STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF MECKLENBURG 20-CVS-11891

BRIEF OF NORTH CAROLINA ASSOCIATION OF EDUCATORS AND ITS CHARLOTTE-MECKLENBURG UNIT

IN SUPPORT OF MOTION TO DISMISS

Come the Defendants, the North Carolina Association of Educators (“NCAE”) and

its Charlotte-Mecklenburg Unit (“CMAE”), through counsel, and submit this Brief in

support of their joint Motion to Dismiss this action for lack of subject matter jurisdiction

and for failing to state a claim against NCAE and CMAE.

J. NICHOLAS FOY, NATALIE S. FOY, BRYAN CRUTCHER, SANDY BLAKKELY WHITE and STEPHEN LONNEN, Plaintiffs, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, EARNEST WINSTON, Superintendent of Charlotte-Mecklenburg Schools and Chief Executive Officer of the Charlotte-Mecklenburg Board of Educa-tion in his official capacities, ELYSE DASHEW, Chairperson of Charlotte-Mecklenburg Board of Education in her official capacity, the NORTH CAROLINA ASSOCIATION OF EDUCATORS, INC., and the CHARLOTTE-MECKLENBURG UNIT OF THE NORTH CAROLINA EDU-CATORS ASSOCIATION, INC., Defendants.

INTRODUCTION

This case presents an intensely felt but wholly non-justiciable policy debate over

two options for student instruction in North Carolina’s public schools authorized by the

Governor in July 2020 in the face increasing rates of COVID-19 infections. Plaintiffs do

not challenge the Governor’s authority to issue that executive order, thus this court lacks

jurisdiction to hear claims challenging its local implementation.

All public schools had been closed from in-person instruction last spring during

the first wave of the COVID pandemic. As the Complaint alleges, in May 2020 the Gov-

ernor issued an executive order allowing local school districts to reopen in the fall using

three possible student attendance plans - a Plan A with full in-person learning, a Plan B

with a mix of in-person and remote instruction, or a Plan C with full remote instruction.

But, in mid-July, 2020, as infections climbed again, the Governor issued a new

executive order, removing Plan A as an option and authorizing either a modified Plan B

or Plan C instruction for the opening of school in August. As alleged, the school board

voted on July 30, 2020 to adopt Plan C, a decision that Defendants NCAE and CMAE

supported as a matter of safety for students and teachers. Every urban school district

and many other school districts in the state made that same choice. 1

Plaintiffs advocate for full in-person instruction, as detailed in their complaint.

But fatal to their lawsuit challenging the school board’s vote for remote instruction to

begin this school year, they have not sued the Governor or challenged his power to au-

. For district by district plans as of August 7, 2020, see, https://www.ednc.org/resource-track1 -ing-nc-school-district-reopening-plans; as of October 7, 2020, see https://www.ednc.org/track-ing-fall-reopening-plans-for-all-north-carolina-districts-new-database-from-ednc-and-public-impact/

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thorize Plan C instruction. Instead, they ask this Court to declare unconstitutional and a

violation of N.C.G.S. §115C-1 the local school board’s decision to adopt Plan C. Further,

and bizarrely, they ask the Court to find that NCAE/CMAE’s public support for Plan C

was an unlawful public employee strike or work slowdown in violation of N.C.G.S. §95-

98, et seq.

Given that this lawsuit does not challenge the Governor’s lawful authorization for

school districts to use remote instruction, this court lacks jurisdiction over Plaintiffs’

claims as a matter of separation of powers. That long-settled doctrine “excludes from

judicial review those controversies which revolve around policy choices and value de-

terminations constitutionally committed for resolution to the legislative or executive

branches of government.” Cooper v. Berger, 370 N.C. 392, 407–08, 809 S.E.2d 98, 107

(2018)(internal citations omitted). Absent a proper challenge to the Governor’s authori-

ty to so act, the state courts cannot second-guess his “policy considerations and appro-

priate authorization” of remote instruction in response to the pandemic, even if the

Court disagrees with that decision. Neuse River Found., Inc. v. Smithfield Foods, Inc.,

155 N.C. App. 110, 118, 574 S.E.2d 48, 54 (2002). Because this Court cannot preempt

the executive branch’s lawful use of authority, it should dismiss the action under Rule

12(b)(1) for lack of subject matter jurisdiction.

