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IN THE MATTER OF JAMES
ALEXANDER, as Guardian
Ad Litem for SAMANTHA
Petitioner Cumberland County
No. 03 CVS 8957
CUMBERLAND COUNTY BOARD
Anderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Steven
C. Lawrence, for petitioner-appellant.
Womble Carlyle Sandridge & Rice, P.L.L.C., by Mark A. Davis; David H. Phillips for respondent-appellee.
James Alexander, the guardian ad litem for Samantha Alexander (Samantha), presents the following issues for our consideration: Did the trial court erroneously affirm the Cumberland County Board of Education's (Board) decision to uphold Samantha's school suspension because (I) Samantha's due process rights were violated, (II) substantial evidence did not support the school board's decision, and (III) the school board's actions were arbitrary and capricious. After careful review, we affirm the order below. The evidence tends to show that Samantha was a ninth grade student at Cape Fear High School on 6 October 2003. During her fourth period physical education class, Samantha was in a group of approximately five girls that were walking to the track in order to run in preparation for an upcoming examination. Katie Moore (Katie) was in the group of girls and was also a ninth grade student at the high school. There were at least three students walking behind the group of girls. While the students were walking to the track, Samantha walked behind Katie, placed her hands on the sides of Katie's shorts, and pulled Katie's shorts down, an action commonly referred to as shanking. Katie's undergarments were also pulled down and Katie's rear end was exposed. Katie immediately pulled her shorts up and said an expletive to Samantha out of anger. The three students, two boys and a girl, walking behind Katie and Samantha saw the incident and saw Katie's rear end. Shortly after the incident, Samantha and Katie ran on the track together, had a conversation, and sat at the same table during lunch. Prior to this incident, Samantha and Katie had been friends for several years and socialized outside of the school environment.
During lunch, Katie informed a substitute teacher that she had been shanked by Samantha and that her rear end had been exposed as a result. The substitute teacher advised Katie to report the incident to the school administrators, and after lunch Katie reported the incident to Beth Smith (Smith), an administrative intern. After Katie completed a written statement, Smith interviewed several students who corroborated Katie's account ofwhat occurred. Smith then informed Jeff Jernigan (Jernigan), the school principal, of the incident and asked how to proceed. Jernigan advised Smith to interview Samantha; however, the interview did not occur as it was near the end of the school day.
At 8:00 a.m. the next morning, Katie's parents discussed the incident with Jernigan. They expressed their displeasure with what occurred and informed Jernigan that they had contacted an attorney and were considering criminal charges. Jernigan asked the school resource officer to participate in the meeting and the officer informed the parents that the only possible criminal charge was assault. The parents declined to file charges and stated they trusted the school to handle the matter. After the meeting, the principal began handling the investigation.
Jernigan discussed the matter with Smith, reviewed the witness statements, talked to Katie twice, and reinterviewed the witnesses. The witnesses corroborated that Samantha shanked Katie and that Katie's rear end was exposed as a result. Jernigan then interviewed Samantha. Samantha admitted that she had shanked Katie, but denied Samantha's rear end was exposed. Jernigan then asked Samantha if she had any witnesses she wanted Jernigan to interview. After Samantha did not provide any names, he informed Samantha that he was imposing a two-day temporary suspension until a formal hearing could be held and contacted Samantha's father.
Jernigan told Samantha's father that he was imposing a temporary suspension for two days until the formal hearing occurred because Samantha pulled Katie's shorts and panties down. Samantha's father received a copy of two forms -- a Notice of Charges and Hearing and a Notice of Temporary Suspension. The Notice of Charges and Hearing document incorrectly stated Samantha had been fighting with another student in the lunch room. The hearing notice stated a hearing would be held on 9 October 2003 regarding the charges. Later that day, Samantha's father telephoned Jernigan and asked for an expedited hearing. Jernigan informed him that school policy indicated a hearing had to be held between two to five days later.
At the hearing, Samantha's parents informed Jernigan that the notice of charges stated his daughter had been fighting in the lunch room, and Jernigan had the mistake fixed. The parents also expressed concern that prior to the formal hearing they had been receiving phone calls and information that their daughter was going to be suspended for ten days. A Cape Fear High School student submitted a statement to the principal indicating a substitute teacher had informed him Samantha would be suspended for ten days. The parents had also received information from teachers at a middle school that the school planned to impose a ten-day suspension. Jernigan informed Samantha's parents that this matter had not been discussed with any teachers and that a decision had not been made. The parents then asked that another Cape Fear High School student be called as a witness. The student indicated that Samantha had pulled down other female student's pants in the past but that the underwear did not come down in those instances. After the hearing, Jernigan informed the parents that although Samantha was an honor roll student and did not have any prior disciplinary problems, he was immediately imposing a ten day suspension and recommending to the school superintendent that Samantha be suspended for the remainder of the year. The parents were provided with a form explaining the appeals process.
Samantha's parents contacted a member of the Board regarding the matter. The Board member asked Associate Superintendent Sara Piland (Piland) to contact Samantha's father. Piland indicated that she had been notified by Jernigan regarding the matter and had discussed possible charges Jernigan could bring against Samantha. She advised Samantha's father to initiate the appeals process as soon as possible so his concerns could be addressed.
