts giving rise to the
type of claims contemplated in Deminski.” Katherine’s claims against Ms. Dixon in
her individual capacity remained.
Katherine appealed, and the Court of Appeals affirmed. K.H. v. Dixon, 296 N.C.
App. 62, 72 (2024). First, the Court of Appeals concluded that it had jurisdiction to
entertain Katherine’s interlocutory appeal because “appeals raising issues of
governmental or sovereign immunity affect a substantial right sufficient to warrant
-6-K.H. V. DIXON
Opinion of the Court
immediate appellate review.” Id. at 64 (quoting Kawai Am. Corp. v. Univ. of N.C. at
Chapel Hill, 152 N.C. App. 163, 165 (2002)). Katherine’s appeal fell within this
precedent, it reasoned, because the trial court dismissed her tort claims on grounds
involving sovereign immunity and dismissed her constitutional claim for failure to
state a claim. Id. at 65 (first citing Hinson v. City of Greensboro, 232 N.C. App. 204,
209 (2014); and then citing Horne v. Town of Blowing Rock, 223 N.C. App. 26, 29
(2012)).
As to the merits, the Court of Appeals agreed with the trial court that
Katherine had not adequately pleaded a waiver of sovereign immunity under
N.C.G.S. § 115C-42 and thus dismissal was appropriate. Id. at 65–67. The court also
agreed that Katherine failed to allege facts to show that she “was subjected to
repeated or ongoing issues with Dixon” and thus failed to state a claim for
constitutional injury under Deminski. Id. at 71.
On this last point, Judge Murphy dissented. He would have held that
Katherine’s complaint, taken as a whole, adequately alleged that the Board “was
deliberately indifferent to the hostile environment it created when it placed” an
unqualified, unlicensed, and inadequately trained and supervised individual in a
classroom and when it suspended Katherine after her teacher attacked her. Id. at 78–
79 (Murphy, J., concurring in part and dissenting in part). The Board’s actions, in his
view, were sufficient to support allegations of an injury to Katherine’s constitutional
rights to a sound basic education in our public schools. And because he agreed that
-7-K.H. V. DIXON
Opinion of the Court
Katherine’s common-law actions were barred by sovereign immunity, no other
adequate state remedy exists for her injuries and her Corum claim should be allowed
to proceed. Id. at 79.
Katherine appealed to this Court as of right based on Judge Murphy’s dissent.
N.C.G.S. § 7A-30 (2023) (repealed 2023).
II. Analysis
A. Jurisdiction
First, this Court has subject matter jurisdiction to hear Katherine’s
constitutional claims against the Board. See In re K.J.L., 363 N.C. 343, 346 (2009)
(“[A] court’s lack of subject matter jurisdiction is not waivable and can be raised at
any time.”). Subject matter jurisdiction is, fundamentally, “a court’s ‘power to pass on
the merits of a case.’ ” Askew v. City of Kinston, 386 N.C. 286, 297 (2024) (quoting
Slattery v. Appy City, LLC, 385 N.C. 726, 729 (2024)). In part because “the state
judiciary . . . has the responsibility to protect the state constitutional rights of the
citizens,” a court’s authority to hear Corum claims specifically “flows from the
‘authority granted to it by the Constitution.’ ” Id. at 298–99 (first quoting Corum, 330
N.C. at 783–84; and then quoting Henderson County v. Smyth, 216 N.C. 421, 423
(1939)). According to her pleadings, Katherine’s claims against the Board arise
directly under the North Carolina Constitution, specifically Article I, Section 15, and
Article IX, Section 2, for harms the Board allegedly inflicted upon her personally. Her
complaint thus activated the court’s subject matter jurisdiction by alleging
-8-K.H. V. DIXON
Opinion of the Court
“ ‘infringement of a legal right’ secured by the Constitution and [by] present[ing] a
justiciable controversy.” Id. at 299 (quoting Comm. to Elect Dan Forest v. Emps. Pol.
Action Comm., 376 N.C. 558, 608 (2021)); Deminski, 377 N.C. at 414 (concluding that
allegations of a “school’s deliberate indifference to ongoing student harassment”
stated a “colorable constitutional claim” under Article I, Section 15 of the North
Carolina Constitution).
After this Court heard argument on the merits of the issues on appeal, we
directed the parties to file supplemental briefing on whether the Court of Appeals
had appellate jurisdiction over Katherine’s appeal. See K.H. v. Dixon, 388 N.C. 513
(2025) (order). Although we have had multiple occasions to consider whether an
interlocutory order granting a motion to dismiss on sovereign immunity grounds is
immediately appealable, as the Court of Appeals has held, this Court has yet to
resolve the merits of that issue. E.g., Farmer v. Troy Univ., 382 N.C. 366, 369 n.1
(2022) (declining, as in Teachy v. Coble Dairies, Inc., 306 N.C. 324, 328 (1982), to
“decide whether a motion to dismiss on the basis of sovereign immunity is properly
designated as a Rule 12(b)(1) motion or a 12(b)(2) motion,” only the latter of which is
immediately appealable under statute (quoting Estate of Long v. Fowler, 378 N.C.
138, 142 n.1 (2021))).
In their supplemental briefing, both Katherine and the Board contended that
the Court of Appeals did have such jurisdiction. They argued that Court of Appeals
precedent correctly holds that an interlocutory order granting a motion to dismiss
-9-K.H. V. DIXON
Opinion of the Court
based on governmental immunity is immediately appealable under the substantial
rights doctrine, as is an order denying the same. E.g., Ballard v. Shelley, 257 N.C.
App. 561, 564 (2018); Greene v. Barrick, 198 N.C. App. 647, 649–50 (2009).
As an alternative to the substantial rights justification, Katherine further
argued that sovereign immunity is a matter of personal jurisdiction, so adverse
rulings on such grounds are immediately appealable under N.C.G.S. § 1-277(b) (2025)
(“Any interested party has the right of immediate appeal from an adverse ruling as
to the jurisdiction of the court over the person or property of the defendant . . . .”
(emphasis added)). Further, fairness considerations support applying a rule of
mutual appealability because procedural rules “must be applied equally to all parties
to a lawsuit,” she argued, quoting Goins v. Puleo, 350 N.C. 277, 281 (1999). Once the
Court of Appeals had jurisdiction over the tort claims dismissed based on immunity
defenses, Katherine reasoned, it had attendant jurisdictional authority to review
dismissal of her Corum claim.
