STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF MECKLENBURG. 20-CVS- J. NICHOLAS FOY, NATALIE S. FOY, BRYAN CRUTCHER, SANDY BLAKELY WHITE and STEPHEN LONNEN, Plaintiffs, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, EARNEST WINSTON, ‘Superintendent of Charlotte-Mecklenburg, COMPLAINT FOR DECLARATORY AND Schools and Chief Executive Officer of the INJUNCTIVE RELIEF Charlotte-Mecklenburg Board of Education in his official capacities, ELYSE DASHEW, Chairperson of Charlotte-Mecklenburg Board of i Education in her official capacity, the NORTH CAROLINA ASSOCIATION OF : EDUCATORS; INC, and the CHARLOTTE- MECKLENBURG UNIT OF THE NORTH CAROLINA EDUCATORS ASSOCIATION, INC, Defendants. ‘The Plaintiffs complain of the Defendants CHARLOTTE-MECKLENBURG BOARD OF EDUCATION (the “Board”), EARNEST WINSTON (*Mr. Winston”), Superintendent of Charlotte-Mecklenburg Schools (“CMS”) and Chief Executive Officer of the Board in his official capacities, ELYSE DASHEW (“Ms. Dashew”), Chairperson of the Board in her official capacity, NORTH CAROLINA ASSOCIATION OF EDUCATORS, INC. ("NCAE”) and CHARLOTTE-MECKLENBURG UNIT OF THE NORTH CAROLINA EDUCATORS ASSOCIATION, INC. (together with NORTH CAROLINA ASSOCIATION OF EDUCATORS, INC. “NCAE”) as follows: 1. Plaintiff J. Nicholas Foy is a citizen and resident of Mecklenburg County, North Carolina and a patent of two minor children who are citizens and residents of Mecklenburg, County, North Carolina 2. Plaintiff Natalie S. Foy is a citizen and resident of Mecklenburg County, North Carolina and a parent of two minor children who are citizens and residents of Mecklenburg, County, North Carolina,3, Plaintiff Bryan Crutcher is a citizen and resident of Mecklenburg County, North Carolina and a parent of one minor child who is a citizen and resident of Mecklenburg County, North Carolina. 4, Plaintiff Sandy Blakely White is a citizen and resident of Mecklenburg County, North Carolina and a parent of two minor children who are citizens and residents of Mecklenburg County, North Carolina. 5. Plaintiff Stephen Lonnen is a citizen and resident of Mecklenburg County, North Carolina and a parent of two minor children who are citizens and residents of Mecklenburg County, North Carolina. 6. The Board is a governmental entity of the State of North Carolina, 7. ‘The Board is charged with: 1) providing a public school system for Mecklenburg County, North Carolina; 2) establishing general policies in keeping with the needs of the community and the requirements of state law; and 3) performing all specific duties imposed by state and federal statutes. 8, Defendant Mr. Winston is made a party to this action in his official capacity as the Superintendent of CMS and the Chief Executive Officer of the Board. 9. Defendant Ms. Dashew is made a party to this actio Chairperson of the Board. her offi capacity as the 10, Upon information and belief, Defendant NCAE is a non-profit corporation formed under the laws of the State of North Carolina with a prineipal place of business located in Wake County, North Carolina, 11. Upon information and belief, Defendant Charlotte-Mecklenburg Unit of the NCAE is a non-profit corporation formed under the laws of the State of North Carolina with a principal place of business located in Mecklenburg County, North Carolina, NATURE OF THIS ACTION 12. This action arises from the Board’s recent decision to suspend (the “Suspension”) active educational instruction (“Active Instruction”) of its 147,000 students (collectively, the Students”), in favor of virtual or remote learning (“Virtual Instruction”) 13. The continuing Suspension violates the North Carolina Constitution (the “Constitution”) and North Carolina General Statutes. 14, In issuing the Suspension, the Board has failed and refused to faithfully perform its duties pursuant to its policies and bylaws,15. In issuing the Suspension, the Board has failed and refused to take into proper consideration the education, health, general well-being and interests of the Students. 16. Specifically, the Defendants have failed to: a. Sufficiently prepare for Active Instruction for the 2020-2021 school year; b. Fully and faithfully consider the best interests of the Students, their parents (collectively, the “Parents”) and CMS teachers (collectively, the “Teachers”); Fully and faithfully consider the opinions of local, national and international health experts that the risks to Student well-being from Virtual Instruction far outweigh any potential benefits; d. Fully and faithfully consider the abundance of reliable local, national and international data in support of the conclusion that the Students can and should immediately return to Active Instruction; and e. Place the well-being of the Students above the agenda of the NCAE. BACKGROUND AND FACTUAL ALLEGATIONS Defendants’ actions related to COVID-19 response and returning Students to the classroom 17. On or about On May 4, 2020, North Carolina Governor Roy Cooper (the “Governor”) directed the public school systems of the state of North Carolina to resume instruction on August 17, 2020, 18. Under the Governor’s directive, due to the COVID-19 (also referred to as SARS-CoV-2) pandemic (the Pandemic”), the state’s public school systems were provided with three potential options for the resumption of instruction: a. “PLAN A” full Active Instruction; b. “PLAN B”: combination of Active Instruction and Virtual Instruction; or ©. “PLAN C”: full Virtual Instruction, 19. Upon information and belief, on or about May 4, 2020, Mr. Winston directed CMS faculty and staff to prepare a plan (“CMS Plan B”) for the resumption of instruction that was based upon PLAN B. 20. Upon information and belief, Matt Hayes (“Mr, Hayes”), CMS" Deputy Superintendent of Academic Services, and Carol Stamper (“Ms Stamper”), CMS" DeputySuperintendent of Operations, together with approximately 80 CMS staff and faculty members began work on CMS Plan B in early to the middle of May, 2020. 