November 3, 1997
Richard L. Thompson Deputy State Superintendent Department of Public Instruction 301 N. Wilmington Street Raleigh, NC 27601-2825
Re: Advisory Opinion; Comprehensive School Health Education Program; Expanded Comprehensive Sex Education Program; Scope and Application of G.S. 115C-81(e1)
Dear Dr. Thompson:
G.S. 115C-81 describes the "Basic Education Program" offered in the North Carolina public schools. One component of the Basic Education Program is the "school health education program" described in G.S. 115C-81(e1). You have requested the opinion of this office regarding the interpretation, scope and application of certain provisions of G.S. 115C-81(e1) that pertain to programs and instruction about sexual relations and sexually transmitted diseases within the "school health education program."
The cardinal rule of statutory construction is that legislation must be construed to accomplish the General Assembly’s intent. Sutton v. Aetna Casualty and Surety Co., 325 N.C. 259, 265, 280 S.E.2d 759 (1989). The best indicia of legislative intention are the language of the statute, its spirit and purpose. Savings and Loan League v. Credit Union Comm, 302 N.S. 458, 276 S.E.2d 404 (1981). Moreover, when interpreting statutes, the words in the statute are to be given their ordinary meaning unless the General Assembly has specifically defined them or they have an acquired technical meaning. Food Town Stores v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980). Finally, when trying to determine legislative intent, the courts do not consider statements or testimony by members of the General Assembly as to the statute’s purpose or its intended construction. E.g., Milk Commission v. National Food Store, 270 N.C. 323, 332-33, 154 S.E.2d 548 (1967).
Applying those principles to your questions regarding G.S. 115C-81(e1), we have arrived at the following opinions:
1. What provisions, if any, of G.S. 115C-81(e1) apply to grades ten through twelve?
Response: G.S. 115C-81(e1) provides, in pertinent part: "A comprehensive school health education program shall be developed and taught to pupils of the public schools of this State from kindergarten through ninth grade." (Emphasis added). This section of the statute goes on to specify that this "comprehensive school health education program" must include instruction on several topics, including sexually transmitted diseases and abstinence-until-marriage. However, "comprehensive school health education program" as that term is specifically defined in G.S. 115C-81(e1)(1) is expressly limited to grades kindergarten through nine — no other grades are mentioned in this section of the statute. Therefore, the health program as mandated and described in most of G.S. 115C-81(e1) applies only to grades kindergarten through ninth grade. For example, G.S. 115C-81(e1)(6) requires a local board to conduct a public hearing only when it is contemplating expanding the comprehensive school health education program in grades kindergarten through nine to include a "comprehensive sex education" program. Therefore, G.S. 115C-81(e1)(6) does not require a local board to conduct a public hearing prior to adopting a comprehensive sex education program for grades ten through twelve.
While the paragraphs of G.S. 115C-81(e1) dealing with the "comprehensive school health education program" apply only to grades kindergarten through nine, there are other provisions in that section that would apply to all grades. For example, the duty which G.S. 115C-81(e1)(3) imposes on the State Board to develop objectives for instruction in the prevention of sexuallytransmitted diseases is not limited to the comprehensive school health program required in grades kindergarten through nine. Likewise, the obligation which G.S. 115C-81(e1)(4) imposes on the State Board to maintain a list of recommended abstinence-until-marriage curricula and materials is not limited to any specific grades. Finally, G.S. 115C-81(e1)(7) grants parents and guardians the right to review the objectives and materials associated with certain health related programs and withhold their consent to the children’s participation in such programs irrespective of the ages or grades of their children.
Based upon a plain reading of the statute, it appears that the General Assembly intended to provide local communities with more opportunity to respond to proposed changes in the health curriculum for kindergarten through ninth grade, than it provided in other areas or other grades. This distinction reflects not only a reasonable concern for the maturity of younger students but also the Legislature’s greater willingness to respect the decisions of individual parents regarding their high-school-age children’s participation in certain health related programs.
- Do parents have to request the addition of a comprehensive sex education program?
- Response: No. The statute does not limit the circumstances under which an LEA may initiate a comprehensive sex education program. An LEA may decide to offer a comprehensive sex education program whenever the local board of education deems it appropriate. That decision may be in response to a parent’s request or a proposal from the superintendent or it may arise from the independent judgment of a member of the board.
- Does G.S. 115C-81(e1) contemplate that the "comprehensive sex education" component of the comprehensive school health education program will be separate and distinct from the mandatory "abstinence until marriage education" component?
Response: G.S. 115C-81(e1) mandates that "a comprehensive school health education . . . . be developed and taught. . . ." The statute goes on to mandate that one component of that program must be "abstinence until marriage education." Thus by the plain language of the statute, abstinence education is a required part of the comprehensive school health program which must be taught at all schools.
