Can a local school board demand that the driver-education instructors it hires under contract hold a state teaching certificate, even though state law says contract instructors are not required to be certified teachers?
Plain-English summary
Julia Shovelin, an attorney or administrator with the Gaston County Schools, asked the AG whether the Gaston County Board of Education could include in its driver-education RFP a requirement that bidding contractors' instructors be certified by the State Board of Education. The 1991 amendments to NCGS 20-88.1 and 115C-215 said that contract driver-ed instructors "shall not be required to hold teacher certificates." Shovelin wanted to know whether that statutory limit was a floor (instructors do not need to be certified, but they can be required to be) or a ceiling (instructors cannot be required to be certified, even by a local board).
Chief Deputy AG Andrew Vanore, Senior Deputy AG Edwin Speas, and Special Deputy AG Thomas Ziko, for AG Easley, said it was a floor. Local boards retain authority to demand more.
The reasoning is straightforward statutory construction. NCGS 20-88.1(b1) directed the State Board of Education to "adopt rules to permit local boards of education to enter contracts ... to provide a program of driver education at public high schools," and provided that "[a]ll driver education instructors shall meet the requirements established by the State Board of Education; provided, however, driver education instructors shall not be required to hold teacher certificates."
The General Assembly's purpose, the AG read, was to free local boards from a previous requirement that all driver education instructors be certified teachers paid on the teacher salary schedule. The legislature wanted local boards to have contracting flexibility: hire certified teachers if you like, but you do not have to. The "shall not be required" language is therefore a limit on the State Board's rulemaking authority (the State Board cannot adopt a rule requiring teacher certification) rather than a limit on local board contracting.
Two textual clues support that reading:
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NCGS 20-88.1(b) still allows local boards to employ certified-teacher driver education instructors at the teacher salary schedule. That option exists alongside the contracting authority in (b1). The General Assembly did not eliminate teacher certification as a pathway; it just made it not mandatory.
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There is nothing in the statutes that would prohibit a local board from requiring contractors to meet the same qualifications the State Board uses for teacher certification. The General Assembly capped the State Board's mandatory floor but did not cap what local boards could ask for in their own RFPs.
The opinion's practical effect: local school boards have flexibility to set their own contractor qualifications. Some districts may require certified teachers (perhaps because they have a tight labor market or want consistent quality). Other districts may permit non-certified instructors as a cost-saving or staffing measure. The General Assembly left that choice to local boards.
Currency note
This opinion was issued in 1994. 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 driver education statutes in NCGS Chapter 20 and Chapter 115C have been amended significantly since 1994, including changes to funding mechanisms, instructor qualifications, and the program's relationship to the public school curriculum. Anyone working with a current driver education RFP should consult the current statutes and any related Department of Public Instruction guidance.
Background and statutory framework
North Carolina has had a state-supported driver education program since the 1950s. Historically, the program was delivered through the public school system using certified classroom teachers as instructors. By the 1990s, that delivery model was straining: certified teachers willing to teach driver education were in short supply, and the cost of paying teachers on the teacher salary schedule for after-hours driver-ed work was high.
The 1991 amendments to NCGS 20-88.1 and 115C-215 were the General Assembly's response. The amendments authorized local boards to contract with private vendors to deliver the driver education program. Under the contracts, local boards could pay vendors a flat rate (separate from the teacher salary schedule) for delivering the program. The vendors' instructors did not have to hold teacher certificates.
The key textual issue was whether the "shall not be required to hold teacher certificates" clause was permissive or restrictive. Permissive reading: it removes the certification requirement as a state-imposed floor, but allows local boards to require certification if they choose. Restrictive reading: it categorically prohibits requiring certification, even by local boards.
The 1994 AG opinion adopts the permissive reading by identifying two contextual clues. The first is that NCGS 20-88.1(b) preserves the certified-teacher pathway. If the legislature had wanted to eliminate teacher certification from driver education entirely, it would have repealed (b) and (b1) would stand alone. Instead, both subsections coexist, suggesting the certified-teacher option remains valid.