21. Upon information and belief, in June of 2020, CMS conducted a survey (the “Staff Survey”) of CMS staff and faculty asking whether they would return to schoo! in an in- person instruction 22, Upon information and belief, approximately 12,000 of approximately 19,000 CMS staff and faculty responded to the Staff Survey on or before July 8, 2020, with approximately 88% indicating that they would return to school for Active Instruction, 23. Upon information and belief, the Board never contacted any Parents regarding its planning for the 2020-2021 school year, 24. Upon information and belief, the Board never contacted any Students regarding its plans for the 2020-2021 school year. 25. Upon information and belief, the Board never contacted any community leaders regarding its plans for the 2020-2021 school year. 26. Upon information and belief, the only involvement that CMS faculty and staff members had-with CMS” plans for the 2020-2021 school year was through their responses to the Staff Survey and the work of the 80 staff members who were asked to work on CMS Plan B. 27. At the July 1, 2020 Board meeting, the Board conducted a work session described on the meeting agenda as Work Session on the Reopening of Schools for the 2020-2021 School Year. 28. A copy of the presentation related to that work session is attached hereto as Exhibit “A” and incorporated herein by reference. 29. Upon information and belief, during the first two weeks of July, 2020, Mr. Hayes and Ms. Stamper briefed Mr. Winston and the Board members (individually or in small groups), on CMS Plan B. 30. Upon information and belief, CMS Plan B allowed for Active Instruction with a full virtual option for Students known as the Virtual Academy (“VA”). 31. On or about July 14, 2020, and during a press conference (the “Press Conference”), the Governor announced that public school students in North Carolina would return to school ‘on August 17, 2020, under a moderate social distancing plan consistent with PLAN B, with certain monitoring requirements for Students and Teachers. 32. During the Press Conference, the Governor further announced that individual school districts had the authority to restrict themselves to Virtual Instruction (PLAN C), if theydetermined that it was in the best interests of the particular district’s students, parents and teachers. 33. Also during the Press Conference, Dr. Mandy Cohen (“Dr. Cohen"), Secretary of the North Carolina Department of Health and Human Services, stated that: a. The available scientific evidence indicated that children are less likely than adults to be infected with COVID-19 and were less likely to spread it to others; b. Schools are a lower transmission setting and have not seemed to play a major role in the spread of COVID-19; and ©. There is conclusive evidence that school is critical to a child’s education, health, ‘emotional and social well-being, and that missing school is actually harmful to children and that she would be sending her children to an Active Insttuction environment. 34, Also on July 14, 2020, the Board conducted a scheduled meeting. 35. Upon information and belief, during the July 14, 2020 meeting, Mr. Winston recommended to the Board that it approve CMS Plan B. 36. Upon information and belief, a majority of Board members were in favor of Mr. ‘Winston’s recommendation and intended to vote in favor of CMS Plan B. 37. Subsequently and on or around July 15, 2020, the Board called an emergency meeting (the “Emergency Meeting”) to decide how CMS would resume instruction for the 2020- 2021 school year. 38. At the Emergency Meeting, the Board was provided documents setting out the calendars for CMS Plan B and a CMS Plan C. See Exhibit “B” attached hereto and incorporated herein by reference. 39. Upon information and belief, on or around July 14, 2020, a Board member or an individual at the direction of « Board member(s) created a document entitled Plan B-+ Remote. See Exhibit “C” and incorporated herein by reference. 40, Upon information and belief, the Plan B+ Remote document was not presented to the full Board until 4:00 p.m. during the closed session of the Emergency Meeting, resulting in the Board having very litle time to review it. 41. During the Emergency Mecting, the Board also reviewed an outline of the VA. See Exhibit “D” attached hereto and incorporated herein by reference.‘42. Daring the Emergency Meeting, Gibbie Harris (“Ms. Haris”), Mecklenburg County Public Health Director, advised the Board ‘hat “itis imperative that we get children back in the classroom.” 43. Daring the Emergeney Meeting, Dr. Catherine Ohmstede (Dr, Ohmstede”), Director of Pediatries for Novant Health, advised the Board that while approximately 2,000 owt of the 15,000 children (who were tested) had tested positive for COVID-19 in Mecklenburg County, only 10 were admitted to the heen, 47. The rejection of CMS Plan B constitutes the Virtual Instruction, 49. On July 15, 2020, the Charlotte Observ: eared that between July 14, 2020 and July 13, 2020, “more than a thousand teachers anf community members called on the Board {0 choose Plan C, citing increasing confirmed Spses and concems about the safety of Students and teachers in two petitions to CMS. CMS and the Board have engaged in political activity in violation of and contrary to the North Carolina Constitution, Nori Carolina General Statutes and the health and well-being of CMS Students: 50. Upon information and belief, in and around the week(s) preceding the Emergency Meeting, members of the NCAB organized ¢ campaign to improperly influence and intimidate the Board members and Mr Winston into issuing the Suspension of Active Instruction, $1. Upon information and belief, this Preanized campaign included emails to the Board advocating for Suspension of Active Instruction,52. Upon information and belief, the NCAE also sought to improperly influence CMs ‘Teachers and staff into rejecting Active Instruction, $3. Upon information and belief, the focus of the NCAE is upon Teacher rather than Student welfare. To implement that focus, NCA employs a staff of full-time lobbyists in Raleigh. 54. On its website, the NCAE states that is js been instrumental in preserving educator Salaries and longevity pay, protecting advance degree pay and maintaining the state's contribution to employee retirement.” 