{ "id": 4220437, "name": "AMY DIAMOND, Petitioner v. CHARLOTTE-MECKLENBURG COUNTY BOARD OF EDUCATION, ERIC DAVIS, TIMOTHY S. MORGAN, TOM TATE, JOYCE DAVIS, & ALLEN MCELRATH, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, Respondents", "name_abbreviation": "Diamond v. Charlotte-Mecklenburg County Board of Education", "decision_date": "2013-05-07", "docket_number": "No. COA12-690", "first_page": "17", "last_page": "24", "citations": [ { "type": "official", "cite": "227 N.C. App. 17" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "681 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2009, "pin_cites": [ { "page": "483" }, { "page": "483" } ], "opinion_index": 0 }, { "cite": "199 N.C. App. 219", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4170726 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "223-24" }, { "page": "223-24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/199/0219-01" ] }, { "cite": "339 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "484", "parenthetical": "citation omitted" }, { "page": "485", "parenthetical": "citation omitted" }, { "page": "485" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520827 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "373", "parenthetical": "citation omitted" }, { "page": "374" }, { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0372-01" ] }, { "cite": "233 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "541" }, { "page": "544", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "410" }, { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] } ], "analysis": { "cardinality": 708, "char_count": 16520, "ocr_confidence": 0.732, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1396660577508573 }, "sha256": "01b1529873985968dd8889422dac236f20f78d1d2c0e751f1b93cb5d8b441e20", "simhash": "1:a9ccc113772f35b7", "word_count": 2580 }, "last_updated": "2023-07-14T17:48:13.495142+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and GEER concur." ], "parties": [ "AMY DIAMOND, Petitioner v. CHARLOTTE-MECKLENBURG COUNTY BOARD OF EDUCATION, ERIC DAVIS, TIMOTHY S. MORGAN, TOM TATE, JOYCE DAVIS, & ALLEN MCELRATH, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, Respondents" ], "opinions": [ { "text": "BRYANT, Judge.\nWhere the trial court dismissed petitioner\u2019s petition for judicial review of a Charlotte-Mecklenburg County Board of Education (School Board) decision to terminate her position after she used physical force on a misbehaving student, we affirm the order of the trial court.\nOn 2 February 2011, the students of Bailey Middle School, where petitioner worked as an academic facilitator, were evacuated due to a bomb threat. During the evacuation, after students had been removed to the school\u2019s track and field area, one seventh grade student repeatedly disregarded teacher instructions. He refused to put away his soda, refused to sit down and responded to teacher requests to behave with various inappropriate verbal assaults, causing continuing disruption.\nAfter unsuccessful attempts to change the student\u2019s behavior, the student\u2019s teacher approached petitioner for assistance. Petitioner first advised the teacher to try to ignore the student and to instruct the other students to do the same. After this approach proved unsuccessful, petitioner approached the student, told him he needed to cooperate, and provided him with the option of either sitting down or relocating to a nearby fence, where he would be removed from the other students.\nThe student used offensive language in responding to petitioner, stating that he would not do \u201cany f \u2014 g thing she f- \u2014 g told him to do.\u201d Petitioner led the student to the fence by his arm, but the student continued to behave disruptively. Petitioner then slapped the student across his face.\nThe next day, 3 February 2011, petitioner was suspended with pay pending an investigation into the incident. After an investigation, in a letter dated 2 September 2011, the Superintendent recommended petitioner\u2019s dismissal to the School Board based on: (1) failure to abide by the North Carolina Code of Professional Practice and Conduct for North Carolina Educators, as required by the Charlotte-Mecklenburg Board of Education, by committing an \u201cabusive act\u201d against a student, (2) failure to fulfill the duties and responsibilities imposed on teachers by the North Carolina statutes by failing to maintain order and discipline, and (3) insubordination.\nPetitioner met with the Superintendent to respond to the recommendation of dismissal, at which time they discussed the charges and petitioner informed the Superintendent that she believed her actions fell under an exception to the prohibition on the use of physical force, articulated in N.C.G.S. \u00a7 115C-391(a) (repealed 2011). The exception permits an educator to bypass the standard procedure for using physical force on a student, in limited circumstances. N.C. Gen. Stat. \u00a7 115C-391 (repealed 2011).