No. COA07-810
TENTH DISTRICT
**********************************
NORTH CAROLINA COURT OF APPEALS
**********************************
WAKE CARES, INC., et al.,
Plaintiffs-Appellees,
From Wake County
v.
No. 07 CVS 04020
WAKE COUNTY SCHOOL BOARD et
al.,
Defendants-Appellants.
***********************************
PROPOSED BRIEF OF AMICI CURIAE
The Wake County Voters Education Coalition,
Eugene Weeks, Jennifer A. Bowden,
Gerald Wright and Calla Wright
***********************************
i
INDEX
TABLE OF CASES AND AUTHORITIES............iii
INTRODUCTION................................1
STATEMENT OF THE FACTS......................2
ARGUMENT....................................5
A. THE RULING BELOW ERRONEOUSLY RESTRICTED
THE SCHOOL BOARD FROM PROVIDING HIGH
QUALITY, DIVERSE SCHOOLS....................5
B. THE TRIAL COURT ERRED WHEN IT RULED THE
SCHOOL BOARD LACKED AUTHORITY TO ASSIGN
STUDENTS TO YEAR-ROUND SCHOOLS WITHOUT
PARENTAL CONSENT...........................10
CONCLUSION.................................15
CERTIFICATE OF COMPLIANCE..................16
CERTIFICATE OF SERVICE.....................17
ii
TABLE OF CASES AND AUTHORITIES
FEDERAL CASES
Parents Involved in Community Schools
v. Seattle School District No. 1, 127
S. Ct. 2731 (2007)..........................8
NORTH CAROLINA CASES
Board
of
Education
vs.
Board
of
Commissioners of Granville County, 174
N.C. 469, 93 S.E. 1001 (1917)..............11
In the Matter of R.L.C., 361 N.C. 287,
643 S.E. 2d 920 (2007).....................13
Lemons v. Old Hickory Council, Boy
Scouts of America, Inc., 367 S.E.2d 655
(1988).....................................15
Town of Pine Knoll Shores v. Evans, 331
N.C. 361, 416 S.E.2d 4 (1992)..............13
CONSTITUTIONAL PROVISIONS
N.C. Const. art. IX § 2....................11
STATUTES
N.C. Gen. Stat. 115C-1 (2007)..............11
N.C. Gen. Stat. § 115C-84.2(d)(2007).......10
N.C. Gen. Stat. § 238.31...................13
N.C. Gen. Stat. 366(b)(2007)...............10
iii
OTHER AUTHORITIES
Linda
Darling-Hammond,
National
Commission on Teaching and America’s
Future,
Doing
What
Matters
Most:
Investing in Quality Teaching 25-27
(1997)......................................6
Richard D. Kahlenburg, All Together
Now:
Creating
Middle
Class
Schools
through
Public
School
Choice
72-74
(2001)......................................7
Kirsten Kainz et al, The Ecology of
Early Reading Development for Children
in
Poverty,
The
Elementary
School
Journal 107(5) 407-427 (2007)...............7
iv
INTRODUCTION
Pursuant to Rule 28(i) of the North Carolina Rules of
Appellate Procedure and subject to the granting of their Motion
for Leave to File a Brief of Amici Curiae, Amici respectfully
submit this brief in support of the Appellant School Board.
Amicus Wake County Voters Education Coalition, an allvolunteer organization, has been educating voters on issues that
affect the Wake County area for over twenty-five years,
including issues regarding educational opportunities within the
Wake County Public School System. Each individual amicus is a
resident of Wake County and an African American parent of a
child enrolled in the Wake County Public School System.
The ruling below held that the Wake County School Board did
not have the authority to assign students to year-round schools
without prior, express parental consent. Amici believe that the
ruling erroneously denied the School Board the full assignment
and other authority delegated to it by the legislature. As a
result, the School Board’s ability to take affirmative measures
to reduce socio-economic segregation among Wake County public
school students was diminished. At stake is the School Board’s
prerogative to carry out the measures it has determined are
necessary for it to meet its constitutional mandate to provide
all students with “an equal opportunity for a sound, basic
-1-
education” as mandated by the North Carolina Constitution.
Leandro v. North Carolina, 346 N.C. 336, 488 S.E.2d 249 (1997).