56. On its website, the NCAE has organized a petition entitled “Our Schools, Our Safety, Our Say” that, upon information and belief, is designed to clevate the well-being of ‘Teachers over that of the Students. °7 Upon information and belief the NCAE holds the opinions of the Parents in low or none existent regard. 58. The NCAE website states that “by acting together, we have the power to. determine the Conditions in which we will return to in Person instruction. As front line workers who Know how best to meet our children's educational needs, we have the Fesponsibility to 59. Upon information and belief, after the Emergency Meeting, Parents asked Ms, Dashew to Participate ina town hall so that Parents cout ay, her direct questions, 60. Upon information and belief Ms, Dashew has epettedly declined and refused to engage with Parents and respond to their direct question fents, on July 21, 2020, Ms, Dashew Participated in an wn Hall” with State Representative Wesley Harris, State Representative Rachel Hunt, State Representative Brandon Lofton, Justin Parmenter (Mr. Parmenter”), CMS Teacher and NCAE Region 3 Director, and Dr. Meg Sullivan, medical director of the Mecklenburg County Public Health Department. 2. Upon information and belief, the Education Town Hall was a political event disguised as 4 town hall and the panel patticipants, with Perhaps one exception, were there to advance their political agendas and deny Studente the ‘opportunity to engage in Active Instruction,4: On July 30, 2020, the Board amended it initial Suspension by voting to foreuo the riginal two-week in-person session, citing “staff shortages” as the reason forthe change, §. Upon information and belief, CMS" staff shortages on or around July 30, 2020, were {ypical for CMS at that point in any given year. i §6. Upon information and belief, on multiple occasions, Ms. Dashew bas deferred to Mr. Parmenter to speak on behalf of Teachers, despite his clear bigs against Active Instruction. 67. Upon information and belief, Ms. Dashew and Board member Carol Sawyer have Published their support for the NCAE members and their agenda on Facebook and other social media platforms, 8. Upon information and belief, Ms. Dashew and some Board members are actively working in concert with the NCAE to advance the NCAE’s agenda at the expense of the Students,” Parents and Teachers who wish to return to Active Instruction, Physicians, medical experts, studies and current data indicate the risk to tudent health from returning to Active Instruction is far outweighed the damage anticipated from Virtual Instruction, 69. According to the North Carolina Department of Health and Human Services CNCDHHS"), as of August 26, 2020, there have been no COVID-19 deaths of persons under 25 years of age within the state of North Carolina. 70. According to the Mecklenburg, County Health Department (°MICHD”), as of August 23, 2020, in Mecklenburg County (which has a population of 1.11 million people): a. Two-hundred and eighty-two deaths have been attributed to COVID-19; b. Of the 3,882 reported cases in individual under the age of 20, there have been no, COVID-19 related deaths; & Approximately 43.7%, or 10,602 of COVID-19 reported cases were among adults ages 20 to 39 years old; 4 Approximately 1.4% or 4 of COVID-19 related deaths were among adults ages 20, t0 39; © Approximately 28.2% of COVID-19 reported cases were among adults ages 40 to 59 years old; £ Approximately 13% or 38 of COVID-19 related deaths were among adults ages 0 to 59;& Approximately 12.1% of reported cases of COVID-19 have been in adults over the age of 60; h. Approximately 85% of COVID-19 related deaths were among adults over the age of 60; and ‘All deaths in Mecklenburg County, except three, occurred among adults with underlying chronic illnesses, er Mecklenburg County prevalence of known confirmed COVID-19 cases has changed from 2-4 (0 1.0 cases per 1000 and the positivity rate hee changed from 10.1% to 6.2% 72. According to the United States Center for Disease Control and Prevention (“CDC”), the influenza disease burden in 2017-2018 was: 4. Approximately 45 million cases; b. Approximately 21,000 medical visits; © Approximately 810,000 hospitalizations; 4. Approximately 61,000 deaths; and e. Approximately 643 deaths in individuals ages 0-17, 75. According to the CDC, the influenza disease burden in 2018-2019 was: & Appro iately 35 million cases; b. Approximately 16,500 medical visits; © Approximately 490,000 hospitalizations; 4. Approximately 34,000 deaths; and © Approximately 477 deaths in individuals ages 0-17, 74. According to the CDC website, as of August 1, 2020, A total of 44,865 laboratory confitmed COVID-19-associaied hospitalizations were reported, 75. On May 27, 2020, the American Academy of Pediatrics (“AAP”) published a paper entitled COVID-19 Planning Considerations: Guidance for School Reentry (“AAP Paper"), wherein the AAIa. Strongly recommended that the coming school year start with a goal of having students physical present in school; s that would be lost without in-person instruction such as child development, social and emotional skills, reliable nutrition, physical/speech and mental health therapy and opportunities for physical activity; ¢. Stated that, “keeping schools closed places children and adolescents at considerable risk of morbidity and, in some eases, mortality”; and . Advised that “lengthy time away from school and associated interruption of supportive services often results in isolation, making it difficult for schools to identify and address important learning deficits as well as child and adolescent physical or sexual abuse, substance use, depression, and suicidal ideation.” 76. On July 23, 2020, the CDC published a report entitled The Importance of Reopening America's Schools this Fall (“CDC July Report”) which stated that: a, Schools play a critical role in supporting the whole child, not just their academic achievement, including the development of social and emotional skills, and that a safe, connected environment such as school reduces students’ depression, anxiety, and thoughts of suicide; and b. The harms attributed to closed schools on the social, emotional, and behavioral health, economic well-being, and academic achievement of children, in both the short- and tong-term, are well-known and significant. 