\nAfter the meeting, the Superintendent issued a letter notifying petitioner of his intent to recommend her dismissal to the Board of Education. Petitioner then requested review of her dismissal by an independent case manager, pursuant to N.C.G.S. \u00a7 115C-325(j2).\nAt the hearing, the case manager concluded that the termination was justified because, although N.C.G.S. \u00a7 155C-391 might apply to an evacuation such as the one here, petitioner\u2019s actions were not reasonably calculated to maintain order and thus the exception did not apply. The case manager emphasized that there was no threatened harm to the student himself or to another person, and that his outbursts did not create a safety concern.\nPetitioner requested a hearing before the School Board to further challenge the Superintendent\u2019s dismissal recommendation. After the presentation of oral and written testimony, the School Board unanimously upheld the dismissal recommendation on 15 September, 2011.\nPetitioner then filed a Petition for Judicial Review pursuant to N.C.G.S. \u00a7 115C-325(n). In response, respondents, the School Board and the individually named School Board members, filed a Motion to Dismiss on 28 November 2011. Judge A. Robinson Hassell heard the Petition for Judicial Review on 9 February 2011 and granted respondents\u2019 motion to dismiss in an order dated 24 February 2012. In the order, he concluded that the termination decision was not based on an error of law and that evidence existed to support the School Board\u2019s decision under either a de novo or a whole record standard of review.\nPetitioner appeals.\nOn appeal, petitioner raises the following issues: whether the trial court erred in concluding that the School Board\u2019s decision was (I) supported by substantial evidence and thus was not arbitrary and capricious and (II) not based on an error of law regarding the School Board\u2019s application of N.C.G.S. \u00a7 115C-391 to petitioner\u2019s use of physical force.\n/\nPetitioner first argues that the trial court incorrectly concluded that the School Board\u2019s decision was supported by substantial evidence. We disagree.\nNorth Carolina General Statutes, section 150B-51 governs judicial review of a school board\u2019s actions. It permits reversal or modification of a school board decision when the substantial rights of a petitioner \u201cmay have been prejudiced because the findings, inferences, conclusions, or decisions are . . . [unsupported by substantial evidence ... in view of the entire record as submitted[.]\u201d N.C. Gen. Stat. \u00a7 150B-51(b)(5) (2011).\nA court reviews the final decision of the School Board for lack of evidence under N.C.G.S. \u00a7 150B-51 pursuant to a whole record standard of review, basing its findings on the final decision of the School Board and the official record. N.C.G.S. \u00a7 150B-51(c). \u201cThe \u2018whole record\u2019 test does not allow the reviewing court to replace the Board\u2019s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo.\u201d Thompson v. Wake County Bd. of Educ., 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977). Rather, the whole record test requires that the court consider both the evidence justifying the School Board\u2019s decision and any contradictory evidence to determine whether the School Board\u2019s decision was supported by substantial evidence. Id. In other words, \u201creview is limited to determining whether the superior court correctly decided that the Board\u2019s decision to dismiss plaintiff . . . was supported by substantial evidence in light of the whole record.\u201d Crump v. Bd. of Educ., 79 N.C. App. 372, 373, 339 S.E.2d 483, 484 (1986) (citation omitted). Substantial evidence exists when \u201ca reasonable mind might accept [the evidence] as adequate to support a conclusion.\u201d Thompson, 292 N.C. at 414, 233 S.E.2d at 544 (citations omitted).\nThis court need not determine that substantial evidence existed for each of the three stated reasons for petitioner\u2019s dismissal; it is sufficient that any one of the reasons for her dismissal is supported by substantial evidence, provided that she was notified of the reason. Crump, 79 N.C. App. at 374, 339 S.E.2d at 485 (citation omitted).\nIn reaching its decision to recommend dismissal, the School Board accepted the case manager\u2019s findings of fact. Using those factual findings, we will first consider whether petitioner\u2019s termination on the basis of \u201cfailure to fulfill the duties and responsibilities imposed upon teachers by the general statutes of this State\u201d is supported by substantial evidence. See N.C. Gen. Stat. \u00a7 U5C-325(e)(l)(i) (2011) (\u201cSystem of Employment of Public School Teachers\u201d).