North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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May 19, 2005

Patricia Willoughby
Superintendent of Public Instruction
301 N. Wilmington Street
Raleigh, North Carolina 27601-2825

Re: Advisory Opinion; Qualification of Dep’t of Health and Human Services and Dep’t of Juvenile Justice and Delinquency Prevention for Funding Under Federal No Child Left Behind Act of 2001; 20 U.S.C. § 7801; Chapter 115C of the General Statutes

Dear Superintendent Willoughby:

You have inquired whether the North Carolina Department of Health and Human Services (DHHS) or the North Carolina Department of Juvenile Justice and Delinquency Prevention (DJJDP) are “local educational agencies” (LEAs) under the Elementary and Secondary Education Act of 1965 (ESEA), which was most recently reauthorized as the No Child Left Behind Act of 2001 (NCLB) (P.L. 107-110), 20 U.S.C. § 6301 et seq., such that they qualify for funding under that federal program. It is our opinion that DHHS and DJJDP do not meet the definition of an LEA and, therefore, do not qualify for funding under NCLB.

DJJDP is authorized to operate regional “detention facilities” for delinquent juveniles within which it is responsible for administering “statewide educational . . . services or programs” to provide appropriate treatment according to the juvenile’s need. N.C.G.S. § 143B-525.

DHHS operates “residential schools” for the deaf and blind. N.C.G.S. § 143B-164.10 et seq. and § 143B-216.40 et seq. Governor Morehead School for the Blind admits blind children upon application. N.C.G.S. § 143B-164.13. The schools for the deaf admit deaf children upon referral from the child’s local school administrative agency. N.C.G.S. § 143B-216.41. Both the Governor Morehead School and the schools for the deaf may admit children who are not residents of North Carolina.

N.C.G.S. § 143B-164.14 and § 143B-216.41(b). North Carolina law recognizes a distinction between these “residential schools” and “public schools.” N.C.G.S. §§ 115C105.31(b)(2) and 115C-325(p1); N.C.G.S. §§ 115C-105.35 to 105.41 (school based accountability for “schools”) and N.C.G.S. §§ 143B-146.1 to 146.12 (accountability programs for “residential schools”). DHHS has statutory authority to confer diplomas or marks of achievement upon graduates from the residential schools for the blind. N.C.G.S. § 143B-164.15.

Federal funds for elementary and secondary education available under Title I, Part A of NCLB are allocated to LEAs. See, Title I, Part A, §§ 1124, 1124A, and 1125. Title IX Sec. 9010 (26) of NCLB, 20 U.S.C. § 7801, defines LEA as follows:

(26) LOCAL EDUCATIONAL AGENCY

(A)IN GENERAL- The term ‘local educational agency’ means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or of or for a combination of school districts or counties that is recognized in a State as an administrative agency for its public elementary schools or secondary schools.
(B)ADMINISTRATIVE CONTROL AND DIRECTION- The term includes any other public institution or agency having administrative control and direction of a public elementary school or secondary school.
(C)BIA SCHOOLS- The term includes an elementary school or secondary school funded by the Bureau of Indian Affairs but only to the extent that including the school makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the local educational agency receiving assistance under this Act with the smallest student population, except that the school shall not be subject to the jurisdiction of any State educational agency other than the Bureau of Indian Affairs.
(D)EDUCATIONAL SERVICE AGENCIES- The term includes educational service agencies and consortia of those agencies.
(E)STATE EDUCATIONAL AGENCY- The term includes the State educational agency in a State in which the State educational agency is the sole educational agency for all public schools.

When examined in light of this definition, it is evident that neither DHHS nor DJJDP is an LEA.

DHHS and DJJDP are clearly not “public board[s] of education.” But, DHHS and DJJDP are “public authorit[ies] legally constituted within [North Carolina].” Therefore, the first issue to resolve is whether DHHS or DJJDP is constituted for “either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State.” The fact is that, while DHHS and DJJDP operate schools or provide educational programs to the students in their facilities, they do not have administrative control or direction of, or perform a service function for “public schools” in any “political subdivision” of North Carolina.