Even if the Court had jurisdiction, Plaintiffs fail to state a claim against NCAE or

CMAE. As to Plaintiffs’ constitutional claim under Article I, § 15, these Defendants are

non-profit organizations, not state agents, and thus cannot violate the state constitution.

Corum v. Univ. of N. Carolina Through Bd. of Governors, 330 N.C. 761, 783, 413 S.E.2d

276, 290 (1992). Further, the State alone is liable for claims based on the right to a

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sound basic education. Hoke Cty. Bd. of Educ. v. State, 358 N.C. 605, 635, 599 S.E.2d

365. 389 (2004)(“Leandro II”); Silver v. Halifax Cty. Bd. of Commissioners, 371 N.C.

855, 866-67, 821 S.E.2d 755, 763 (2018). The statute underlying Plaintiffs’ second

claim, the uniform schools provision of N.C.G.S. § 115C-1, only pertains to the duties of

the state and local school boards, and not to any other persons or entities. Wake Cares,

Inc. v. Wake Cty. Bd. of Educ., 363 N.C. 165, 173, 675 S.E.2d 345, 351 (2009); Leandro

v. State, 346 N.C. 336, 357, 488 S.E.2d 249, 261 (1997). As for the third claim of an ille-

gal work slowdown via Plan C, N.C.G.S. § 95-98.2 expressly allows public employees to

advocate for workplace safety (Complaint, ¶ 146), defeating Plaintiffs claim on the face

of the pleading.

Thus, this Court should also dismiss Plaintiffs’ lawsuit under Rule 12(b)(6).

STATEMENT OF THE CASE

Plaintiffs filed this action on September 3, 2020 and served Defendants NCAE

and CMAE on September 24, 2020. On October 19, 2020, NCAE/CMAE moved for and

obtained a 30-day extension of time to file a responsive pleading. On November 9,

2020, NCAE/CMAE filed their motion to dismiss and notice of hearing. Plaintiffs’ mo-

tion for an in-person hearing was denied on November 30, 2020.

STANDARD OF REVIEW

A motion to dismiss for lack of subject matter jurisdiction challenges the court's

statutory or constitutional power to adjudicate a claim and can be raised at any level of

the proceeding. N.C.G.S. § 1A–1, Rule 12(b)(1); Burgess v. Gibbs, 262 N.C. 462, 465, 137

S.E.2d 806, 808 (1964). The court need not confine its evaluation of a Rule 12(b)(1) mo-

tion to the face of the pleadings, but may review or accept evidence. Unlike a Rule 12(b)

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(6) motion, consideration of matters outside the pleadings “does not convert the Rule

12(b)(1) motion to one for summary judgment....” Smith v. Privette, 128 N.C. App. 490,

493, 495 S.E.2d 395, 397 (1998). If the evaluation is confined to the pleadings, the court

must accept the plaintiff's allegations as true, construing them most favorably to the

plaintiffs. Id.

For a Rule 12 (b)(6) motion to dismiss, the question is “‘whether the allegations

of the complaint, if treated as true, are sufficient to state a claim upon which relief can

be granted under some legal theory.’” Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d

794, 796 (2013) (citation omitted). “The court must construe the complaint liberally and

should not dismiss the complaint unless it appears beyond a doubt that the plaintiff

could not prove any set of facts to support his claim which would entitle him to relief.”

Enoch v. Inman, 164 N.C.App. 415, 417, 596 S.E.2d 361, 363 (2004) (citation and quota-

tion marks omitted). “Dismissal is proper, however, when one of the following three

conditions is satisfied: (1) the complaint on its face reveals that no law supports the

plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to

make a good claim; or (3) the complaint discloses some fact that necessarily defeats the

plaintiff's claim.” Newberne v. Dep't of Crime Control & Pub. Safety, 359 N.C. 782, 784,

618 S.E.2d 201, 204 (2005) (citation and internal quotation marks omitted).

STATEMENT OF THE FACTS AS ALLEGED BY PLAINTIFFS

The Plaintiffs allege that they are parents of students in the Charlotte-Mecklen-

burg Schools (“CMS”), but not that they are minorities or financially disadvantaged or

have special needs children. Complaint, ¶¶ 1-5. They allege correctly that NCAE is a

non-profit organization and that CMAE is one unit of that organization. Id., ¶¶ 10-11.

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And they allege that the decision of the school board to used remote instruction at the

start of the 2020-2021 school year – though authorized by the Governor - was done in

support of an “agenda” of NCAE/CMAE. Id., ¶ 16.d.