\nNorth Carolina law instructs that teachers have a duty, \u201cwhen given authority over some part of the school program by the principal or supervising teacher, to maintain good order and discipline . . . .\u2019\u2019N.C. Gen. Stat. \u00a7 115C-307(a) (2011). The School Board found that petitioner was given authority by the school\u2019s principal to oversee and implement the school evacuation. It was thus her duty as an educator to maintain order and discipline during that process. See N.C.G.S. \u00a7 115C-307(a).\nBased on the Case Manager\u2019s factual findings, the School Board\u2019s determination that petitioner failed to maintain good order and discipline as a result of her use of physical force is supported by substantial evidence. The School Board found that petitioner\u2019s actions failed to improve the situation with the misbehaving student, and even possibly made it worse. It also found that petitioner\u2019s handling of the situation required an assistant principal and a security officer to step in and deal with the repercussions of her actions, separating her and the student and calming the student down. That two other school employees had to promptly act to deescalate the situation between petitioner and the student supports the conclusion that petitioner failed to maintain order during the school evacuation, in violation of N.C.G.S. \u00a7 115C-307(a).\nWhile certain factual findings also indicate that the events of the day were somewhat chaotic and uncertain \u2014 an entire middle school had been relocated to a track and field area for two to three hours and students and staff understandably became restless \u2014 the confusion or chaos does not negate the evidence supporting the School Board\u2019s finding. Despite the additional stress created by the surrounding environment, sufficient evidence exists to support the conclusion that petitioner\u2019s actions failed to maintain good order and discipline in the situation.\nTherefore, the School Board\u2019s decision to terminate plaintiff for her failure to fulfill the duties imposed by the N.C.G.S. \u00a7 155C-307 is supported by substantial evidence. Petitioner\u2019s argument that the decision of the School Board was arbitrary and capricious is therefore overruled.\nIn light of the fact that we uphold petitioner\u2019s termination based on her failure to fulfill the duties imposed by the North Carolina General Statutes, we need not determine whether the Superintendent\u2019s other stated reasons were supported by substantial evidence based on the whole record. Crump, 79 N.C. App. at 374, 339 S.E.2d at 485.\nII\nPetitioner next argues that the trial court erred in concluding that the School Board\u2019s decision was not based on an error of law. This argument is based on petitioner\u2019s contention that the School Board failed to correctly apply N.C.G.S. \u00a7 115C-391.\nThe standard of review for this argument is likewise governed by N.C.G.S. \u00a7 150B-51, which permits reversal or modification of a school board decision when the substantial rights of a petitioner \u201cmay have been prejudiced because the findings, inferences, conclusions, or decisions are . . . [a]ffected by other error of law[.]\u201d N.C.G.S. \u00a7 150B-51(b) (4). The court shall review the matter, using the official record, under a de novo standard of review. N.C.G.S. \u00a7 150B-51(c). However, the School Board\u2019s decision \u201cis presumed to be made in good faith and in accordance with governing law.\u201d Richardsonv. N.C. Dept. of Pub. Instruction Licensure Section, 199 N.C. App. 219, 223-24, 681 S.E.2d 479, 483 (2009). It is therefore the burden of the party asserting error to overcome this presumption with competent evidence. Id.\nPetitioner asserts that her actions were permissible under N.C.G.S. \u00a7 115C-391, which, prior to its repeal, stated:\nschool personnel may use reasonable force, including corporal punishment, to control behavior or to remove a person from the scene in those situations when necessary:\n(1) To quell a disturbance threatening injury to others;\n(2) To obtain possession of weapons or other dangerous objects on the person, or within the control, of a student;\n(3) For self-defense;\n(4) For the protection of persons or property; or\n(5) To maintain order on school property, in the classroom, or at a school-related activity on or off school property.\nN.C. Gen. Stat \u00a7 115C-391(a) (repealed 2011). Petitioner argues that she slapped the student to maintain order during the evacuation; therefore her action falls under the last articulated exception and the trial court committed an error of law by failing to apply it to her case. We disagree.