DHHS’s residential schools admit students from all over the State; indeed, DHHS may admit students from outside the State to its residential schools. DJJDP may provide juvenile detention services to juveniles in county detention centers or may provide juvenile detention services through a regional detention facility that may include more than one county, N.C.G.S. § 143B-529. Neither DHHS nor DJJDP has administrative control or direction of, or performs services for public schools in a political subdivision of the State. Even if the definition of LEA could be stretched to say that DHHS and DJJDP have administrative control over schools for “a combination of school districts or counties,” i.e., the whole State in the case of DHHS, or the combination of counties served by a regional DJJDP detention facility, North Carolina does not recognize any of those combinations of political subdivisions of the State “as an administrative agency for its public elementary schools or secondary schools.”

One of the difficulties in analyzing the status of DHHS and DJJDP under NCLB and State law is that “LEA” is not a term typically used in North Carolina education statutes. Most of the references to “LEA” in the General Statutes relate to special education services statutes which reflect federal statutory requirements.

Instead of the term “LEA,” North Carolina law uses the term “local school administrative unit” to describe the political subdivisions of the State responsible for the administration of public schools. N.C.G.S. § 115C-5. “Local school administrative units” are classified as “county school administrative units” or “city school administrative units.” N.C.G.S. § 115C-66. All local school administrative units are governed by locally elected county boards of education or appointed city boards of education.

N.C.G.S. § 115C-37. Neither DHHS nor DJJDP is governed by an elected or appointed board of education.

Furthermore, while the State Board of Education is statutorily required to deal with all local school administrative units in the same way, N.C.G.S. § 115C-66, the State Board of Education does not have general jurisdiction over DHHS or DJJDP. It is true that DHHS and DJJDP are occasionally subject to the same statutory obligations and duties imposed on local school administrative units. For example, N.C.G.S. §115C-110 specifically provides that all the special education provisions of Article 9 of Chapter 115C that are specifically applicable to local school administrative units also are applicable to DHHS and DJJDP. Similarly, N.C.G.S. § 115C-325(p) states that the system of employment for public school teachers shall apply to all persons employed in teaching and related educational classes in the schools and institutions of DHHS and DJJDP. The General Assembly has also enacted legislation requiring the Secretary of DHHS to consult and cooperate with the State Board of Education in order to implement the ABC’s Program that the State Board of Education administers in the public schools. N.C.G.S. § 143B-146.1 et seq. These special provisions, however, only serve to illustrate that DHHS and DJJDP are not local school administrative units. If either DHHS or DJJDP were actually a local school administrative unit, the General Assembly would not have to make special provisions to subject them to the legal obligations that generally subject North Carolina local school administrative units to the authority of the State Board of Education. Those facts alone prove that neither DHHS nor DJJDP is recognized as an administrative agency for public schools in North Carolina.

Finally, it is self-evident that absent explicit statutory recognition DHHS and DJJDP cannot be classified as “local educational agencies,” or “local school administrative units.” Although they may operate schools or educational programs for the students entrusted to them, DHHS and DJJDP do not administer, control, direct or serve “public schools.” DHHS and DJJDP are not “local” entities of any type. They are State agencies independently funded by the General Assembly rather than through the State Board of Education or from the State School Fund and are administratively independent of the State Board of Education. While they have a mandate to educate children, their unique status is not consistent with the educational model upon which NCLB is premised. For example, the primary remedy the NCLB provides to students in schools which do not make adequate yearly progress is the opportunity to transfer to another public school served by the local educational agency. Title IX, Sec. 1116 (b)(1)(E)(I) (20 U.S.C. § 6313(b)(1)(E). The DHHS residential schools are schools of choice, students are free to leave at any time. The students in the DJJDP educational programs are incarcerated – they have no right to leave the detention facilities to which they are assigned. The inconsistencies between the NCLB accountability model and the operation of the DHHS and DJJDP schools serves to illustrate why these State agencies cannot be considered LEAs for purposes of the federal funding for these programs.

For the reasons stated above, it is our opinion that neither DHHS nor DJJDP meets the definition of LEA purposes of funding under NCLB.

Very truly yours,

Grayson G. Kelley
Chief Deputy Attorney General

Thomas J. Ziko
Special Deputy Attorney General