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Plaintiffs' response in opp to motion for relief (Leandro)

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Motion in Leandro case

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Plaintiffs' response in opp to motion for relief (Leandro)

  1. 1. i PPAB 4089845v1 TABLE OF CONTENTS THE COURT’S RULINGS AND THE LEANDRO TENETS........................................................2 THE STATE OF NORTH CAROLINA DOES NOT JOIN THE STATE BOARD’S MOTION.................................................................................................6 ARGUMENT...................................................................................................................................7 I. THIS COURT RETAINS JURISDICTION OVER THE STATE BOARD UNTIL THE STATE BOARD MEETS ITS BURDEN TO SHOW THE CONSTITUTIONAL VIOLATIONS HAVE BEEN REMEDIED ....................................7 II. THE STATE BOARD’S MOTION IS UNTIMELY ........................................................10 III. THIS COURT HAS PREVIOUSLY RULED ON THE STATE BOARD’S CONTINUING FAILURE TO MEET ITS CONSTITUTIONAL OBLIGATIONS........10 IV. THE STATE BOARD’S MOTION IS INCONSISTENT WITH ITS PRIOR STATEMENTS AND IS BARRED BY THE DOCTRINES OF ESTOPPEL.................14 A. The State Board represented to the Supreme Court that it “is wrong to repeatedly harken back to the limited scope of the evidence and issues before this Court in 2004 and in Leandro II.” ......................14 B. The facts as established by the State Board’s own witnesses contradict the State Board’s current motion ..........................................................16 V. THE STATE BOARD’S RULE 12(b) MOTION SHOULD ALSO BE DENIED...........19 A. The State Board’s Rule 12(b) motion is untimely .................................................19 B. This Court’s established jurisdiction over the State Board and the subject matter of this lawsuit is the law of the case........................................20 C. Subject matter jurisdiction attached at the time of the complaint..........................21 D. Law of the case: State Defendants are “ultimately responsible” for ensuring that North Carolina children are provided a constitutionally-conforming education ..................................................................21 CONCLUSION..............................................................................................................................22 CERTIFICATE OF SERVICE ......................................................................................................24 APPENDIX
  2. 2. 1 PPAB 4089845v1 This case is about one of the most important rights enumerated in the State Constitution—the fundamental right of every child in North Carolina to have the equal opportunity to obtain a sound basic education. Hoke County Bd. of Ed. v. State, 358 N.C. 605, 609, 599 S.E.2d 365, 373 (2004) (“Leandro II”). In 2002, this Court entered Judgment against the State of North Carolina and the State Board of Education (collectively, the “State Defendants”) for their failure to meet their constitutional obligations. Over a decade has passed since the Supreme Court issued its unanimous decision holding that children were being denied this right and that the State Defendants were responsible for these constitutional violations. Leandro II, 358 N.C. at 647-48, 599 S.E.2d at 396. The Supreme Court further held that the State Defendants are responsible for, and are required to remedy, this constitutional violation. Id. at 638, 599 S.E.2d at 391. In July of 2013, the defendant North Carolina State Board of Education (“State Board”) proclaimed to the North Carolina Supreme Court that is “bound by its judicially mandated constitutional obligations.” See New Brief of Defendant-Appellee State Board of Education dated July 24, 2013 (N.C. Supreme Court), p. 27 (Appendix, Tab A). In its current motion, however, the State Board is attempting to disavow its past commitments to the Court and the children of North Carolina and to recant its previous statements. In addition to taking inconsistent positions to those it has previously taken in this Court and the appellate courts, the State Board also blatantly ignores prior Orders of this Court and asks this Court to overrule the Superior Court Judge who presided over this case for almost 20 years. The State Board and its lawyers are estopped from making a mockery of the Courts that have dedicated over 20 years of thoughtful consideration and analysis to this case and the children of this North Carolina. See generally Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 591 S.E.2d 870 (2004) (outlining various estoppel doctrines “protecting the integrity of the
  3. 3. 2 PPAB 4089845v1 judicial process from the vagaries of litigants who may seek to manipulate it”). Moreover, the State Board’s motion—filed 20 years after the North Carolina Supreme Court affirmed the denial of the State Board’s previous Rule 12 motion, 13 years after the Supreme Court upheld the Judgment against the State Board and 2 years after the Honorable Judge Howard E. Manning, Jr. rejected some of the same arguments the State Board makes now—is procedurally improper. For these and the additional reasons set forth herein, the Court should deny the State Board’s motion and award Plaintiffs their attorneys’ fees for responding to this baseless motion. THE COURT’S RULINGS AND THE LEANDRO TENETS Leandro I More than 23 years ago, in May of 1994, Plaintiffs filed this action against the State Defendants. Plaintiffs alleged that the North Carolina Constitution guaranteed certain educational rights that were being denied to North Carolina’s school-aged children. The State Defendants moved to dismiss Plaintiffs’ claims under Rules 12(b)(1), (2) and (6) on the grounds that Plaintiffs’ claims to educational adequacy under the State Constitution were “nonjusticiable political questions.” Leandro v. State, 122 N.C. App. 1, 11, 468 S.E.2d 543, 550 (1996) rev’d 346 N.C. 336, 488 S.E.2d 249 (1997) (“[t]he State contends in the alternative that plaintiff parties’ educational adequacy claims present nonjusticiable political questions, and the trial court should have dismissed these claims for lack of jurisdiction pursuant to Rules 12(b)(1) and 12(b)(2)”). The trial court denied the State Defendants’ motion, and the State Defendants appealed that ruling. The Court of Appeals “did not reach the ‘political question’ issue,” but the Supreme Court did address it in its unanimous 1997 opinion. Leandro v. State, 346 N.C. 336, 344-45, 488 S.E.2d 249, 253 (1997) (“Leandro I”).
