The Jane Doe lawsuit against the Burke County Public Schools (BCPS) Board of Education, two former principals, and a former superintendent may be slowing to a crawl, according to the defense’s lawyer, Andrew “Andy” Santaniello, of Pope Aylward Sweeney and Santaniello, LLP.
Santaniello
Santaniello said that after the defense submitted a seven-page reply to Jane Doe’s opposition against dismissing the case, “There’s no timetable after that. … Once that is in, the judge decides what to do.”
Santaniello represents the board of education, former BCPS Superintendent David Burleson, former Glen Alpine Elementary principal Kathy Amos, and former Hildebran Elementary principal Wendi Craven.
The waiting game began on Friday, Feb. 13, and could take weeks or months.
CATCHING UP WITH JANE DOE
On Feb. 6, Doe’s attorney, Peter Grenier, of the Washington, D.C.-based firm, Grenier Law Group, PLLC, submitted a 35-page memorandum opposing the defense’s motion to dismiss.
Grenier
The defense’s motion to dismiss argued that the original complaint does not consider the qualified and public official immunity that Amos, Burleson, and Craven should possess as government officials; came after the statute of limitations in the state expired; and that there was no special relationship between the defendants and Doe constituting their liability.
Doe’s attorney argues that, according to North Carolina law, the court must accept the “well-pleaded facts” in the complaint as true and “view them in the light most favorable to the plaintiff.”
When the SAFE (Sexual Assault Fast reporting and Enforcement) Child Act passed in 2019, it reinstated and extended sexual abuse victims’ statute of limitations to the age of 28.
Doe’s 28th birthday is in early 2026, according to the opposition. Grenier argues that this fact makes the lawsuit timely.
Furthermore, the attorney writes that the defense failed to file a constitutional challenge to the SAFE Child Act with the state attorney general, as required in North Carolina law.
Pursuant to the defendants’ claims that there were no special relationships established between Doe and the former principals and superintendent constituting their protection, Grenier stated that under federal law — including Title IX and § 1983 — claimants don’t need a special relationship when constitutional rights are allegedly violated.
According to Grenier, the defendants’ knowledge of a “pervasive and unreasonable risk” and their failure to respond, showed “deliberate indifference,” and that there was a “causal link” between their inaction and the constitutional injury suffered by Doe.
The former elementary teacher Michael Alexander was charged with sexually abusing dozens of his students, including Doe.
Finally, in response to Santaniello’s claims that the defendants have qualified and public official immunity due to their positions as government officials, Grenier cites earlier arguments about the violation of Doe’s constitutional rights.
Grenier also argues that because of the defendants’ positions, “they would have known they were violating her rights.”
“A teacher’s sexual abuse of his elementary-school students obviously involves safety of life or limb of the student,” Grenier writes. “Yet, when presented with actionable observations or complaints, these Defendants turned away (and) refused to report or otherwise act.”
Because the BoE purchased liability insurance, Grenier says they waived their sovereign immunity, giving up their legal protection from being sued.
THE DEFENSE’S SEVEN-PAGE REPLY
The defense’s reply came seven days later, clarifying its arguments and disputing cited cases. In a reply at this stage in court discussions, the defense cannot introduce new defenses.
Santaniello states that there are no time limits determining when the defense can submit a notice to the attorney general regarding constitutionality of a law — in this case, the SAFE Child Act and how it applies to this case.
According to Santaniello, a failure to file and serve, does not forfeit a constitutional defense that is submitted in a timely manner.
Furthermore, the defense clarifies that they can challenge the SAFE Child Act as-applied now, at the pre-trial stage, because of the unique passage of time — 20 years — since the offenses allegedly occurred.
As for the culpability of the defense, Santaniello reiterates that, according to previous court cases, his clients cannot be held liable for “bad guesses in gray areas.”
For the lawsuit to hold, he says, they would have had to “transgress bright lines.”
