Did North Carolina have to provide a free public education to children with disabilities through age 21, the same as for nondisabled students, even though the special-needs definition statute only mentioned ages 5-18?

Plain-English summary

Theodore R. Drain, Director of the Division for Exceptional Children at the NC Department of Public Instruction, asked the Attorney General a question that mattered enormously to families of students with disabilities: did the State have to provide a free appropriate public education to children with disabilities between the ages of 18 and 21?

The legal puzzle was a definitional one. G.S. 115C-366(a) entitled every student to attend public schools until graduation or age 21, whichever came first. G.S. 115C-107 and 115C-110 required the State to give "children with special needs" a "free appropriate public education." But G.S. 115C-109 defined "children with special needs" as "children between the ages of 5 and 18." A literal reading would have meant that the State's obligation to serve students with disabilities ended at 18, three years before its obligation to serve other students.

Attorney General Rufus L. Edmisten, Special Deputy AG Edwin M. Speas, Jr., and Assistant AG Kaye R. Webb rejected that literal reading. They gave three independent reasons:

The NC Constitution treats nondisabled and disabled students equally. A 1969 AG opinion already said that students with disabilities "constitutionally are not to be discriminated against because of their [handicap] and [they] have the same constitutional right to the educational facilities of the State as that afforded to normal children who do not suffer from any disability." (40 NCAG 248).

The General Assembly's own stated policy was inconsistent with the narrow age limit. G.S. 115C-106 declared it the policy of the State "to insure every child a fair and full opportunity to reach his full potential and . . . no child as defined in this section . . . shall be excluded from services or education for any reason whatsoever." The policy expressly extended to children between 18 and 21.

Federal funding conditions required service through age 21. Under 20 U.S.C. § 1412(2)(B) of the Education for All Handicapped Children Act, North Carolina's eligibility for federal special-education funds was conditioned on making a free appropriate public education available to all handicapped children from age 3 to 21. The Act had a state-law exception for ages 8-21 only where the state did not provide services to nondisabled children in that range. Because G.S. 115C-366(a) did serve nondisabled students through age 21, the exception did not save NC from the funding condition.

Reading G.S. 115C-109 as cutting off the State's obligation at 18 would (a) violate the constitutional equal-access right of children with disabilities, (b) conflict with the General Assembly's express policy in G.S. 115C-106, and (c) jeopardize federal funding. The AG concluded that interpretation was not permissible.

Currency note

This opinion was issued in 1983. 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 Education for All Handicapped Children Act has been amended and renamed; it is now the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. North Carolina's special-education statutes have been reorganized into Article 9 of Chapter 115C and substantially rewritten. The age-21 floor for special-education services remains the rule today, but the specific cites in this opinion are decades old. Any parent, advocate, or school administrator dealing with a current special-education question should pull current IDEA, current NC Article 9, and the State Board of Education's current Policies Governing Services for Children with Disabilities.

Common questions

Q: What did "free appropriate public education" mean in 1983?
A: It was the phrase used in both NC and federal law to describe what the State owed each child with a disability. "Free" meant no cost to the family. "Appropriate" meant tailored to the child's individualized needs through an Individualized Education Program (IEP). "Public" meant at public expense, with placement in public schools where practicable. The same phrase remains the operative federal-law standard under IDEA today.

Q: Why did NC define "children with special needs" as ages 5-18 if the State's obligation extended through 21?
A: The AG essentially read the 5-18 range as a default, not an exclusive ceiling. The General Assembly had also enacted G.S. 115C-106, which announced a policy of serving every child to reach full potential without exclusion, and the statutory text of G.S. 115C-106 expressly reached children between 18 and 21. The narrower definition in G.S. 115C-109 was probably a drafting holdover from earlier legislation. The AG resolved the apparent conflict by reading the statutes together rather than letting the narrow definition override the broader entitlement.

Q: What was 40 NCAG 248?
A: That was a 1969 formal AG opinion holding that children with disabilities have the same constitutional right to public education as nondisabled children. The 1983 opinion treated that earlier opinion as authority for the constitutional equal-access argument.

Q: What was the federal funding lever?
A: NC accepted federal special-education funds under the Education for All Handicapped Children Act. The Act conditioned funding on the state making a free appropriate public education available to all handicapped children ages 3-21. There was an exception for ages 8-21 if state law did not provide public education to nondisabled children in that age range, but G.S. 115C-366(a) served nondisabled children through 21, so the exception did not apply. Reading G.S. 115C-109 to cut off services at 18 would have stripped NC of its federal funding eligibility.

Q: What happened in practice after this opinion?
A: The DPI Division for Exceptional Children acted on the AG's reading. NC has continued to serve students with disabilities through graduation or age 21 ever since, and that approach was codified more explicitly in later statutory rewrites and in State Board of Education policies.

Background and statutory framework

In 1975, Congress passed the Education for All Handicapped Children Act (EAHCA), 20 U.S.C. § 1401 et seq., to ensure that all children with disabilities had access to a free appropriate public education. Federal funding flowed to states that met the Act's requirements, including the age-eligibility floor at 20 U.S.C. § 1412(2)(B).

