Can a North Carolina community college refuse to admit a 16-year-old who has a history of behavioral problems, when the rule lets the college admit minors with 'special needs'?

Plain-English summary

Ellanor Graves, who ran the Adult High School program at Central Piedmont Community College, asked the AG to interpret the NC administrative code provisions that apply to community-college admission of minors. Chief Deputy AG Andrew A. Vanore, Jr. walked through three intertwined questions: when does a community college have to admit a 16-to-18-year-old; what does "special needs" mean in 23 NCAC 2C .0305(b); and how does the ADA limit a college's discretion to refuse a minor with behavioral problems?

Starting point: community colleges' core mission. Under N.C.G.S. § 115D-1, community colleges serve high school graduates or students beyond the compulsory age limit who have left the public schools. Minors aged 16 to 18 are not the primary target population. Community colleges are under no obligation to admit such students.

The "special needs" rule. 23 NCAC 2C .0305(b) is permissive: a minor 16 or older may be considered a student with special needs and may be admitted if the local school board determines admission would be the best educational option for the student and the community college approves. If the student has been out of public schools for six months or more, the requirements may be waived if the student's parent or legal guardian petitions for it. The rule grants discretion, not obligation. Both the local school board and the community college may decline.

What "special needs" means. The AG interpreted "special needs" to describe a student facing obstacles to education due to personal circumstances or limitations in the high school's curriculum. Examples: a student who must work during the day to support a family and cannot attend school during normal hours, or a student wanting advanced trade courses not offered at the high school. The AG did not read "special needs" to refer to students with disabilities; the local public schools are better geared to handle disabled students than the community colleges would be.

Once the college admits any minors, ADA kicks in. A community college is a public entity under Title II of the ADA, 42 U.S.C. § 12132, which prohibits public entities from denying qualified individuals with disabilities the benefit of public services or programs. The ADA defines "disability" as a physical or mental impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(2)(A). The AG concluded that someone with a severe emotional disability that manifests in explosive behavior is an "individual with a disability" because learning is a major life activity that the disability would substantially limit.

But "individual with a disability" and "qualified individual with a disability" are different. A qualified individual is one who, with or without reasonable modifications, removal of barriers, or auxiliary aids, meets the essential eligibility requirements for the service or program. 42 U.S.C. § 12131(2). The AG then drew on federal regulations at 28 C.F.R. Part 36 to identify one element of essential eligibility: the individual's risk to the health or safety of others. A public entity is not required to permit an individual to participate in or benefit from services if that individual poses a "direct threat" to the health or safety of others.

Putting it together for the admission question: If a community college does not admit any minors, it can refuse this student too; nothing forces it to. If the college admits some minors but not others, it has to apply the same standard to all and cannot deny admission to a behaviorally-disabled student while admitting non-disabled students of the same age. The exception is the direct-threat doctrine: a student who poses an actual threat of harm to himself or others may be denied admission.

Senate Bill 184 and G.S. 115C-47. The AG noted that SB 184 (1987) amended G.S. 115C-47 to require local school boards to refer students to the community college system or to other appropriate services when appropriate public school programs are not available or suitable. The amendment is about ensuring dropout-prone students are made aware of community college opportunities. It does not require community colleges to admit those students. Section 0305 still controls the admission decision.

Currency note

This opinion was issued in 1993. 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 ADA was substantially amended by the ADA Amendments Act of 2008, which broadened "disability" and effectively rejected several Supreme Court decisions that had narrowed it. The "direct threat" doctrine has been refined by cases including Bragdon v. Abbott, 524 U.S. 624 (1998), and EEOC and DOJ guidance. NC's community college dual-enrollment landscape has been transformed since 1993, especially by the Career & College Promise program enacted in 2011 and successor frameworks, which create structured pathways for high school students to take community college courses. 23 NCAC 2C has been recompiled and amended. Anyone with a current admissions question should consult current Title 23 of the NCAC, current Title II ADA regulations and case law, current dual-enrollment statutes, and counsel familiar with this area.

