August 12, 1985
Subject:
Education; Local Boards of Education; Transfer of Students; Limitations; G.S. § 115C-366
Requested By:
Don W. Viets, Jr., Attorney Whiteville City School System
Question:
May local boards of education make agreements regarding the transfer of students from one school system to another which contain restrictions prohibiting students from participating in extracurricular activities at the school to which they are reassigned?
Conclusion:
No, absent unusual circumstances.
The General Assembly has provided that a student domiciled in one school system may be assigned to a school located in another school system "upon such terms and conditions as may be agreed in writing" between the local boards of education involved. G.S. § 115C-366(a) and (b). This response will examine whether local boards of education under authority of this statute may include a provision in a transfer agreement which prohibits a transferring student from participating in extracurricular activities.
The principles which local boards of education must apply in deciding whether to permit, or not permit, students domiciled in one school system to transfer to another system were explained by our Supreme Court in In Re Varner, 266 N.C. 409, 415-416, 146 S.E. 2d 710 (1966).
It is the best interest of the applying child which must guide the deliberations and control the decision of the board unless the granting of the application will interfere with the proper administration of the school to which the child seeks reassignment or will endanger the proper instruction, the health or the safety of the other children enrolled therein.
These same principles necessarily apply to local boards of education in determining the terms and conditions, if any, which will attach to a transfer. While local boards of education undoubtedly have substantial discretion in determining the terms and conditions which will attach to a transfer, that discretion, in our opinion, must be exercised in accordance with the principles which govern the board’s decision, in the first instance, to permit the transfer. Otherwise, the legislative purpose in conferring such authority upon local boards – furthering the welfare of students, giving due weight to the effects upon the school to which a transfer is sought
-would be thwarted.
The opportunity to participate in available extracurricular activities in accordance with regulations generally prescribed by local boards of education for such participation is in the best interest of students and furthers their welfare. See: Coggins v. Board of Education, 223 N.C. 763, 769, 28 S.E. 2d 527 (1944); Pegram v. Nelson, 469 F.Supp. 1135, 1139 (MDNC, 1979). Absent some exceptional circumstances, it seems plain that it is in the best interest of a transfer student to participate in extracurricular activities on the same basis as other students. Also, absent some exceptional circumstances, we are unable to discern any reason why the participation of a transfer student in extracurricular activities would be detrimental to the welfare of other students.
In sum, it is the opinion of this office that local boards of education which determine that a
student should be permitted to transfer from one school system to the other may not condition
that transfer upon relinquishment of participation in extracurricular activities save some
exceptional circumstance. On a related point, we add that the eligibility of students who transfer
from one school system to another to participate in interscholastic athletics is governed by State
Board of Education regulations which are made binding upon local boards of education by G.S. §
115C-47(4) and cannot, in our opinion, be altered by local boards as a part of a transfer
agreement.
LACY H. THORNBURG
ATTORNEY GENERAL
Edwin M. Speas, Jr.
Special Deputy Attorney General