G.S. 115C-81(e1)(6) specifically grants local boards the authority to "expand on the subject areas" and "on the instructional objectives" that will be included in the "comprehensive school health education program." Pursuant to G.S. 115C-81(e1)(6), an LEA may expand the comprehensive school health education program offered in kindergarten through ninth grade to include a "comprehensive sex education program." The statute is silent on the manner in which such a program may be offered. Thus, a comprehensive sex education program may be offered in the same course as the mandatory abstinence-until-marriage program or these two components could be offered in separate courses. In either case, however, there is no statutory requirement that students receive a certain amount of abstinence-until-marriage instruction before receiving instruction in a comprehensive sex education program.
As noted above, LEA’s are under no obligation to offer a comprehensive school health education program beyond the ninth grade. Therefore, with respect to grades ten through twelve, the LEA’s are free to provide whatever health education instruction they may desire, including a comprehensive sex education program. However, no matter what health instruction an LEA offers to its students, the parents or guardians of all children must have the opportunity to "optout" of instruction in those areas outlined G.S. 115C-81(e1)(7). In fact, in accordance with the provisions of G.S. 115C-81(e1)(7), parents may elect to withhold their consent to their child’s participation in the mandatory abstinence-until-marriage portion of the comprehensive school health education program but permit the child to participate in the comprehensive sex education program offered as part of the expanded health education curriculum.
4. Do the provisions of G.S. 115C-81(e1)(6) require local boards of education to conduct public hearings every year before offering a "comprehensive sex education program"?
Response: No. G.S. 115C-81(e1)(6)(a) specifically requires an LEA to conduct a public hearing before it "adopts" a comprehensive sex education program for kindergarten through ninth grade. Clearly, if the local board specifically decides to "adopt" such a program on a yearly basis, it must comply with the statute and hold the requisite hearing prior to each annual adoption. The statute, however, does not require the LEA to hold a public hearing on the comprehensive sex education program if the local board does not make changes in the objectives or materials in that program. But even in the absence of a public hearing, any concerns that individual parents have about the content of the comprehensive sex education program are protected by G.S. 115C81(e1)(7). As noted above, that subsection requires LEA’s to provide parents and guardians the opportunity to review the objectives and materials used in the program each year and permit them to withhold their consent to their child’s participation in the program on an annual basis.
#5. To what instruction does G.S. 115C-81(e1) apply?
Response: The statute generally regulates the content of the comprehensive school health education program which must be taught to pupils in this State from kindergarten through ninth grade. In some cases, it also regulates the process for determining the content of that program. But aside from the limitations that G.S. 115C-81(e1)(8) places on instruction concerning the use of contraceptives or prophylactics, G.S. 115C-81(e1) does not regulate the content of instruction outside the comprehensive school health education program. For example, if the school nurse is assigned the responsibility for providing classroom instruction on sexually transmitted diseases within a comprehensive sex education program, then the materials used in that instruction must have been the subject of a public hearing under G.S. 115C-81(e1)(6). However, the statute does not regulate the matters which a school nurse may discuss with a student in the context of providing medical assistance to a student or the materials to which she may refer in that context.
Consistent with this interpretation, it is also our opinion that the location of the instruction in the comprehensive school health education program is not a determinative factor when deciding whether G.S. 115C-81(e1) applies. The statute pertains to the content of the comprehensive school health education program. If an LEA’s comprehensive school health education program includes an off-campus component such as a field trip to a health education center, medical office or hospital, then the instruction the students receive at the off-campus site must be consistent with the approved content of the comprehensive school health education program. Moreover, parents must be allowed to withhold their consent to their child’s participation in any such off-campus instruction that pertains to sexually transmitted diseases, avoidance of out-ofwedlock pregnancy; abstinence-until-marriage; or sex education.
After-school instruction cannot be a component of the a comprehensive school health education program. Therefore, the statute does not regulate off-campus instruction which is outside the comprehensive school health education program such as a sports camp, whether or not the persons providing the instruction are LEA employees. Moreover, it is our opinion that the reference to instruction concerning the use of contraceptives and prophylactics in G.S. 115C81(e1)(8) refers to instruction within the school’s approved curriculum. Consequently, it is our opinion that the General Assembly did not intend the statute to apply to extracurricular instruction either before or after school, on or off school property.
We hope these responses clarify the questions you had regarding the scope and application of
G.S. 115C-81(e1).
Edwin M. Speas, Jr . Senior Deputy Attorney General
Thomas J. Ziko Special Deputy Attorney General
Laura C. Crumpler Assistant Attorney General