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20180123 penn intervenors reply brief (Leandro)


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Intervenors response to State Board motion for relief in Leandro case.

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20180123 penn intervenors reply brief (Leandro)

  1. 1. 1 STATE OF NORTH CAROLINA COUNTY OF WAKE HOKE COUNTY BOARD OF EDUCATION, et al., Plaintiffs, and ASHEVILLE CITY BOARD OF EDUCATION, et al., Plaintiff-Intervenors, v. STATE OF NORTH CAROLINA, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 95 CVS 1158 RESPONSE TO STATE BOARD OF EDUCATION MOTION FOR RELIEF COMES NOW the Penn-Intervenors, in response to the Motion for Relief filed by defendant State Board of Education (“SBE”), and show the Court that, because of the procedural and remedial context of this case, and the defendant’s failure to prove that it has fully remedied the underlying and ongoing constitutional harms, the motion should be denied. In 2004, the North Carolina Supreme Court affirmed this Court’s series of decisions which found the defendants constitutionally liable for denying public school children in North Carolina the right to an opportunity to a sound basic education. Since that time, there have been numerous interim hearings in the Wake County Superior Court to allow the defendants to report on changes and revisions to education policies and practices designed to remedy the constitutional liabilities. Those hearings allowed the Court to exercise its equitable powers to both evaluate defendants’ remedial efforts, and when necessary, provide additional guidance on addressing the underlying harm. At
  2. 2. 2 no time in the history of this case has any defendant argued that the original constitutional injuries have been fully redressed, and prior to the instant motion filed by the SBE, no party had argued that this Court no longer has jurisdiction over this matter. The defendant’s burden, given the remedial posture of the case, is to prove that it has fully remedied the constitutional violation. Neither the passage of time nor generalized changes in state policy unaccompanied by proof that the harm has been remedied, can justify the Court abandoning its critical oversight role. 1. This Court Properly Retains Jurisdiction to Monitor and Supervise the Implementation of Remedies In their previous briefs, the Penn-Intervenors have argued that the well- developed procedural school desegregation jurisprudence provides a useful guide for this Court’s consideration of the scope and limits of its continuing oversight responsibilities. Many of those cases arose out of the exact procedural posture here, in which a previous ruling had established the defendant’s constitutional liability, and the remaining issues for the court concern effectiveness of the defendant’s proffered remedial measures. The school desegregation cases also establish that, in this remedial phase of the litigation, a defendant seeking to end the court’s jurisdiction bears the burden of proof to demonstrate that the constitutional injury has been fully remedied, and that the court should not terminate its oversight role unless that showing is made. See, e.g., Green et al. v. County School Board of New Kent County, 391 U.S. 430 (1968) (“whatever plan is adopted will require evaluation in practice and the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed.”);
  3. 3. 3 Swann v. Charlotte Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) (“Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”); Everett et al v. Pitt County Bd. of Ed. (“Everett I”), 678 F.3d 281 (4th Cir. 2012) (the defendant must bear the evidentiary burden to demonstrate that its actions “are consistent with its continuing affirmative duty to eliminate discrimination.”). Additionally, these cases recognize the continuing adverse educational impacts of a constitutional violation, and establish a presumption that, even after policy changes in a school system, current constitutional disparities are the vestiges of the underlying constitutional violation. As a result, in order to end judicial oversight, defendants must rebut that presumption and prove that they have remedied the impacts of past liability, and that any remaining inequities are the result of independent factors unrelated to the defendant’s unconstitutional actions. See, e.g., Freeman v. Pitts, 503 U.S. 467 (1991). The court retains jurisdiction until the defendant satisfies this burden. In 2004, the North Carolina Supreme Court found that the SBE violated its constitutional obligation to ensure the right of every public school child to an opportunity to a sound basic education. 1 That decision also returned the case to this Court for subsequent oversight hearings and review of the SBE’s effort to create and 1 In addition to the SBE, the State of North Carolina is also a defendant in this matter. Since the SBE is the only defendant pursuing the Motion for Relief and seeking to be dismissed from the case, it is the only defendant party referenced in this brief.