In addition, both Katherine and the Board argued that immediate appellate
review was warranted because the posture of the claims before the trial court risked
inconsistent verdicts on the same factual issues—namely, whether Ms. Dixon in fact
assaulted Katherine and whether that assault caused Katherine emotional distress.
See, e.g., Gardner v. Richmond County, 386 N.C. 594, 595 (2024) (per curiam)
(reversing the Court of Appeals for failing to apply the doctrine of inconsistent
verdicts to allow an immediate appeal of the dismissal of claims by one plaintiff when
-10-K.H. V. DIXON
Opinion of the Court
claims by another plaintiff that raised the same issues were allowed to proceed);
Bernick v. Jurden, 306 N.C. 435, 439 (1982) (holding that “the possibility of
inconsistent verdicts in separate trials” from an order allowing summary judgment
for some but not all defendants “affects the substantial right . . . to have one jury
decide whether the conduct of one, some, all or none of the defendants caused his
injuries”).
We agree with this basis for appellate jurisdiction—the posture of the claims
below indicates a risk of inconsistent verdicts on the same factual issues. The risk of
inconsistent verdicts doctrine arises when there is “a risk of two actual trials
resulting in two different verdicts” on the same issues. Foster v. Crandell, 181 N.C.
App. 152, 162–63, disc. rev. denied, 361 N.C. 567 (2007). That circumstance can occur
where claims against multiple defendants involve identical legal issues and some but
not all of those claims are dismissed before trial. E.g., Cook v. Bankers Life & Cas.
Co., 329 N.C. 488, 491 (1991) (concluding that a risk of inconsistent verdicts existed
where common issues of agency, waiver, estoppel, and the necessity of consent arose
across distinct claims against two defendants and the trial court granted summary
judgment in favor of one defendant but not the other). That risk can also arise where
the factual issues underlying separate claims are substantially the same, and some
of the claims will proceed while others will not. E.g., Green v. Duke Power Co., 305
N.C. 603, 608 (1982) (noting that undergoing a second trial affects a substantial right
when there is “the possibility that a party will be prejudiced by different juries in
-11-K.H. V. DIXON
Opinion of the Court
separate trials rendering inconsistent verdicts on the same factual issue”); SciGrip,
Inc. v. Osae, 373 N.C. 409, 433 n.9 (2020) (concluding that two breach of contract
claims brought against two defendants posed a risk of inconsistent verdicts because
factual issues in the conduct giving rise to both claims overlapped, and holding that
the order granting summary judgment to the plaintiff on one claim but not the other
was immediately appealable). In these cases, “the possibility of separate trials
involving the same issues which could lead to inconsistent verdicts” affects a
substantial right. Hamby v. Profile Prods., L.L.C., 361 N.C. 630, 634 (2007); see also
Cook, 329 N.C. at 491 (“[W]e hold that the order dismissing the case as to [one
defendant but not the other] affected a substantial right of the plaintiff which she
will lose if it is not corrected before a final judgment is entered.”).
Here, even as the trial court dismissed all of Katherine’s claims against the
Board, Katherine’s separate tort claims against Ms. Dixon remain. The record
indicates that the trial court filed an entry of default against Ms. Dixon on 20
February 2023. That sort of Rule 55(a) entry of default “is only an interlocutory act
looking toward subsequent entry of final judgment of default.” E.g., Estate of Teel v.
Darby, 129 N.C. App. 604, 607 (1998) (citing State Emps. Credit Union, Inc. v. Gentry,
75 N.C. App. 260, 265 (1985)). An entry of default can be set aside prior to a final
judgment of default upon “good cause shown” under Civil Procedure Rule 55(d).
N.C.G.S. § 1A-1, Rule 55(d) (2025). Thus, on this record, were Katherine unable to
obtain immediate appellate review of the order dismissing her claims against the
-12-K.H. V. DIXON
Opinion of the Court
Board, and were Ms. Dixon to successfully move to set aside the entry of default, it is
still possible that Katherine would proceed to a first trial on the merits of her claims
against Ms. Dixon. Further, if the dismissal of her claims against the Board was
overturned on appellate review, she could face a second jury trial on the merits of the
Board’s conduct. Although Katherine’s constitutional claims against the Board are
distinct from her tort claims against Ms. Dixon, many of the same factual issues must
be resolved in both—including the alleged events relating to the assault and the
extent of harm to Katherine. That would risk exposing Katherine to inconsistent
verdicts on the same factual issues. On this basis, the trial court’s otherwise
interlocutory order dismissing her claim against the Board but not against all
defendants affects Katherine’s substantial rights and grants her an immediate right
of appeal. See Gardner, 386 N.C. at 595.2
B. Katherine’s Claim under Article I, Section 15 and Article IX, Section 2 of
the North Carolina Constitution
2 Because we conclude that the risk of inconsistent verdicts supports Katherine’s immediate right of appeal, we are satisfied of our own appellate jurisdiction and subsequently do not reach the issue of whether Katherine also has the right to appeal based on her substantial rights in “orders raising issues of governmental or sovereign immunity,” as the Court of Appeals put it. See K.H. v. Dixon, 296 N.C. App. 62, 65 (2024) (quoting Hinson v. City of Greensboro, 232 N.C. App. 204, 209 (2014)). After all, our review is cabined by another limitation on our appellate jurisdiction, namely that we obtained review of this matter through an appeal as of right based on a dissent at the Court of Appeals. See N.C.G.S. § 7A30(2) (2023) (repealed 2023). In turn, the dissent did not dispute the majority’s conclusion as to Katherine’s right to immediate appeal, perhaps because the dissent was similarly bound by long-standing Court of Appeals precedent. See K.H., 296 N.C. App. at 73 (Murphy, J., concurring in part and dissenting in part). Issues not “specifically set out as the basis for the dissent” are not preserved for this Court’s appellate jurisdiction arising from an appeal based on that dissent. See Cryan v. Nat’l Council of YMCAs of the U.S., 384 N.C. 569, 570 (2025). We leave this jurisdictional issue for future resolution.
-13-K.H. V. DIXON
Opinion of the Court
Katherine alleges that the Board violated her constitutional right to equal
access to a sound basic education in our public schools when it hired an unlicensed
and unqualified teacher, failed to adequately train and supervise that teacher, and
responded to the teacher’s physical attack on Katherine in a classroom by suspending
Katherine, reversing that decision when news outlets reported about the altercation,
and then transferring her to an alternative school without her input.
We agree with Katherine that her allegations as to the Board’s conduct after
the alleged assault do state a colorable constitutional rights violation, the second
element of her Corum claim. Because the other two elements are similarly met, the
trial court wrongly dismissed Katherine’s constitutional claim against the Board
under Rule 12(b)(6).