\nN.C.G.S. \u00a7 115C-391 lists five particular circumstances in which the use of unregulated physical force against a student may be permitted: preventing injury to others, obtaining weapons or dangerous objects, self-defense, protecting people or property, and maintaining order. Id. The last exception, and the one under which petitioner claims to fall, using physical force to maintain order, is the broadest. However, this broad exception must be read in the context of the entire statute, which sets forth particular requirements for the use of physical force, and then articulates narrow exceptions to those requirements. See id.\nThe first four exceptions listed imply a level of emergency. See id. In each case there is some imminent danger to person or property, which is sufficient to override the typical protections for the use of force against students. However, to permit an interpretation of the last exception, maintaining order, as petitioner contends, would effectively eliminate an exigency requirement. Such interpretation would serve to undermine the statute as a whole, which is intended to establish clear limits for the use of physical force against students.\nIn the case of petitioner, while there is some dispute as to the environment created by the bomb threat and the evacuation, the School Board\u2019s factual findings indicate that the behavior of the unruly student, while annoying and extremely disruptive, did not pose a threat to the safety or well-being of teachers or students, nor did his actions threaten to damage school or private property. Although the bomb threat and evacuation created a difficult situation that potentially threatened student safety, the unruly student\u2019s statements and refusal to comply with teacher instructions to sit down and put away his soda did not appear to create a situation of imminent danger simply because they occurred outside the normal school day. The School Board found that, at the time of the altercation, students had been relocated away from the school and were in no immediate danger; further, its findings indicated that the unruly student\u2019s actions did not create or magnify any safety threat. The pertinent findings of the Case Manager, as adopted by the School Board, support the School Board\u2019s dismissal of petitioner. The presumption that the School Board\u2019s decision was made in good faith and in accordance with the applicable law remains. See Richardson, 199 N.C. App. at 223-24, 681 S.E.2d at 483.\nTherefore, we hold that the trial court did not err in concluding that the School Board properly applied N.C.G.S. \u00a7 115C-391 in determining that the statutory exception did not apply to petitioner\u2019s use of physical force. Accordingly, we affirm the trial court order dismissing the petitioner\u2019s petition for judicial review.\nAffirmed.\nJudges CALABRIA and GEER concur.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Tin Fulton Walker & Owen, PLLG, by John W. Gresham, for petitioner-appellant.", "Parker Poe Adams & Bernstein, LLP, by Mary H. Crosby and Stacy K. Wood, for respondents-appellees." ], "corrections": "", "head_matter": "AMY DIAMOND, Petitioner v. CHARLOTTE-MECKLENBURG COUNTY BOARD OF EDUCATION, ERIC DAVIS, TIMOTHY S. MORGAN, TOM TATE, JOYCE DAVIS, & ALLEN MCELRATH, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, Respondents\nNo. COA12-690\nFiled 7 May 2013\n1. Schools and Education \u2014 dismissed teacher \u2014 use of force against student \u2014 findings supported by evidence\nThe trial court correctly dismissed a teacher\u2019s petition for judicial review of a school board decision to terminate her employment after she used physical force on a misbehaving student. The school board\u2019s decision was supported by substantial evidence; findings indicating that the events of the day were chaotic and confusing did not negate the evidence supporting the school board\u2019s decision.\n2. Schools and Education \u2014 dismissed teacher \u2014 use of force against student \u2014 statutory exception \u2014 not applicable\nThe trial court correctly dismissed the petition of a terminated teacher for judicial review where the trial court did not err in concluding that the school board properly applied N.C.G.S. \u00a7 115C-391 in determining that the statutory exception to the use of physical force against a student did not apply. The school board\u2019s findings indicated that the behavior of the unruly student, while annoying and extremely disruptive, did not pose a threat to the safety or well-being of teachers or students, nor did his actions threaten to damage property.\nAppeal by petitioner from an order entered 28 February 2012 by Judge A. Robinson Hassell in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 December 2012.\nTin Fulton Walker & Owen, PLLG, by John W. Gresham, for petitioner-appellant.\nParker Poe Adams & Bernstein, LLP, by Mary H. Crosby and Stacy K. Wood, for respondents-appellees." }, "file_name": "0017-01", "first_page_order": 27, "last_page_order": 34 }