July 12, 1995
David R. Teddy Teddy & Meekins, P.L.L.C. Post Office Box 1330 Shelby, North Carolina 28151-1330
RE: Advisory Opinion; G.S. 115C-366; Student Assignment
Dear Mr. Teddy:
The Cleveland County Board of Commissioners has asked the Cleveland County Board of Education to cooperate with the Shelby City Board of Education in an effort to ease problems of overcrowding in the county school system. This request has prompted two questions about which you seek our advice: (1) whether the Cleveland County and Shelby City Boards of Education have the authority to agree to assign several hundred students from the county system to the city system to alleviate overcrowding in the county system and fill unused classroom space in the city system and (2) whether the Cleveland County Board of Commissioners may compel the two boards of educatio to enter into such an agreement.
You provided for our review an opinion written by Allison Schafer of the Raleigh law firm of Tharrington & Smith concerning this matter. We agree with the conclusion reached by Ms. Schafer that the Cleveland County Board of Commissioners does not have the authority to compel the Cleveland County and the Shelby City Boards of Education to enter into an agreement to assign students from one school system to another. See Constantian v. Anson Co., 244 N.C. 221 (1956).
Our views on the other question are similar to Ms Schafer’s. 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 and may be "with or without the payment of tuition." G.S. § 115C366(d). In Re Varner, 266 N.C. 409, 415, 146 S.E.2d 710 (1966) is the principal case construing this statute. Varner makes it clear that local school boards have the power to agree to transfer a student from one school system to another when requested by the student, and that the best interest of the student is the guiding standard in making such decisions ("It is the best interest of the applying child which must guide the deliberations and control the decision of the board.").
No case has considered whether the authority of school boards to enter into agreements assigning students from one system to another includes the authority to make such assignment in the absence of a request from the student. While G.S. 115C-366 and other related statutes are not entirely clear on this point, we are inclined to believe local boards do have that authority but that the exercise of that authority is limited in at least two respects. First, the assignment must be tuition free. Second, students must be given an opportunity pursuant to G.S. 115C-369 to demonstrate that a transfer would not be in their best interest.
Edwin M. Speas, Jr. Senior Deputy Attorney General
Thomas J. Ziko Special Deputy Attorney General