  4. 4. 3 PPAB 4089845v1 In Leandro I, the Supreme Court held: It has long been understood that it is the duty of the courts to determine the meaning of the requirements of our Constitution. When a government action in challenged as unconstitutional, the courts have a duty to determine whether that action exceeds constitutional limits. . . . Defendants’ argument is without merit. Id. (internal citations omitted, emphasis added). The Supreme Court then declared that the Constitution “guarantee[s] every child of this state an opportunity to receive a sound basic education” in a public school. 346 N.C. at 347, 488 S.E.2d at 255. Leandro I made plain that the Constitution requires the State Defendants to ensure that each and every child, regardless of age, need, or district, has access to a sound basic education in a public school. 346 N.C. at 345, 488 S.E.2d at 254 (“an education that does not serve the purpose of preparing students to participate and compete in the society in which they live and work is devoid of substance and is constitutionally inadequate”). The Court defined a “sound basic education” as: one that will provide the student with at least: (1) sufficient ability to read, write, and speak the English language and a sufficient knowledge of fundamental mathematics and physical science to enable the student to function in a complex and rapidly changing society; (2) sufficient fundamental knowledge of geography, history, and basic economic and political systems to enable the student to make informed choices with regard to issues that affect the student personally or affect the student’s community, state, and nation; (3) sufficient academic and vocational skills to enable the student to successfully engage in post-secondary education or vocational training; and (4) sufficient academic or vocational skills to enable the student to compete on an equal basis with others in further formal education or gainful employment in contemporary society. 346 N.C. at 347, 488 S.E.2d at 255. The Supreme Court remanded the case for a determination as to whether the State Defendants were, in fact, denying this fundamental constitutional right to the children. 346 N.C. at 357, 488 S.E.2d at 261.
  5. 5. 4 PPAB 4089845v1 Liability Judgment and Leandro II The trial proceedings continued for over a year, involved more than 40 witnesses, and included hundreds of exhibits. The Court issued four memoranda of decision collectively totaling over 400 pages of findings of fact and conclusions of law. On April 4, 2002, the Court entered a liability judgment against the State Defendants (incorporating the previous memoranda of decision) (collectively, the “Liability Judgment”) finding serious and continuing constitutional violations. With some modifications, the Liability Judgment was unanimously affirmed by the Supreme Court in Leandro II. The Court found, and the Supreme Court unanimously affirmed, that the State Defendants were constitutionally obligated to provide each and every child the opportunity to attend a public school with access to the following: First, that every classroom be staffed with a competent, certified, well- trained teacher who is teaching the standard course of study by implementing effective educational methods that provide differentiated, individualized instruction, assessment and remediation to the students in that classroom. Second, that every school be led by a well-trained competent Principal with the leadership skills and the ability to hire and retain competent, certified and well-trained teachers who can implement an effective and cost-effective instructional program that meets the needs of at-risk children so that they can have the opportunity to obtain a sound basic education by achieving grade level or above academic performance. Third, that every school be provided, in the most cost effective manner, the resources necessary to support the effective instructional program within that school so that the educational needs of all children, including at-risk children, to have the equal opportunity to obtain a sound basic education, can be met. Liability Judgment, pp. 109-10; Leandro II, 358 N.C. at 636, 599 S.E.2d at 389. The Court also found, and the Supreme Court unanimously affirmed, that the State Defendants had not provided, and were not providing, competent certified teachers, well-trained
  6. 6. 5 PPAB 4089845v1 competent principals, and the resources necessary to afford all children, including those at-risk, an equal opportunity to obtain a sound basic education, and that the State Defendants were responsible for these constitutional violations. See Liability Judgment, p. 110, Leandro II, 358 N.C. at 647-48, 599 S.E.2d at 396. In addition, the Court found, and the Supreme Court unanimously affirmed, that “the State of North Carolina is ultimately responsible for providing each child with access to a sound basic education and that this responsibility cannot be abdicated by transferring responsibility to local boards of education.” Liability Judgment, p. 110; Leandro II, 358 N.C. at 635, 599 S.E.2d at 389 (emphasis added). This is the law of the case. It is ultimately the State Defendants’ responsibility to ensure that each child has the opportunity to a Leandro-conforming education. The Supreme Court, interpreting Article IX, Section 2 of the State Constitution, has held that the State Defendants may not shift the blame for the constitutional violations onto the local districts. Moreover, the Court ordered the State Defendants to address and correct the constitutional violations. Leandro II, 358 N.C. at 648-49, 599 S.E.2d at 396-97. In terms of assessing compliance with Leandro, the Court found, and the Supreme Court unanimously affirmed, that one metric for evaluation are educational “outputs.” Test score performance data in certain subject areas—e.g., end-of-grade (“EOG”) and end-of-course (“EOC”) test scores—are evidence of whether children are receiving a Leandro-conforming education. Leandro II, 358 N.C. at 623-25, 599 S.E.2d at 381-86. While test scores are not the only factor, they are an important component in assessing whether the State Defendants are meeting their constitutional obligation to provide all children with a sound basic education. Id.