77. On August 14, 2020, in its Morbidity and ‘Mortality Weekly Report, the CDC stated that 25.5% of Americans age 18 to 24 seriously considered suicide during the 30 days preceding report data collection, which represented a marked increase from the same period of last year. 78. On July 14, 2020, during a COVID webinar series, CDC Director Robert Redfield explained that: a, The cost to our nation in continuing to keep these schools closed is substantial; b. School closures, particularly in high schools, have resulted in far more suicides than deaths from COVID-19; and ¢. School closures have resulted in far more deaths from drug overdose that are above excess than deaths from COVID-19. 79. On July 7, 2020, the Public Health Agency of Sweden published a study entitled Covid- 19 in Schoolchildren. This study found that:a, Closing of schools had no measurable effect on the number of cases of COVID- 19 among children; b, Children are not a major risk group of the COVID-19 disease and seem to play a less important role from the transmission point of view; and ©. The negative effects of closing schools must be weighed against the possible Positive indirect effects it might have on the mitigation of the COVID-19 pandemic, 80. On July 15, 2020, the National Academies of Sciences, Engineering, and Medicine prepared a report entitled Reopening K-12 Schools During the COVID-19 Pandemic: Prioritizing Health, Equity and Community in which they weighed the health risks of reopening K-12 schools against the educational risks of providing no in-person instruction and concluded: a, That districts should weigh the relative health risks of reopening against the ‘educational risks of providing no in-person instruction in Fall 2020; and b. Given the importance of in-person interaction for learning and development, districts should prioritize reopening with an emphasis on providing full-time, in- person instruction in grades K-5 and for students with special needs who would be best served by in-person instruction. Students are not spreaders of COVID-19, 81. On March 30, 2020, the Australian Research Council released a study entitled Children are unlikely to have been the primary source of household SARS-CoV-2 infections which looked at the early data from China, Singapore, South Korea, Japan, and Iran. The study concluded that while “SARS-CoV-2 can cause mild disease in children”, the data available to date suggests that children have not played a substantive role in the intea- household transmission of SARS-CoV-2.35. 82. On April 26, 2020, the Australia’s National Centre for Immunization Research and ‘Surveillance published a study which found: a. no evidence of children infecting teachers; b. the spread of COVID-19 within NSW (New South Wales) schools was very limited; and that unlike other respicatory viruses, children are not the primary drivers of the spread of COVID- 19,83. On May 18, 2020, during a video conference, European Union Education Ministers learned that since the reopening of schools in 22 member states, there had been no increase in infections of COVID-19 among students, teachers and parents, 84. On May 28, 2020, Eurosurveillance, Burope’s journal on infectious disease surveillance, epidemiology, prevention and control, published an article entitled No Evidence of ‘Secondary Transmission of COVID-19 from Children Attending School in Ireland Showing that there was no evidence of secondary transmission of COVID-19 from children attending school in Ireland. 85, On June 23, 2020, the Institute Pasteur, published a study entitled SARS-CoV-2 infection in Northern France: A retrospective cohort study in an area of high transmission itr Which they found that infected children did not spread the virus to other children or to teachers or other school staf. 86, On July 8, 2020, the Prevent Epidemics website published a report entitled Reopening America’s Schools: A Public Health Approach which showed children likely play a smaller role in transmission of COVID-19 than adults. 87, The British Columbia Centre for Disease Control website states that children are at low risk of catching and spreading COVID-19. 88. On July 15, 2020, the National Center for Biotechnology website published a study of 2,000 German school children and found that young people do not play a significant role in the transmission of the coronavirus, and that schools in Germany did not become hotspots after they were reopened. 89, On July 21, 2020, in an article published in The Times United Kingdom entitled No known case of teacher catching coronavirus form pupils, «leading British epidemiologist reported to the media that: a. Itmay have been a mistake to close schools in March given the limited role children play in spreading the virus; and b. There was no known case of a teacher catching coronavirus from pupils 90. Upon information and belief, ut least 22 countries currently have theit schools open without social distancing, mask wearing, and other measures, yet these countries have not experienced an increase in COVID-19 cases or spread of the virus among children, 2‘The digital divide created by remote learning harms students and in particular socioeconomically disadvantaged and minority students. 91, On August 19, 2020, the Charlotte Agenda published an article highlighting the digital divide within CMS and included an interview with a CMS teacher who stated that: @. “Kids who can afford internet are learning; kids who cannot afford internet are not”; and b. “Bvery single day that we don’t have these hotspots is a day that (some) kids are not learning and other kids are.” 92. In May of 2020, Brown University published a study entitled Projecting the potential impacts of COVID-19 school closures on academic achievement which: a, Estimated the negative impacts of remote learning on some children to be a loss of 63-68% of the learning gains in reading relative to a typical school year; b, Estimated the negative impacts of remote learning on some children to be a loss of 37-50% in learning gains in math; c. Predicted that some students may come back close to a full year behind in math; d, Stated that even when teachers are making themselves and their instructional materials available virtually, many students lack the means to consistently access online material from home; ¢. Explained that there are many reasons to believe the COVID-19 impacts might be larger for children in poverty and children of color; £. Analyzed evidence indicating remote learning leads to decreased teacher interaction with students; and 2. Looked at one national survey of teachers that found as of April 8, 2020, only 39% of teachers reported interacting with their students at least once a day, and that most teacher-student communication occurred over email. 