  4. 4. 4 implement an effective strategy to remedy the constitutional violation. This is the SBE’s ongoing and affirmative legal obligation-- to ensure “that all children have the opportunity for a sound basic education.” Leandro v. State, 346 N.C. 336, 351, 488 S.E.2d 249, 257 (1997). The Court has held numerous hearings since 2004 and in almost all of those hearings has appropriately exercised its equitable authority and required the SBE to present evidence to demonstrate how it was meeting its remedial obligations. At no time did the evidence presented show that all students are receiving a sound basic education, nor that there should be relief or release from the Court’s supervision. In fact, the SBE does not even argue in the pending motion that it has fulfilled its constitutional duty or remedied the established harms, which is a necessary condition precedent to ending the Court’s oversight of this case. Unless and until the SBE produces that evidence and this Court concludes, based on that evidence, that the SBE has met its affirmative remedial obligation, the motion should be denied and the SBE should remain a party in this case. 2. Neither the Passage of Time nor the Claimed “Changed Circumstances” Can Relieve the SBE of its Remedial Constitutional Obligations The SBE seeks relief from the order holding it constitutionally liable for failing to provide the opportunity for sound basic education pursuant to Rule 60(b)(5), asserting that, generalized policy and statutory changes “do not support evidence of an ongoing violation necessitating continued court review. Even if said [changed] circumstances were evidence of an alleged violation, it would not be evidence connected to the original lawsuit.” SBE Brief in Support of Motion for Relief, p. 11.
  5. 5. 5 A court may grant relief from judgment to a moving party where the court finds that “the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.” NC. Gen. Stat. §1A-1. Rule 60(b) (5). As an initial matter, it should be noted that Rule 60 requires that “the motion shall be made within a reasonable time.” Although there is no specific time limit for motions pursuant to subsections (5) or (6), this court should conclude the SBE motion-- after 13 years, dozens of hearings, and superior and appellate court reviews— transgresses the letter and spirit of the Rule.2 Additionally, the SBE should not be permitted to use Rule 60 to circumvent the law of the case or to alter the appellate order finding constitutional liability. “The general rule is that an inferior court must follow the mandate of an appellate court in a case without variation or departure.” Metts v. Piver, 102 N.C. App. 98, 100, 401 S.E.2d 407, 408 (1991). The SBE motion asserts that the adoption of new policies and statutes obviates the existing adverse judgment in this case, and that for the Court to continue to assert jurisdiction, Plaintiffs3 would have to bring new litigation and once again bear the burden to prove a constitutional violation.” SBE Brief in Support of Motion for Relief, p. 11-12. This argument again ignores the procedural posture of this case and established burden of proof in the remedial phase. 2 Motions made pursuant to subsections 1, 2, and 3 of Rule 60(b) must be made within one year. 3 For purposes of this brief, the term “Plaintiffs” is used to refer to the Plaintiffs and the Plaintiff-Intervenors, collectively.
  6. 6. 6 As described in part 1, supra, once the constitutional violation has been established, the burden of proof remains on the defendants to show that the injury has been remedied. The school integration cases are also illuminating on the substantive nature of that burden. Merely adopting new policies, without clear and compelling evidence that those policy changes directly address the constitutional harm, is not sufficient. Courts repeatedly reviewed policy changes and proposals regarding school integration to ensure that those changes moved the system towards the constitutional remedy, as well as to account for changed underlying circumstances (e.g. demographic shifts) that may have rendered previously approved remedial measures ineffective. See, e.g., Belk v. Charlotte Mecklenburg Bd. of Ed., 269 F.3d 305, 315-16 (4th Cir. 2001) (summarizing court hearings on proposed school remedies in 1973, 1974, 1978, and 1980); Vaughns v. Bd. of Ed. of Prince George’s County, 758 F.2d 983 (4th Cir. 1985) (judicial oversight and review hearings held in 1973, 1974, 1975, and 1981); Bradley v. Baliles, 829 F.2d 1308, 1310 (4th Cir. 1987) (the district court “approved fifteen plan modification between 1972 and 1979.”). The “changed circumstances” that the SBE proffers— a revised testing and grading system, new reading programs for elementary schools, digital infrastructure, etc. — can best be described as efforts to begin to comply with its remedial obligations. But the SBE does not present any evidence that these efforts have meaningfully addressed the constitutional injury. Instead, it claims that as a result of these new programs, the educational system in North Carolina is no longer subject to the Court’s jurisdiction. Again, to analogize to integration jurisprudence, many school districts initially adopted
  7. 7. 7 “freedom of choice” assignment plans after being found liable for segregating students. Those districts arguably created “a new education system” in their communities. But it was vital for the courts to review and monitor progress (or lack thereof) under those plans to ensure constitutional compliance. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 328 F. Supp. 1346, 1350-1353 (W.D.N.C. 1971) (rejecting an initial feeder plan proposed by the school board, then approving a revised version that addressed concerns about placing additional burdens on African-American children and families). The same is true here. Similarly, a defendant that has been found constitutionally liable cannot merely rely on the passage of time as the basis for relief from a judgment. There is no question that there have been incremental changes in the overall education system in North Carolina since 2004. Many of those changes were prompted by this Court’s continued oversight and engagement; others have impacted the scope and limitations of the defendants’ ability to meet their remedial obligations. Significantly, the Court and the parties have been directly engaged in monitoring and assessing these changes as they have emerged. This is not a case where the judgment has lain dormant for several years as social or political changes have altered its potential impact. See, e.g., Freeman v. Pitts, 503 U.S. 467 (1991) (significant shifts in racial demographics over the 15 years following the desegregation order required reassessment of remedial plan). Rather, the changed circumstances that the SBE asserts render the case “non-justiciable” have been carefully considered and monitored by the Court. They provide no reasonable basis for SBE’s allegation that such oversight is inequitable or unnecessary.
