Education; Children With Special Needs; Educational Services to Age 21

Subject:

Education; Children With Special Needs; Educational Services to Age 21

Requested By:

Theodore R. Drain, Director Division for Exceptional Children Department of Public Instruction

Question:

Is the State responsible for providing a free appropriate public education to handicapped children between the ages of 18 and 21?

Conclusion:

Yes.

All students are entitled to attend the public schools until graduation or the age of 21, whichever event occurs earlier. N.C.G.S. § 115C-366(a). N.C.G.S. § 1115C-107 and 110 make it mandatory that the State provide handicapped children, referred to as "children with special needs" in the statutes, with a "free appropriate public education." The definition of the phrase "children with special needs" set forth by the General Assembly, however, only includes "children between the ages of 5 and 18." N.C.G.S. § 115C-109. The question has been raised as to whether N.C.G.S. § 115C-109 may be read as relieving the State of any obligation to provide an education for handicapped children between the ages of 18 and 21 when the State’s obligation to other children extends to the time of graduation or age 21. In our opinion, such a reading of N.C.G.S. § 115C109 is not permissible.

First, our Constitution provides that handicapped and nonhandicapped children be given the same access to education services provided by the State. As was stated in an earlier formal opinion by this office: handicapped children "constitutionally are not to be discriminated against because of their [handicap] and [handicapped children] have the same constitutional right to the educational facilities of the State as that afforded to normal children who do not suffer from any disability." 40 NCAG 248 (1969). In similar words, the General Assembly itself has stated that it is "the policy of the State . . . to insure every child a fair and full opportunity to reach his full potential and . . . no child as defined in this section . . . shall be excluded from services or education for any reason whatsoever." N.C.G.S. § 115C-106. Significantly, the policy announced in this statute expressly extends to children between 18 and 21.

Every statute is to be considered in light of the Constitution, and with a view to its intent. State v. Emery, 224 N.C. 581, 31 S.E. 2d 858 (1944). Similarly, "in the interpretation of statutes, the legislative will is the controlling factor." State v. Hart, 287 N.C. 76, 80, 213 S.E.2d 291 (1975). To read N.C.G.S. § 115C-109 as limiting the State’s obligation to handicapped children to a greater extent than its obligation to nonhandicapped children would violate the constitutional rights of handicapped children and be in direct conflict with the General Assembly’s will and intention as expressly stated in N.C.G.S. § 115C-106. A statute may not be interpreted in such a manner. Id.

Second, the State, through the State Board of Education, has elected to participate in and receive federal funds under The Education of All Handicapped Children Act, 20 USC 1401, et. seq. Under that Act, the State’s receipt of federal funds is conditioned upon it providing a "free appropriate public education" to handicapped children within certain ages. 20 USC 1412(2)(B) provides that the State must make "available" a "free appropriate public education" to:

"all handicapped children between the ages of 3 and 21 within the state . . ., except that, with respect to handicapped children . . . 8 to 21, inclusive, the requirements of this clause shall not be applied in any state if the application of such requirements would be inconsistent with state law or practice, or the order of any court, respecting public education within such age groups in the state."

N.C.G.S. § 115C-366(a), as noted above, requires the State to provide an education to nonhandicapped students until they reach the age of 21 or graduate. 20 USC 1412, in effect, requires the State as a condition for receiving federal funds to provide this same scope of opportunity for an education to handicapped children.

In sum, the provisions of our Constitution, policies announced by the General Assembly and the
provisions of applicable federal law require that handicapped children be provided with a free
appropriate public education until they graduate or reach the age of 21, whichever comes first.

Rufus L. Edmisten
Attorney General

Edwin M. Speas, Jr.
Special Deputy Attorney General

Kaye R. Webb
Assistant Attorney General