93. A McKinsey & Company study entitled COVID-19 and student learning in the United States: The hurt could last a lifetime study predicted that: a, Even for children receiving average-quality online learning in the fall of 2020, students would lose three to four months of learning by January 2021; and b. Black and Latino students would suffer a 15 to 20% greater loss in educational gains than other students. 1394. A NAACP website article entitled Coronavirus Impact on Students and Education Systems concluded that: 1, For students of color at all levels across the country, school closings create problems even more urgent than the interruption of their educations; b. Schools also serve as a community nexus for food and housing: ¢. Many Black students are eligible for the federal free or reduced-price lunch program (FRLP); 4. For high-poverty schools where more than 75% of students are eligible for FRLP, Black students accounted for 44% of those attending; €, At schools where 50-75% percent of students are eligible for FRLP, Black students made up 30% of the student population; and £. For students who rely on their schools as a reliable source of daily meals, school closings leave a critical gap. 95. By way of example of the effects of remote learning, the Los Angeles Times reported on March 30, 2020, that less than two weeks after the California schools shut down on March 16, 2020, Los Angeles School District officials admitted that 15,000 students were completely unaccounted for and more than 40,000 had not been in daily contact with their teachers. 96. A study conducted by the Los Angeles Unified School District regarding the time p. of March 16, 2020 and May 22, 2020 and reported on July 1, 2020, found that on an average day: a. Only 36% of middle and high schoo! students participated online; b. Approximately 25% of middle and high school students logged on or viewed work only; ©. Approximately 40% of middle and high school students were absent; d, Black and Latino students showed participation rates between 10 and 20 percentage points lower than white and Asian peers; and ©. English learners, students with disabilities, homeless students and those in the foster-care system had lower rates of online participation. 97. The CDC July Report states that the lack of in-person educational options disproportionately harms low-income and minority children and those living with disabilities in that, “4a, Those students are far less likely to have access to private instruction and care; and b. ‘Those students are far more likely to rely on key school-supported resources like food programs, special education services, counseling, and after-school programs to meet basic developmental needs, Virtual Instruct child safety concerns. 98. Upon information and belief, as mandatory reporters, teachers who have daily contact with children are in the best position to notice and report suspected child abuse. 99. In an article published on its website entitled For the First Time Ever, Minors Make Up Half of Visitors to National Sexual Assault Hotline, the Rape, Abuse, & Incest National ‘Network (RAINN) stated that: a. Many minors are now quarantined at home with their abusers, and are, therefore, kids are cut off from their safety net of teachers, coaches, and friends’ parents who are most likely to notice and report suspected abuse; and b. Abuse reports to many state authorities have declined not because there is less abuse taking place, but because children have less contact with adults outside the home ‘who could potentially spot and report abuse, 100, The CDC July Report states that; a, Teachers and educational staff report more than one-fifth of all child abuse cases; b. During school closures there has been a sharp decline in reports of suspected maltreatment; and cc. Hospitals have seen an increase in hospitalizations of children suffering from abuse. 101 Upon information and belief, while child abuse reports have declined, hospitals across the country are reporting higher numbers of physically abused children which indicates that abuse is not being detected in time. ‘The Board has failed and refused to properly evaluate Virtual Instruction and to work toward returning to Active Instruction as soon as possible. 102. At the outset of the Pandemic, in March of 2020, CMS (and other North Carolina public schools) implemented a form of Virtual Instruction. 15103. Upon information and belief, thousands of Students dropped out (“Drop Outs”) from CMS and had no further engagement with their classes or teachers, 104. Upon information and belief, CMS has not conducted any study of the precise number of Drop Outs, their age or the schools within CMS from which they disengaged, 105. Upon information and belief, CMS has failed and refused to respond to questions from Parents regarding CMS" plan to address Drop Outs during the 2020-2021 schoo! year. 106. __Upon information and belief, CMS has failed and refused to respond to questions from Parents regarding the deleterious effect upon Student development that is likely with Virtual Instruction. 107. Upon information and belief, CMS has failed and refused to respond to questions from Parents regarding the potential disproportionate impact of Virtual Instruction on. disadvantaged communities. 108. Upon information and belief, on or around August 19, 2020, CMS believed it would need approximately 18,000 wi-fi hot posts so that Students could participate in Virtual Instruction. 