1. Applicable Legal Principles
We review an order granting a motion to dismiss under Rule 12(b)(6) de novo.
Farmer, 382 N.C. at 369. “On a Rule 12(b)(6) motion, well-pleaded allegations of fact
in the complaint are treated as true,” and “[f]actual inferences should be viewed in
the light most favorable to the nonmoving party.” Cato Corp. v. Zurich Am. Ins. Co.,
386 N.C. 667, 672 (2024) (cleaned up).
In Corum v. University of North Carolina, 330 N.C. 761 (1992), this Court
“recognized a direct action under the State Constitution against state officials for
violation of rights guaranteed by the Declaration of Rights.” Id. at 783. Sovereign
immunity is no defense to such claims. Craig v. New Hanover Cnty. Bd. of Educ., 363
-14-K.H. V. DIXON
Opinion of the Court
N.C. 334, 338 (2009). In Deminski, we explained that an individual student could
bring such Corum claims against local education authorities for deliberate
indifference to the conduct of others that deprived that student of access to their
constitutionally guaranteed education rights: “Notably, the right to a sound basic
education rings hollow if the structural right exists but in a setting that is so
intimidating and threatening to students that they lack a meaningful opportunity to
learn.” Deminski, 377 N.C. at 414. These types of Corum claims, we explained, require
a claimant to meet three elements to “sufficiently allege[ ] a claim for relief under
Article I, Section 15 and Article IX, Section 2”: (1) that a state actor violated the
student’s right to access a sound basic education; (2) that the claim is colorable; and
(3) that there is no other adequate remedy under state law, meaning that the
claimant at least has “the opportunity to enter the courthouse doors and present his
claim.” Id. at 413–14 (cleaned up).
2. Application
The trial court ruled that Katherine’s complaint fell short of articulating a
claim under Deminski. But that determination rests on an overly narrow
interpretation of our precedent and the constitutional right at stake.
The North Carolina Constitution vests in every schoolchild a right to the
opportunity to access a sound basic education. Leandro v. State, 346 N.C. 336, 345,
347 (1997). This “fundamental right” is rooted in the text, structure, and history of
our Constitution as well as our precedent. See id. at 348; Sneed, 299 N.C. at 618.
-15-K.H. V. DIXON
Opinion of the Court
Specifically, Article I, Section 15 places an affirmative duty on “the State to guard
and maintain” the “right to the privilege of education.” Article IX, Section 2
guarantees a uniform public school system “wherein equal opportunities shall be
provided for all students.” This mandatory language creates an obligation on the
State to “take charge of the education of its citizens,” Lane v. Stanly, 65 N.C. 153, 158
(1871), and reflects the framers’ intent to constitutionally “establish and secure . . . a
system of free popular education,” Collie v. Comm’rs of Franklin Cnty., 145 N.C. 170,
175 (1907) (cleaned up).
This constitutional requirement is not opportunity in name only. Reading the
constitution as a whole, these two articles “combine” to guarantee schoolchildren the
opportunity to access a quality education. See Leandro, 346 N.C. at 347. And these
directives require the State and localities to provide “a safe environment where
learning can take place,” Deminski, 377 N.C. at 412–13, and where “considerations
of procedural due process” apply, Sneed, 299 N.C. at 618. Local education agencies in
particular have an important role to play in delivering on “the duty of the State to
guard and maintain” the right to access a sound basic education. N.C. Const. art. I,
§ 15. Because “[e]ducation is the corner-stone of a political fabric,” especially for a
government based on “popular suffrage,” local authorities charged with “instruction
of the children” occupy positions of great trust and authority essential to safeguarding
constitutional education rights. Smith v. Sch. Trs., 141 N.C. 143, 154–55 (1906).
-16-K.H. V. DIXON
Opinion of the Court
Two of our precedents bear directly on Katherine’s allegations. In Deminski we
recognized that “a government entity with control over the school” could be liable to
a student for its “deliberate[ ] indifferen[ce] to ongoing harassment that prevents
[that] student from accessing his constitutionally guaranteed right to a sound basic
education.” 377 N.C. at 407. That was so even as the harassment was allegedly
perpetrated only by fellow students, not any public employees. Id. at 407–09. There
we noted that the harassment of the plaintiff students by fellow students was
allegedly “severe and discriminatory,” id. at 410, and “ongoing,” and the school and
local school board knew about it yet “failed to take adequate action,” id. at 414. We
relied in part on federal court interpretations of Title IX, which bars recipients of
federal education funding from denying educational benefits or equal participation in
an educational program to students based on sex. See id. (citing Davis ex rel.
LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 644–47 (1999)). Under Title
IX, “severe, pervasive, and objectively offensive” “student-on-student harassment”
may “den[y] its victims the equal access to education that Title IX is designed to
protect.” Davis, 526 U.S. at 652.
The second relevant case is Sneed v. Greensboro City Board of Education, 299
N.C. 609 (1980). There we concluded that our state constitutional requirement of a
general and uniform system of free public schools does not bar public schools from
“charging [ ] modest, reasonable fees . . . to support the purchase of supplementary
supplies and materials for use by or on behalf of students.” Id. at 617 (emphasis
-17-K.H. V. DIXON
Opinion of the Court
omitted). The state constitution does, however, limit a public school’s ability to charge
such fees under threat of penalty to “a student who cannot pay required fees because
of real economic hardship.” Id. at 618. We concluded that, to survive constitutional
scrutiny, mechanisms must exist so that “all students and their parents are given
adequate and timely notice” of how they may be eligible to have such charges waived
and “the simple procedures by which they may confidentially apply for” that waiver.
Id. at 619. Such procedural safeguards were necessary to protect the fundamental
right of “equal access to participation in our public school system,” we reasoned,
because otherwise students might inevitably feel they must forgo educational
opportunities to avoid the “stigma” of being singled out on the basis of their
socioeconomic status or because they are unaware of possible relief. Id. at 618–19.
