Can a North Carolina parent satisfy the state's compulsory attendance law by teaching her child at home, either under the new 1979 nonpublic-school deregulation statutes (Articles 32A and 32B) or under the longstanding 'private school' provision in G.S. 115-166?
Plain-English summary
George T. Register, Jr., attorney for the Wake County Board of Education, asked the AG to reconsider a 1969 prior opinion (40 N.C.A.G. 211) which had held that home instruction did not satisfy North Carolina's compulsory attendance law (G.S. 115-166). The 1979 General Assembly had just enacted Articles 32A and 32B of Chapter 115 (in Sessions Laws 1979 chapters 505 and 506), which deregulated nonpublic schools and limited the State Board of Education's authority over their educational programs. Register asked whether home instruction now qualified as a school under those new articles.
The AG answered no on both fronts.
First, the new Articles 32A and 32B do not apply to home instruction. The articles use the words "school of religious charter" and "nonpublic school." Reading the statutory list, the AG inferred that the legislature meant established educational institutions: institutions with several teachers, classes of children of varying ages, a recognized and accountable administration, and a regular place for meeting. Subsection (d) of the relevant definition was a residual category that, under the canon of ejusdem generis, was restricted by the specific items the legislature had enumerated. State v. Fenner, 263 N.C. 694, supplied that canon: "where general words follow a designation of particular subjects or things, the meaning of the general words will ordinarily be presumed to be and construed as, restricted by the particular designations and as including only things of the same kind, character and nature as those specifically enumerated."
The legislature had not specifically included home instruction, and the AG took that omission as deliberate. State v. Hunt, 287 N.C. 76, supplied the rule that legislative intent controls in statutory interpretation. The opinion also noted that the North Carolina Constitution requires the General Assembly to "provide that every child of appropriate age and of sufficient ability shall attend the public schools, unless educated by other means" (Art. IX, § 3), and to "guard and maintain" the right to education (Art. I, § 15), and that "schools, libraries, and the means of education shall forever be encouraged" (Art. IX, § 1). State v. Emery, 224 N.C. 581, framed the rule that every statute should be read in light of the Constitution. Reading the deregulatory statutes against the constitutional backdrop, the AG concluded the legislature did not intend home instruction to be a "school" within the articles.
Second, G.S. 115-166 (the basic compulsory attendance law) had not been amended since 1969, and there had been no court decision in North Carolina or elsewhere to change the earlier 1969 AG opinion. The earlier opinion concluded that home instruction did not satisfy the compulsory attendance law. The 1979 AG reaffirmed that conclusion.
Bottom line: as of 1979, a North Carolina parent had to send the child to a public school or to a private or nonpublic institutional school that fit within Articles 32A or 32B; teaching the child at home, however well-organized, did not satisfy the compulsory attendance law.
Currency note
This opinion was issued in 1979. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The legal status of home schooling in North Carolina changed dramatically after 1985, when the General Assembly enacted Part 3 of Article 39 (current G.S. 115C-563 et seq.), recognizing home schools as a category and providing a regulatory framework for them. The 1979 opinion's conclusion no longer reflects current law. North Carolina now allows home schools under a registration framework. Modern compliance questions should be answered against current Part 3 of Article 39 and the Division of Non-Public Education's current procedures, not against the 1979 framework.
Historical context: what the AG concluded
The opinion does several pieces of interpretive work:
It treats the absence of "home instruction" from the statutory text as deliberate. The 1979 deregulatory statutes spoke of schools. The legislature did not write the word "home" into the definitions. The AG read that omission as significant, especially given the constitutional duty of the legislature to "guard and maintain" the right to education.
It applies ejusdem generis to the residual category. Where the statute had a list of specific school types ending with a general residual subsection, the AG read the residual as limited to things of the same kind as the specifics, which were all institutional schools. Home instruction did not share the institutional character of the enumerated school types.
It preserves the 1969 prior opinion on compulsory attendance. G.S. 115-166 had not been amended in 10 years. No case law had moved the doctrine. The 1979 AG reaffirmed the 1969 result with no further analysis needed.
It reads the constitutional provisions as authority for institutional education. The constitutional duty to "encourage" schools, libraries, and means of education, paired with the legislature's compulsory attendance mandate, supported reading the statutory term "school" as institutional. A parent teaching a child at home was not, under the AG's reading, a school the legislature had recognized.