The Governor issued an executive order on May 4, 2020 that authorized local

school districts to implement one of three instructional options to reopen schools in the

fall of 2020 - a Plan A with full in-person instruction, a Plan B with a mix of in-person

and remote instruction; or a Plan C with full remote instruction. Id., ¶¶ 17-18. On in-

formation and belief, they allege that the school district’s administration initially

planned to implement a Plan B, id., ¶¶ 26-29, which would allow parents to choose be-

tween in-person and remote instruction, id., ¶ 30, and the superintendent allegedly rec-

ommended that Plan B at a July 14, 2020 meeting. Id., ¶ 34. After a meeting that 2

same date, the Board voted for a modified “Plan B +” — two weeks of active instruction

followed by fully remote instruction. Id., ¶ 36.

That same date, July 14, 2020, the Governor issued a new executive order that

eliminated Plan A as an option, and authorized school district only to use Plan B or Plan

C to reopen schools in the fall. Id., ¶¶ 31-32. On July 15, the Board convened an emer-

gency meeting about the mode of student instruction, id., ¶¶ 37-48, and over 1,000

“teachers and community members” had signed two petitions for the Board to adopt

Plan C, noting the recent increase in COVID cases and concerns for “the safety of stu-

dents and teachers.” Id., ¶ 49. Plaintiffs allege that NCAE and CMAE improperly influ-

enced and “intimidated” board members and the Superintendent when some members

All allegations about closed sessions of the Board are pled on information and belief. It 2

seems this information comes from a Board member who very publicly opposed and voted against remote instruction.

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sent emails to Board members advocating for Plan C. Id., ¶¶ 50-51. Plaintiffs allege

that NCAE functions as a labor union, id., ¶ 30, and has a website that stated, “by acting

together, we have the power to determine the conditions in which we will return to in-

person instruction. As frontline workers who know how best to meet our children's edu-

cational needs, we have the responsibility to ensure we do so safely." Id., ¶ 58.

(emphasis added)

At a public Board meeting on July 21, Justin Parmenter, a CMS teacher and

NCAE member, and other persons spoke in favor of Plan C. Id., ¶ 63. On July 30, 2020,

the Board voted to go straight to Plan C and forego the two-week in-person start of

school, citing staffing concerns for the two-week Plan B+ session. Id., ¶ 64.

Plaintiffs then detail their reasons for supporting full in-person instruction,

though the Governor had not authorized it at the time of the lawsuit. Id., ¶¶ 69-113.

They allege their controversial premise that the COVID virus is less dangerous than in-

fluenza; id., ¶¶ 72-74; that virtual instruction harms poor and minority and special

needs students, though none of the Plaintiffs claim to represent those categories of stu-

dents: id., ¶¶ 91-97; and that the Board had not adequately assessed the negative effects

of virtual instruction from the school closings in the spring 2020.

From these facts, Plaintiffs claim that “All Defendants” have violated their right,

their children’s right, and “the Students” right to a sound basic education under Article

I, § 15 of the state constitution, id., ¶¶ 114-129. They allege specifically that adopting

“virtual instruction” has deprived their children of a sound basic education. Id., ¶ 122.

Second, Plaintiffs claim that in adopting Plan C, “All Defendants” have violated

N.C.G.S. § 115C-1, which requires that “[a] general and uniform system of free public

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schools shall be provided throughout the State, wherein equal opportunities shall be

provided for all students, in accordance with the provisions of Article IX of the Constitu-

tion of North Carolina.” Id. ¶¶ 130–40. They claim that “Defendants” have acted arbi-

trarily in selecting this instructional plan, though approved statewide, because private

schools, some daycares and some nearby public school districts have not done the same;

id., ¶ 134; and that the decision has harmed minority, poor, and special needs students,

id., ¶¶ 137-38, though, again, none of them or their children are part of those groups.

Third, Plaintiffs allege against the Board, Ms. Dashew and NCAE/CMAE, but not

against the Superintendent, a violation of N.C.G.S. § 95-98 in the decision to begin the

school year under Plan C. Id. ¶¶ 141-51. Despite alleging that N.C.G.S. § 95-98.2 pro-

vides that “nothing herein shall limit or impair the right of any public employee to ex-

press or communicate a complaint or opinion on any matter related to the conditions of

public employment, id., ¶ 146, Plaintiffs claim that “some board members are promoting

the NCAE agenda,” id., ¶ 147, that the Board and NCAE have an “implicit agreement un-

der which NCAE purports to represent CMS teachers in the manner of a labor union,”

id., ¶ 148, that “NCAE has coordinated a deliberate slowing down of work of CMS by way

of denying and/or delaying Active Instruction”, id., ¶ 149, all in violation of the prohibi-

tion against collective bargaining and strikes by public employees in N.C.G.S.  §§ 95-98

through 95-98.2.

