Could the Avery County Board of Education refuse to enroll children living at Crossnore School and Grandfather Home (private residential child-care facilities in the county) unless the children's parents also lived in Avery County?

Plain-English summary

Crossnore School and Grandfather Home were two private residential facilities in Avery County, North Carolina that cared for children placed there by county departments of social services and other referring agencies. For many years the children at these facilities attended Avery County's public schools as part of the local school population. In summer 1993, the Avery County Board of Education changed course and denied enrollment for the 1993-94 school year to all the resident-facility children except those whose parents lived in Avery County. The Deputy Superintendent of the NC Department of Public Instruction asked the AG whether the Board's decision was lawful.

Senior Deputy AG Edwin M. Speas, Jr. and Assistant AG Barbara A. Shaw said no, the children had a clear statutory right to enroll.

The general rule under G.S. § 115C-366 is that a student of eligible age has a right to attend public school only where the student, or the student's parents or guardian, is "domiciled." Without an exception, the Avery Board's position would be tenable: the children at Crossnore and Grandfather Home were not domiciled in Avery County for traditional residency purposes if their parents lived elsewhere.

But § 115C-366(a1), added by 1991 N.C. Sess. Laws ch. 719, § 2, effective beginning with the 1991-92 school year, created a clear exception. That subsection states:

"Children living in and cared for and supported by an institution established, operated, or incorporated for the purpose of rearing and caring for children who do not live with their parents shall be considered legal residents of the local school administrative unit in which the institution is located. These children shall be deemed to qualify for admission to the public schools of the local school administrative unit as provided in this section. This subsection shall apply to foster homes and group homes."

The closing sentence ("This subsection shall apply to foster homes and group homes") expanded rather than limited the reach. The first sentence's "institution" language already covered larger residential facilities like Crossnore School and Grandfather Home. The closing sentence made clear that smaller residential settings (group homes and foster homes) also fell within the rule. Read together, the subsection covered the full range of out-of-parent residential arrangements.

There was no doubt that Crossnore School and Grandfather Home fit the first sentence's description. Both were institutions established and operated for the purpose of caring for children who do not live with their parents. By the statute's clear language, the children living there were legal residents of Avery County for school purposes and were entitled to enroll in Avery County schools.

The AG addressed an awkward complication: on April 8, 1991 (three months before § 115C-366(a1) was enacted on July 16, 1991), the AG's office had sent an informal letter to the Avery County superintendent advising that Crossnore and Grandfather Home were not group homes or foster homes for purposes of G.S. § 115C-140.1 (the statute dealing with funding obligations for handicapped children placed in group homes, foster homes, or other facilities). The current opinion explained that the 1991 letter was no longer valid for two reasons. First, § 115C-366(a1) was enacted after the letter and changed the statutory landscape. Second, the two statutes addressed different questions and used different definitions:

• § 115C-366(a1) applies to all children; § 115C-140.1 applies only to handicapped children.
• § 115C-366(a1) directly addresses the right to enroll; § 115C-140.1 deals principally with funding.
• § 115C-366(a1) is broader: it encompasses all children in institutions that rear and care for children apart from their parents, not just group or foster homes.

The 1991 letter's narrower view of Crossnore and Grandfather Home was therefore overtaken by the 1991 statutory enactment. Avery County's exclusion of the resident children was unlawful.

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 school enrollment statutes in Chapter 115C have been amended numerous times since 1993, and federal special-education law (IDEA) and the McKinney-Vento Homeless Assistance Act have further shaped the enrollment rights of children outside traditional parental custody. Anyone facing a current enrollment dispute involving residential care should verify the present statutory and federal law.

Background and statutory framework

North Carolina, like most states, ties public school enrollment to residency. The traditional rule was that a child attended school in the district where the child's parents or legal guardian lived. That rule worked well for traditional family arrangements but created problems for children placed in residential care: which school district was responsible for them?

Before § 115C-366(a1), the answer often depended on individual circumstances. A foster child placed in a foster family's home might attend the foster family's school. A child at a long-standing children's home in a particular county might attend that county's schools by long-running practice, even though no statute expressly said so. A child placed in a small group home might be a contested case. The lack of a clear statutory rule produced enrollment disputes that hurt the children involved.

The 1991 General Assembly's enactment of § 115C-366(a1) was a clean fix. It said straightforwardly: if a child lives in and is cared for and supported by an institution for children outside their families, the child is a legal resident of the local school district where that institution is located. The institution's location is the operative fact. The child's parents' location is irrelevant.

The Avery County Board's 1993 decision to exclude the resident-facility children was difficult to understand against this statutory backdrop. The Board may have been responding to budget concerns (counties and their school districts often have fiscal arguments about which entity bears the cost of educating particular children) or to a misreading of § 115C-140.1 (the handicapped-funding statute) as the governing rule. The AG opinion took both possibilities off the table by pointing to § 115C-366(a1) as the controlling provision and by clarifying that the 1991 informal letter was no longer applicable.