North Carolina implemented its special-education obligations through several Chapter 115C statutes. G.S. 115C-106 set the policy: every child entitled to a full opportunity to reach his or her potential, no exclusion. G.S. 115C-107 created the entitlement to free appropriate public education. G.S. 115C-109 defined "children with special needs." G.S. 115C-110 set out the mechanics. And the umbrella access right, G.S. 115C-366(a), entitled every student to public schooling through graduation or age 21.

The AG's two-canon move drew on standard NC interpretive principles. State v. Emery, 224 N.C. 581 (1944), required statutes to be read in light of constitutional principles. State v. Hart, 287 N.C. 76 (1975), put the legislature's intent as the controlling factor. Reading G.S. 115C-109 to cut off the State's obligation at 18 would have left children with disabilities worse off than nondisabled children, in conflict with both the NC Constitution and the General Assembly's express policy.

Citations

• N.C.G.S. § 115C-106 (declaration of policy; full opportunity for every child)
• N.C.G.S. § 115C-107 (entitlement to free appropriate public education)
• N.C.G.S. § 115C-109 (definition of "children with special needs," ages 5-18)
• N.C.G.S. § 115C-110 (implementation mechanics)
• N.C.G.S. § 115C-366(a) (right to attend public schools through age 21 or graduation)
• 20 U.S.C. § 1401 et seq. (Education for All Handicapped Children Act, 1975)
• 20 U.S.C. § 1412(2)(B) (federal funding condition for ages 3-21)
• State v. Emery, 224 N.C. 581, 31 S.E.2d 858 (1944) (statutes construed in light of constitution)
• State v. Hart, 287 N.C. 76, 213 S.E.2d 291 (1975) (legislative intent controls)
• 40 NCAG 248 (1969) (prior AG opinion on constitutional equal-access right of children with disabilities)

Source

• Landing page: https://ncdoj.gov/opinions/education-children-with-special-needs-educational-services-to-age-21/

Original opinion text

Requested By:

Theodore R. Drain, Director Division for Exceptional Children Department of Public Instruction

Question:

Is the State responsible for providing a free appropriate public education to handicapped children between the ages of 18 and 21?

Conclusion:

Yes.

All students are entitled to attend the public schools until graduation or the age of 21, whichever event occurs earlier. N.C.G.S. § 115C-366(a). N.C.G.S. §§ 115C-107 and 110 make it mandatory that the State provide handicapped children, referred to as "children with special needs" in the statutes, with a "free appropriate public education." The definition of the phrase "children with special needs" set forth by the General Assembly, however, only includes "children between the ages of 5 and 18." N.C.G.S. § 115C-109. The question has been raised as to whether N.C.G.S. § 115C-109 may be read as relieving the State of any obligation to provide an education for handicapped children between the ages of 18 and 21 when the State's obligation to other children extends to the time of graduation or age 21. In our opinion, such a reading of N.C.G.S. § 115C-109 is not permissible.

First, our Constitution provides that handicapped and nonhandicapped children be given the same access to education services provided by the State. As was stated in an earlier formal opinion by this office: handicapped children "constitutionally are not to be discriminated against because of their [handicap] and [handicapped children] have the same constitutional right to the educational facilities of the State as that afforded to normal children who do not suffer from any disability." 40 NCAG 248 (1969). In similar words, the General Assembly itself has stated that it is "the policy of the State . . . to insure every child a fair and full opportunity to reach his full potential and . . . no child as defined in this section . . . shall be excluded from services or education for any reason whatsoever." N.C.G.S. § 115C-106. Significantly, the policy announced in this statute expressly extends to children between 18 and 21.

Every statute is to be considered in light of the Constitution, and with a view to its intent. State v. Emery, 224 N.C. 581, 31 S.E. 2d 858 (1944). Similarly, "in the interpretation of statutes, the legislative will is the controlling factor." State v. Hart, 287 N.C. 76, 80, 213 S.E.2d 291 (1975). To read N.C.G.S. § 115C-109 as limiting the State's obligation to handicapped children to a greater extent than its obligation to nonhandicapped children would violate the constitutional rights of handicapped children and be in direct conflict with the General Assembly's will and intention as expressly stated in N.C.G.S. § 115C-106. A statute may not be interpreted in such a manner. Id.

Second, the State, through the State Board of Education, has elected to participate in and receive federal funds under The Education of All Handicapped Children Act, 20 USC 1401, et. seq. Under that Act, the State's receipt of federal funds is conditioned upon it providing a "free appropriate public education" to handicapped children within certain ages. 20 USC 1412(2)(B) provides that the State must make "available" a "free appropriate public education" to:

"all handicapped children between the ages of 3 and 21 within the state . . ., except that, with respect to handicapped children . . . 8 to 21, inclusive, the requirements of this clause shall not be applied in any state if the application of such requirements would be inconsistent with state law or practice, or the order of any court, respecting public education within such age groups in the state."

N.C.G.S. § 115C-366(a), as noted above, requires the State to provide an education to nonhandicapped students until they reach the age of 21 or graduate. 20 USC 1412, in effect, requires the State as a condition for receiving federal funds to provide this same scope of opportunity for an education to handicapped children.

In sum, the provisions of our Constitution, policies announced by the General Assembly and the provisions of applicable federal law require that handicapped children be provided with a free appropriate public education until they graduate or reach the age of 21, whichever comes first.

Rufus L. Edmisten

Attorney General

Edwin M. Speas, Jr.

Special Deputy Attorney General

Kaye R. Webb

Assistant Attorney General