Taken together then, Deminski and Sneed underscore that local school
authorities may not be deliberately indifferent to extreme, in-school conduct that
deprives a student of the opportunity to access a sound basic education on equal
terms. A governmental entity must respond reasonably, including with adequate
procedural protections, to incidents of severe harassment or assault that would make
schoolchildren more vulnerable to future harassment or deprive them of their
opportunity to access a sound basic education. See Doe v. Fairfax Cnty. Sch. Bd., 1
F.4th 257, 274 (4th Cir. 2021) (“[A] school may be held liable under Title IX if its
response to a single incident of severe sexual harassment, or the lack thereof, was
clearly unreasonable and thereby made the plaintiff more vulnerable to future
-18-K.H. V. DIXON
Opinion of the Court
harassment or further contributed to the deprivation of the plaintiff’s access to
educational opportunities.”); Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172–
73, 175 (1st Cir. 2007) (recognizing that “a single instance of peer-on-peer harassment
theoretically might form a basis for Title IX liability if that incident were vile enough
and the institution’s response, after learning of it, unreasonable enough to have the
combined systemic effect of denying access to a scholastic program or activity,” and
noting that “an institutional response to harassment may be carried out so inartfully
as to render it clearly unreasonable”), rev’d on other grounds, 555 U.S. 246 (2009);
Davis, 526 U.S. at 648 (noting that deliberate indifference to acts of student-onstudent harassment occurs where an institution’s “response . . . or lack thereof is
clearly unreasonable in light of the known circumstances”).
Here Katherine’s complaint does state a colorable claim under Article I,
Section 15, and Article IX, Section 2. Assuming her allegations are true and taking
factual inferences in her favor, Katherine’s teacher violently assaulted her in a
manner that required intervention by two other teachers and led to significant
physical injury. Yet the Board and its administrators responded by suspending
Katherine for ten days. They only reversed that suspension after news outlets learned
details of the attack. Even still, the Board and administrators further responded by
transferring Katherine to an alternative school without her input. The cumulative
effect of these events impaired Katherine’s ability to learn and jeopardized her
academic performance. Effectively punishing a student when a teacher violently
-19-K.H. V. DIXON
Opinion of the Court
assaults her in the classroom is clearly unreasonable. Such deliberate indifference by
the Board states a colorable constitutional claim that the government actor denied
Katherine equal access to a sound basic education.3
Because the second element of Deminski is met, we also address the final two
elements to assess whether the trial court erred by dismissing Katherine’s Corum
claim. The first element, that defendant Alamance-Burlington Board of Education, is
a state actor, is satisfied. See Deminski, 377 N.C. at 414. The third element is met,
3 To the extent that Katherine alleged a constitutional claim because Ms. Dixon’s
intentional torts “are imputed to Defendant Board pursuant to the doctrines of agency and/or respondeat superior,” because Ms. Dixon lacked a valid teaching license at the time of the attack, or because the Board was on notice that Ms. Dixon was likely to violently assault a student because of unspecified earlier “issues within her classroom with other students and disciplinary actions by the Principal,” the trial court correctly determined that these allegations alone are too vague and therefore insufficient to state a claim under Article I, Section 15 and Article IX, Section 2. As in other contexts, local school boards are not vicariously liable for the intentional torts of their employees, because “intentional tortious acts are rarely considered to be within the scope of an employee’s employment.” Medlin v. Bass, 327 N.C. 587, 594 (1990) (cleaned up). Moreover, the allegations do not establish a factual relationship between the earlier “issues” of which the Board and its administrators had notice and Ms. Dixon’s eventual assault of Katherine. Cf. Davis, 526 U.S. at 652–53 (noting that Congress likely intended Title IX’s private damages actions to apply to those incidents “serious enough to have the systematic effect of denying the victim equal access to an educational program or activity[,] . . . in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment”).
The dissent raises the possibility that the Board may not have had a full understanding of what transpired when the Board initially decided to suspend Katherine. See dissent infra Part II. To be sure, the evidence may ultimately show that the Board acted reasonably. But a Rule 12(b)(6) motion asks specifically whether, taking the facts and factual inferences in the light most favorable to the nonmoving party, the complaint states a valid legal claim. E.g., Cato Corp. v. Zurich Am. Ins. Co., 386 N.C. 667, 672 (2024). We hold only that Katherine’s allegations were sufficient to meet that standard.
This decision does not afford bellicose students a constitutional claim when they are appropriately disciplined for their own participation in a school fight. The facts alleged here are plainly more severe than a simple schoolyard tiff. Moreover, trial courts and defendants have plenty of tools at their disposal to quickly dispose of frivolous lawsuits.
-20-K.H. V. DIXON
Opinion of the Court
too: Katherine seeks monetary damages for her injuries. The Board successfully
obtained dismissal of Katherine’s tort claims against it based on sovereign immunity.
An alternative remedy is not adequate when it is barred by sovereign immunity
because “a plaintiff must have at least the opportunity to enter the courthouse doors
and present his claim.” Craig, 363 N.C. at 340. Additionally, Katherine’s tort claims
against Ms. Dixon would redress Katherine’s alleged injuries only for the assault;
however, they do not redress her alleged injury by the Board for its response to this
assault and the “educational consequences” she “suffered” that violated her right to
equal access to a sound basic education. See Askew, 386 N.C. at 294 (“Corum requires
courts to disaggregate the rights violated, the constitutional harms alleged, and the
appropriate remedy on the facts of the particular case.” (cleaned up)). Without her
Corum claim, Katherine lacks another remedy at law against the Board specifically
for its conduct. Thus, Katherine’s complaint satisfies all three elements of Deminksi.
III. Conclusion
Because Katherine’s complaint states a colorable constitutional claim that a
government actor failed to guard and maintain her right to access a sound basic
education as a result of its deliberate indifference to a severe instance of misconduct,
and because she lacks another adequate state law remedy, the trial court erred by
dismissing her Corum claim against the Board on a Rule 12(b)(6) motion. Accordingly,
the Court of Appeals erred by affirming the same. We reverse that portion of the
-21-K.H. V. DIXON
Opinion of the Court
decision below and remand this matter for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
-22-K.H. V. DIXON
Allen, J., concurring
Justice ALLEN concurring.
The complaint alleges that a teacher brutally—and unjustifiably—assaulted
plaintiff K.H. at school and that school officials in the Alamance-Burlington School
System responded by suspending plaintiff and then moving her to an alternative
school against her will. I agree with the majority that, if these allegations are true,
the school district’s reaction to the attack violated plaintiff’s educational rights under
the North Carolina Constitution.
In Sneed v. Greensboro City Board of Education, 299 N.C. 609 (1980), this
Court recognized that Article I, Section 15 and Article IX, Section 2(1) of the state
constitution combine to make “equal access to participation in our public school
system . . . a fundamental right.” Sneed, 299 N.C. at 618. If a student’s right to access
the public school system on equal terms with other students means anything, surely
it means that a school district may not suspend and then involuntarily reassign an
innocent student for being severely beaten by an out-of-control teacher.
