— Posts About North Carolina

Victory: Tenure repeal declared unconstitutional

At 11 am this morning, Superior Court Judge Robert Hobgood sided with Patterson Harkavy’s attorneys and ruled that legislation stripping teachers of their vested employment rights violated the North Carolina and the United States Constitutions.

For over forty years, North Carolina public school teachers have been able to earn “career status” after successful completion of a four-year probationary period and a favorable vote by a teacher’s school board.  A teacher with career status can only be demoted or dismissed for good cause, and has the right to a hearing in which he or she could contest a dismissal or demotion decision.  All of North Carolina’s neighboring states provide teachers a comparable system of basic employment protections.

In 2013, the North Carolina General Assembly passed legislation stripping teachers of these employment protections.  The scheme purported to replace career status with a new system, in which teachers would be employed under one-, two-, or four-year contracts.  When a school board fails to renew an experienced teacher’s contract, the new system would deny that teacher any right to a hearing challenging that decision.

Representing a group of teachers and the North Carolina Association of Educators, Patterson Harkavy’s Burton Craige and Narendra Ghosh filed suit challenging the constitutionality of the 2013 legislation.

Today, Judge Hobgood ruled that this legislation violated the United States Constitution’s Contracts Clause and the North Carolina Constitution’s Law of the Land Clause.  The State failed to produce any evidence indicating that the repeal of career status was necessary to accomplish any public purpose.  In contrast, Patterson Harkavy produced the affidavits of school administrators who consistently discussed how career status was not a barrier to removing bad teachers, but instead helped schools attract and retain good teachers despite their low salaries.

This historic victory has received news coverage around the state and the nation, including in the Raleigh News and Observer, the Charlotte Observer, and the Wall Street Journal.

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Judge Hobgood rules in favor of Patterson Harkavy’s clients, halting private school voucher scheme

At a hearing today in downtown Raleigh, Superior Court Judge Robert Hobgood enjoined the State from implementing its private school voucher scheme.  If not for Judge Hobgood’s landmark ruling the scheme would have taken millions of dollars from North Carolina’s public schools in order to pay private school students’ tuition.  Private schools receiving taxpayer funds would not have been required to meet any educational standards, would not have been subject to any public accountability, and would not have been prohibited from discriminating against students on the basis of disability, gender, or religion.

Patterson Harkavy attorneys Burton Craige and Narendra Ghosh, working with attorneys from the North Carolina Justice Center and the North Carolina Association of Educators, represent the case’s 25 plaintiffs.  They have alleged that the voucher scheme violates various provisions of the North Carolina Constitution.  The State School Board Association, together with more than half of North Carolina’s local school boards, is also challenging the constitutionality of the scheme.

Burton and Narendra have argued that the Voucher Legislation provides taxpayer funds for public education to private schools, in violation of Article IX, Section 6 of the North Carolina Constitution, which requires that those funds be “used exclusively for establishing and maintaining a uniform system of free public schools.”   Plaintiffs also claim that providing taxpayer funds to private schools with no standards or accountability does not accomplish a public purpose, in violation of Article V, section 2.

On Monday, Judge Hobgood denied the State’s motion to dismiss the plaintiffs’ claims.  Today, in issuing his injunction, Judge Hobgood found that that the plaintiffs were likely to succeed on the merits and that they would suffer irreparable harm if the State was permitted to continue implementing the program.

Burton’s arguments from Monday’s hearing can be found here; his arguments from today’s hearing can be found here.  The historic victory has been covered by news outlets across the state, including the Raleigh News & Observer, the Greensboro News & Record, the Charlotte Observer.

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Patterson Harkavy Files Suit Challenging Constitutionality of Private School Voucher Scheme

Burton Craige and Narendra Ghosh filed suit this morning in Wake County Superior Court challenging the school voucher law passed by the General Assembly last session.  Representing a diverse group of twenty-five plaintiffs from across North Carolina, Burton and Narendra allege that the voucher scheme violates the North Carolina Constitution.  The lawsuit is sponsored by the North Carolina Association of Educators and the North Carolina Justice Center.