STATEMENT OF THE FACTS
In recent years, Wake County public schools have
experienced explosive growth. (R pp 433-434) Now at 128,000
students, the district will enroll 8,000 new students during
each of the next four years. (R p 449) Growth has so outpaced
new construction that “cafeterias, school libraries,
auditoriums, offices, common areas, teacher lounges and storage
rooms” are being used for classrooms, lunch periods begin in the
morning and end just before the bus bell, and students are
housed in a record 1100 mobile units. (R pp 449-450)
The Board of Education (hereafter, “the School Board”) and
the Board of Commissioners have worked to craft a viable plan
for building enough schools to house all of Wake’s students. (R
pp 434-438) In Fall 2005, the boards outlined three strategies
for meeting growth over the next twenty years: new construction,
school renovations, and changes in school calendars. Id. Both
boards agreed that decisions “regarding capital projects or
school calendars” would consider the impact on the “health of
existing schools.” (R p 438)
“Healthy schools” is a term used by the School Board. The
eight, interrelated characteristics of a healthy school are:
-2-
high academic achievement by all students, strong parental
support and commitment, strong community support and
commitment, highly trained and effective staff, attractive
and appropriate learning facilities, a safe, orderly and
inviting learning climate, strong and effective leadership,
and a diverse student body.
(R p 438) (emphasis added)
The last characteristic, “a diverse student body,” is tied
to the district’s goal, since 2000, of limiting enrollment in
each school to no more than 40% students eligible for subsidized
lunches and no more than 25% students scoring below proficient
on standardized tests. (R p 349) A 1999 policy brief by district
staff summarized the link between socioeconomic diversity,
school capacity to help at-risk students, and improved academic
outcomes:
A large body of research shows that an individual student
who is eligible for free or reduced-price lunch is at risk
for academic failure. The risk factor can be ameliorated by
extra support and academic assistance to ensure academic
success . . .
[For schools], a high concentration of low-income
students . . . appears to have negative effects on
students, teacher and the school, and these effects extend
beyond the effect of individual students’ economic
condition.
(R p 356)
The county’s growth patterns have complicated the School
Board’s ability to manage growth while maintaining socioeconomic diversity. Towns in the western part of the county,
such as Cary, Apex and Holly Springs, have experienced the “most
dramatic growth and overcrowding.” (R pp 364, 460) As newcomers
-3-
to those areas are seldom low wealth families, the challenge for
the district has been how to ensure access to high performing
year-round schools by low income students schools concentrated
elsewhere in the district. (R pp 364,460)
In the 1990s, the district began using multi-track, yearround schools to address critical overcrowding in suburban
schools. (R p 362) Multi-track year-round schools enroll up to
33 percent more students by always staying open with three
tracks of students attending staggered nine-week sessions while
one track takes a three-week break. Id. Like traditionalcalendar students, year-round students attend school for 180
days. (R p 450)
By 1999, the district had 13 year-round schools. (R p 37)
Attendance was voluntary and there was high competition for
coveted seats. (R p 362) Efforts to recruit low income
applicants were largely unsuccessful, so most available seats
were filled by more affluent applicants. Id. In 2000, the School
Board began assigning a cohort of low income “base students” to
each year-round school as part of its healthy schools goal of
enrolling a socio-economically diverse group of students in
every school. (R p 458; Affidavit of Adelphos Burns, ¶ 7,
attached as Ex. E to Petition for Writ of Supersedeas filed in
this case (hereafter, Burns Aff. ¶ __)) In this way, the
district assured a diverse enrollment in its highly successful
-4-
year-round schools, and it ameliorated poverty levels in
traditional calendar schools in less affluent areas. (Id. ¶¶ 47)
In 2006, the district selected twenty-two schools for
conversion to year-round schools. (R p 448) An explicit factor
in the decision to convert any school was whether its conversion
would “negative[ly] impact . . . the district’s efforts to
maintain a healthy demographic mix at all schools and in all
tracks.” Id. If implemented, the district’s original plan would
have created up to 5000 additional seats for Wake County
students, while safeguarding its diversity principles. (R pp
448,559) The district’s new policy, adopted to comply with the
trial court’s order, requires “informed consent” from parents
before the district will assign a student to a year-round
school. (R pp 458-460)
ARGUMENT
A. THE RULING BELOW ERRONEOUSLY RESTRICTED THE SCHOOL BOARD
FROM PROVIDING HIGH QUALITY, DIVERSE SCHOOLS.