I write separately to emphasize the narrowness of today’s decision. Like the
facts alleged in Deminski v. State Board of Education, 377 N.C. 406 (2021), the facts
alleged by plaintiff are extreme. The plaintiff in Deminski alleged that her three
children were targeted by other elementary school students, who severely bullied
them and subjected them to graphic acts of sexual harassment over a period of several
months. Deminski, 377 N.C. at 407–09. The plaintiff further alleged that “the
-23-K.H. V. DIXON
Allen, J., concurring
bullying and harassment continued with no real change” even after: (1) one of the
plaintiff’s children informed a teacher of the harassment; (2) the plaintiff herself
“repeatedly notified the teacher, assistant principal, and principal of the situation”;
and (3) the defendant school board learned of the incidents. Id. at 409.
Because “the school’s [alleged] deliberate indifference to ongoing student
harassment created an environment in which [the Deminski plaintiff’s children] could
not learn,” we held that the complaint asserted a colorable constitutional claim
against the defendant school board. Id. at 414. In so ruling, we reasoned that “the
right to a sound basic education [recognized in Leandro v. State, 346 N.C. 336 (1997),]
rings hollow if the structural right exists but in a setting that is so intimidating and
threatening to students that they lack a meaningful opportunity to learn.” Id.
It seems reasonable to assume that most school officials would not react with
almost total indifference to bullying and sexual harassment of the sort alleged in
Deminski. Similarly, one would expect that school officials in general are highly
unlikely to respond to a teacher’s brutal and unprovoked assault on a student by
punishing the student.
Given that this case involves such an improbable set of alleged facts, the
majority’s opinion should not be interpreted to expose ordinary student discipline
decisions to Deminski-style challenges. As the majority points out, “[t]he facts alleged
here are plainly more severe than a simple schoolyard tiff . . . .” Majority supra
Section II.B.2 n.3. I would go further and say that they differ materially from
-24-K.H. V. DIXON
Allen, J., concurring
situations in which, for example, two students accused of fighting blame each other
for starting the fight. So long as school officials act in good faith and in accordance
with procedural safeguards, they are not prohibited from disciplining students for
misconduct merely because the students deny wrongdoing. To hold otherwise would
deprive school officials of the disciplinary tools necessary to preserve a safe and
orderly school environment. Because I do not understand today’s decision to
hamstring school officials in this way, I join the majority’s opinion.
Chief Justice NEWBY and Justice BARRINGER join in this concurring
opinion. Justice DIETZ concurs in this opinion but does not join the majority opinion.
-25-K.H. V. DIXON
Berger, J., dissenting
Justice BERGER dissenting.
Plaintiff’s complaint fails to allege a colorable constitutional violation, and
with minimal analysis and no support from precedent, the majority’s far-reaching
opinion creates grounds for constitutional claims out of routine disciplinary actions
taken by schools. The narrow “deliberate indifference” standard articulated in
Deminski, which required a pattern of misconduct, is no more because the majority
has abandoned restraint to reach an isolated incident of misconduct at the hands of
a teacher.
But the merits should not be reached at all because the Court of Appeals did
not have jurisdiction over plaintiff’s interlocutory appeal. I respectfully dissent.
I. Jurisdiction
The burden of establishing appellate jurisdiction rests solely with the party
seeking to appeal. N.C. R. App. P. 28(b)(4) (“An appellant’s brief shall contain . . . [a]
statement of the grounds for appellate review.”); see also Denney v. Wardson Constr.,
Inc., 264 N.C. App. 15, 17 (2019) (“[T]his Court will not construct arguments for or
find support for appellant’s right to appeal from an interlocutory order on our own
initiative. That burden falls solely on the appellant. As a result, if the appellant’s
opening brief fails to explain why the challenged order affects a substantial right, we
must dismiss the appeal for lack of appellate jurisdiction.” (cleaned up)). Here,
plaintiff relied on N.C.G.S. § 7A-27(b)(3)(a) and § 1-277 as the basis for appellate
jurisdiction over the trial court’s interlocutory order granting the Board’s motion to
-26-K.H. V. DIXON
Berger, J., dissenting
dismiss. However, because it was doubtful that either provision established
jurisdiction, we ordered supplemental briefing. Plaintiff continued to assert that
jurisdiction exists pursuant to N.C.G.S. § 7A-27(b)(3)(a) and § 1-277.
But the majority nonetheless declines to decide the primary issue raised by the
supplemental briefing, instead avoiding the obvious jurisdictional flaw to reach the
merits. But jurisdictional rules cannot be ignored, even when judges are eager to
make law.
“Generally, there is no right of immediate appeal from interlocutory orders and
judgments.” Goldston v. Am. Motors Corp., 326 N.C. 723, 725 (1990). But an
interlocutory order that “[a]ffects a substantial right” is immediately appealable. See
N.C.G.S. § 7A-27(b)(3)(a) (2025). “[A]n interlocutory order affects a substantial right
if the order deprives the appealing party of a substantial right which will be lost if
the order is not reviewed before a final judgment is entered.” Sharpe v. Worland, 351
N.C. 159, 162 (1999) (cleaned up); see also Byrd v. Avco Corp., 389 N.C. 32, 40 (2026).
A “substantial right” is “one materially affecting those interests which a person is
entitled to have preserved and protected by law.” Land v. Whitley, 388 N.C. 296, 303
(2025) (cleaned up). “[T]he appellant has the burden of showing [the appellate court]
that the order deprives the appellant of a substantial right which would be
jeopardized absent a review prior to a final determination on the merits.” Jeffreys v.
Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380 (1994).
“[T]he denial of summary judgment on grounds of sovereign immunity is
-27-K.H. V. DIXON
Berger, J., dissenting
immediately appealable, though interlocutory, because it represents a substantial
right[.]” Craig ex rel. Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 338
(2009). The logic here is simple: when a governmental actor asserts sovereign
immunity, “the entitlement is an immunity from suit . . . and it is effectively lost if a
case is erroneously permitted to go to trial.” Id. (cleaned up). Thus, the denial of a
motion for summary judgment or a motion to dismiss based on immunity
“unquestionably affects a substantial right” because, “if the governmental agency
were forced to litigate the case to judgment before appealing the immunity ruling, it
could deprive the government of its right not to have to appear in court and defend
the case at all.” Ballard v. Shelley, 257 N.C. App. 561, 564 (2018) (emphasis added).
In other words, the government’s right to immunity is “los[t] if the order is not
reviewed before final judgment.” Byrd, 389 N.C. at 40 (cleaned up).
