Right to Attend Private School for Part of the School Day

Subject:

Requested By: W. Max Walser, Superintendent Davidson County Schools

Questions: (1)

Does a student enrolled in a public school have a right to attend a private school for part of the school day?

(2)

Does a local board in its discretion have the authority to release a student to a private school for part of the day?

Conclusions: (1)

No.

(2)

Yes.

Several school systems., including the Davidson County School System, have received requests from parents seeking permission for their children to be excused from the public schools for part of the day in order to attend private schools. In some of these cases, the purpose of the request is to enable a student, classified as handicapped, to acquire specialized instruction in areas particularly suited to his needs. You have requested the opinion

of this office regarding the authority of a local board of education to release students to private schools on a part time

basis.

Parents have the right to send their children to a private school rather than a public school. Pierce v. Society of Sisters, 268 U.S. 510, 69 L.E. 1070 (1925). Your question, however, is whether parents may withdraw their child from a portion of the school day in order to attend a private school.

This question is not addressed specifically in the General statutes or in regulations of the State Board of Education. In the absence of any statute or regulation to the contrary, the authority to determine questions regarding the public schools generally rests with local boards of education. G.S. 115C 40 provides: "Local boards of education, subject to any paramount powers vested by law in the state Board of Education or any other authorized agency shall have general control and supervision of all matters pertaining to the public schools in their respective local school administrative units " This authority, in our opinion, includes the power to permit or refuse the release of students to private schools for part of the school day.

If a local board of education refuses to release a student to attend a private school for part of the school day, the question arises whether that decision would offend the rights of the student or his parents. We do not think it would. The decision to release or not is essentially a curriculum decision. The power of public school authorities to make curriculum decisions is broad and expansive and parents and students generally have no right to substitute their own views for those of school authorities. See e.g., Wisconsin v. Yoder, 406 U.S. 205 at 239 (1972). See also Christian v. Jones, 211 Ala. 161, 100 So. 99 (1924) (school board decision not to release student from music class to attend private music class upheld). In certain limited circumstances parents and students do have a constitutional right to be excused from part of the school curriculum (sex education, e.g.) on the grounds that participation offends their religious beliefs, but the right to be excused from a particular class on religious grounds does not carry with it, in our opinion, the right to attend a private school for part of the school day. See Sendor The Role of Religion in the Public School Curriculum, The School Law Bulleting (July, 1984)

While we are of the opinion that a local school board may permit students to be released to a private school for part of the day, that authority is not without limitations and consequences. The private school must be recognized as a private school by the Governor’s Office pursuant to Article 38 of Chapter 115C of the General Statutes; otherwise the release would violate the compulsory attendance law, G.S. 115C-378. Further, a school board should recognize that any release of a student for part of the day may well result in the inability of the student to receive instruction required for

promotion or graduation. G.S. 115C-81. While local school boards may have authority to permit students to be released for part of the school day, they do not have authority to waive curriculum, promotion and graduation requirements established by the General Assembly or State Board of Education.

A local board of education is required to provide an appropriate education to handicapped children. If a child ishandicapped, if the local school system is not providing the child with an appropriate education and if the parents placethe child in a private school, the school system upon complaint by the parents may be liable for reimbursement to theparents for the private school costs. Town of Burlington v. Commissioner of Education, 471 U.S. 359 (1985).

In sum, it is our opinion that local boards of education have the discretionary authority to release students from schoolfor a part of the school day to attend a private school so long as the private school meets compulsory attendancerequirements. A school board that elects to deny such permission does not, in our opinion, violate the constitutionalrights of parents or students. A board that elects to grant such permission should recognize, and should advise parents,that the absence from school may affect the student’s academic progress.

Lacy H. Thornburg Attorney General

Laura E. Crumpler Assistant Attorney General