  8. 8. 8 3. The Plaintiffs’ claims in the matter are not moot The SBE also argues that the claims in this case are moot. This argument is without merit. In support of its claim, Defendant’s brief cites Pearson v. Martin, 319 N.C. 449 355 S.E.2d 496 (1987), in which the court explained that a case is moot if “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.” Id. at 451, 355 S.E.2d at 457 (quoting In re Peoples, 296 N.C. 109, 147-48, 250 S.E. 2d 890, 912, (1978), cert. denied, 442 U.S. 929, 61 L.Ed. 2d 297 (1979). There is no evidence that either scenario exists here. As noted above, the defendant has neither alleged nor demonstrated that it has fulfilled its constitutional obligation to ensure children in this state are receiving the opportunity for sound basic education. Defendant has not, and cannot, claim that “the relief sought has been granted.” There has similarly been no showing that the quality of the educational opportunities for children in the plaintiff districts, and particularly at-risk children, is “no longer an issue.” In fact, the evidence shows just the opposite, as set out in the plaintiff parties’ Joint Motion for Case Management and Scheduling Order. Defendant’s reliance on Gaston Board of Realtors v. Harrison is also misplaced. In that case, in response to an ambiguous statement by the defendant (who had been cited by the board) that he would take action to protect himself, the Board of Realtors sought a declaratory judgment that its disciplinary rules were constitutional. In dismissing the Realtor’s case, the court emphasized that Harrison had never filed suit, and had never even mentioned filing a lawsuit. “In fact, the conflict between the Board and Harrison may never ripen into an actual controversy.” 311 N.C. 230, 236, 316 S.E.2d 59, 62 (1984).
  9. 9. 9 There is no similar question or ambiguity about an actual controversy here. The plaintiffs all filed suit, and have been pursuing this matter through all levels of the North Carolina judicial system for over 20 years. Assessment of inputs, outputs, and resource allocation—the basic metrics outline by the state supreme court in Leandro I and II-- have consistently demonstrated that students in the plaintiff districts continue to be denied the opportunity for a sound basic education. While there may have been changes at the SBE during that time, none of those changes have altered the substantive claims in this case or provided the relief sought by the plaintiffs and ordered by the Court. In fact, there have been very few changes for the at-risk children at the heart of this litigation. Halifax County Public Schools has a teacher turnover rate of nearly 27% and one of the lowest recoupment rate (ability to recruit teachers leaving other LEAs) in the state. Halifax County Schools’ recoupment rate is doubly problematic given that it is the only LEA that had one of the highest LEA-attrition rates in the state combined with one of the lowest recoupment rates. The state may need to recognize and support LEAs like Halifax County Schools that have high attrition rates and low rates of teacher recoupment. . . . For Halifax County, this means that more than 90% of the teachers it hired for the 2017-18 school year were either new to the teaching profession or new to the State of North Carolina. State Board of Education Report to the North Carolina General Assembly (draft), “2016- 2017 State of the Teaching Profession in North Carolina,” pp.18-21.4 Vance County Schools also showed very high rates of teacher turnover and very low ability to recruit new teachers to the district. Id. Robeson County Schools just faced the Hobson’s choice of either closing a low-performing elementary school or turning it over to a yet-to be- 4
  10. 10. 10 identified charter school management company under the state’s experimental “Innovative School District” program.5 And Charlotte-Mecklenburg Schools still shows substantial achievement deficiencies for at-risk students. See, NC DPI, “2016-17 State, District, and School Level Drilldown Performance Data,” Lastly, the SBE’s assertion that the claims of the plaintiff school districts other than Hoke County are moot is inconsistent with the controlling law of the case. In Hoke County v. State (Leandro II), the court affirmed that all parties to this litigation— including the SBE—agreed “that Hoke County would be designated as the representative plaintiff district.” There was no objection raised or appeal taken of that determination. 