In North Carolina, can a public school student be released for part of each school day to attend a private school, especially a private specialized school for a disability?
Plain-English summary
In 1987 the Superintendent of Davidson County Schools asked the AG about a recurring parent request: could a child enrolled in public school be released for part of the school day to attend a private school? In many cases the parents wanted specialized instruction (often for a learning disability) that the parents believed the public school could not match.
Assistant Attorney General Laura E. Crumpler answered:
(1) There is no automatic right for a student to attend a private school for part of the day. Parents have a long-standing constitutional right under Pierce v. Society of Sisters to send their children to a private school instead of public school. That is the binary choice the Constitution protects. It does not extend to a right to split the day, taking academics at one institution and specialized instruction at another.
(2) A local board of education has discretionary authority to permit part-day private school attendance. The board's authority comes from N.C.G.S. § 115C-40, which gives local boards "general control and supervision of all matters pertaining to the public schools in their respective local school administrative units." No statute or State Board regulation prevents a local board from granting (or refusing) a part-day release for private school attendance, so the question falls within the board's general supervisory power.
If a board says no, that is not a constitutional violation. Schools have broad curriculum authority, and Wisconsin v. Yoder confirms that parents and students generally cannot substitute their views for school authorities' curriculum decisions. The AG cited Christian v. Jones (Alabama, 1924), where a school board's refusal to release a student to attend a private music class was upheld. There is a limited religious-exercise exception (a parent might excuse a child from a specific class like sex education on religious grounds), but the AG was clear that this religious right does not bootstrap into a right to attend a private school for part of the day.
If a board says yes, several conditions apply:
The private school must be recognized as a private school under Article 38 of Chapter 115C. Releasing a child to a non-recognized institution would violate N.C.G.S. § 115C-378, the compulsory attendance law. (A child must attend either a recognized private school or a public school during compulsory attendance hours; an unrecognized "school" does not satisfy the requirement.)
The board cannot waive curriculum, promotion, or graduation requirements set by the General Assembly or State Board under N.C.G.S. § 115C-81. A student who misses part of the public school day may be unable to meet graduation prerequisites, and the board has no power to make exceptions.
The board should warn parents about the academic-progress consequences of part-day release. Time missed at the public school is time the student is not getting the public school's instruction toward promotion or graduation.
For students with disabilities, a separate federal framework applies. Under the federal special-education statute (then the Education for All Handicapped Children Act, now IDEA), if the public school cannot provide an "appropriate" education to a handicapped student and the parent unilaterally places the child in a private school, the public school district may be ordered to reimburse the private placement costs. Town of Burlington v. Commissioner of Education established that reimbursement remedy. The AG cited Town of Burlington to flag the risk: a school board that refuses a part-day private placement (or refuses to fund it) cannot get out of liability if the public school's program turns out to be legally inadequate.
The opinion's bottom line: school boards have the discretion to permit or deny part-day private attendance, and either choice is generally lawful, but they need to know the federal special-education law can make denial expensive for students with disabilities whose public school placement is not delivering an appropriate education.
Currency note
This opinion was issued in 1987. 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 federal special-education framework has been substantially expanded since 1987. IDEA was amended in 1990, 1997, 2004, and beyond, and reimbursement and "stay put" rules have been refined by Florence County School District Four v. Carter (510 U.S. 7, 1993) and Forest Grove School District v. T.A. (557 U.S. 230, 2009). The "appropriate education" standard was reformulated by the U.S. Supreme Court in Endrew F. v. Douglas County School District RE-1 (580 U.S. 386, 2017), requiring more than a de minimis benefit. Modern researchers consulting this opinion should verify both current state statutes (Chapter 115C numbering and content have shifted) and current federal IDEA case law before applying the AG's framework to a present-day situation.
