April 21, 1997
Lloyd V. Hackley, President North Carolina Community College System 200 West Jones Street Raleigh, North Carolina 27603
RE:Advisory Opinion; Community College Services Provided to Inmates Housed in
Private Prisons; N.C. Gen. Stat. §§ 115D-5(b) and 5(c1)
Dear President Hackley:
You have written to request the Attorney General’s opinion regarding three issues concerning inmates housed in private prisons in North Carolina. Those issues are: (1) whether inmates housed in private prisons, as authorized by state statute, can be provided with the same educational services that community colleges have historically provided to inmates housed in State-owned prisons; (2) whether the State Board of Community Colleges may provide tuition waivers to inmates housed in private prisons and enrolled in community college programs; and
(3) whether community colleges that provide educational services to inmates housed in private prisons may report the full-time equivalent (FTE) student hours for inmates housed in private prisons on the same basis as inmates housed in State-owned prisons. It is our opinion that the community colleges may provide the same educational services to inmates housed in private North Carolina prisons as they provide to inmates housed in State-owned North Carolina prisons; that inmates housed in private prisons may be granted tuition waivers; and that community colleges may report the FTE student hours for inmates housed in private prisons on the same basis as for inmates housed in State-owned prisons.
Since 1973, the General Statutes have provided that:
In lieu of any tuition charge, the State Board of Community Colleges shall establish a uniform registration fee, or a schedule of uniform registration fees, to be charged students enrolling in extension courses for which instruction is financed primarily from State funds; provided, however, that the State Board of Community Colleges may provide by general and uniform regulations for waiver of tuition and registration fees for. . . prison inmates. . . .
1973 N.C. Sess. Laws c. 768; N.C. Gen. Stat. § 115D-5(b) (1996). Pursuant to that authority, the State Board of Community Colleges adopted a regulation, 23 N.C.A.C. 2D .0200(a)(7), that exempts from tuition all the persons in the categories listed in N.C. Gen. Stat. § 115D-5(b), including inmates. Further, in 1987, the DOC and the State Board of Community Colleges entered into a Cooperative Agreement under which community colleges are authorized to offer educational services to all adult inmates housed in the North Carolina prison system whom DOC approves for participation through its classification review process.
Finally, N.C. Gen. Stat. § 115D-5(c1) (1996) provides that: Community colleges shall report full-time equivalent (FTE) student hours for correction education programs on the basis of contact hours rather than student membership hours.
The State Board of Community Colleges relies on this statute when reporting full-time equivalent student hours for correction educational services provided to inmates in the North Carolina prison system.
Based on these laws and the Cooperative Agreement, our opinions on the issues you have presented follow.
Question 1: May community colleges provide inmates housed in private prisons in the North Carolina prison system the same educational services that community colleges provide to inmates housed in state-owned prisons?
Answer: Yes.
As noted above, the Cooperative Agreement between the DOC and the State Board of Community Colleges authorizes community colleges to provide educational services to all adult inmates housed in the North Carolina prison system whom DOC approves for participation through its classification review process. It is our opinion that the fact that DOC now houses some of its inmates in private prisons has no effect on the authority of community colleges to provide educational services to those inmates.
N.C. Gen. Stat. § 148-37(g) (1996) provides that:
The Secretary of Correction may contract with private for-profit or nonprofit firms for the provision and operation of four or more confinement facilities totaling up to 2,000 beds in the State to house State prisoners when to do so would most economically and effectively promote the purposes served by the Department of Correction.
Further, subsection N.C. Gen. Stat. § 148-37(h) provides that:
Private confinement facilities under this section shall be designed, built, and operated in accordance with applicable State laws, court orders, fire safety codes, and local regulations.
In our opinion, the Legislature’s instruction that private prisons be operated "in accordance with applicable State laws" encompasses the authority of the State Board of Community Colleges to provide educational services to inmates assigned to private prisons, just as they offer those programs to inmates housed in State-owned prisons.
Question 2: Are inmates housed in private prisons in North Carolina entitled to tuition waivers for educational services provided by community colleges?
Answer: The State Board in its discretion may apply its current regulation or adopt reasonable regulations applicable to any special circumstances in private prisons.
As noted above, N.C. Gen. Stat. § 115D-5(b) (1996) simply provides that "the State Board of
Community Colleges may provide by general and uniform regulations for waiver of tuition and
registration fees for. . . prison inmates. . . ." There is nothing in that statute that would prohibit
the State Board of Community Colleges from waiving tuition for inmates housed in private
prisons on the same terms as inmates housed in State-owned facilities. Correspondingly,
provided there is a rational basis for distinguishing between inmates housed in private prisons
and inmates housed in State-owned facilities, it is our opinion that the State Board of Community
Colleges may adopt a regulation distinguishing waivers of tuition and registration fees for prison
inmates housed in private prisons from those housed in State-owned prisons.
Question 3: May community colleges that provide educational services to inmates housed in
private prisons in North Carolina report the FTE student hours for those inmates on the same
basis as inmates housed in State-owned prisons?
Answer: Yes.
As discussed above, community colleges may provide educational services to inmates housed in
private prisons. The State Board of Community Colleges may allow tuition waivers for those
inmates. In any case, if inmates in private prisons participate in community college correction
educational programs, then N.C. Gen. Stat. § 115D-5(c1) requires the community colleges to
report the FTE student hours for those students on the basis of contact hours, not student
membership hours.
In summary, it is our opinion that when authorizing private prisons the General Assembly did not
intend to prohibit inmates housed in those prisons from participating in community college
education programs. Instead, the General Assembly left undisturbed the State Board of
Community Colleges’ authority to provide those services and to adopt "general and uniform”
regulations governing tuition waivers for prison inmates. However, under N.C. Gen. Stat. §
115D-5(c1), community colleges are required to report FTE’s for educational services provided
to inmates housed in private prisons as they would for educational services provided to inmates
housed in State-owned prisons, i.e., on a contact hour basis, not a student membership hour basis.
Very truly yours,
Edwin M. Speas, Jr.
Senior Deputy Attorney General
Sylvia Thibaut
Assistant Attorney General