NEW HANOVER COUNTY — Victims of sex abuse at the hands of New Hanover County Schools’ former teacher of the year await a judge’s ruling on whether their cases will be thrown out of a lawsuit.
In five hours of virtual hearings spread over three days, an attorney for the board of education tried to dismantle the series of claims central to the lawsuit against the district, including that it violated the students’ constitutional rights, is vicariously liable for teacher Michael Kelly’s abuse, and breached a fiduciary duty to students.
Donning blue ribbons, a symbol of child sex-abuse prevention, four Wilmington lawyers went head-to-head with Deborah Stagner, the board’s attorney who also represents resigned superintendent Tim Markley. Attorney Daniel Mullins represented deputy superintendent Rick Holliday, who retired soon after Kelly’s arrest.
The plaintiffs in the suit allege NHCS “turned a blind eye” to Kelly’s crimes against students, known in court filings as “John Doe” 1 through 14. They say three principals, including Holliday, were notified of Kelly’s abuse and did nothing, allowing the grooming and assaults to persist for two-plus decades. The two other administrators, Robert Grimes of Laney High and Tilly Gurley of Isaac Bear, are retired.
Complaints about Kelly surfaced as early as 1993, his second year as a Laney High science teacher, according to the suit. The behavior continued following his transfer to Isaac Bear Early College in 2006 until his eventual February 2018 arrest. At that point, he admitted to the FBI he was investigated twice by NHCS and let off scot-free.
He pled guilty on June 25, 2019, to 59 counts of felony sex offenses against students. During the hearing, Assistant District Attorney Connie Jordan revealed Kelly’s admissions to the FBI and condemned the school system.
“It is really concerning and so upsetting and disturbing that even the defendant admitted that he had been accused of exposing himself right when he started at Isaac Bear, that the school had mounted an investigation,” Jordan told the court nearly three years ago. “I could not find any indication that anything had been reported to law enforcement.”
A 2003 complaint noted John Doe 7 confided in then-principal Holliday about Kelly showing him porn on a school computer.
“Although Holliday took notes during the meeting on a yellow legal pad, at the conclusion of the meeting, Holliday ripped a sheet of paper from the pad and threw it on the table behind him, stating something similar to the effect that he did not have time for this,” the suit alleges.
Over the years, filings indicate nine more complaints were made between the three different principals. The plaintiffs argue lack of action allowed Kelly to continue grooming learners. As a result, the plaintiffs say he was able to “get away” with soliciting students for oral and anal sex and performing oral sex on a young child while videotaping.
“How many people would have been spared this egregious force of conduct that’s occurred over all these years?” attorney Jim Lea said on day one of the hearing. “Just one person in the school system stands up for these kids, and this would have never happened. It would happen to the first couple but not the scourge that this man inflicted upon the school system for year, after year, after year, when his principals knew, and I guarantee you everybody in the school system knew. It’s just unbelievable that this has been allowed to occur in New Hanover County.”
The plaintiffs have amended their complaint against NHCS four times, adding more John Does with each update. The list now includes 14 former students, three who attended Laney High between 2000 and 2007 and 11 who attended Isaac Bear Early College High, between 2006 and 2018. The suit suggests “many more remain in the shadows, afraid to come out, and just hoping that they will not have to relive the trauma.”
More than two years after the suit was filed, the defendants — the board of education — are motioning to dismiss several claims and are denying the victims are within their statute of limitations. Stagner said claims of 10 of the John Doe plaintiffs were time-barred when the original complaint was filed.
“We’re here today because the defendants want to take at least 10 of the 14 plaintiffs and throw them out of court,” attorney Martin Ramey said on day one. “Of those 10, there is no alleged misconduct by Mike Kelly. Mike Kelly admitted in open court that he had molested, abused and sexually exploited those children.”
Attorneys say the clock on their clients’ statute of limitations should start in June of 2019, when Jordan revealed that Kelly had twice been investigated by the school system without notice to law enforcement.
On the opposite side, Stagner contended each victim was in a position to know what Kelly did to them when the abuse occurred. In the suit, many acknowledged no action was taken against Kelly following reports to the administrators.
“To argue that they did not have sufficient knowledge of facts to constitute the basis for a claim until 2019 is simply not believable,” Stagner said.
Further, the defendants are saying it is unconstitutional for plaintiffs to resurrect “previously time-barred claims.” On its 11th page, the suit references the SAFE Child Act, unanimously passed by the state legislature in December of 2019, as a reason the claims are “rendered timely.”