  7. 7. 6 PPAB 4089845v1 The foregoing has been the law since April 4, 2002, when the Liability Judgment was entered. Leandro III In 2013, the Supreme Court confirmed that the Liability Judgment and the mandates of Leandro I and Leandro II remain “in full force and effect.” Specifically, this Court entered an Order on July 18, 2011 concerning legislative enactments about North Carolina’s pre- kindergarten program, N.C. Pre-K. The State—but not the State Board—appealed the Court’s Order. The State Board filed briefs, both in the Court of Appeals and in the Supreme Court, urging the courts to affirm the trial court’s Order. On November 8, 2013, the Supreme Court dismissed the State’s appeal. In the dismissal order, the Supreme Court held, “Our mandates in Leandro and Hoke County [Leandro II] remain in full force and effect.” Hoke County Bd. of Ed. v. State, 367 N.C. 156, 160, 749 S.E.2d 451, 455 (2013) (emphasis added). THE STATE OF NORTH CAROLINA DOES NOT JOIN THE STATE BOARD’S MOTION At a status conference in March of 2017, this Court asked the Parties to submit filings containing the Parties’ views on the remaining issues and the status of this case. The State Board filed this motion, asserting that “there is no ongoing [Constitutional] violation.” State Board’s Brief, p. 52. The State of North Carolina, however, did not join the State Board’s motion, but instead filed a joint motion with Plaintiffs to present a path forward. That Joint Motion acknowledges that “[i]n order to address the State’s constitutional obligations and the Plaintiff Parties’ ongoing concerns in the most efficient and effective manner possible, Plaintiff Parties and the State believe that a comprehensive approach is required.” Joint Motion at ¶ 8. Specifically, the State of North Carolina and Plaintiffs proposed to recommend to the Court an
  8. 8. 7 PPAB 4089845v1 independent, outside consultant to develop a comprehensive, detailed plan of actions that should be taken to remedy the existing constitutional violations and provide every child the opportunity for a sound basic education. After months of working together to identify, research, interview and select what they believe to be the best choice, the State and Plaintiffs have recommended a consultant to advise the parties and the Court on a Leandro-compliance plan. The State Board has not participated in any of these efforts. ARGUMENT I. THIS COURT RETAINS JURISDICTION OVER THE STATE BOARD UNTIL THE STATE BOARD MEETS ITS BURDEN TO SHOW THE CONSTITUTIONAL VIOLATIONS HAVE BEEN REMEDIED. The State Board cites two divorce cases for the proposition that “changed circumstances” can be grounds to relieve it of its ongoing constitutional obligations under the prior orders in this case. State Board’s Brief, p. 10 (citing Condellone v. Condellone, 137 N.C. App. 547, 528 S.E.2d 639 (2000), disc. review denied, 352 N.C. 672, 545 S.E.2d 420 (2000) (whether plaintiff’s co-habitation with adult male was a change in circumstance sufficient to grant relief from alimony order); Hogue v. Hogue, __ N.C. App. __, 795 S.E.2d 607 (2016) (whether parties’ reconciliation supports relief from equitable distribution order). This is not a domestic case. This is a case about the constitutional rights of all North Carolina children and the State Board’s ongoing violation of those rights. Once a violation of a fundamental constitutional right is established, the defendant is required to implement remedial measures to correct it. On April 4, 2002, this Court ordered the State Defendants to develop and implement a remedial framework to address and correct the constitutional violations. Liability Judgment at p. 111 (¶ 4). In 2004, the Supreme Court affirmed and held that the State Defendants must implement a remedial plan to “correct” the
  9. 9. 8 PPAB 4089845v1 deficiencies. Leandro II, 358 N.C. at 638, 599 S.E.2d at 391 (affirming that “there has been a clear showing of a denial of the established right” and affirming “portions of the order that require the State to . . . correct any deficiencies”). The relevant question, therefore, is not whether circumstances have changed since the Supreme Court ruled against the State Defendants. The relevant question is whether the State Defendants have, in fact, cured the constitutional violations. The State Defendants bear the burden to prove that (i) they have developed and implemented a Leandro remedial plan, and (ii) that such plan is sufficient to remedy the constitutional violations. The fact that the State Board bears this burden is uncontroverted. The State Board previously conceded to the Court of Appeals in this case that it has “always [been] the State’s burden to come forward with a remedial plan and demonstrate to the court that it would adequately address the previously determined constitutional violation.” Brief of Defendant- Appellee State Board of Education dated April 25, 2012 (North Carolina Court of Appeals) at pp. 34-35 (Appendix, Tab B). Once a violation of a fundamental constitutional right has been established (in any context), it is the defendant’s burden to prove to the Court that it has remedied the wrong. See, e.g., Everett v. Pitt County Bd. of Educ., 678 F.3d 281, 289 (4th Cir. 2012) (in school desegregation context, the burden is on governmental actors to prove that underlying violation has been remedied). It is part of the judiciary’s ultimate responsibility to “assess the effectiveness” of remedial plans in addressing the underlying liability and securing constitutional compliance. Green v. Cty Sch. Bd. of New Kent County, 391 U.S. 430, 439 (1968). Once liability has been established, the court’s jurisdiction is not withdrawn unless and until there is a finding that the defendant state actors have wholly remedied the constitutional violation, and the burden of proving that the remedy has been achieved “rests on the defendants.”
