August 5, 1993
Dr. Roger H. Jackson Deputy Superintendent
N.C. Department of Public Instruction 301 N. Wilmington Street Education Building Raleigh, North Carolina 27601-2825
Re: Advisory Opinion; G.S. 115C-366(a1); Right of Children in Residential Facilities to Attend Public Schools
Dear Dr. Jackson:
The Crossnore School and Grandfather Home are private residential facilities established to care for children, many of whom are placed there by departments of social services. Both institutions are located in Avery County. For many years the children at these facilities have attended the Avery County Schools. The Avery County Board of Education, however, recently denied all children living at the facilities, except those whose parents reside in Avery County, the opportunity to enroll in the Avery County schools for the 1993-94 school year. You have asked whether the Avery County Board of Education’s decision was lawful.
In our opinion, all children cared for at Grandfather Home and Crossnore School under the age of 21 who have not been removed from school for cause or who have not obtained a high school diploma are entitled to enroll in and attend the Avery County public schools. The general rule is that a student of eligible age has a right to attend only the schools where he, his parents or guardian are "domiciled." G.S. 115C-366. G.S. 115C-366(a1), however, establishes a clear exception to this general rule. It provides:
Children living in and cared for and supported by an institution established, operated, or incorporated for the purpose of rearing and caring for children who do not live with their parents shall be considered legal residents of the local school administrative unit in which the institution is located. These children shall be deemed to qualify for admission to the public schools of the local school administrative unit as provided in this section. This subsection shall apply to foster homes and group homes.
There is no doubt that Grandfather Home and Crossnore School are institutions established and operated for the purpose of caring for children who do not live with their parents within the meaning of G.S. 114C-366(a1). By the clear language of G.S. 115C-366(a1) they are considered legal residents of Avery County and the Avery County Board of Education is obligated to enroll school-aged children living in these two residential facilities in the Avery County public schools.
On April 8, 1991, our office provided an informal letter to the Superintendent of the Avery County Schools advising him that Grandfather Home and Crossnore School were not group homes or foster homes for the purposes of G.S. § 115C-140.1. That statute relates to the obligations of school boards to pay for the costs of education for handicapped children "placed in or assigned to a group home, foster home or other facility pursuant to state or federal law." G.S. 115C-366(a1) was not a part of our law at the time that letter was written. It was enacted on July 16, 1991 and made effective beginning with the 1991-92 school year. 1991 Sess. Laws, Ch. 719 § 2. There are substantial differences between G.S. 115C-140.1 and G.S. 115C-366(a1). G.S. 115C-366(a1) applies to all children; G.S. 115-140.1 applies only to handicapped children. G.S. 115C-366(a1) deals directly with the right of children to enroll in school; G.S. 115C-140.1 deals principally with funding issues. Most importantly, under G.S. 115-366(a1) the standard for determining which children a local school board must enroll is broader than under G.S. 115C
140.1. G.S. 115C-366(a1) is not limited to children in facilities that can be classified as group or foster homes. The standard encompasses all children living in all institutions which rear and care for children who do not live with their parents; not just group homes or foster homes. In short, our letter of April 8, 1981 is no longer valid in light of the subsequent enactment of G.S. 115C355(a1).
Edwin M. Speas, Jr.
Senior Deputy Attorney General
Barbara A. Shaw
Assistant Attorney General