Finally, Plaintiffs ask for a preliminary injunction that acknowledges the Gover-

nor’s power to limit instructional methods, asking the Court to order Defendants to im-

plement “Active Instruction to the extent allowed by law” and to enjoin any continuing

violations of N.C.G.S. § 95-98.

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ARGUMENT

A. The Court Lacks Jurisdiction over Plaintiffs’ Challenge to Plan C

Plaintiffs’ three substantive claims against CMS’s decision to start the school year

under Plan C — that it violates Article the state constitution and N.C.G.S. § 115C-1 and

constituted an illegal work slow down by NCAE/CMAE -- all share the same fatal flaw.

Plaintiffs do not challenge the Governor’s power to authorize remote instruction in re-

sponse to the pandemic. Under the separation of powers doctrine, this Court cannot de-

clare unconstitutional and unlawful a school district’s selection of an instructional op-

tion approved statewide by the Governor, or NCAE/CMAE’s support for that decision.

If Plaintiffs had sued the Governor for issuing the May and July executive orders

approving of remote instruction, “it would be incumbent on (this Court) to fully examine

the issue as part of (its) independent governmental function.” Neuse River, 155 N.C.

App. at 118, 574 S.E.2d at 54. But absent any challenge to the Governor’s authority to do

so, this Court cannot “prohibit an activity the (executive) has legally allowed.” Id. This

principle is long-settled.

“[F]or more than 200 years, [North Carolina] has strictly adhered to the principle

of separation of powers.” State ex rel. Wallace v. Bone, 304 N.C. 591, 599, 286 S.E.2d

79, 83 (1982)(modifications in the original). The state constitution makes clear that the

“legislative, executive, and supreme judicial powers of the State government shall be

forever separate and distinct from each other.” N.C. Const. art I, § 6. “This principle, of

course, distributes the power to make law to the legislature, the power to execute law to

the executive, and the power to interpret law to the judiciary.” Advisory Opinion In re

Separation of Powers, 305 N.C. 767, 774, 295 S.E.2d 589, 593 (1982). As noted already,

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supra, this doctrine “excludes from judicial review those controversies which revolve

around policy choices and value determinations constitutionally committed for resolu-

tion to the legislative or executive branches of government.” Cooper v. Berger, 370

N.C. 392, 407–08, 809 S.E.2d 98, 107 (2018)(internal citations omitted; emphasis

added).

In decrying remote instruction, Plaintiffs do not challenge the Governor’s execu-

tive authority to approve it and allege correctly that he has twice authorized remote in-

struction, in May and again in July. And their remedial request defers to the Gover-

nor’s authority to restrict methods of instruction due to the pandemic, asking this Court

to order a return to active instruction “to the fullest extent allowed in North Carolina.”

Complaint, ¶¶, 129, 140, 155, 156 and ¶ 1 of Prayer for Relief.

But their lawsuit also claims that the school board’s vote to use virtual instruction

is unconstitutional, id., ¶ 122; violates the uniform schools requirement of N.C.G.S. §

115C-1, id., ¶¶ 133-139; and constitutes an unlawful public employee “strike” or work

slowdown. Id. ¶ 149. They plead for this Court to enjoin remote instruction, id., ¶¶ 155-

56 and ¶ 1 Prayer for Relief, and to enjoin NCAE and CMAE from expressing support

for it. Id., ¶ 157. This court cannot prohibit CMS from implementing what the Gover-

nor has lawfully approved nor declare it unlawful for NCAE/CMAE to support an in-

structional plan sanctioned by the Governor.

The separation of powers issue was very similar in Neuse River, where the court

held under the doctrine that it lacked jurisdiction to hear claims against Smithfield

Farms for polluting the Neuse River with hog waste. The court held that the defen-

dant’s hog operations were specifically authorized by the legislature under N.C.G.S. §

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143-215.10A and § 106-801. Neuse River, 155 N.C. App. at 118, 574 S.E.2d at 54. Thus,

the court had no jurisdiction.