  10. 10. 9 PPAB 4089845v1 School Bd. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987). For example, after over a decade of minimal integration progress required by Brown v. Bd. of Educ., 347 U.S. 483 (1954), the U.S. Supreme Court clarified the role of the lower courts to direct and monitor school officials as they fashion and implement remedies: It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state- imposed segregation. It is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives which may be shown as more feasible and more promising in their effectiveness . . . . Moreover, 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. Green, 391 U.S. at 439 (emphasis added). Here, the State Board has not proved that a remedy sufficient to provide all children the opportunity to a sound basic education has been achieved. To the contrary, the State Board has admitted that all children do not have that constitutionally required opportunity. State Board’s July 1, 2015 Submission, at p. 45, (admitting that expanded resources “need to be in place” before “a greater number of students at risk are able to access and receive a sound basic education”) (emphasis added). This Court’s jurisdiction, therefore, remains intact. Until there is a judicial determination that the constitutional injury has been fully addressed, the State Board must continue to comply with the controlling orders in the case. See, e.g., Bd. of Educ. v. Dowell, 498 U.S. 237, 249 (1991); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 439- 41 (1976). Rule 12 and Rule 60 are not the applicable standards by which to judge the State Board’s compliance with this Court’s and the Supreme Court’s prior orders. Unless and until the State Board meets its constitutional burden, this Court retains jurisdiction over the State Board, and its motion must be denied.
  11. 11. 10 PPAB 4089845v1 II. THE STATE BOARD’S MOTION IS UNTIMELY. Even if Rule 60 were the correct standard (which it is not for the reasons set forth above), the State Board’s motion should nonetheless be denied because it is untimely. The State Board seeks relief from the Court’s prior rulings under Rule 60(b)(5) and (6). “A motion under Rule 60(b) is addressed to the sound discretion of the trial court . . . .” Harris v. Harris, 307 N.C. 684, 687, 300 S.E.2d 369, 372 (1983). Rule 60 expressly requires that a motion under either (b)(5) or (b)(6) “shall be made within a reasonable time.” N.C. R. Civ. P. 60(b). Although “[w]hat constitutes a ‘reasonable time’ under the rule is determined by examining the circumstances of the individual case,” North Carolina courts have held a delay of a year or more to be unreasonable. Brown v. Windhom, 104 N.C. App. 219, 221, 408 S.E.2d 536, 537 (1991) (holding one-year delay unreasonable); see also Jenkins v. Richmond County, 118 N.C. App. 166, 169-70, 454 S.E2d 290, 292 (1995) (same); Nickels v. Nickels, 51 N.C. App. 690, 277 S.E.2d 577 (1981), cert. denied, 303 N.C. 545, 281 S.E.2d 392 (1981) (holding same for 23-month delay); cf. Poston v. Morgan, 83 N.C. App. 295, 301, 350 S.E.2d 108, 111 (1986) (concluding that, “[o]n the facts of [the] case,” a four-month delay “is not an unreasonable amount of time”). The State Board filed this motion in July 2017, basing the claim for alleged “changed circumstances” on changes that took place in 2012. State Board’s Brief at 12-19. This five-year delay is patently unreasonable under the Rule. As a result, the State Board’s motion is untimely and should be denied. III. THIS COURT HAS PREVIOUSLY RULED ON THE STATE BOARD’S CONTINUING FAILURE TO MEET ITS CONSTITUTIONAL OBLIGATIONS. The State Board would have this Court believe that the “READY Accountability model” has never been examined by this Court in the context of the State Board’s constitutional
  12. 12. 11 PPAB 4089845v1 obligations and is a sufficient “change in circumstances” to warrant releasing the State Board from those obligations. The State Board is wrong, and its argument is disingenuous, at best. On January 21 and 22, 2015, this Court held a hearing at which: The State Board of Education “(“SBE”) and the Department of Public Instruction (“DPI”) were provided with the opportunity to report concerning matters relating to the academic progress that our children in the public schools of North Carolina had made during the 2013-14 school year and an explanation of the SBE’s redefining and relabeling the standards for academic achievement in to levels 1-5 for purposes of defining academic achievement in grades 3-8 and in certain high school courses. Notice of Hearing and Order dated March 17, 2015 (the “March 17 Order”) (Appendix, Tab C). After the January 2015 hearing, the Court issued the March 17 Order, which contained several findings. First, the Court found—after the Ready Accountability model and the “new curriculum standards” were adopted—that “a definite plan of action” is still “necessary to meet the requirements and duties of the State of North Carolina with regard to its children having the equal opportunity to obtain a sound basic education.” March 17 Order, p. 3 (emphasis added). Second, the Court made clear its understanding that “as of today, the language utilized within the N.C. K-12 education administration bureaucracy to describe what Leandro (and the North Carolina Constitution) requires . . . is ‘college and career ready.’” Id. Third, this Court held: The Court, after listening to the testimony concerning the reason(s) for redefine[ing] and relabeling the standards for academic achievement into levels 1-5 for purposes of defining academic achievement in grades 3-8 and in certain high school courses, will continue to review EOG and EOC course scores at the “old” level III (grade level) which is now level 4 (“college and career ready” or “CCR”) in determining whether the children of North Carolina have obtained a sound basic education in that course or subject for the previous year. Id., p. 5.