Explosive suburban growth, and the concomitant residential
segregation of the district by wealth, poses a serious challenge
to the district. In the next eight years, approximately 65,000
new students will be added to the present 128,000 students,
bringing enrollment to 193,000 students. (R p 449) The district
has grossly inadequate space now. Id. In 2006, it was determined
-5-
that a three-year plan to build enough schools operating on a
traditional-calendar year would cost an estimated $2 billion and
it was determined that the electorate would reject any bond
package exceeding $1 billion. (R p 434) Explosive suburban
growth has complicated the district’s goal of ensuring socioeconomic diversity in schools system-wide. Burns Aff. ¶ 10.
The district’s two-part plan to deal with this problem
involved (1) the use of year-round schools as an economically
feasible way to deal with overcrowding and (2) a student
assignment plan to ensure socio-economic diversity in schools
throughout the district. The trial court’s decision effectively
forces the district to give up its goal of maintaining socioeconomic diversity among schools district-wide if the district
chooses to deal with overcrowding by using voluntary year-round
schools, the only economically feasible option available to it.
Without assignment authority, the district effectively loses
control of enrollment demographics at its year-round schools.
In 2000, the School Board determined that ameliorating
poverty concentrations is critical to the quality of education
for low income students in Wake County. Research and experience
support its judgment. High poverty schools struggle to attract
and retain the best teachers, while teachers in middle class
schools are more likely to stay put, be licensed and to have
greater formal education. Linda Darling-Hammond, National
-6-
Commission on Teaching and America’s Future, Doing What Matters
Most: Investing in Quality Teaching 25-27 (1997). Teachers in
middle class schools are also less likely to teach out of field,
to have low teacher test scores, or to be inexperienced. Id. The
absence of middle class parents who are able to contribute
volunteer hours, resources, stability and political strength
often leaves a critical void in higher poverty schools. Richard
D. Kahlenburg, All Together Now: Creating Middle Class Schools
through Public School Choice 72-74 (2001). Finally, higher
poverty schools concentrate students whose life circumstances
make them less likely to believe the future has much to offer.
Id. High achieving peers in middle class schools share their
knowledge informally with classmates all day long, helping to
create networks that later lead to better college and career
opportunities for children traditionally excluded from bright
futures. Id.
Higher poverty schools are often isolated by race as well
as class. According to a study recently released by researchers
at the School of Education at the University of North Carolina
at Chapel Hill and the Frank Porter Graham Child Development
Institute, the majority of African American and Hispanic
students in the United States now attend schools where the
minority population exceeds 75% of the student enrollment, and
most of these schools are also high poverty schools. Kirsten
-7-
Kainz et al, The Ecology of Early Reading Development for
Children in Poverty, The Elementary School Journal 107(5) 407427 (2007). Classroom and school characteristics in these
segregated schools have a larger affect on low-income students’
long-term reading abilities, even after accounting for the
quality of literacy instruction and literary experiences at
home, gender, race and other variables. Id.
The School Board seeks socio-economic diversity to
strengthen the academic environment in its schools. Other
districts use their assignment authority to pursue racial
diversity as a means to achieve their educational goals. In the
recent landmark school integration decision in Parents Involved
in Community Schools v. Seattle School District No. 1, Justice
Kennedy’s concurrence provided the necessary fifth vote for the
five-justice majority, and it underscored the compelling
interest of racial and other forms of diversity:
A compelling interest exists in avoiding racial
isolation, an interest that a school district, in its
discretion and expertise, may choose to pursue.
Likewise, a district may consider it a compelling
interest to achieve a diverse student population. Race
may be one component of that diversity, but other
demographic factors, plus special talents and needs,
should also be considered.
127 S. Ct. 2731, 2760 (2007) (striking two race-conscious
integration plans after school districts "failed to show that
they considered methods other than explicit racial
-8-
classifications to achieve their stated goals"). As if writing
directly to school boards, Justice Kennedy reviewed race
conscious methods by which school boards could foster racial
diversity without triggering strict scrutiny review, including
strategically siting new schools, drawing attendance zones based
on neighborhood demographics, using special programs, targeting
recruitment of students and faculty, and “tracking enrollments,
performance, and other statistics by race.” Id. at 2792
(Kennedy, J., concurring).