Crossnore School and Grandfather Home are storied North Carolina institutions that have served children in the western part of the state for many decades. Crossnore was founded in 1913 by Dr. Mary Martin Sloop. Grandfather Home was founded in 1914. Both are private nonprofit residential care providers that accept children referred by social services agencies. Their school-age residents have always needed local public school access; the AG opinion ensured that access was not subject to the local board's discretion.

Common questions

What if the children's parents live outside Avery County?

Doesn't matter under § 115C-366(a1). The children are deemed legal residents of the school administrative unit where the residential facility is located. The parents' actual residence is not the controlling fact.

Could the Avery County Board charge tuition for the resident-facility children?

The opinion did not address tuition specifically, but the language treating the children as legal residents implies they were entitled to the same enrollment terms as any other local resident, which generally means no tuition.

What about a child at an out-of-state residential facility?

The statute applies to institutions located in North Carolina school administrative units. A child at an out-of-state facility would not be a "legal resident" of any North Carolina school administrative unit under this provision.

Did § 115C-366(a1) cover children placed by private parties rather than by social services?

The statute's language is "[c]hildren living in and cared for and supported by an institution." It does not turn on how the placement occurred. A child placed by a private guardian, a parent, or a social services agency would all be covered as long as the institution rears and cares for children who do not live with their parents.

What happens to the AG's prior April 1991 letter on Avery County?

The current opinion expressly invalidated it. § 115C-366(a1), enacted after the 1991 letter and broader than § 115C-140.1, controlled the enrollment question.

Citations

• N.C. Gen. Stat. § 115C-366 (general residency rule)
• N.C. Gen. Stat. § 115C-366(a1) (residential facility children's enrollment rights)
• N.C. Gen. Stat. § 115C-140.1 (handicapped funding statute)
• 1991 N.C. Sess. Laws ch. 719, § 2 (enacting § 115C-366(a1))

Source

• Landing page: https://ncdoj.gov/opinions/right-of-children-in-residential-facilities-to-attend-public-schools/

Original opinion text

August 5, 1993

Dr. Roger H. Jackson
Deputy Superintendent
N.C. Department of Public Instruction
301 N. Wilmington Street
Education Building
Raleigh, North Carolina 27601-2825

Re: Advisory Opinion; G.S. 115C-366(a1); Right of Children in Residential Facilities to Attend Public Schools

Dear Dr. Jackson:

The Crossnore School and Grandfather Home are private residential facilities established to care for children, many of whom are placed there by departments of social services. Both institutions are located in Avery County. For many years the children at these facilities have attended the Avery County Schools. The Avery County Board of Education, however, recently denied all children living at the facilities, except those whose parents reside in Avery County, the opportunity to enroll in the Avery County schools for the 1993-94 school year. You have asked whether the Avery County Board of Education's decision was lawful.

In our opinion, all children cared for at Grandfather Home and Crossnore School under the age of 21 who have not been removed from school for cause or who have not obtained a high school diploma are entitled to enroll in and attend the Avery County public schools. The general rule is that a student of eligible age has a right to attend only the schools where he, his parents or guardian are "domiciled." G.S. 115C-366. G.S. 115C-366(a1), however, establishes a clear exception to this general rule. It provides:

Children living in and cared for and supported by an institution established, operated, or incorporated for the purpose of rearing and caring for children who do not live with their parents shall be considered legal residents of the local school administrative unit in which the institution is located. These children shall be deemed to qualify for admission to the public schools of the local school administrative unit as provided in this section. This subsection shall apply to foster homes and group homes.

There is no doubt that Grandfather Home and Crossnore School are institutions established and operated for the purpose of caring for children who do not live with their parents within the meaning of G.S. 115C-366(a1). By the clear language of G.S. 115C-366(a1) they are considered legal residents of Avery County and the Avery County Board of Education is obligated to enroll school-aged children living in these two residential facilities in the Avery County public schools.

On April 8, 1991, our office provided an informal letter to the Superintendent of the Avery County Schools advising him that Grandfather Home and Crossnore School were not group homes or foster homes for the purposes of G.S. § 115C-140.1. That statute relates to the obligations of school boards to pay for the costs of education for handicapped children "placed in or assigned to a group home, foster home or other facility pursuant to state or federal law." G.S. 115C-366(a1) was not a part of our law at the time that letter was written. It was enacted on July 16, 1991 and made effective beginning with the 1991-92 school year. 1991 Sess. Laws, Ch. 719 § 2. There are substantial differences between G.S. 115C-140.1 and G.S. 115C-366(a1). G.S. 115C-366(a1) applies to all children; G.S. 115C-140.1 applies only to handicapped children. G.S. 115C-366(a1) deals directly with the right of children to enroll in school; G.S. 115C-140.1 deals principally with funding issues. Most importantly, under G.S. 115C-366(a1) the standard for determining which children a local school board must enroll is broader than under G.S. 115C-140.1. G.S. 115C-366(a1) is not limited to children in facilities that can be classified as group or foster homes. The standard encompasses all children living in all institutions which rear and care for children who do not live with their parents; not just group homes or foster homes. In short, our letter of April 8, 1991 is no longer valid in light of the subsequent enactment of G.S. 115C-366(a1).

Edwin M. Speas, Jr.
Senior Deputy Attorney General

Barbara A. Shaw
Assistant Attorney General