  13. 13. 12 PPAB 4089845v1 Lastly, after holding an evidentiary hearing on the “new” accountability system and standards, and after ruling that Level 4, or “college and career ready,” is the appropriate indicator of whether students are receiving a sound basic education as defined by our Supreme Court, the Court held: The bottom line is that the valid assessments of student achievement in North Carolina show that many thousands of children in K-12 are not performing at grade level in multiple subject areas and thus, are not obtaining a sound basic education. This is an ongoing problem that needs to be dealt with and corrected. Id., p. 13 (emphasis added). Neither the State Board nor the State of North Carolina appealed the March 17 Order. It is well established under North Carolina law “that no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another's errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action.” Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972) (citations omitted). The Supreme Court has further explained the policy behind this rule: The reason one superior court judge is prohibited from reconsidering the decision of another has remained consistent for over one-hundred years. When one party wait[s] for another [j]udge to come around and [takes its] chances with him, and the second judge overrules the first, an unseemly conflict is created. Given this Court's intolerance for the impropriety referred to as judge shopping and its promotion of collegiality between judges of concurrent jurisdiction, this unseemly conflict ... will not be tolerated. State v. Woolridge, 357 N.C. 544, 550, 592 S.E.2d 191, 194 (2003) (emphasis added) (internal quotations and citations omitted). Similarly, the Court was also keenly aware of the Read to Achieve legislation that the State Board now touts in its motion. On May 5, 2014, the Court filed a “Report from the Court
  14. 14. 13 PPAB 4089845v1 re: the Reading Problem” (the “Court’s Report”) (Appendix, Tab D). In its Report, the Court reviewed the requirements and implementation of Read to Achieve at length. See Court’s Report, pp. 24-28. Notwithstanding the Read to Achieve legislation, the Court concluded: “Where was North Carolina at the beginning of the 2013-14 in terms of having successfully assessed and taught the entering 3rd graders to be proficient in reading? . . . Answer: Not so hot.” Court’s Report, p. 31. Indeed, after the passage and implementation of Read to Achieve, the Court’s ultimate conclusion regarding the State Board’s constitutional compliance was as follows: Suffice it to say that poor academic performance remains a problem in a host of elementary, middle and high schools throughout North Carolina and as a result, the children in those schools who are blessed with the right to the equal opportunity to obtain a sound basic education as guaranteed by the Constitution and as set out in Leandro, are being deprived of their constitutional right to that opportunity on a daily basis. Court’s Report, p. 4. Judge Manning carefully considered the purported “changed circumstances” of the Read to Achieve legislation, the State Board’s adoption of the Ready Accountability model, and the implications thereof on this case. He ruled that the new “college and career ready” standard is the appropriate standard to examine in determining whether the defendants have remedied the constitutional violations found by the Supreme Court. As of March 17, 2015, Judge Manning was not convinced that the defendants had met their burden and ordered further evidentiary hearings. The State Board is now “taking its chances” that a different superior court judge will see the evidence differently. For the reasons set forth above, the State Board’s attempt to do so should be denied.