Here, the trial court has undermined the ability of the
School Board to exercise, in the words of Justice Kennedy, the
“discretion and expertise” necessary to pursue the “compelling
interest [of] a diverse student population.” After the trial
court’s ruling, the parents of more than 30,000 students had to
provide prior consent before the district could assign their
children to year-round schools. Affidavit of Charles Dulaney, ¶
5, attached as Ex. F to Petition for Writ of Supersedeas filed
in this case (hereafter, Dulaney Aff. ¶ __)). Incredibly, in the
few weeks available before the commencement of the year-round
calendar, 90% of parents returned consent forms to the district,
with 95% consenting to a year-round assignment. Id. But a closer
look reveals that most, 63%, of the 2,626 students whose parents
did not authorize a year-round assignment were low income
students. Id. at 6. Now, as a result of the consent process it
-9-
was forced to undertake to operate schools on a year-round
calendar, the district “will have more overcrowded traditional
schools, under-utilized year-round schools, and a socioeconomic
imbalance across the district.” (Burns Aff. ¶ 10.)
From 2000 until 2006, the School Board’s efforts to assign
a cohort of low income students to suburban year-round schools
successfully diminished economic segregation. Burns Aff. ¶ 6.
Now deprived by the court below of the assignment authority
conferred to it by the legislature, see Argument I.B., infra.,
the School Board is foreclosed from effectively confronting both
explosive growth in the suburbs and isolation of low income
students in its non-suburban schools.
B. THE TRIAL COURT ERRED WHEN IT RULED THE SCHOOL BOARD LACKED
AUTHORITY TO ASSIGN STUDENTS TO YEAR-ROUND SCHOOLS WITHOUT
PARENTAL CONSENT.
The legislature has expressly delegated “full and complete
control” over student assignment to “each local board of
education,” and the “decision as to the assignment of any child
to any school shall be final.” N.C. Gen. Stat. 366(b)(2007)
(emphasis added). Likewise, the calendaring statute in Chapter
115C delegates to school boards sole authority to establish
school calendars, including calendars for year-round schools.
N.C. Gen. Stat. § 115C-84.2(d)(2007).
- 10 -
Concluding that school boards are prohibited from assigning
students to mandatory year-round schools, the trial court relied
heavily on N.C. Gen. Stat. 115C-1 (2007), which reads:
A general and uniform system of free public schools shall
be provided throughout the State, wherein equal
opportunities shall be provided for all students, . . .
[and there] shall be operated in every local school
administrative unit a uniform school term of nine months[.]
Id. (emphasis added). The trial court read the phrase “uniform
school term of nine months,” supra, to require a consecutive
nine-month term. (R p 1022) As shown below, there are a number
of problems with this construction.
The use of the word “uniform” in G.S. 115C-1 replicates its
use in Article IX, Section 2 of the North Carolina Constitution,
which requires the General Assembly to “provide by taxation and
otherwise for a general and uniform system of free public
schools, which shall be maintained at least nine months in every
year, and wherein equal opportunities shall be provided for all
students.” N.C. Const. art. IX § 2. It is well established that
“uniform” used in this context does not modify schools; rather
it reflects the Constitution’s requirement of the General
Assembly that it is to establish a set of uniform requirements
for public education in our state to which all students are
entitled equal access. Board of Education vs. Board of
Commissioners of Granville County, 174 N.C. 469, 93 S.E. 1001
(1917).
- 11 -
The General Assembly has delineated the requirements of
North Carolina’s uniform school term in 115C-84.2. That the
months of a school calendar must run consecutively is not on of
these requirements:
(a) School Calendar. -- Each local board of education shall
adopt a school calendar consisting of 215 days all of which
shall fall within the fiscal year. A school calendar shall
include the following:
(1) A minimum of 180 days and 1,000 hours of instruction
covering at least nine calendar months.
Id. at subsections (a) & (a)(1). The statute does, however,
conveys the legislature’s clear expectation that local school
boards may elect to operate year-round and modified year-round
schools:
(d) Opening and Closing Dates. -- Local boards of
education shall determine the dates of opening and
closing the public schools under subdivision (a)(1) of
this section. Except for year-round schools, the
opening date for students shall not be before August
25, and the closing date for students shall not be
after June 10.
. . . .
The required opening and closing dates under this
subsection shall not apply to any school that a local
board designated as having a modified calendar for the
2003-2004 school year or to any school that was part
of a planned program in the 2003-2004 school year for
a system of modified calendar schools, so long as the
school operates under a modified calendar.
G.S. 115C-84.2(d).
The terms of 115C-1 are readily compatible with the
requirements of 115C-84.2. As delineated in 115C-84.2, the
- 12 -
“uniform school term of nine months” established in 115C-1
attains uniformity in this way: regardless of calendar, it must
cover at least nine months, include at least 215 days all of
which fall within the fiscal year, and include at least 180 days
and 1000 hours of instruction.
