July 1, 1993
Ms. Ellanor Graves Department Head Adult High School Central Piedmont Community College
P. O. Box 35009 Charlotte, NC 28235
RE: Advisory Opinion; Interpretation of Administrative Code Governing Community Colleges
Dear Ms. Graves:
In response to your request dated June 4, 1993, I have analyzed the North Carolina administrative code as it applies to community colleges.
While the purpose of community colleges, according to N.C.G.S. §115D-1, is to provide services to high school graduates or to students who are beyond the compulsory age limit and have left the public schools, community colleges are under no obligation to admit such students who are under the age of 18. The provisions of 23 NCAC 2C .0305(b) are permissive rather than obligatory. That regulation states that a minor, 16 years or older, may be considered a student with special needs, and may be admitted if the local school board determines that it would be the best educational option for the student, and the community college approves. If the student has been out of the public schools for six months or more, those requirements may be waived if the application is supported by a petition of the student’s parent or legal guardian. Therefore, it is at the discretion of the local school board and community college whether to refer and admit students between the ages of 16 and 18 to community college programs.
Our interpretation of "special needs," as it applies to section .0305(b), describes a student who is confronted with obstacles to completing his education due to personal circumstances or limitations in the curriculum at his high school. Since the public school is unable to meet the needs of such a student, the community college is the best educational option for him. Examples of a student with special needs would be someone who must work during the day in order to support himself or his family and is therefore unable to attend school during normal hours, or a student wishing to take advanced trade courses that are not offered in the high school. We do not believe, however, that "special needs" describes students who suffer from a handicap. The local public schools are better geared to handle disabled students than the community colleges would be.
As stated above, the community college is not required to provide services to any students between the ages of 16 and 18. If, however, the institution establishes a policy in which it does admit minors, it must admit all such applicants, regardless of whether the student has a past history of behavioral problems. Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §12132, prohibits public entities, such as community colleges, from denying qualified individuals with disabilities the benefit of public services or programs. "Disability," as defined by the ADA, is "a physical or mental impairment that substantially limits one or more of the major life activities of [the individual]." 42 U.S.C. § 12102(2)(A). Learning is considered to be a major life activity, and in our opinion, someone suffering from a severe emotional disability which manifests itself in explosive behavior is an "individual with a disability" under the ADA.
The ADA, however, defines a "qualified individual with a disability" as an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication or transportation barriers, or the provision of auxiliary aids or services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activity provided by a public entity.
42 U.S.C. § 12131(2). Consequently, whether an "individual with a disability" is a "qualified individual with a disability" entitled to public services depends upon a case-by-case consideration of the student’s disability and the public service, program or activity in question.
Federal regulations codified at 28 C.F.R. Part 36 indicate that one element of "essential eligibility requirements for the receipt of services" is the individual’s risk to the health or safety of others. Under those regulations, a public entity is not required to permit an individual to participate in or benefit from services or programs "if that individual poses a direct threat to the health or safety of others."
Therefore, if it is the policy of the community college not to admit students between the ages of 16 and 18, then denying admission to students in that age group with behavioral problems is not prohibited. However, the institution must be sure not to discriminate against these handicapped students by denying them admission while allowing other students of the same age to enter. Only if the handicapped student poses a threat of harm to himself or others may he be denied admission.
Senate Bill 184 was ratified in 1987 to amend N.C.G.S. § 115C-47. The pertinent section of the amendment states,
When appropriate public school programs are not available or are not suitable for certain
students, the local board shall refer the students to the community college system or to
other appropriate services.
The purpose of this amendment appears to be to ensure that drop-out students are made aware of
opportunities at community colleges. The change should have little effect on the operations of the
community colleges, since they are not required to serve these students, according to 23 NCAC
2C .0305.
If you have any further questions, please let me know.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General