Background and statutory framework
The 1987 question reflects a longstanding tension in American education law: parents have the right to choose private over public, but no right to compel public schools to coordinate with private providers. The Pierce v. Society of Sisters rule (parents may opt for private schooling) is broad in principle and narrow in operation. It protects the binary choice of school placement, not curriculum à la carte from multiple providers.
The 1987 AG fit this within the standard of local school board authority. N.C.G.S. § 115C-40 grants broad general control to local boards. That authority is bounded by State Board regulations and General Assembly statutes; within those bounds, local boards can make local choices. Allowing or denying part-day private attendance is one such local choice.
The compulsory-attendance dimension comes from N.C.G.S. § 115C-378, which requires children to be in school during certain ages and hours. The statute counts time at a recognized private school as satisfying the compulsory-attendance requirement, but only when the private school is on the Governor's Office list under Article 38 of Chapter 115C. The AG warned that a board permitting part-day attendance at an unrecognized institution would inadvertently put the family in compulsory-attendance violation.
The curriculum constraint comes from N.C.G.S. § 115C-81. The State Board of Education and General Assembly set graduation requirements, promotion standards, and the basic education program. A local board cannot waive those for individual students. So even if a board allowed Sally to spend half the day at a private specialized school, the public school district still had to certify that Sally completed all required courses for promotion to the next grade and for graduation. The released time might create a practical impossibility.
The federal IDEA dimension is where the 1987 opinion has the most lasting bite. Town of Burlington (1985) was a recent Supreme Court decision when this opinion was written, and the AG correctly flagged that even a discretionary local-board decision to deny part-day private attendance could be unwound at federal expense if the public school's program turned out to be inadequate for a disabled student.
Common questions
Can a parent unilaterally place their child in part-day private school and demand the public school accept it?
No. The right is to choose private over public, or public over private, as the placement. A unilateral parent decision to split the day does not bind the public school district. The district could mark the child absent for the missed portion of the day and could potentially trigger compulsory-attendance proceedings if the absences pile up.
If a parent asks the board for a part-day release and the board refuses, can the parent sue?
Generally no, under state law. The board's exercise of discretion under § 115C-40 is reviewed under a deferential standard. The parent could sue if the refusal violates federal IDEA (for a student with disabilities and an inadequate public-school program), but that's a federal special-education claim, not a state-law right to part-day attendance.
Does the AG's framework apply to homeschool too?
The opinion is about private school release, not homeschool. North Carolina has separate provisions governing home schools (now codified separately). The compulsory-attendance compliance question for homeschool is whether the home school meets the statutory definition and is registered.
Can a board release a student for part-day vocational education at a private institution?
The opinion does not address vocational private placements specifically. The same framework should apply: the board has discretion to grant or deny, the private institution must be recognized for compulsory-attendance purposes, and the board cannot waive curriculum requirements.
What about students participating in dual enrollment with a private college?
Dual enrollment programs have their own statutory framework, not addressed in this 1987 opinion. Public school participation in college-credit programs is governed by separate provisions of Chapter 115C and Chapter 115D (community colleges).
Source
Citations
- N.C.G.S. § 115C-40 (general control and supervision of public schools)
- N.C.G.S. § 115C-378 (compulsory attendance)
- N.C.G.S. § 115C-81 (curriculum and graduation requirements)
- Article 38 of Chapter 115C (private school recognition by Governor's Office)
- Pierce v. Society of Sisters, 268 U.S. 510 (1925)
- Wisconsin v. Yoder, 406 U.S. 205 (1972)
- Christian v. Jones, 211 Ala. 161 (1924)
- Town of Burlington v. Commissioner of Education, 471 U.S. 359 (1985)
Original opinion text
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 is handicapped, if the local school system is not providing the child with an appropriate education and if the parents place the child in a private school, the school system upon complaint by the parents may be liable for reimbursement to the parents 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 school for a part of the school day to attend a private school so long as the private school meets compulsory attendance requirements. A school board that elects to deny such permission does not, in our opinion, violate the constitutional rights 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