Common questions

Q: Are community colleges required to admit any 16-to-18-year-olds?
A: Not as a general matter under the 1993 rule framework. The "special needs" admission was permissive: the college could decline. Modern NC dual-enrollment programs like Career & College Promise have changed this landscape considerably for high school students enrolled in eligible pathways. The 1993 opinion's bottom line applied to ad hoc admissions of minors outside any structured program.

Q: What does "direct threat" mean under the ADA?
A: A significant risk to the health or safety of others that cannot be eliminated by reasonable modifications. The federal regulations and case law require an individualized assessment based on objective evidence, not stereotypes or generalized fears about the disability. A community college that wants to deny admission on direct-threat grounds must document the specific basis for the conclusion and consider whether reasonable accommodations would mitigate the risk.

Q: Can a college categorically exclude all minors with behavioral records?
A: Risky. If the college admits some minors, the ADA requires that exclusions be based on individualized direct-threat findings, not on categorical assumptions about students with histories. A categorical "no behavioral records" policy applied only to disabled applicants would be discriminatory; even applied to all applicants, it might be challenged as a disparate-impact policy that screens out students with disabilities.

Q: Did the AG say emotional disabilities are not "special needs"?
A: The AG distinguished the regulatory term "special needs" in 23 NCAC 2C .0305(b) (which the AG read as covering circumstantial and curriculum-fit obstacles, with public schools better equipped for emotional or physical disabilities) from the ADA category "individual with a disability" (which clearly includes severe emotional disabilities). A student could be a person with an ADA disability without being a "special needs" student under the rule.

Q: What about students under 16?
A: The 1993 opinion focuses on minors 16 and older, the population the rule addresses. Students under 16 generally remain in the compulsory-attendance school population, and community college admission would face additional state-law and policy barriers. Current dual-enrollment programs have separate eligibility rules.

Q: How does Senate Bill 184 / G.S. 115C-47 fit in?
A: It requires local boards of education to refer students to community colleges when public school programs are unavailable or unsuitable, but the referral is to make the student aware. The receiving community college is not obligated to admit. So a high school can refer; the community college can decline. The 1987 amendment shifted some of the public-school dropout-prevention conversation toward partnership with community colleges but did not impose a duty to enroll on the community-college side.

Background and statutory framework

NC's community college system, governed by Chapter 115D, has a primary mission of serving adults: high school graduates or those beyond compulsory school age. The system has historically not seen itself as a high-school-aged-student program. The "special needs" admission rule (23 NCAC 2C .0305(b)) was the carve-out for the rare 16-to-18-year-old whose situation made the community college the better fit.

The 1993 opinion shows the AG working through how that limited admission policy interacts with the (then relatively new) ADA. The ADA, enacted in 1990 and effective for state and local government services in 1992, applied immediately to community colleges as public entities. The opinion gave Central Piedmont Community College (and others facing similar questions) cover to maintain their general policy of not admitting minors, while also clarifying the rules that apply when the college does open admission to that age group.

Today's NC dual-enrollment landscape (Career & College Promise; cooperative innovative high schools) has greatly expanded the high-school-aged student presence at community colleges. The 1993 opinion remains relevant as a framework for the ad-hoc admission of minors outside structured programs and for the application of the ADA direct-threat doctrine to admissions decisions in any setting.

Citations

• N.C.G.S. § 115D-1 (purpose of NC community colleges; serving high school graduates and beyond-compulsory-age students)
• N.C.G.S. § 115C-47 (local school board authority; SB 184 of 1987 added referral provision to community college system)
• 23 NCAC 2C .0305(b) (special-needs admission of minors 16 and older to community colleges; permissive, not mandatory)
• 42 U.S.C. § 12102(2)(A) (ADA definition of "disability" pre-2008 Amendments)
• 42 U.S.C. § 12131(2) (ADA definition of "qualified individual with a disability" for Title II)
• 42 U.S.C. § 12132 (ADA Title II; public entities may not discriminate against qualified individuals with disabilities)
• 28 C.F.R. Part 36 (ADA regulations; direct-threat exception to essential-eligibility requirements)

Source

• Landing page: https://ncdoj.gov/opinions/interpretation-of-administrative-code-governing-community-colleges/

Original opinion text

July 1, 1993

Ms. Ellanor Graves
Department Head
Adult High School
Central Piedmont Community College
P. O. Box 35009
Charlotte, NC 28235

RE: Advisory Opinion; Interpretation of Administrative Code Governing Community Colleges

Dear Ms. Graves:

In response to your request dated June 4, 1993, I have analyzed the North Carolina administrative code as it applies to community colleges.