The voucher scheme will divert millions of dollars from North Carolina public schools to private schools.  Private schools receiving such funds are subject to almost no restrictions or obligations.  They can be operated by inexperienced and unaccredited institutions, can hire unqualified and unsafe teachers and employees, can teach using haphazard and unproven methods, can fail to improve student knowledge and performance in any measurable way, and can discriminate in admission and treatment of students on the basis of religion, socioeconomic status, or physical or mental disability. Read more…

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SCOTUS Rules that Self-Care Provision of the FMLA does not Apply to the States: North Carolina Not Affected

In Coleman v. Court Of Appeals Of Maryland, Daniel Coleman was employed by the Court of Appeals of the State of Maryland.  When he requested sick leave, he was informed he would be terminated if he did not resign.  He then filed an FMLA suit, which was dismissed on sovereign immunity grounds.  Breaking along the familiar 5-4 line, the Supreme Court affirmed the dismissal.  Under the Court’s recent 14th Amendment jurisprudence, Congress can abrogate state sovereign immunity under Section 5 only if its legislation is sufficiently “tailored” to remedy violations of the 14th Amendment’s substantive provisions, such as the Equal Protection Clause.  In Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003), the Court held this standard was met by the family-member-care provision of the FMLA because it addressed gender discrimination related to family leave.  The majority here, however, found no “widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave,” and thus no Equal Protection basis for the provision.

Justice Ginsberg, in dissent, discussed the entire history of the FMLA and its focus on addressing gender discrimination in employee leave policies.  One of the primary motivations for the self-care provision was to provide leave for women suffering from pregnancy-related illness and those recovering from pregnancy.  Also important was mandating personal leave in addition to family leave so that employers would not have a new reason to discriminate against female employees.  She thus found a sufficient basis for Congress to apply the FMLA to the states.

State employees in North Carolina are not hurt by this decision, however, because North Carolinahas waived its sovereign immunity for FMLA suits brought by state employees.  See N.C. Gen. Stat. § 143-300.35(a)(3).

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4th Circuit CoA Ruled that Federal Employees are Barred from Bringing Title VII Suits in State Court

In Bullock v. Napolitano, Willie Bullock was a former employee in the federal air marshal program and sued the Department of Homeland Security for racial discrimination under Title VII.  He filed suit in North Carolina superior court and the defendant removed to federal court.  The district court then granted the defendant’s motion to dismiss on sovereign immunity grounds.  In a 2-1 decision (Niemeyer and Agree in the majority), the Fourth Circuit affirmed.

In 1972, Congress amended Title VII to provide that a federal employee, who has exhausted his administrative remedies, “may file a civil action as provided in section 2000e-5” against a federal department or agency.  42 U.S.C. § 2000e-16(c).  This provision is a clear waiver of federal sovereign immunity.  Section 2000e-5, however, only explicitly states that Title VII suits may be brought in federal court.  In Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820 (1990), the Supreme Court permitted Title VII suits against private employers in state court because concurrent jurisdiction was presumed.  No circuit court had addressed whether the same holds true for suits against federal agencies.  The majority concluded that it did not.  Because waivers of sovereign immunity have to be explicit, and section 2000e-5 only refers to federal courts, there was no waiver for suits in state court.  Because the North Carolina court did not have jurisdiction, the federal court did not have jurisdiction upon removal.

In dissent, Judge Gregory argued that because Title VII waived sovereign immunity, and the Supreme Court interpreted section 2000e-5 to permit state court jurisdiction, then the waiver encompasses state court jurisdiction.  Nothing in Yellow Freight limited the opinion to private employers.  This logic is convincing, but Bullock is now the law of the circuit, so federal employee suits must be brought in federal court.