  15. 15. 14 PPAB 4089845v1 IV. THE STATE BOARD’S MOTION IS INCONSISTENT WITH ITS PRIOR STATEMENTS AND IS BARRED BY THE DOCTRINES OF ESTOPPEL. Under North Carolina law, “[b]roadly speaking, estoppel is a bar which precludes a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth.” Biosignia, 385 N.C. at 13, 591 S.E. 2d at 879. The doctrines of estoppel “substantially promote that ancient and overarching estoppel principle which lies at the foundation of all fair dealings between [persons].” Biosignia, 385 N.C. at 27, 591 S.E.2d at 887. The doctrine of judicial estoppel protects the integrity of judicial proceedings and seeks to protect the Court from exactly what the State Board is attempting to do: “play fast and loose with the judicial system.” 385 N.C. at 26-27, 591 S.E.2d at 887. Judicial estoppel has “inherent flexibility as a discretionary equitable doctrine,” and is used by courts “where the technical requirements of mutuality, reliance, or prejudice might render” other estoppel doctrines inapplicable. Id. The positions asserted by the State Board in its current motion are contrary to the positions the State Board has taken in this Court, the North Carolina Court of Appeals, and the North Carolina Supreme Court. The “facts” as the State Board now presents them are also contradicted by its own prior testimony. The State Board is not allowed to “blow hot and cold in the same breath” and its motion should be denied. Id. at 26. A. The State Board represented to the Supreme Court that it “is wrong to repeatedly harken back to the limited scope of the evidence and issues before this Court in 2004 and in Leandro II.” The State Board contends that since circumstances in Hoke County have improved, and the Liability Judgment and rulings in this case only apply to Hoke County, it is entitled to relief under Rule 60. This is the exact opposite of what the State Board represented previously to the Supreme Court. As noted above, the State Board did not appeal Judge Manning’s 2011 Order
  16. 16. 15 PPAB 4089845v1 related to NC Pre-K, but instead filed its own appellate briefs. In those appellate filings, the State Board argued eloquently and vehemently against the very contention it now makes to this Court. Specifically, the State Board said that “the Attorney General is wrong to repeatedly harken back to the limited scope of the evidence and issues before this Court in 2004 in Leandro II.” See New Brief of Defendant-Appellee State Board of Education dated July 24, 2013 (N.C. Supreme Court), p. 36 (Appendix, Tab A). The State Board represented to the Supreme Court that while the case initially focused on Hoke County, since that time, the State has for nearly a decade made this a case about its chosen statewide remedy. That is, there is no need to parse the language of the Complaint or the evidence before this Court in 2004 to determine the scope of the issues involved today, after the parties have acquiesced, under judicial supervision, in the statewide reach of this case for years. In other words, the parties engaged in “litigation by consent” of the statewide issues. Id. (original emphasis) (internal citations omitted). Now, today, in direct contradiction of its statements to the Supreme Court, the State Board asks this Court to “parse the language of the Complaint,” focus on limited improvements in Hoke County—as opposed to the over 300,000 children statewide who cannot read at grade level—and relieve it of its constitutional obligations. But as the State Board has already admitted, it has acquiesced (along with the other parties to the litigation) in the statewide reach of this case and has litigated the case on a state-wide basis by consent for years. The State Board also astutely pointed out to the Supreme Court in 2013 that it would be “nonsensical” for the constitutional remedies mandated by Leandro II “to apply in one area of the State but not in others.” Id., p. 37. The State Board went on to say: Nor would it be practical, efficient, or wise to require every locality in the state to initiate its own lawsuit against the already taxed State Board, seeking affirmation of the same principle for its children, which may take
  17. 17. 16 PPAB 4089845v1 many more years. To argue otherwise ignores this Court’s grave concern in 2004 that too much time has already passed without a proper remedy for at-risk children: …The children of North Carolina are our state’s most valuable renewable resource. If inordinate numbers of them are wrongfully being denied their constitutional right to the opportunity for a sound basic education, our state courts cannot risk further and continued damage because the perfect civil action has proved elusive. . . . We cannot similarly imperil even one more class unnecessarily. Id., quoting Leandro II, 358 N.C. at 616, 599 S.E.2d at 377. The State Board cannot talk out of both sides of its mouth: acquiescing in the statewide application of this case in front of the Supreme Court, but then contending that this Court should only consider the allegations and evidence related to Hoke County. The statewide implications and applications of this case have been established in the course of the litigation. Indeed, the State Board has admitted as much and is judicially estopped from taking a contrary position with this Court.1 B. The facts as established by the State Board’s own witnesses contradict the State Board’s current motion. Similarly, the State Board is estopped from asserting facts that are contradicted by its own prior testimony in this case. For example, the State Board touts changes implemented using the federal Race to the Top (“RTTT”) grant as sufficient to relieve it of future compliance with the rulings of this case. But the State Board ignores its own testimony and admissions that the RTTT grant funding ended in 2014-15 and that it has significantly less resources since that 1 The State Board also fails to present a complete picture of the circumstances in Hoke County. For example, Hoke County Public Schools (HCPS) has many extraordinarily experienced and gifted teachers; it does not, however, have the resources necessary to attract and maintain a certified, well-trained teacher in every classroom. See Affidavit of Dr. Freddie Williamson dated January 31, 2018 (Appendix, Tab I) at ¶¶ 6, 11. Teacher turnover in HCPS was 25.44% in 2015-16, among the highest five turnover rates in the State. Id. at ¶ 7. Due to high teacher turnover, HCPS has a much higher percentage of beginning teachers (0-3 years) than the State average. With a lack of certified teachers applying for Exceptional Children’s teaching positions, HCPS has also been forced to hire lateral entry candidates—people with no formal training to work with this most at-risk population—to fill those positions. Id. at ¶10.