Background and statutory framework
North Carolina has had compulsory attendance laws since 1907. By 1979, the operative statute was G.S. 115-166 (later recodified as G.S. 115C-378 and surrounding sections in the 1981 recodification of the school code). The statute required parents of children of compulsory attendance age to ensure that the children attend either a public school or "a private school."
The "private school" language in the older statute was the focal point of the 1969 AG opinion. The AG read "private school" as an institutional category, not as a synonym for any form of education. Home instruction did not qualify.
In 1979, the General Assembly enacted Articles 32A and 32B of Chapter 115. These articles deregulated nonpublic schools, limiting the State Board of Education's authority over the curriculum and operation of nonpublic schools. The structure of the articles reflected the political concern at the time about the State Board's reach into private and religious schools.
The articles used the terms "school of religious charter" (Article 32A) and "nonpublic school" (Article 32B) as their core definitions. Both articles followed a pattern of listing specific institutional types and then a residual subsection.
The home schooling movement was growing nationally in the late 1970s. Parents who chose to teach their children at home for religious, philosophical, or pedagogical reasons found themselves in tension with state compulsory attendance laws. The 1979 AG opinion reflected the prevailing North Carolina legal position at the time: home instruction was not enough to satisfy the compulsory attendance law.
That position changed in 1985, when the North Carolina Supreme Court decided Delconte v. State, 313 N.C. 384, holding that under the then-current statutory text, the state's compulsory attendance law was satisfied by home instruction that met certain conditions. The General Assembly responded by enacting Part 3 of Article 39 (codified as G.S. 115C-563 through 115C-568, with later additions) to provide a specific regulatory framework for home schools. North Carolina home schooling has operated under that framework since.
Common questions
Did parents who home-schooled in 1979 face truancy prosecution?
Under the 1979 AG opinion's framework, yes, in principle. The compulsory attendance law was enforceable through truancy proceedings against the parent. In practice, enforcement varied by county and by school administrator discretion.
What changed in 1985?
The North Carolina Supreme Court in Delconte v. State (1985) reinterpreted the statutory text in a way that admitted home instruction as compliant. The legislature then built a specific home-school framework into the school code, creating a regulated path for parents who chose home instruction. Modern North Carolina home schooling operates under that framework.
Did Articles 32A and 32B serve their original purpose?
The articles limited State Board of Education authority over nonpublic schools' curriculum and operation. They were partly a response to political pressure from religious schools concerned about state interference. The AG opinion confirmed that the articles did not reach home instruction; nonpublic-institutional schools were the targeted beneficiary.
Does the constitutional reasoning still apply?
The constitutional provisions the 1979 AG opinion cited (Art. I, § 15; Art. IX, §§ 1 and 3) remain in the North Carolina Constitution and continue to underpin the state's general approach to education. Modern interpretation gives more space to home schooling than the 1979 opinion did, but the constitutional duty of the state to provide education remains.
What if a parent today wants to home school?
Today's answer is fundamentally different from 1979. North Carolina recognizes home schools as a category and provides a registration framework administered by the Division of Non-Public Education. Parents register the home school, file annual paperwork, ensure students take a standardized test annually, and otherwise meet the requirements of G.S. 115C-563 et seq. The compulsory attendance law is satisfied through that registered home-school structure.
Source
- Landing page: https://ncdoj.gov/opinions/home-instruction-of-a-child-in-lieu-of-attending-a-public-school/
Citations
- N.C.G.S. § 115-166
- Articles 32A and 32B of Chapter 115 of the General Statutes
- Chapter 505 of 1979 Session Laws
- Chapter 506 of 1979 Session Laws
- N.C. Const. Art. I, § 15
- N.C. Const. Art. IX, § 1
- N.C. Const. Art. IX, § 3
- State v. Emery, 224 N.C. 581, 31 S.E.2d 858 (1944)
- State v. Fenner, 263 N.C. 694, 140 S.E.2d 349 (1965)
- State v. Hunt, 287 N.C. 76, 213 S.E.2d 291 (1975)
- 40 N.C.A.G. 211 (1969)
Original opinion text
August 9, 1979
Education; Articles 32A, 32B and § 115-166 of the North Carolina General Statutes; Home Instruction of a Child in Lieu of Attending a Public School.