109. ‘Upon information and belief, thousands of Students would be unable to participate in Virtual Instruction without the additional hot spots. 110. Upon information and belief, on August 25, 2020, the Board conducted a regularly scheduled meeting. 111. Upon information and belief and despite the overwhelming data and evidence that Students must return to the classroom, the Board failed and refused to discuss an actual plan to transition to Active Instruction at the August 25,2020 Board meeting. 112. Upon information and belief, during the August 25,2020 meeting, the Board passed a proposal which enables CMS to enter into contractual agreements with Community-based organizations to establish remote learning facilities for CMS Students, 113 Upon information and belief, during the August 25, 2020, meeting, the Board reviewed a presentation entitled Opening of Schools Template which, amongst other gs, stated the following: a. Approximately 500 teachers (approximately 5.5% of CMS teachers) have been approved to work from home. b. Four teachers have taken a COVID-19 related leaves of absence; ‘There are 41 teacher vacan (approximately .45% of total teachers at CMS); 16d. There are 29 custodial vacancies; and e, There are 14 bus driver vacancies, HIRST CI .AIM FOR RELIEF AGAINST ALL DEFENDANT: ‘Declaratory Judgment for Violation of the North Carolina Constitution 114, The preceding allegations are incorporated hercin by reference. 115, This is an action for declaratory judgment pursuant to North Carolina General Statutes Article 26 §1-253 et. seg. for the purpose of determining the rights, status and legal relations of the parties, 116. An actual controversy of a justiciable issue between the parties exists. 117, Article I, Declaration of Rights, Section 15, Education of the North Carolina Constitution states that “{«]he people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.” 118. ‘The Plaintiffs, their children and the Students are guaranteed the right to a sound basic education under the North Carolina Constitution, hig. In North Carolina, a sound basic education provides sufficient ability to read, write, speak English and sufficient knowledge of fundamental math and physical science to enable students to function in a complex and rapidly changing society. 120, In North Carolina, a sound basic education provides sufficient fundamental knowledge of geography, history, basic economic and political systems to enable students to make informed choices about issues that affect the student (personally, or in the student’s community, state, and nation). a. In North Carolina, a sound basic education provides sufficient academic and ‘vocational skills to enable the student to successfully engage in post-secondary education or vocational training and to compete with others in further formal education or gainful ‘employment. 122, Upon information and belief, Defendants have deprived the children of the Plaintiffs of their Constitutional rights by precluding them from receiving a sound basic education, because: |) Virtual Instruction significantly impairs their education; 2) Students’ mental health is actively compromised; (3) many Students have no, limited or inconsistent access to the internet; (4) Students are in danger; and (5) many Students will fail to engage and drop out. 123, Defendants lack any compelling, or even rational, interest for burdening Plaintiffs’ children of their fundamental right to a sound basic 7education. The weight of the evidence shows that children’s transmission and infection rates of COVID-19 cannot justify the denial of Active Instruction. 124. Upon information and betief, Defendants have ignored the virtual absence of risk to Student health from COVID-19, 125. Upon information and belief, Defendants have ignored that any tisk to Teachers may be mitigated through protection of those who have pre-existing conditions. 126. __Upon information and belief, the challenges posed by managing risk to Teachers is significantly less than the harm being inflicted on Students and Parents through the deprivation of their Constitutional rights. 127. Upon information and belief, Defendants have acted arbitrarily and with deliberate indifference toward the unduly harsh effects their school restrictions have on minorities and socioeconomically disadvantaged Students and Parents who have less access to technology, are provided less effective distance-learning, and are more heavily impacted by the lack of Active Instruction, 128. Upon information and belief, Defendants have acted knowingly, recklessly, and with deliberate indifference to the rights of special needs Students in Mecklenburg County by preventing CMS from providing special needs Students with specialized instruction and related services commensurate with the schools? obligations under the North Carolina Constitution. 129. Pursuant to the Constitution, Plaintiffs are entitled to declaratory relief by way of rescinding the Suspension and reestablishing Active Instruction to the fullest extent allowed in North Carolina. SECOND CLAIM FOR RELIEF AGAINST ALL DEFENDANTS claratory Relief for Violation of North Carolina General Statutes § 115C-1 130. ‘The preceding allegations are incorporated herein by reference. 131 This is an action for declaratory judgment pursuant to North Carolina General Statutes Article 26 §1-253 et. seq. for the purpose of determining the rights, status and legal relations of the parties. 132. An actual controversy of a just le issue between the parties exists 133 N.C.GS. §115C mandates that “a general and uniform system of free public 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 Constitution of North Carolina, Tuition shall be free of charge to all children of the State, and to every person of the State less than 21 years old, who has not completed a standard high school course of study. There shall be operated in every local school ad 18unit a uniform school term of nine months, without the levy of a State ad valorem tax therefor.” 