  18. 18. 17 PPAB 4089845v1 funding ran out to try to provide children the opportunity for a sound basic education. For example, the State Board notes in its motion that during the RTTT funding, the Department of Public Instruction (“DPI”) served 118 low-performing schools and districts through the District and School Transformation team, and this evidences a change in the State Board’s ability to “identify at-risk students and support their academic development.” State Board’s Brief, p. 39. State Board witnesses previously testified, however, that since the RTTT funding ended, DPI lost over half the staff—from 147 to 57—dedicated to serving those low performing schools. Testimony of Dr. Nancy Barbor (State Board witness), 7/23/2015, p. 525 (Appendix, Tab E). In fact, the State Board admitted there are now more schools rated “D” or “F” than the current DPI District and School Transformation team can serve. Dr. Rebecca Garland (State Board witness), 7/21/2015, p. 160 (Appendix, Tab F). Similarly, RTTT funding was used to develop and implement a New Teacher Support Program as a means of implementing effective teaching, which the State Board contends in its motion that it has done. An independent evaluation of that program concluded that students in the State’s lowest performing schools taught by teachers who participated in the New Teacher Support Program made significantly larger achievement gains in elementary and middle school mathematics and reading than students who were taught by other novice teachers. Dr. Lynn Johnson, (State Board witness) 7/22/2015, p. 234 (Appendix, Tab G). The State Board previously testified in Court, however, that the program is no longer funded. Dr. Rebecca Garland, 7/21/2015, pp. 147-148 (Appendix, Tab F). The State Board’s description of changes in the teacher evaluation system as ensuring “compliance with the remedial order requiring an effective teacher in every classroom” is also
  19. 19. 18 PPAB 4089845v1 contradicted by previous testimony.2 The Court best explained the fallacy of the State Board’s position during the testimony of the State Board’s witness, Dr. Thomas Tomberlin: Q: . . . if Johnny would have met expected growth, each one of those teachers theoretically would be judged as effective, correct? A: Yes. Q: Johnny is still not at grade level. A: That’s right. THE COURT: . . . He’s already screwed. He can’t read in the third grade and he’s not making any progress. He’s down the tubes. So her question and my question is, all this rating stuff doesn’t do Johnny any good if the teacher becomes effective, because Johnny has simply kept from drowning. In other words, he’s held on to the life raft so that he doesn’t go backwards. What Johnny needs to do is Johnny needs to exceed the computer’s expected growth in order for him to at least try to catch up with the pack. A: I do not disagree. THE COURT: That’s why we both got the back of our necks up, because just saying they are effective. They are not effective with Johnny because they haven’t moved him. They kept him from sliding backwards and get[ting] eaten by the sharks, but they haven’t improved his life on the road to getting him to grade level in plain English. A: I agree [with] that . . . . Testimony of Dr. Thomas R. Tomberlin, 7/22/2015 pp. 345-346 (Appendix, Tab H) (emphasis added). The State Board is bound by these previous representations (made under oath and/or subject to Rule 11) to this Court and the Supreme Court. The State Board’s motion directly 2 The State Board’s motion is also contradicted by its previous filings in this Court, wherein it admitted that the public schools will not be able to “compete with other employment and career opportunities” unless the State can “offer comparable salaries and benefits to attract bright, committed individuals to enter the profession.” State Board’s July 1, 2015 Submission, at pp. 45-46. The State Board further admitted that it is unable to recruit and retain sufficient numbers of qualified teachers to satisfy demand. Id. at p. 7 (“North Carolina needs approximately 11,000 new teachers each year in order to satisfy demand, but this demand is not being met through the public and private educator programs, lateral entry, or the importation of teachers from other states and countries.”)
  20. 20. 19 PPAB 4089845v1 contradicts the facts and the position of the State Board established in prior filings and proceedings. The well-established doctrines of estoppel prohibit what the State Board is trying to do, and its motion should be denied. V. THE STATE BOARD’S RULE 12(b) MOTION SHOULD ALSO BE DENIED. The State Board purports to base its motion for Relief in part on Rule 12(b)(1) (“[l]ack of jurisdiction over the subject matter, Rule 12(b)(2) (“[l]ack of jurisdiction over the person”) and Rule 12(b)(6) (“[f]ailure to state a claim upon which relief can be granted”). The State Board’s motion is untimely, factually and legally unsupportable, and has previously been denied by our Supreme Court. For these reasons, the Court should deny the motion. A. The State Board’s Rule 12(b) motion is untimely. Rule 12 provides that a “motion making any of these defenses shall be made before pleading if a further pleading is permitted. . . . If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief.” N.C.R.C.P. 12(b) (emphasis added). Here, the time for the State Board to make a Rule 12 motion was before answering the Complaint. As explained further below, the State Board did exactly that in 1994. The State Board has subjected itself to the personal jurisdiction of this Court for over twenty years. Its Rule 12(b)(2) motion is frivolous. Moreover, this case has already proceeded through trial, and judgment has been entered. To the extent that the State Board contends that the non-Hoke County Plaintiff’s claims are subject to dismissal under Rule 12, as noted above, the State Board has acquiesced in the state- wide application of the rulings in this case since at least 2004. For all of these reasons, the State Board’s motion is untimely and should be dismissed.
