On Sept. 18, 2024, the day this piece publishes, the North Carolina Supreme Court will consider McKinney v. Goins. Child sex-abuse victims filed suit against their high school wrestling coach and the Gaston County Board of Education. During the victims’ time at East Gaston High School in the mid-1990s and early 2000s, the coach subjected them to physical violence and sexual abuse. He isolated them from their parents on trips to team events so he could sexually assault them without raising suspicion.

The board received numerous complaints about the coach but dismissed them after “minimal investigation.” The board failed to “protect the children in its care from a sexually abusive employee over a period of years.”

Under our three-year statute of limitation for civil tort claims associated with sexual abuse, the victims would have been stopped from bringing this action since the last claim expired in 2008. However, the SAFE Child Act, passed unanimously in 2019, revived the claims of child sex abuse. Its Revival Provision states: “from January 1, 2020, until December 13, 2021, this section revives any civil action for child sexual abuse otherwise time-barred under G.S. 1-52 as it existed immediately before the enactment of this act.” Over 250 cases have been filed within the two-year window.

When the victims brought this case, the coach and the board challenged its constitutionality, arguing that potential defendants have a vested right not to have litigation brought against them after the statute of limitations expires.

Arguments against retroactive application focus on constitutional concerns and practical evidentiary issues. Over time, memories fade. Documents and records may no longer be accessible, or even exist. Settled expectations would be disturbed by allowing lawsuits to be filed long after the events in question.

But retroactive application would ensure that victims receive just compensation regardless of when they decide to come forward. Proponents argue that the law is catching up to reality: many victims delay reporting abuse for years after it occurs. Victims need to be compensated for long-term effects of abuse, which can include post-traumatic stress disorder, anxiety, depression, and substance abuse.

However, a solution exists that accounts for both the settled expectations of private persons and the policy of ensuring that abuse victims receive justice. This solution proposes retroactive application as to the Gaston County Board of Education but bars retroactive application as to the coach.

The rationale for this distinction is that school boards — along with cities, public universities, and other state-funded entities — are instrumentalities of the state. The Gaston County Board of Education receives 63% of its annual funding from the state.

Two state Supreme Court cases applied mercy retroactively and demonstrate that this solution is supported by precedent.

In Bailey v. State (2000), the court upheld the legislature’s decision to set a date retroactively after which interest would accrue on a $799 million settlement fund for state retirees. This new law was applied retroactively to remedy a tax that legislators knew to have been unconstitutionally collected seven to nine years prior. Retroactive application of the law was appropriate because it would fulfill the legislature’s intent to “remediate and make as near whole as possible those whose money was so taken” and the General Assembly was distributing money that it controlled anyway.

In Ferrell v. Department of Transportation (1993), the court held that, by enacting a statute that required the NC DOT to permit a landowner to repurchase condemned land for the initial selling price plus interest and costs of improvement, the legislature had implicitly waived the state’s sovereign immunity. Because the NC DOT gets the majority of its money from appropriations authorized by the General Assembly, retroactive application of the statute amounts to the state’s allowing suit regarding money under its own control.

In each case, the state was essentially waiving its own immunity from suit. In this case, as an instrumentality of the state, the Gaston County Board of Education has had its immunity from suit waived by the state. The state’s action does not depend on a determination of the constitutionality of the Revival Provision. Instead, it follows precedent in which the state has waived its own protection in other matters.