It is not the role of the judicial branch of government to pre-empt the legislative branch's policy considerations and appropriate authorization of an activity. (. . .)

Plaintiffs do not contend the General Assembly exceeded its authority in violation of our state's constitution. Were that the case, it would be incumbent on us to ful-ly examine the issue as part of our independent governmental function. Under the circumstances here, we decline to prohibit an activity the legislature has legally allowed.

Id.

Here, Plaintiffs do not contend that the Governor exceeded his constitutional or

statutory authority in approving remote instruction. Thus, this Court cannot declare

CMS’s adoption of a state-authorized instructional method unconstitutional or unlaw-

ful; nor can it enjoin NCAE/CMAE from supporting a lawfully authorized method of in-

struction to promote workplace safety.

Plaintiff’s lawsuit should be dismissed under Rule 12(b)(1).

B. Plaintiffs Fail to State a Claim Against NCAE/CMAE

The Court lacks subject matter jurisdiction, but Plaintiffs also fail to state a claim

against NCAE and CMAE; their first two claims fail as a matter of law, and the third fails

based on the facual allegations.

1. NCAE and CMAE Cannot Violate the State Constitution

Defendants correctly allege that NCAE and CMAE are non-profit organizations.

As a matter of law, then, they cannot violate the state constitution. In Corum v. Univ. of

N. Carolina Through Bd. of Governors, 330 N.C. 761, 783, 413 S.E.2d 276, 290 (1992),

the Supreme Court held that the Declaration of Rights protects persons from state ac-

tors.

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Encroachment by the State is, of course, accomplished by the acts of individuals who are clothed with the authority of the State. The very purpose of the Declara-tion of Rights is to ensure that the violation of these rights is never permitted by anyone who might be invested under the Constitution with the powers of the State.

Corum v. Univ. of N. Carolina Through Bd. of Governors, 330 N.C. 761, 782–83, 413

S.E.2d 276, 290 (1992). NCAE/CMAE are not “invested” with state powers under the

constitution. Under Corum, the constitutional violation alleged against NCAE/CMAE

fails to state a claim.

2. Only the State Can Remedy Violations of Art. I, § 15

Further, the case law holds that the only remedy for a violation of the right to a

sound basic education is to sue the State. In the landmark Leandro decision, the state

Supreme Court established the components of a “sound basis education” that Plaintiffs

list in paragraphs 119-121 of their Complaint. Leandro v. State, 346 N.C. 336, 347, 488

S.E.2d 249, 255 (1997). On remand, the trial court focused on educational problems in

Hoke County’s schools. See Hoke Cty. Bd. of Educ. v. State, 358 N.C. 605, 599 S.E.2d

365 (2004)(aka,“Leandro II”). The State attempted to avoid liability for the significant

problems the trial court found there by blaming Hoke County’s school board for failing

to manage its school system properly. The Supreme Court rejected that effort, affirm-

ing the trial court in holding that “the State bore ultimate responsibility for the actions

and/or inactions of the local school board, and that it was the State that must act to

correct those actions and/or inactions of the school board that fail to provide a Leandro-

conforming educational opportunity to students.” Id., 358 N.C. at 635, 599 S.E.2d at

389. Thus, to the extent Plaintiffs claim that remote learning violates the constitution,

the State is the sole responsible entity for that violation, not NCAE or CMAE.

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The Supreme Court made that clear in 2018 in upholding the dismissal of a law-

suit against the Halifax County Commissioners over inequitable local funding of the

three separate, racially identifiable, school districts in that county. Those Plaintiffs

claimed that the county commissioners were violating the constitutional right of poorer

minority students to a sound basic education in not addressing those inequities. Silver

v. Halifax Cty. Bd. of Commissioners, 371 N.C. 855, 821 S.E.2d 755 (2018). In a lengthy

discussion, the Court held that under Hoke (“Leandro II”), the State alone was respon-

sible for any claimed violations of the right to a sound basic education.