  21. 21. 20 PPAB 4089845v1 B. This Court’s established jurisdiction over the State Board and the subject matter of this lawsuit is the law of the case. After the Complaint was filed in 1994, the State Board, along with the State of North Carolina, moved to dismiss all of Plaintiffs’ claims pursuant to Rules 12(b)(1), (2) and (6). The State Board contended that the Complaint failed to state a claim, and that Plaintiffs’ claims to educational adequacy under the State Constitution were “nonjusticiable political questions.” Leandro v. State, 122 N.C. App. 1, 11, 468 S.E.2d 543, 550 (1996) rev’d 346 N.C. 336, 488 S.E.2d 249 (1997) (“[t]he State contends in the alternative that plaintiff parties’ educational adequacy claims present nonjusticiable political questions, and the trial court should have dismissed these claims for lack of jurisdiction pursuant to Rules 12(b)(1) and 12(b)(2)”). The Supreme Court directly addressed these issues in its unanimous 1997 Leandro I opinion: It has long been understood that it is the duty of the courts to determine the meaning of the requirements of our Constitution. When a government action in challenged as unconstitutional, the courts have a duty to determine whether that action exceeds constitutional limits. . . . Defendants’ argument is without merit. Leandro v. State, 346 N.C. 336, 344-45, 488 S.E.2d 249, 253 (1997) (internal citations omitted, emphasis added). The Supreme Court’s ruling denying the State Board’s Rule 12 motion is the law of the case. Tennessee-Carolina Transp., Inc. v. Strick Corp., 286 N.C. 235, 239, 210 S.E.2d 181, 183 (1974) (“The decision by the Supreme Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal.”); Hayes v. City of Wilmington, 243 N.C. 525, 537, 91 S.E.2d 673, 682 (1956). The State Board’s attempt to get a second bite at the apple, 20 years after the Supreme Court rejected its arguments, is improper, and its motion should be denied.
  22. 22. 21 PPAB 4089845v1 C. Subject matter jurisdiction attached at the time of the complaint. The State Board’s request for dismissal under Rule 12(b)(1) misunderstands the most basic nature of subject matter jurisdiction and when it attaches. As the North Carolina Supreme Court has explained, Once the jurisdiction of a court or administrative agency attaches, the general rule is that it will not be ousted by subsequent events. This is true even when the events are of such a nature that they would have prevented jurisdiction from attaching in the first instance. . . . Jurisdiction is not a light bulb which can be turned off or on during the course of the trial. Once a court acquires jurisdiction over an action it retains jurisdiction over that action throughout the proceeding. If the converse of this were true, it would be within the power of the defendant to preserve or destroy jurisdiction of the court at his own whim. In re Peoples, 296 N.C. 109, 146, 250 S.E.2d 890, 911 (1978) (internal quotation marks, citations omitted, emphasis added). As stated above, the North Carolina Supreme Court held in Leandro I that any argument that this Court lacks subject jurisdiction over this matter “is without merit.” Leandro I, 346 N.C. at 344-45, 488 S.E.2d at 253. The jurisdiction cannot be ousted by subsequent events. D. Law of the case: State Defendants are “ultimately responsible” for ensuring that North Carolina children are provided a constitutionally-conforming education. The State Board appears to suggest that the enactment of Gen. Stat. § 115C-47(1) — which, according to the State Board, provides that “local boards of education now share responsibility by statute … for the provision of the opportunity of a sound basic education” — somehow affects the State Defendants’ constitutional obligations to North Carolina’s children. See State Board’s Brief at 52-53. The State Board’s suggestion is without merit. The State Board ignores the established law of the case. This Court already found, and the Supreme Court unanimously affirmed, that the State Defendants, not the local boards of
  23. 23. 22 PPAB 4089845v1 education, were “ultimately responsible” under the North Carolina Constitution for ensuring that all children had “access to a sound basic education.” Liability Judgment, p. 110; Leandro II, 358 N.C. at 365, 599 S.E.2d at 389. This fundamental constitutional “responsibility cannot be abdicated by transferring responsibility to the local boards of education.” Id. The Supreme Court, interpreting Article IX, Section 2 of the Constitution, has already held in this case that the State Defendants may not shift the blame for constitutional violations onto the local districts, whether by policy, statute, or otherwise. The fact that local boards of education may now “share[]” a statutory obligation to help ensure that children receive an appropriate education says nothing about whether the State Defendants have met their constitutional obligations, for which they (not the local boards of education) have the ultimate responsibility. The holding that the State Defendants bear this constitutional responsibility is the law of the case, see, e.g., Tennessee-Carolina Transp., 286 N.C. at 239, 210 S.E.2d at 183, and the State Board’s untimely attempt to shift responsibility should be soundly rejected. CONCLUSION For reasons set forth herein, the Court should deny the State Board’s Motion for Relief and award Plaintiffs their reasonable attorneys’ fees and costs incurred in responding to the motion.

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