134. ‘The framework for reopening CMS arbitrarily treats Plaintifts" children (and all CMS Students) differently from those in nearby school districts; from those in private schools; and from those in childcare, even though all such children and their families are similarly situated, 135. The tisk of exposure or transmission of COVID-19 within in any particular North ‘Carolina county is substantially the same whether children are at school or daycare. Children at daycare and in school will be in the presence of other children, in an enclosed ‘or semi-enclosed space, overseen by an older person(s) not comprised of the child’s family unit, for an extended period, and industry guidance issued for schools and daycare contain the same or essentially the same protocols. 136. Upon information and belief, Defendants’ actions arbitrarily restrict access to schools based on the location of the school, 137. Upon information and belief, Defendants have acted arbitrarily and with deliberate indifference toward the unduly harsh effects their school restrictions have on all CMS Students. 138. Upon information and belief, Defendants have acted arbitrarily and with deliberate indifference toward the unduly harsh effects their school restrictions have on minorities and socioeconomically disadvantaged Students who have less access to technology, are provided less effective distance-learning, and are more heavily impacted by the lack of Active Instru 139, Upon information and belief, Defendants have acted knowingly, recklessly, and with deliberate indifference to the rights of special needs children in Mecklenburg County by forcibly preventing CMS from providing special needs Students with specialized instruction and related services commensurate with the schools? obligations under the North Carolina General Statutes, as well as from providing special needs Students equal access to education as required by same, 140. Pursuant to the North Carolina General Statutes, Plaintiffs are entitled to declaratory relief by way of rescinding the Suspension and reestablishing Active Instruction to the fullest extent allowed in North Carolina. THIRD CLAIM FOR RELIEF AGAINST THE BOARD, MS, DASHEW AN Declaratory Judgment for Violation of North Carolina General Statutes § 95-98, 141. The preceding allegations are incorporated herein by reference.is an action for declaratory judgment pursuant to North Carolina General Statutes Article 26 §1-253 et seq, for the purpose of determining the rights, status and egal relations of the parties. 143, An actual controversy of a justiciable issue between the parties exists 144, N.C.GS. § 95-98 states that “fa]ny agreement, or contract, between the governing authority of any ety, town, county, or other municipality, or between any agency, unit ne instrumentality thereof, or between any agency, instrumentality, or institution ofthe Siac of Noth Carolina, and any labor union, trade union, or labor organization, as bargaining ‘agent for any public employees of such city, town, county ot other municipality, or agency ot instrumentality of government, is hereby declared to be against the public Policy of the State, illegal, unlawful, void and of no effect.” M45. coal NCGS: 98.98.1 states that “[strikes by public employees are hereby declared illegal and against the public policy of this State. No person holding a position either full- or part-time by appointment or employment with the State of North Carolina or in any Sounty city tow or other politcal subdivision ofthe State of North Carolina, of in any agency of any of them, shall willfully participate ina strike by public employees.” 146. NCGS. 95-98.2 states that “[ifhe word ‘sttike’ as used herein shall mean a cessation or deliberate slowing down of work by a combination of persons as a means of enforcing compliance with a demand upon the employer, but shall not include protected activity under Article 16 of this Chapter: Provided, however, that nothing herein shall Limit or impair te right of any public employee to express or communieate a complaint oF opinion on any matter related to the conditions of public employment so long as the same is not designed to and does not interfere with the full, faithful, and proper performance of the duties of employment.” TAT. sags UDO” information and belief, some members of the Board are promoting the NCAB agenda, 48 come in information and belief, the Board and NCAE have entered into an implicit ‘Agreement under which NCAE purports to represent CMS Teachers in the manner of a labor union, 99 ork net information and belief, NCAE has coordinated a deliberate slowing down of work of CMS by way of denying and/or delaying Active Instruetion to CMS Students in order advance and enforce compliance with NCALE’s agenda, 150, ihe actions of the Board, Ms. Dashew and NCAE actions are in violation of N.C.G.S. § 95-98. 151 Pursuant to the North Carolina General Statutes, PlaintifTs are entitled to declaratory relief by way of prohibiting the Board, Ms. Dashew and NCAE from 20implicitly or explicitly engaging in any negotiations, bargaining, strikes, slow down or any other activities prohibited by N.C.G.S. § 95-98 FOURTH CLAIM FOR RELIEE Preliminary Injunction 152. ‘The preceding allegations are incorporated herein by reference 153. Plaintiffs have properly brought the issue of the legality of Defendants” actions before the Court 154, Plaintiffs have a substa declaratory relief. ikelihood of success on the merits on their claims for 155, Plaintif¥s have no adequate remedy at law and will suffer serious and irreparable harm to their Constitutional under Article I, Declaration of Rights, Section 15, Education of the North Carolina Constitution unless Defendants are enjoined from continuing the ban on Active Instruction and are compelled to reestablish Active Instruction to the fullest extent allowed in North Carolina, 156. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm from Defendants’ violation of North Carolina General Statutes N.C.G.S. §115C unless Defendants are enjoined from continuing the ban on Active Instruction and are ‘compelled to reestablish Active Instruction to the fullest extent allowed in North Carolina, 157. Plaintiff have no adequate remedy at law and will suffer serious and irreparable harm for violation of North Carolina General Statutes unless Defendants are enjoined from their continuing violations of N.C.GS. § 95-98. WHEREFORE, Plaintiffs respectfully request that the Court: 1) Enter a preliminary injunction enjoining the Defendants’ ban on Active Instruction, compelling Defendants to reestablish Active Instruction to the fullest extent permitied by the Governor of the State of North Carolina; 2) Grant a declaratory judgment in favor of Plaintiffs arising from the Defendants? Violations of the North Carolina Constitution and North Carolina General Statutes: 3) That the matter be tried to a jury to the extent permissible; 4) That the costs of this action be taxed to Defendants; and 5) For such other and further and relief as the Court shall deem just and proper, 2Really on , PLLC Be David G. Redding 2907 Providence Road, Suite A303 Charlotte, North Carolina 28211 Tel, & Fax: 704-900-2215 dredding@reddingjones.com Counsel for Plaintiffs 22STATE OF NORTH CAROLINA mo | MECKLENBURG In The General Court Of Justice County Cibdistrict “el Superior Cou Division ans ora J.Nicholas Foy, Natalie S, Foy, Bryan Crutcher etal, ppreaaed CIVIL SUMMONS See Pelee Meat ae AS CIALIAS AND PLURIES SUMMONS (ASSESS FEE) civ iat, Zp | Charlotte NC__2en1 VERSUS G.S.1h-, Rules Sand 4 se OF ata) ai al ar a Charlotte Mecklenburg Board of Education, Emest Winston, Superintendent and Chief Executive Office et al Bue) Subs uanl Summone oad To Each OF The Defendant(s) Named Below: Nae Rod Riess O Danan T i a ars OT Blea? mest Winston, Superintendent | Chariite-Mecklenburg Board of Education 600 East Fourth Sect [Chartote Nc __ 2202 IMPORTANT! You have beon sued! These papers are legal documents, DO NOT throw these papers out! ‘You have to respond within 30 days. You may want to talk with a lawyer about your case as soon as Possible, and, if needed, speak with someone who reads English and can translate these papors! HMPORTANTE! {Se ha entablado un proceso civil en su contra! Estos papeles son documentos legales, INO TIRE estos papeles! Tiene que contestar a mas tardar en 30 dias. ;Puede querer consultar con un abogado lo antes posible acerca de su caso y, de ser necesario, hablar con alguien que lea inglés y que pueda traducir estos: documentos! A.Givil Action Has Been Commenced Against You! ‘You are notfed to appear and answer the complaint ofthe plaints folows: 1 Serve a copy of your witen answer tothe complaint upon the plant or plant's attorney within thirty (30) days ater you have been served. You may serve your answer by delvering a copy tothe pain or by mailing it to the plant's last known addroce, an 2, File tho original of the writen answer with the Clerk of Superior Court of the county nemed above. you fail to answer the complaint, the paint wit apply tothe Cour forthe relief demanded in the complaint, Nein ad Rake OF Pins Aine, REST Oa) [te aoe [ime David G. Redding Oew ‘Redding Jones, PLLC 2907 Providence Road Chartote NC e211 Phospityesc — Clasetioncse — Lote or Super cot Die rE Tie CenborsemenT (assess Fee) Oa Dew This Summons was oriialy issued onthe date indicated basta - above and returned not served. At the request of the plaintiff, the time within which tis Summons muel be served Is extended scy (60) days Closnayosc — Casuuncse let orsiperr cont NOTE TO PARTIES: Aany counts have MANDATORY ARBITRATION programs in which mos! cases where tho amount convey ie $26,000 or ‘es ere heard by an arbitrator befarea ta, The partes wil be notfed IIs cese is assigned or mandatory atSraton ands? 59, whol procedure Isto be followed. (Ove AOCLY.100, Rev. 48 (© 2016 Adminiatve Offce ofthe CourtsSTATE OF NORTH CAROLINA aH St vecnenne omy SNe Ba an mom _ ‘i : CIVIL SUMMONS ie re Rol Su AE Cauns ado PONE stm (ASSESS FEE) aan Ne oe eee ‘Charlotte -Mecklenburg Board of Education, Emest Winston , ‘Superintendent and Chief Executive Officer et al ‘Ce ad ‘To Each Of The Defendant(s) Named Below: [fame aa Arse OF Detenden ar hd aos Fete? North Carolina Association of Educators, In. [Charlote-Mecklenburg Unit of the NC Association of Educators, Teg }C/O A.C. Dawson, Registered Agent 10 Larry H. Lynn, Registered A gent 111 West Morgan Street 319 East Worthington Avenue Raleigh NC___27601 | Chariote NC___2a203 IMPORTANT! You have been sued! These papers are legal documents, DO NOT throw these papers out! ‘You have to respond within 30 days. You may want to talk with a lawyer about your case as soon as, possible, and, if needed, speak with someone who reads English and can translate these papers! IMPORTANTE! ;Se ha entablado un proceso civil en su contra! Estos papeles son documentos legales. ;NO TIRE estos papeles! Tiene que contestar a més tardar en 30 dias. Puede querer consultar con un abogado lo antes posible acerca de su caso y, de ser necesario, hablar con alguien que lea inglés y que pueda traducir estos documentos! AGivil Action Has Been Commenced Against You! ‘You are note to appear and answer te complaint ofthe plain as follows: 4 ‘Sorve a copy of your written answer to the complaint upon the plaintif or plaints attorney within thirty (20) days after you have been served. You may serve your answer by delivering a copy tothe plant or by mang i tothe pains last known address, and 2, File the orignal ofthe writen answer with the Clerk of Superior Court ofthe county named above, tfyau alo ansiver the complaint, the pln wi apply tothe Court forthe rei demapdedn the complaint ie A hes Pali Amore, Adios OF Pn) Be David G. Redding Redding Jones, PLLC 2907 Providence Road Suite A303 (Chaslote NC 21 | eapuyese — Casstancse ok ospnter Coat Bat reat IENDORSEMENT (ASSESS FEE) Om Oew This Summons was ginal issued on the dae indicated Spam above and returned nel served. At the request ot the plaintif, the time within which tis Summons must be served Is exionded sixty (60) days, Klommayese — CJAcationcse oer or sper cout NOTE TO PARTIES: Many counties have MANDATORY ARBITRATION programs in ich mos! cases whore the amount in conovesy Ie $26,000 or Jess ar heard by an abiraor before o a. The perties wil be nolied this case's aslgnod for mandatory etalon, end, £0, what procodro i fo be foflowed. 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