But the issue here is not deprivation of the government’s right to sovereign
immunity. Instead, plaintiff is commandeering the government’s substantial right to
manufacture appellate jurisdiction. This doesn’t make sense. When a trial court
grants a motion to dismiss based on immunity, is the non-governmental actor
deprived of a substantial right unique to him or her? Of course not. The nongovernmental entity “is in the same position as any other litigant whose claim was
dismissed for lack of jurisdiction.” Ballard, 257 N.C. App. at 564. “One might
assume, therefore, that an appeal from an order granting a motion to dismiss based
on sovereign or governmental immunity would not automatically affect a substantial
-28-K.H. V. DIXON
Berger, J., dissenting
right, simply because the ruling involved immunity.” Id. But the majority declines
the opportunity to clarify or explain how a party that is not cloaked with immunity
loses a sovereign-immunity-based substantial right asserted by the opposing party.
The Court of Appeals, without regard to which party is cloaked with immunity,
has “repeatedly held that appeals raising issues of governmental or sovereign
immunity affect a substantial right.” Kawai Am. Corp. v. Univ. of N.C. at Chapel
Hill, 152 N.C. App. 163, 165 (2002) (cleaned up) (emphasis added). In other words,
according to the Court of Appeals, so long as one party has a substantial right, either
party can bootstrap an interlocutory appeal. The majority declines the opportunity
to rectify this approach despite the fact that it is both atextual and unfair.
Subsection 1-277(b) as a jurisdictional basis is similarly unavailing. That
provision states that “[a]ny interested party has the right of immediate appeal from
an adverse ruling as to the jurisdiction of the court over the person or property of the
defendant . . . .” N.C.G.S. § 1-277(b) (2025) (emphasis added). This subsection only
“permits the immediate appeal of an order denying a motion made pursuant to Rule
12(b)(2) to dismiss for lack of jurisdiction over the person, [but it] does not apply to
orders denying motions made pursuant to Rule 12(b)(1) to dismiss for lack of subject
matter jurisdiction.” Teachy v. Coble Dairies, Inc., 306 N.C. 324, 327 (1982). In other
words, subsection 1-277(b) can serve as grounds for plaintiff’s appeal only if sovereign
immunity is a matter of personal jurisdiction.
This Court has yet to answer that question, but it should. See id. at 327. In
-29-K.H. V. DIXON
Berger, J., dissenting
Teachy, we described the competing arguments.
A viable argument may be propounded that the State, as a
party, is claiming by the doctrine of sovereign immunity
that the particular forum of the State courts has no
jurisdiction over the State’s person. On the other hand, the
doctrine may be characterized as an objection that the
State courts have no jurisdiction to hear the particular
subject matter of tort claims against the State.
Id. (cleaned up).
The latter is the better characterization. First, sovereign immunity is offensespecific. Our courts clearly have jurisdiction over governmental actors in a variety of
suits. See, e.g., Corum v. Univ. of N.C., 330 N.C. 761, 785–86 (1992) (“The doctrine of
sovereign immunity cannot stand as a barrier to North Carolina citizens who seek to
remedy violations of their rights guaranteed by the Declaration of Rights.”);
Cedarbrook Residential Ctr., Inc. v. N.C. Dep’t of Health and Hum. Servs., 383 N.C.
31, 45 (2022) (“[B]y enacting the State Tort Claims Act, the State partially waived its
sovereign immunity by consenting to direct suits brought as a result of negligent acts
committed by its employees in the course of their employment.” (cleaned up)).
Further, governmental actors may be sued in their individual as opposed to official
capacities, indicating that sovereign immunity is not a question of courts’ all-ornothing power over the government’s “person”; rather, when sovereign immunity is
raised, courts have no authority over the “subject matter” of that particular suit. See
Teachy, 306 N.C. at 327; see also Powelson v. United States, 150 F.3d 1103, 1104 (9th
Cir. 1998) (“[S]overeign immunity is not merely a defense to an action against the
-30-K.H. V. DIXON
Berger, J., dissenting
United States, but a jurisdictional bar.” (quoting 16 Moore’s Federal Practice § 105.21
(3rd ed. 1998))).
The majority avoids answering this question, asserting that “[i]ssues not
‘specifically set out as the basis for the dissent’ are not preserved for this Court’s
appellate jurisdiction arising from an appeal based on that dissent.” (Quoting Cryan
v. Nat’l Council of YMCAs of the U.S., 384 N.C. 569, 570 (2025).) But this assertion
misses the point entirely. “[O]ur appellate jurisdiction is derived from that previously
acquired in the court from which the cause is removed[.]” Gordon v. Sanderson, 83
N.C. 1, 2 (1880). Accordingly, the issue at hand is whether the Court of Appeals had
appellate jurisdiction in the first instance. “[W]hen the appeal is interlocutory[,] the
appellant has the burden of showing in his brief to [the appellate court] that . . . the
order appealed from deprives the appellant of a substantial right[.]” Abe v. Westview
Capital, L.C., 130 N.C. App. 332, 334–35 (1998) (cleaned up). The scope of the dissent
below is irrelevant to this jurisdictional inquiry.
Further, although claiming that the issue is beyond the scope of this Court’s
review, the majority also devotes nearly six pages to attempting to explain the basis
for appellate jurisdiction in this case. Ultimately, the majority concludes that “the
posture of the claims below indicates a risk of inconsistent verdicts on the same
factual issues” and affects a substantial right. Specifically, the majority holds that
“many of the same factual issues . . . including the alleged events relating to the
assault and the extent of harm to Katherine” would need to be resolved in both the
-31-K.H. V. DIXON
Berger, J., dissenting
present case and in a trial against Ms. Dixon, thus raising a risk of inconsistent
verdicts.
But the events of the assault and plaintiff’s injuries are largely uncontested.
In its brief to this Court, the Board concedes that Ms. Dixon assaulted the student.
Given that the Board has not argued these facts and that a video of the incident
exists, it is unlikely that separate juries would reach inconsistent verdicts as to the
“assault and the extent of harm to [plaintiff].”
Regardless, it is even less likely that a trial against Ms. Dixon will proceed.
The trial court entered default judgment against Ms. Dixon over three years ago in
February 2023. Neither party has claimed that Ms. Dixon seeks to set aside this
judgment. But the majority’s conclusion rests on the mere possibility that, upon
motion from Ms. Dixon, the trial court could set aside the default judgment “[f]or good
cause shown” and “in accordance with Rule 60(b).” N.C.G.S. § 1A-1, Rule 55(d) (2025).