358 N.C. 605, 612, 599 Se.2d 365, 375 (2004). The court further explained that plaintiffs from the four other original rural districts--those from or representing Cumberland, Halifax, Robeson, and Vance Counties--were not eliminated as parties as a result of the trial court's decision to confine evidence to its effect on Hoke County schools. However, because this Court's examination of the case is premised on evidence as it pertains to Hoke County in particular, our holding mandates cannot be construed to extend to the other four rural districts named in the complaint. With regard to the claims of named plaintiffs from the other four rural districts, the case is remanded to the trial court for further proceedings that include, but are not necessarily limited to, presentation of relevant evidence by the parties, and findings and conclusions of law by the trial court. Moreover, the Court emphasizes that its holding in the instant case is not to be construed in any fashion that would suggest that named plaintiffs from the four other rural districts are precluded from pursuing their claims as presented in their complaint. 5 While the SBE hails the Innovative School District in support of its motion for relief, similar charter takeover programs in other states have failed to produce meaningful improvement in student achievement, and there is no data in support of defendant’s position that the ISD will improve outcomes for students, especially at-risk students. See, Public Schools First NC, “The Facts on NC’s Innovative School District,”
  11. 11. 11 Id. (emphasis added). In light of this clear statement from the court, and the defendant’s agreement to the litigation procedures established by this court, SBE should be estopped from asserting, particularly at this late date, that the claims of the other plaintiffs are moot. 4. The SBE is a necessary party The SBE is the only defendant pursuing the Motion for Relief. The other defendant in this case, the State of North Carolina, has joined with the plaintiff parties and petitioned the Court to appoint an expert consultant to provide recommendations for how Defendants can come into compliance with the controlling constitutional mandates. While relief under Rule 60(b) can be granted to a particular defendant, given the SBE’s integral and primary role in developing, implementing, assessing, and overseeing education policies and practices in North Carolina, it would be impossible to effectuate any meaningful remedy without its full participation in the continuing remedial phase of the case. It would be counterintuitive, counterproductive, and a tragic waste of further time and resources to let the SBE out of the case while all the other parties and the Court are finally moving forward toward some concrete remedial actions. Any recommendations of the court-appointed consultant or other remedial measures will be undermined without the engagement of the SBE and judicial oversight of that engagement. CONCLUSION The SBE motion for relief ignores the specific procedural and remedial context of this case. Neither the motion nor any of the supporting documents show that the SBE
  12. 12. 12 has remedied the underlying and ongoing constitutional harms. Additionally, there is no basis for the argument that the plaintiffs’ claims have become moot, nor that the continuing exercise of this Court’s jurisdiction is no longer equitable. And neither the passage of time nor generalized changes in state education policy support dismissal of the case or modification of the judgment. Finally, given the emergent opportunity to appoint an expert to assist the parties in finally designing an effective remedial plan, defendant’s unsupported motion could not be more ill-timed. The motion for relief should be denied. Respectfully submitted, this the 23rd day of January, 2018. JULIUS L. CHAMBERS CENTER FOR CIVIL RIGHTS _______________________________ Mark Dorosin N.C. State Bar No. 20935 Telephone: (919) 225-3809 _______________________________ Elizabeth Haddix N.C. State Bar No. 25818 Telephone (919) 548-3584 P.O. Box 956 Carrboro, NC 27510 E-mail: Counsel for Plaintiff-Intervenors
  13. 13. 13 CERTIFICATE OF SERVICE The undersigned hereby certifies that at copy of the foregoing RESPONSE TO STATE BOARD OF EDUCATION MOTION FOR RELIEF was served on the following parties on this day by email and U.S. Mail addressed to: Lauren M. Clemmons Special Deputy Attorney General N.C. Department of Justice Post Office Box 629 Raleigh, North Carolina 27602-0629 Email: Counsel for the Defendant State Board of Education Alexander McC. Peters Senior Deputy Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina 27602-0629 E-mail: Counsel for the Defendant State of North Carolina Deborah R. Stagner Tharrington Smith, L.L.P. P.O. Box 1151 Raleigh, North Carolina 27602 E-mail: Counsel for the Realigned Defendant Charlotte-Mecklenburg Schools Melanie Black Dubis & Scott E. Bayzle PARKER POE ADAMS & BERNSTEIN LLP P.O. Box 389 Raleigh, North Carolina 27602-0389 E-mail:
  14. 14. 14 H. Lawrence Armstrong Armstrong Law, PLLC P.O. Box 187 Enfield, NC 27823 Email: Counsel for Plaintiffs This the 23rd day of January, 2018. _____________________________________