On 14 October 2003, a review hearing was held before Joe Twiddy (Twiddy), an administrative hearing officer. Twiddy determined the school principal acted in accordance with the Board's policies and administrative procedures. However, Twiddy recommended that the length of Samantha's suspension be reviewed due to her lack of a disciplinary record at the high school. Upon review by Piland, the suspension was upheld but the length was reduced to fifteen days combined with ten hours of school community service.
Samantha's parents petitioned the superior court and were granted a temporary restraining order to allow Samantha to remain in school. The parents also appealed Piland's decision to the Board. On 6 November 2003, a hearing was held before the Board. In addition to the facts surrounding the shanking incident, the investigation, and suspension, the Board was also presented with information that there had been several shanking incidents at Cape Fear High School involving football players and other male students. Instead of suspending the football players, the football coaches were allowed to resolve the matter. In the incidents involving male students, the parties involved were both male and one individual had a disciplinary record. However, these students were suspended for three to five days only. Jernigan explained that he recommended Samantha be suspended for the rest of the school year because Katie's rear end was exposed and it was the first female on female incident of which he had heard. The Board also heard testimony that shanking was a prevalent and frequent activity at the middle school Samantha and Katie attended, that Katie had shanked Samantha during the summer between seventh and eighth grade, and that Samantha and Katie remained friends afterwards. After deliberation, the Board upheld the superintendent's recommendation.
On 5 December 2003, Samantha's parents filed a petition for judicial review with the Cumberland County Superior Court. In a 3 September 2003 order, the trial court affirmed the decision of the Board. James Alexander, as guardian ad litem for Samantha Alexander, appeals.
Pursuant to N.C. Gen. Stat. § 115C-391(e), an appeal of a local school board's decision regarding a suspension of a student for a period of time in excess of ten school days but not exceedingthe time remaining in the school year is subject to judicial review in accordance with Article 4 of Chapter 150B of the General Statutes, part of the Administrative Procedures Act (APA). N.C. Gen. Stat. § 115C-391(c), (e) (2003). To obtain judicial review of a final decision under [Article 4 of Chapter 150B], the person seeking review must file a petition in the . . . superior court of the county where the person resides. N.C. Gen. Stat. § 150B-45 (2003). [A] reviewing superior court 'sits in the posture of an appellate court' and 'does not review the sufficiency of evidence presented to it but reviews that evidence presented to the [local board].' Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 17 (2002) (citations omitted). 'The proper standard for the superior court's judicial review depends upon the particular issues presented on appeal.' Id. at 13, 565 S.E.2d at 17 (citations omitted). Pursuant to N.C. Gen. Stat. § 150B-51(b) (2003):
[I]n reviewing a final decision, the court may affirm the decision of the agency or remand the case to the agency or to the administrative law judge for further proceedings. It may also reverse or modify the agency's decision, or adopt the administrative law judge's decision if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B- 30, or 150B-31 in view of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.
Id. [W]here the gravamen of an assigned error is that the agency violated subsections 150B-51(b)(1), (2), (3), or (4) of the APA, a court engages in de novo review. N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 659, 599 S.E.2d 888, 895 (2004). Under the de novo standard of review, the trial court 'considers the matter anew and freely substitutes its own judgment for the agency's.' Mayo v. N.C. State Univ., ___ N.C. App. ___, ___, 608 S.E.2d 116, 120 (2005) (citations omitted). Where the substance of the alleged error implicates subsection 150B-51(b)(5) or (6), . . . the reviewing court applies the 'whole record test.' Carroll, 358 N.C. at 659, 599 S.E.2d at 895. When sitting as an appellate body, the trial court must 'set forth sufficient information in its order to reveal the scope of review utilized and the application of that review.' Mann Media, Inc., 356 N.C. at 13, 565 S.E.2d at 17 (citations omitted). When an appellate court reviews
a superior court order regarding an agency decision, 'the appellate court examines the trial court's order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.'
Id. at 14, 565 S.E.2d at 18 (citations omitted). In the petition for judicial review by the trial court, the petitioner alleged Samantha's due process rights were violated, the superintendent and the Board did not follow proper procedure, the Board committed errors of law, the decision of the Board was unsupported by substantial evidence and the superintendent's and the Board's decision to uphold the long term suspension was arbitrary and capricious. In the 3 September 2004 order affirming the Board's decision, the trial court did not state the standard of review it utilized to determine the issues presented by petitioner. As the trial court failed to state the standard of review, this Court is unable to determine whether the trial court utilized the appropriate review standard and if it did so properly. See id. However, as stated by our Supreme Court in Capital Outdoor, Inc. v. Guilford Cty. Bd. of Adjust., 355 N.C. 269, 559 S.E.2d 547 (2002), an appellate court's obligation to review a superior court order for errors of law . . . can be accomplished by addressing the dispositive issue(s) before the agency and the superior court without examining the scope of review utilized by the superior court. Id. (adopting the dissenting opinion in 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001) (Greene, Judge, dissenting)); see also N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. at 665, 599 S.E.2d at 898 (stating it is well settled that the trial court's erroneous application of the standard of review does not automatically necessitate remand, provided the appellate court can reasonably determine from the record whether the petitioner's asserted grounds for challenging the agency's final decisionwarrant reversal or modification of that decision under the applicable provisions of N.C.G.S. § 150B-51(b)). Although the trial court did not state the standard of review utilized in rendering its decision, this Court can determine from the record in this case whether the Board's decision should be affirmed, reversed, or modified.
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