Under Rule 60(b), the court may set aside judgment for:
(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) Newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b);
(3) Fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an
adverse party;
(4) The judgment is void;
(5) The judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has
-32-K.H. V. DIXON
Berger, J., dissenting
been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or
(6) Any other reason justifying relief from the operation of
the judgment.
N.C.G.S. § 1A-1, Rule 60(b) (2025). There is no indication that Ms. Dixon will be
positioned to assert a successful motion to set aside the default judgment entered
against her under any of the grounds outlined in Rule 60(b), and I am not persuaded
that a risk of inconsistent verdicts supports interlocutory jurisdiction here.
Regardless, plaintiff failed to raise this alternative basis for jurisdiction at the Court
of Appeals, so the argument is waived. Viar v. N.C. Dep’t of Transp., 359 N.C. 400,
402 (2005) (“It is not the role of the appellate courts . . . to create an appeal for an
appellant.”).
Because there is no risk of inconsistent verdicts and neither subsection 7A27(b)(3)(a) nor section 1-277 provides grounds for an interlocutory appeal when a
motion to dismiss based on sovereign immunity is granted, plaintiff failed to
demonstrate a basis for appellate jurisdiction and we should dismiss this appeal.
II. Plaintiff’s Corum Claim
After the majority runs around the jurisdictional hurdle, it expands our
precedent regarding Corum claims for violations of the right to a sound basic
education nearly beyond recognition by making a single incident of teacher
misconduct grounds for a constitutional claim. To the extent there was some
modicum of restraint in our Corum jurisprudence in this space, the governor has been
-33-K.H. V. DIXON
Berger, J., dissenting
taken off by the majority.
“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.” Deminski v. State Bd. of Educ., 377
N.C. 406, 412 (2021) (quoting Leandro v. State, 346 N.C. 336, 347 (1997)). “[E]qual
access to participation in our public school system is a fundamental right, guaranteed
by our state[.]” Sneed v. Greensboro City Bd. of Educ., 299 N.C. 609, 618 (1980).
To assert a Corum claim in the educational context, a claimant must
sufficiently allege (1) that a state actor violated the student’s constitutional rights;
(2) that the claim is colorable, meaning it presents facts sufficient to support an
alleged violation of a right protected by the State Constitution; and (3) that there is
no adequate state remedy. Deminski, 377 N.C. at 413–414. For purposes of this
dissent, I do not dispute elements (1) and (3) are met.
Regarding element (2), the majority claims that Deminski and Sneed “bear
directly” on plaintiff’s claim. In Deminski, we “consider[ed] whether an individual
may bring a claim under the North Carolina Constitution for a school board’s
deliberate indifference to continual student harassment.” Id. at 407. There, “[o]ver
a period of several months,” three elementary school students were bullied and
sexually harassed by other students. Id. Specifically, the complaint alleged physical
and sexual harassment that included students “push[ing] [the plaintiff’s] spine so
that she was in pain and had trouble breathing and swallowing” and another student
-34-K.H. V. DIXON
Berger, J., dissenting
“pull[ing] down his pants in the hallway in [the plaintiff’s] presence to expose his
penis.” Id. at 407–09. Crucially, the various forms of harassment occurred repeatedly
“[t]hroughout the school day” and “on multiple occasions.” Id. at 407–08. All three
plaintiff-students were subjected to similar “sexual conduct, constant verbal
interruptions laced with vulgarity, and physical violence.” Id. at 409. Further, the
teacher, assistant principal, and principal, were “repeatedly notified” and “repeatedly
informed” about the incidents, yet “the bullying and harassment continued with no
real change.” Id. Ultimately the plaintiff-students transferred to a new school. Id.
This Court held that the plaintiff-students alleged a colorable constitutional
claim “because the school’s deliberate indifference to ongoing student harassment
created an environment in which plaintiff-students could not learn.” Id. at 414
(emphasis added). “Deliberate indifference indicates that the government entity
knew about the circumstances infringing plaintiff-students’ constitutional right and
failed to take adequate action to address those circumstances.” Id. We reasoned that
the State must “provide an opportunity to learn that is free from continual
intimidation and harassment which prevent a student from learning.” Id. at 412–13
(emphasis added).
Sneed should be similarly unavailing because, although also analyzing a
Corum claim in the educational context, the facts there bear no resemblance to the
case at hand. In Sneed, we held that public schools may collect “modest, reasonable
fees for the purpose of enhancing the quality of their educational effort.” Sneed, 299
-35-K.H. V. DIXON
Berger, J., dissenting
N.C. at 610. We noted that schools must provide a waiver policy for students facing
economic hardship in order to protect “equal access to participation in our public
school[s].” Id. at 618.
The majority relies on Deminski and Sneed to conclude that “local school
authorities may not be deliberately indifferent to extreme, in-school conduct that
deprives a student of the opportunity to access a sound basic education on equal
terms.” Though neither case lends support for such a sweeping standard, the
majority applies this standard to conclude that the Board “[e]ffectively punish[ed]”
plaintiff by suspending her and then transferring her after the incident. According
to the majority, the Board’s actions were “clearly unreasonable” and amounted to
“deliberate indifference.”
But this case is not Deminski; at least it wasn’t until today. There are at least
three flaws with the majority’s scant analysis of the allegations in plaintiff’s
complaint. First, the majority fails to explain how a singular incident of abuse at the
hands of a teacher can amount to “deliberate indifference” by the school board. In
stark contrast to the “continual” and “ongoing” harassment that took place “[o]ver a
period of several months” in Deminski, 377 N.C. at 414, the majority concludes that
an isolated incident is enough. The majority reaches this conclusion without any
facts alleging that the Board was previously made aware of similar behavioral
problems with Ms. Dixon or other incidents involving Ms. Dixon and plaintiff,
specifically. In fact, in footnote 3, the majority concedes that plaintiff’s allegations
-36-K.H. V. DIXON
Berger, J., dissenting
regarding Ms. Dixon’s lack of licensure as well as the “unspecified earlier ‘issues
within her classroom’ ” are “too vague” to state a constitutional claim.
We also note that Ms. Dixon was hired just six weeks prior to the date of the
assault. In the absence of specific allegations demonstrating a nexus between Ms.
Dixon’s conduct during those six weeks and her assault on plaintiff, it is impossible
to shoehorn the facts alleged here into the Deminski framework which emphasized
indifference to “continual” and “ongoing” harassment.1
Second, the majority ignores that, at the time of the assault, plaintiff was
attempting to enter a classroom she was not authorized to be in at that time.2 Of
course, Ms. Dixon’s response to the student’s misconduct was egregious. But the fact
remains that plaintiff impermissibly entered the classroom and, in doing so, subjected
herself to disciplinary action.
