Home Instruction of a Child in Lieu of Attending a Public School

Subject:

Requested By: Mr. George T. Register, Jr. Attorney for the Wake County Board of Education

Questions: Does home instruction of a child qualify as "a school of religious charter" or as a "nonpublic school" as used in Articles 32A and 32B of Chapter 115 of the North Carolina General Statutes?

 

1.  
2. Is the instruction of a child by a tutor in a private home, instruction in a "private school" as contemplated in the Compulsory Attendance Law, N.C.G.S. 115-166?

    

Conclusions: No.

 

1.  
2. No.

    

The 1979 Session to the General Assembly amended Chapter 115 of the General Statutes to add two new articles, Articles 32A and 32B, both of which have the effect of limiting the authority of the State Board of Education to regulate the educational programs of nonpublic schools providing instruction to children of compulsory attendance age. Chapters 505 and 506 of the 1979 Session laws. The enactment of this legislation has stirred interest in home instruction as an alternative to the education of children in either public or private schools.

This Office has previously ruled that home instruction does not suffice to meet the requirements of the Compulsory Attendance Law, G.S. 115-166, et seq., 40 N.C.A.G. 211 (1969). George P. Register, Jr., Attorney for the Wake County Board of Education, has requested a reconsideration of this earlier opinion in light of recently enacted Articles 32A and 32B of Chapter 115. The specific question posed is whether home instruction is encompassed within the meaning of the word "school" as used in those Articles.

Any discussion of the impact of legislation on education in North Carolina is necessarily dictated by several provisions of our Constitution. The appropriate role of the State in the education of its citizens is clearly set forth as follows:

"The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.

N.C. Const. Art. 1, § 15 Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged.

N.C.

Const. Art. IX, § 1 The General Assembly shall provide that every child of appropriate age and of sufficient ability shall attend the public schools, unless educated by other means."

N.C.

Const. Art. IX, § 3 There can be no doubt that the North Carolina Constitution not only requires education to be encouraged, indeed it places on the State the duty to ensure that the people, most particularly the children, are educated. Any legislation which the General Assembly approves in the area of education must be read in the light of this constitutional mandate. "Every statute is to be considered in the light of the Constitution, and with a view to its intent." State v. Emery, 224

N.C.

581, 585, 31 S.E. 2d 858 (1944).

Articles 32A and 32B are similar in that they both substantially limit the State’s regulatory authority over nonpublic schools. Article 32A deals specifically with "private church schools and schools of religious charter," while article 32B addresses all "qualified nonpublic schools." In substance, the regulatory scheme is the same for schools falling under either Article 32A or 32B.

The word "school is not defined in either of these Articles. The authors of the legislation set forth in Article 32B, however, did list the types of schools which shall qualify as "nonpublic schools".

"The provisions of this Article shall apply to nonpublic schools which:

(a)

shall be accredited by the State Board of Education; or

(b)

shall be accredited by the Southern Association of Colleges and Schools; or

(c)

shall be an active member of the North Carolina Association of Independent Schools; or

(d)

receives no funding from the State of North Carolina." N.C.G.S. 115-257.8.

It may be inferred from the list set forth that the legislature intended only established educational institutions, whether religious or secular, to fall within this article. All schools which would be included in subsections (a), (b), or (c) are institutions consisting of several teachers, classes of children of varying ages, a recognized and accountable administration, and a regular place for meeting. Subsection (d) is a general term, following a list of specific ones. "In the construction of statutes, the ejusdem generis rule is that where general words follow a designation of particular subjects or things, the meaning of the genearl words will ordinarily be presumed to be and construed as, restricted byy the particular designations and as including only things of the same kind, character and nature as those specifically enumerated." State v. Fenner, 263 N.C. 694, 697, 140 S.E. 2d 349 (1965). Accordingly, we believe the references to schools in subsection (d) to

include only established educational institutions.

It was then apparently the intent of the legislature in enacting these Articles to include only established and identifiable institutions within the operation of these deregulatory Articles. The intent of the legislature is, of course, controlling in the interpretation of a statute. State v. Hunt, 287 N.C. 76, 213 S.E.2d 291 (1975). We are of the opinion that home instruction of a child cannot reasonably be interpreted as instruction in an established and identifiable educational institution as contemplated in Articles 32A and 32B. This opinion is buttressed by the failure of the legislature to specifically include home instruction in these Articles, a failure we deem of particular significance given the constitutional duty of the legislature to "guard and maintain" the right of the people "to the privilege of an education."

In addition to evaluating the impact of Articles 32A and 32B upon our earlier opinion that home instruction did not suffice to meet the requirements of the Compulsory Attendance Law, we have reexamined the statutory and decisional law which formed the basis of that opinion. G.S. 115-166, the statute upon which the earlier opinion was based, has not been amended since 1969 and there has been no court decision in North Carolina or any other jurisdiction which would cause us to change our earlier opinion. Accordingly, it is and remains the opinion of this Office that a parent does not meet the requirements of the Compulsory Attendance Law by providing his child with instruction in the home.

Rufus L. Edmisten Attorney General

Edwin M. Speas, Jr. Special Deputy Attorney General