Intended to help sex abuse victims seek justice, the bill opened up a two-year opportunity, in 2020 and 2021, for victims whose statute of limitations had expired to sue their offenders and the organizations that failed them.
But like Stagner, a North Carolina court has already deemed the law unconstitutional. In two cases, one against the Gaston County Board of Education and another against Piney Grove Volunteer Fire Department, judges concluded the plaintiffs couldn’t use the SAFE Child Act.
However, the plaintiffs say they aren’t reliant upon the SAFE Child Act to revive the claims, reiterating their assertion that the statute of limitations is still in play if the judge agrees it activated in June 2019, not at the time of the abuse.
“Stop the analysis and the application of the SAFE Child Act,” Ramey pleaded to the judge on day two. “We don’t need it in order for all 14 of the John Doe plaintiffs to remain in this lawsuit.”
Other motions to dismiss
The plaintiffs and defendants are also arguing over whether the school district has a fiduciary duty — a loyalty and commitment to another person that puts their interests at the forefront — that it breached.
“Public schools are not insurers of their students’ safety,” Stagner said on day two.
The board’s attorney argued North Carolina has never recognized a claim for breach of fiduciary duty in the context of a student or school. At one point she referenced a case in which the court did not find a school had breached a fiduciary duty. Later, in response, the plaintiffs pointed out that suit was over a student who couldn’t play basketball because of his grades.
“That is completely irrelevant to this case,” attorney Mary Charles Amerson said.
Amerson argued the district actually has an immense interest in protecting children and has admitted as much.
“You turn your children over every morning, as I do, to educators and administrators who should look beyond their best interests,” Amerson said, “beyond preparing them for fire drills, active shooter and school lunches — it goes beyond the educational mission.”
Amerson gave several examples of when NHCS clarified its responsibility to keep students safe, including its mission statement. Following last year’s arrest of Hoggard High’s women’s volleyball coach on minor sex-abuse charges, current Superintendent Dr. Charles Foust released a statement stating he was “committed to doing everything we can to keep children safe.”
The plaintiffs are also seeking to hold the district liable for Kelly’s wrongful acts, but the defendants assert Kelly’s criminal conduct was not carried out within the scope of his employment. Stagner referenced a 2003 case of a car dealership that was not found liable for one of its salesmen sexually assaulting a customer during a test drive.
In their rebuttal, attorney Lea stressed where Kelly was when he positioned his crotch near a boy’s face (teaching class), drugged and raped a boy (in the chemistry lab), flashed his penis (on school grounds), showed pictures of his penis (during school time), groped them (while on school property) and more.
“The Court of Appeals said that the sexual assault was clearly not within the scope and in furtherance of his employment,” Stagner said, speaking of the auto dealer’s case. “So simply alleging, as the plaintiffs have, that Mike Kelly committed his assaults while in the classroom or during his office hours or while on school trips does not put his conduct within the scope of his employment any more than the car salesman’s.”
The school board is also seeking to dismiss the part of the suit that alleges the board is guilty of negligence per se. Per state statute, principals must report to law enforcement, as well as the superintendent, when they learn of a sexual assault or offense, rape and indecent liberties with a minor occurring at the school.
Stagner stood firm this statute is merely an administrative duty of the principal, while plaintiffs contested it is a safety statute, therefore giving rise to their negligence claim. In his retort, Lea called it “ludicrous” for the board to argue otherwise.
“No court has ever found that this is a public safety statute,” Stagner said.
Lea rebutted: “All it takes is common sense. Just apply common sense to this statute. If the building code and animal control are safety statutes — what else could this be?”
The board of education is also fighting against constitutional claims, stating those are barred by governmental immunity when “other adequate alternative remedies” exist. A remedy, Stagner highlighted, is one that “at least gives the plaintiff the opportunity to enter the courthouse doors and present his or her claim.”
Stagner said, in this case, other remedies exist.
“I think what they’re trying to say is that we’re supposed to sue the pedophile,” attorney Joel Rhine said, then explaining that Kelly can’t be sued individually for violating the students’ constitutional right to a sound education.
“He didn’t owe it to us,” he added. “In their individual capacity, they don’t owe it to us.”
The defendants’ attorneys are also asking the court to dismiss Markley and Holliday from the suit. They say the claims against both former administrators are the same as those against the board, and nothing is to be gained from the individuals.
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