School boards have broad discretion to discipline. See N.C.G.S. § 115C-391.1
(2025); id. § 115C-390.7–390.8 (authority to impose short-term and long-term
suspensions); id. § 115C-105.48 (authority to transfer students to alternative schools);
1 The majority attempts to bolster its analysis with federal case law analyzing allegations of sex discrimination under Title IX. But federal precedent interpreting Title IX has no bearing on this state’s constitutional provisions guaranteeing the right to a sound basic education, and allowing federal Title IX jurisprudence an entry into this area of our state’s constitution is concerning.
2 The complaint alleges that, when the incident occurred, plaintiff was attempting to
“retrieve her bookbag” from Ms. Dixon’s classroom and “was unable to avoid any contact with Defendant Dixon . . . caus[ing] Minor Plaintiff to strike Defendant Dixon in her arm.” Plaintiff’s brief provides the additional context that plaintiff “forgot her bookbag” in Ms. Dixon’s classroom and “went back inside to retrieve it.”
-37-K.H. V. DIXON
Berger, J., dissenting
see also Alamance-Burlington School System, Student Code of Conduct § 4300(b)
(2021–22), available at https://coredocs.s3.amazonaws.com/documents/asset/uploaded_file/3260/sahs/2275048/21-22_EngCOC_book_complete.pdf (explaining that violations of the Code of Student
Conduct may result in short-term suspensions and placement in an alternative
learning program or school). While the majority labels the Board’s suspension and
transfer of plaintiff as “clearly unreasonable,” the complaint did not allege that
plaintiff was transferred only because of the incident with Ms. Dixon rather than her
own conduct or risk of academic failure. We are not “required to accept . . .
unwarranted deductions of fact[ ] or unreasonable inferences as true.” Est. of Vaughn
v. Pike Elec., LLC., 230 N.C. App. 485, 493 (2013). But by making this inference, the
majority lays the groundwork for every routine disciplinary action or transfer to give
rise to a constitutional claim against the school board.
Additionally, it would be unreasonable to assume that the Board acted so
egregiously. Instead, perhaps the Board was merely made aware that a physical
altercation took place between plaintiff and Ms. Dixon when plaintiff attempted to
enter Ms. Dixon’s classroom without permission, which is exactly what happened.
When presented in that light, the Board’s initial decision to suspend plaintiff—a
decision which was reneged once video of the incident was made available—does not
seem so unreasonable. Either way, even accepting the facts of the complaint as true,
we just do not know.
-38-K.H. V. DIXON
Berger, J., dissenting
And even if the response was unreasonable, the Board was not deliberately
indifferent. In fact, by transferring plaintiff out of the school where the abuse
occurred, the Board demonstrated just the opposite. While reasonable minds might
disagree on whether transferring plaintiff was the most appropriate option, the Board
responded, just not in a way the majority likes. But our precedent instructs us to
provide deference in these highly factual school discipline cases. See King v. Beaufort
Cnty. Bd. of Educ., 364 N.C. 368, 374 (2010) (“[T]he special context of public schools
requires a more lenient approach to reviewing the decisions of school officials, and
the professional judgments of school officials on school safety and student discipline
issues are entitled to appropriate judicial deference.” (cleaned up)). Deliberate
indifference, per our precedent, is therefore reserved for those situations in which a
school board has knowledge of an existing issue and, armed with that information,
takes no action to alleviate continual harassment or abuse, as occurred in Deminski.
At least it was until today.
Lastly, plaintiff’s complaint fails entirely to allege a “deprivation” of the right
to a sound basic education or when that deprivation might have occurred. As
explained above, plaintiff cannot fit into the Deminski framework because the
allegations do not show deliberate indifference to ongoing harassment. In addition,
plaintiff cannot claim a deprivation simply because she was transferred to a new
school. School boards have the statutory authority to transfer students to alternative
programs. See N.C.G.S. § 115C-105.48. “[T]he mere fact that a student has had to
-39-K.H. V. DIXON
Berger, J., dissenting
engage in an alternative education program . . . is insufficient to establish a
constitutional violation; instead, a plaintiff must show that the program itself was
somehow inadequate to provide the opportunity for a sound basic education.” Davis
v. Blanchard, 175 F. Supp. 3d 581, 595 (M.D.N.C. 2016) (interpreting the right to a
sound basic education protected by the North Carolina Constitution).
Glaringly, plaintiff’s complaint lacks any allegation that the new school failed
to provide her the opportunity to a sound basic education. Instead, plaintiff makes
the vague claim that her “academic performance . . . was placed in peril” and that she
“suffered educational consequences,” but she provides no facts to support these
assertions. “[A] conclusory allegation . . . should not be sufficient, by itself, to
withstand a Rule 12(b)(6) motion to dismiss.” Meyer v. Walls, 347 N.C. 97, 114 (1997).
But the majority’s reasoning effectively requires courts to assume that the transfer
alone deprived the plaintiff of the right to a sound basic education.
Finally, we note the foreseeable issues with the majority’s sweeping standard
that school authorities “may not be deliberately indifferent to extreme, in-school
conduct that deprives a student of the opportunity to access a sound basic education
on equal terms.”3 The majority fails to define “extreme, in-school conduct” or how we
3 The concurrence “emphasize[s] the narrowness of today’s decision,” asserting that
“this case involves . . . an improbable set of alleged facts.” But the concurrence fails to engage with the new standard actually articulated by the majority which is inarguably wide-ranging. Disciplinary actions including suspensions and transfers are routinely employed by schools, and the majority makes no attempt to cabin its holding to the specific facts of this case because they can’t.
-40-K.H. V. DIXON
Berger, J., dissenting
view “on equal terms.” We are left wondering if a fist-fight on the middle-school
playground which leads to suspension of both participants could give rise to a
constitutional claim. How about a food fight in the cafeteria? Does merely
transferring a student to another school equate to a denial of equal access? How so?
Is the majority saying that school choice is a component of these equal access
protections? If so, the majority should be explicit. And if not, the majority should
explain how transferring the student to another school somehow denied her equal
access to participate in the public schools.
The majority offers no limiting principle. But make no mistake, such a farreaching declaration lays the groundwork for profiteering attorneys to assert
constitutional violations for every grievance a child faces in school because principals
and administrators may now be the guarantors of subjective educational equality.
Good luck.
Justice DIETZ concurs in Part I of this opinion concerning jurisdiction based
on governmental immunity.
-41-