While the purpose of community colleges, according to N.C.G.S. §115D-1, is to provide services to high school graduates or to students who are beyond the compulsory age limit and have left the public schools, community colleges are under no obligation to admit such students who are under the age of 18. The provisions of 23 NCAC 2C .0305(b) are permissive rather than obligatory. That regulation states that a minor, 16 years or older, may be considered a student with special needs, and may be admitted if the local school board determines that it would be the best educational option for the student, and the community college approves. If the student has been out of the public schools for six months or more, those requirements may be waived if the application is supported by a petition of the student's parent or legal guardian. Therefore, it is at the discretion of the local school board and community college whether to refer and admit students between the ages of 16 and 18 to community college programs.

Our interpretation of "special needs," as it applies to section .0305(b), describes a student who is confronted with obstacles to completing his education due to personal circumstances or limitations in the curriculum at his high school. Since the public school is unable to meet the needs of such a student, the community college is the best educational option for him. Examples of a student with special needs would be someone who must work during the day in order to support himself or his family and is therefore unable to attend school during normal hours, or a student wishing to take advanced trade courses that are not offered in the high school. We do not believe, however, that "special needs" describes students who suffer from a handicap. The local public schools are better geared to handle disabled students than the community colleges would be.

As stated above, the community college is not required to provide services to any students between the ages of 16 and 18. If, however, the institution establishes a policy in which it does admit minors, it must admit all such applicants, regardless of whether the student has a past history of behavioral problems. Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §12132, prohibits public entities, such as community colleges, from denying qualified individuals with disabilities the benefit of public services or programs. "Disability," as defined by the ADA, is "a physical or mental impairment that substantially limits one or more of the major life activities of [the individual]." 42 U.S.C. § 12102(2)(A). Learning is considered to be a major life activity, and in our opinion, someone suffering from a severe emotional disability which manifests itself in explosive behavior is an "individual with a disability" under the ADA.

The ADA, however, defines a "qualified individual with a disability" as an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication or transportation barriers, or the provision of auxiliary aids or services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activity provided by a public entity. 42 U.S.C. § 12131(2). Consequently, whether an "individual with a disability" is a "qualified individual with a disability" entitled to public services depends upon a case-by-case consideration of the student's disability and the public service, program or activity in question.

Federal regulations codified at 28 C.F.R. Part 36 indicate that one element of "essential eligibility requirements for the receipt of services" is the individual's risk to the health or safety of others. Under those regulations, a public entity is not required to permit an individual to participate in or benefit from services or programs "if that individual poses a direct threat to the health or safety of others."

Therefore, if it is the policy of the community college not to admit students between the ages of 16 and 18, then denying admission to students in that age group with behavioral problems is not prohibited. However, the institution must be sure not to discriminate against these handicapped students by denying them admission while allowing other students of the same age to enter. Only if the handicapped student poses a threat of harm to himself or others may he be denied admission.

Senate Bill 184 was ratified in 1987 to amend N.C.G.S. § 115C-47. The pertinent section of the amendment states,

When appropriate public school programs are not available or are not suitable for certain students, the local board shall refer the students to the community college system or to other appropriate services.

The purpose of this amendment appears to be to ensure that drop-out students are made aware of opportunities at community colleges. The change should have little effect on the operations of the community colleges, since they are not required to serve these students, according to 23 NCAC 2C .0305.

If you have any further questions, please let me know.

Andrew A. Vanore, Jr.
Chief Deputy Attorney General