The trial court's order at issue in Leandro II found “that the State bore ultimate responsibility for the actions and/or inactions of the local school board, and that it was the State that must act to correct those actions and/or inactions of the school board that fail to provide a Leandro-conforming educational opportunity,” and we upheld this determination. 358 N.C. at 635, 599 S.E.2d at 389 (emphasis added). Following this reasoning, any complications born of the incompetence or obstinance of a county board of commissioners . . . (also) are the “ultimate re-sponsibility” of the State, which must step in and ameliorate the errors.6

Silver, 371 N.C. at 866–67, 821 S.E.2d at 763. Thus, “the duty to remedy these harms

rests with the State, and the State alone.” 371 N.C. at 869, 821 S.E.2d at 764. The plain-

tiffs remedy there, like here, was to “assert a child's constitutional right to receive a

sound basic education directly against the State.” Id.(emphasis added)

Thus, if Plaintiffs believe that remote instruction deprives their children of a

sound basic education, their remedy lies solely in action against State, and not against

NCAE/CMAE for supporting Plan C. The holdings of Hoke and Silver are even more

compelling here because the remote instructional method being challenged as unconsti-

tutional has been expressly authorized by the State’s chief executive. Plaintiffs cannot

sue NCAE and CMAE for a claimed violation of the constitutional right to a sound basic

education for supporting Plan C; they must sue the Governor.

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3. NCAE/CMAE Cannot Violate N.C.G.S. § 115C-1

Likewise, NCAE/CMAE cannot be sued for violating N.C.G.S. § 115C-1, which

“merely codifies our state's constitutional requirement of ‘a general and uniform system

of free public schools, which shall be maintained at least nine months in every year.’

N.C. Const. art. IX, § 2, cl. 1.” Wake Cares, Inc. v. Wake Cty. Bd. of Educ., 363 N.C. 165,

171, 675 S.E.2d 345, 350 (2009). The legal responsibility for implementing the uniform

system falls upon the state board of education, N.C.G.S. § 115C–12; the state superin-

tendent, N.C.G.S. § 115C–21; and the local boards of education. N.C.G.S. § 115C–36 and

§ 115C–40 (“Local boards of education, subject to any paramount powers vested by law

in the State Board of Education or any other authorized agency shall have general con-

trol and supervision of all matters pertaining to the public schools in their respective lo-

cal school administrative units....”). NCAE/CMAE has no duties under N.C.G.S. § 115C-

1 and cannot be sued for obligations placed squarely on the state board, state superin-

tendent and local board. Even if the Court had jurisdiction, Plaintiffs fail to state a

claim against NCAE/CMAE under N.C.G.S. § 115C-1.

4. The Strike Claim Fails on the Face of the Statute

Finally, Plaintiffs fail to state a claim against NCAE/CMAE for violating the pro-

hibitions against collective bargaining and strikes by public employees set out in

N.C.G.S. § 95-98 through §95-98.2. The last of those statutes expressly exempts from

its strike and collective bargaining prohibitions the right of public employees to address

workplace conditions. The Complaint expressly states that NCAE/CMAE’s support for

Plan C – what Plaintiffs call an effort at “implicit” collective bargaining -- falls within

that workplace conditions exemption.

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The Complaint alleges that the emergency meeting on July 15, 2020 was tied to

two petitions signed by over 1.000 teachers and community members expressing safety

concerns about in-person instruction given the increase in infections. Complaint, ¶

49. It also alleges that NCAE had posted on a website that its members, as frontline

workers charged with meeting students educational needs, had a “responsibility to en-

sure we do so safely.” Id. ¶ 58. Thus, the Complaint states that NCAE/CMAE raised

safety concerns about in-person instruction during the pandemic.

The pleading then recites the statutory right of public employees to address such

concerns.

[N]othing herein shall limit or impair the right of any public employee to express or communicate a complaint or opinion on any matter related to the conditions of public employment so long as the same is not designed to and does not inter-fere with the full, faithful, and proper performance of the duties of employment.

Id., ¶ 146, quoting N.C. Gen. Stat. Ann. § 95-98.2. On the face of the Complaint,

NCAE/CMAE has expressed support for the Governor’s Plan C as a workplace safety

measure. Calling NCAE/CMAE’s support of a lawful instructional plan illegal is not a

cause of action – it is a rhetorical flourish born of palpable disdain for NCAE/CMAE’s

support for remote instruction as a pandemic safety measure.

Plaintiffs’ pleading defeats its claim under N.C.G.S. § 95-98, et seq.

CONCLUSION

The nation has been and remains roiled over how to respond to the pandemic.

But this Court lacks jurisdiction to weigh in on that rancorous debate in this case where

the Board has chosen between instructional options lawfully ordered by the Governor.

Short of suing the State, Plaintiffs’ remedy “lies with the electoral process or through

communications with the legislative and executive branches of government,” Wake

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