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NC COA Addresses Exception to Workers’ Comp Preemption

In Trivette v. Yount the defendant, a middle school principle, had a fire extinguisher removed from a classroom after a student had removed the safety pin and discharged the extinguisher.  The fire extinguisher was brought to the front office to avoid any further incident.  The following day the defendant placed the fire extinguisher on or around the plaintiff”s desk in the front office.  The plaintiff alleged that he was joking around with the fire extinguisher and when asked to stop joking “before it went off” said to the plaintiff, “Oh, you’re being such a baby, nothing is going to happen.”  The fire extinguisher discharged and sprayed the plaintiff’s body and face aggravating her preexisting neuro-muscular condition and causing extensive injury.

At issue in this case is the plaintiff’s attempt to seek damages from the defendant directly in a personal injury action under the Pleasants exception.  The defendant contends that he was Ms. Trivette’s employer and thus her relief is limited only to the Workers’ Compensation Act.  The Court of Appeals affirmed the trial court’s decision, stating that though the defendant was Ms. Trivette’s immediate supervisor and an administrator, he is not given the authority to “employ” any person as outlined in N.C. Gen. Stat. §115C-288.  Therefore, the defendant was a co-employee and not the employer.  The Court also found sufficient evidence that he acted in a willful, wanton and recklessly negligent manner because he knew that there was a risk of the extinguisher accidentally discharging and was asked not to joke around with it, but continued to do so causing harm to the plaintiff.

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Unemployment Benefits Extended in NC

An executive order was issued on Wednesday by North Carolina Governor Beverly Perdue that will extend long-term unemployment benefits to 25,000 jobless workers in the state.  The federal government pushed back the deadline for extended unemployment benefits to the end of February, but required states to make the change to their systems of calculations and deadlines as well to be eligible to get the federal funds.  Governor Perdue could have called a special session of the General Assembly to make this change, but chose to go the quicker route and issue an executive order.  The extension provides much needed benefits to unemployed workers.  More coverage here.

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Congress Extends Unemployment Benefits for Two Months

Shortly before Christmas, House Republicans finally gave in and sensibly agreed to the two-month extension for extended unemployment benefits.  When Congress returns after recess, debate will resume on whether to further continue the vitally needed unemployment insurance programs.  For more information on North Carolina’s Extended and Emergency Unemployment benefits, see the Division of Employment Security’s site, here.

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NC COA Examines Public Duty Doctrine

The North Carolina Court of Appeals reversed the decision of the North Carolina Industrial Commission in Ray v. NC Department of Transportation.  The case involved the death of a motorist and her passengers in 2002 when an eroded section of pavement caused her vehicle to go off the roadway, she corrected, and hit an oncoming car head on.  The plaintiff alleged that that NC DOT was negligent in maintaining the roadway and not repairing the eroded section which they knew was dangerous or should have known was a dangerous to motorists.  The Commission dismissed the case based on the public duty doctrine which can be used as a defense by the State of North Carolina from certain tort claims.  Reversing, the Court of Appeals concluded:

“ This case does not involve a failure to inspect or to police, but a failure to repair a defective section of roadway. There is no “hazard created by others” or important discretionary decision which requires the government to be protected under the public duty doctrine.”

Burton Craige wrote an amicus brief on behalf of the North Carolina Advocates for Justice for this case.  The brief can be accessed here.

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NC Court of Appeals Rejects Free Speech Retaliation Appeal

The North Carolina Court of Appeals published a decision in a free-speech retaliation case in  Ginsberg v. Board of Governors of the University of North Carolina.  The plaintiff, who worked at NC State University as a teaching assistant professor, contended that the University had violated her First Amendment free speech rights by punishing her in a hiring decision in retaliation for her protected speech.  On November 9, 2007, the plaintiff was reprimand by professors for purportedly showing bias during her introductory statements on a film that was being presented on the Israeli-Palestinian conflict.  Just weeks later, the plaintiff was de-listed as a first-tier candidate for an open tenure track position, and some of the professors who had reprimanded her were on the search committee.  Nonetheless, affirming the trial court’s grant of summary judgment, the Court concluded that the plaintiff had failed to present sufficient evidence of causation between her protected speech and the university’s hiring decision.  The Court held that she had not supported her claim “beyond mere speculation.”

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