Subject:
Requested By: Mr. George T. Register, Jr., Attorney for the Wake County Board of Education
Questions: Does home instruction of a child qualify as "a school of religious charter" or as a "nonpublic school" as used in Articles 32A and 32B of Chapter 115 of the North Carolina General Statutes?
- Is the instruction of a child by a tutor in a private home, instruction in a "private school" as contemplated in the Compulsory Attendance Law, N.C.G.S. 115-166?
Conclusions: No.
2. No.
The 1979 Session to the General Assembly amended Chapter 115 of the General Statutes to add two new articles, Articles 32A and 32B, both of which have the effect of limiting the authority of the State Board of Education to regulate the educational programs of nonpublic schools providing instruction to children of compulsory attendance age. Chapters 505 and 506 of the 1979 Session laws. The enactment of this legislation has stirred interest in home instruction as an alternative to the education of children in either public or private schools.
This Office has previously ruled that home instruction does not suffice to meet the requirements of the Compulsory Attendance Law, G.S. 115-166, et seq., 40 N.C.A.G. 211 (1969). George P. Register, Jr., Attorney for the Wake County Board of Education, has requested a reconsideration of this earlier opinion in light of recently enacted Articles 32A and 32B of Chapter 115. The specific question posed is whether home instruction is encompassed within the meaning of the word "school" as used in those Articles.
Any discussion of the impact of legislation on education in North Carolina is necessarily dictated by several provisions of our Constitution. The appropriate role of the State in the education of its citizens is clearly set forth as follows:
"The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right." N.C. Const. Art. I, § 15
"Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged." N.C. Const. Art. IX, § 1
"The General Assembly shall provide that every child of appropriate age and of sufficient ability shall attend the public schools, unless educated by other means." N.C. Const. Art. IX, § 3
There can be no doubt that the North Carolina Constitution not only requires education to be encouraged, indeed it places on the State the duty to ensure that the people, most particularly the children, are educated. Any legislation which the General Assembly approves in the area of education must be read in the light of this constitutional mandate. "Every statute is to be considered in the light of the Constitution, and with a view to its intent." State v. Emery, 224 N.C. 581, 585, 31 S.E.2d 858 (1944).
It may be inferred from the list set forth that the legislature intended only established educational institutions, whether religious or secular, to fall within this article. All schools which would be included in subsections (a), (b), or (c) are institutions consisting of several teachers, classes of children of varying ages, a recognized and accountable administration, and a regular place for meeting. Subsection (d) is a general term, following a list of specific ones. "In the construction of statutes, the ejusdem generis rule is that where general words follow a designation of particular subjects or things, the meaning of the general words will ordinarily be presumed to be and construed as, restricted by the particular designations and as including only things of the same kind, character and nature as those specifically enumerated." State v. Fenner, 263 N.C. 694, 697, 140 S.E.2d 349 (1965).
It was then apparently the intent of the legislature in enacting these Articles to include only established and identifiable institutions within the operation of these deregulatory Articles. The intent of the legislature is, of course, controlling in the interpretation of a statute. State v. Hunt, 287 N.C. 76, 213 S.E.2d 291 (1975). We are of the opinion that home instruction of a child cannot reasonably be interpreted as instruction in an established and identifiable educational institution as contemplated in Articles 32A and 32B. This opinion is buttressed by the failure of the legislature to specifically include home instruction in these Articles, a failure we deem of particular significance given the constitutional duty of the legislature to "guard and maintain" the right of the people "to the privilege of an education."
In addition to evaluating the impact of Articles 32A and 32B upon our earlier opinion that home instruction did not suffice to meet the requirements of the Compulsory Attendance Law, we have reexamined the statutory and decisional law which formed the basis of that opinion. G.S. 115-166, the statute upon which the earlier opinion was based, has not been amended since 1969 and there has been no court decision in North Carolina or any other jurisdiction which would cause us to change our earlier opinion. Accordingly, it is and remains the opinion of this Office that a parent does not meet the requirements of the Compulsory Attendance Law by providing his child with instruction in the home.
Rufus L. Edmisten
Attorney General
Edwin M. Speas, Jr.
Special Deputy Attorney General