Where possible, a trial court must reconcile “statutes of
like subject matter . . . to give effect to each.”
In the
Matter of R.L.C., 361 N.C. 287, 294, 643 S.E. 2d 920, 924
(2007). Here, instead of harmonizing 115C-1 and 115C-84.2, the
trial court misperceived a conflict between them, rendering
useless the year-round school exception found in 115C-84.2
since, under the trial court’s construction, 115C-1 prohibits
year-round schools. See Town of Pine Knoll Shores v. Evans, 331
N.C. 361, 366, 416 S.E.2d 4, 7 (1992) (holding “that words of a
statute are not to be deemed useless or redundant"). Rather than
adhering to the plain language of 115C-84.2(d), the decision
below resolved the misperceived conflict it found between 115C-1
and 115C-84.2 by reading a new and unexpressed condition into
115C-84.2. This new condition – that year-round schools are
permissible if they are optional – is enough, the trial court
reasoned, to solve the dilemma that would otherwise result from
reading 115C-1 to permit only a consecutive nine month term. In
other words, according to the trial court, so long as year-round
schools are optional, no student is denied his or her right to
- 13 -
the consecutive nine-month calendar the trial court read into
115C-1. (R pp 1023-1028)
Thus, under this construction, the
exceptions carved out in 115C-84.2(d) for year-round schools and
modified year-round schools are limited to voluntary year-round
schools and voluntary modified year-round schools.
The plain language of 115C-84.2 does not suggest such a
limitation. “When confronted with a clear and unambiguous
statute, courts ‘are without power to interpolate, or
superimpose, provisions and limitations not contained therein."
In the Matter of R.L.C., 361 N.C. at 293, 643 S.E. 2d 920, 923
(internal citations omitted). In this case, however, the trial
court superimposed provisions and limitations that were not
expressed in the legislation. In 115C-1, it superimposed a
provision that a nine-month term must be consecutive. (R p 1022)
In 115C-84.2, subsection (d), it superimposed a limitation that
year-round and modified year-round schools may only be operated
on a voluntary basis. (R p 1025)
In 115C-84.2(e) and 115C-
238.31, it superimposed a similar limitation – that
“supplemental,” “additional” and “extended service programs” may
only be operated on a voluntary basis. (R pp 1026-27).
The trial court based its statutory construction of 115C-1
and 115C-84.2 on its extensive examination of the different
versions of subsection (e) of 115C-84.2 as it made its way
through several legislative committees in 2004. (R pp 1024-27)
- 14 -
Trial courts are not authorized to undertake such a review.
“When the language of a statute is clear and unambiguous, there
is no room for judicial construction and the courts must give it
its plain and definite meaning.”
Lemons v. Old Hickory Council,
Boy Scouts of America, Inc., 322 N.C. 271, 367 S.E.2d 655
(1988).
The trial court’s error in interpreting the relevant
statutes is sufficient warrant for reversing the decision of the
trial court. Strong additional reason is provided by the dire
consequences for public education from the erroneous restriction
of the power the General Assembly conferred on school boards to
work to achieve “healthy schools” by considering the positive
educational benefits that flow from achieving a diverse student
body at each school in the district.
CONCLUSION
For the reasons stated above, Amici respectfully request
the Court reverse the decision and order of the trial court.
- 15 -
Respectfully submitted, this the 17th day of August, 2007.
2007.
_____________________________
Ashley Osment
N.C. State Bar No. 22238
UNC Center for Civil Rights
University of North Carolina School of Law
CB # 3380, 100 Ridge Road
Chapel Hill, N.C. 27599-3380
(919) 843-9807
Counsel for Amici The Wake County Voters
Education Coalition, Eugene Weeks,
Jennifer A. Bowden, Gerald Wright, Calla
Wright, Erica Edwards, Quanta Edwards and
Denise Winters
- 16 -
CERTIFICATE OF COMPLIANCE
This Brief complies with North Carolina Rule of Appellate
Procedure 28(j). The brief was prepared in Microsoft Word, using
Courier New 14-point font.
_____________________________
Ashley Osment
N.C. State Bar No. 22238
UNC Center for Civil Rights
University of North Carolina School of Law
CB # 3380, 100 Ridge Road
Chapel Hill, N.C. 27599-3380
(919) 843-9807
- 17 -