The second clue is the structural location of the "shall not be required" language. It appears in (b1) as part of a sentence directing the State Board of Education to adopt rules. The sentence's natural subject is the State Board, not local boards. Reading "shall not be required" as a limit on State Board rulemaking authority (no State Board rule may require teacher certification) is structurally cleaner than reading it as a blanket prohibition on certification requirements.
The opinion also tracks a deeper principle of NC education law: local boards have substantial autonomy under the "general welfare" clause of NCGS 115C-36 to set local policy, subject to statutory and constitutional limits. State Board regulations set the floor for what local boards must do, but local boards remain free to do more. The 1994 opinion applies that principle to driver education contracting.
Common questions
Can a local board require driver-ed instructors to have any specific qualification beyond teacher certification?
Yes. The AG opinion does not limit local boards to teacher certification as the only "extra" qualification they can require. A local board could require any reasonable qualification: years of driving experience, clean driving record, specific training credentials, language abilities, etc. The constitutional limit is rational basis: the qualification must bear a reasonable relationship to the local board's interest in delivering a quality driver education program.
Could the State Board adopt a rule banning local boards from requiring teacher certification?
The 1994 opinion does not directly address that. The State Board's regulatory authority is what the General Assembly delegates. The 1991 amendments told the State Board to "adopt rules to permit local boards of education to enter contracts." That gives the State Board authority to structure the contracting framework, but probably not authority to override local board substantive choices about qualifications. A State Board rule banning local-board certification requirements would likely exceed the delegation.
Does this apply to teacher certification for other extracurricular instruction?
The opinion is keyed to NCGS 20-88.1 and 115C-215, both specific to driver education. The same statutory-construction principle (state floor does not preempt local board floor) could apply to other extracurricular contracting, but the analysis would have to track the specific statutes governing those programs. Generic application would require a separate AG opinion.
Could a local board sign a contract that doesn't require certification, and would that be legal?
Yes. The 1991 amendments authorize local boards to hire non-certified contract instructors. The 1994 AG opinion just says the local board can also require certification if it chooses; it does not require certification. Local boards have the full range of options between "any qualified instructor" and "certified teacher only."
What happens if a contracted instructor's certification lapses mid-contract?
The opinion does not address mid-contract certification changes. Most driver education contracts would specify continuing-qualification requirements, and a lapse would trigger contract remedies (cure period, termination, etc.). The 1994 opinion is about RFP-time qualifications.
Source
- Landing page: https://ncdoj.gov/opinions/driver-education-instructors-be-certified-to-teach-driver-education/
Citations
- N.C. Gen. Stat. § 20-88.1(b), § 20-88.1(b1)
- N.C. Gen. Stat. § 115C-215
Original opinion text
June 29, 1994
Julia M. Shovelin
Gaston County Schools
P.O. Box 1397
Gastonia, NC 28053
Re: Advisory Opinion; Local School Board's Authority to Require that Driver Education Instructors Be Certified to Teach Driver Education by the North Carolina Department of Public Instruction; N. C. Gen. Stat. § 20-88.1; N.C. Gen. Stat. § 115C-215
Dear Ms. Shovelin:
In a letter dated June 2, 1994, you requested an advisory opinion on whether the Gaston County Board of Education had the authority to include in its requests for proposals for driver education instructors the requirement that the instructors be certified (licensed) to teach driver education by the State Board of Education. It is our opinion that local boards have the authority to include such requirements in their requests for proposals.
In 1991, the General Assembly amended the statutes governing driver education. Among those amendments was N.C. Gen. Stat. § 20-88.1(b1) which provides:
The State Board of Education shall adopt rules to permit local boards of education to enter contracts with public or private entities to provide a program of driver education at public high schools. All driver education instructors shall meet the requirements established by the State Board of Education; provided, however, driver education instructors shall not be required to hold teacher certificates.
Consistent with this amendment to N.C. Gen. Stat. § 20-88.1(b), the General Assembly also amended N.C. Gen. Stat. § 115C-215 to provide that driver education courses shall be taught by instructors "who meet the requirements established by the State Board of Education. Instructors shall not be required to hold teacher certificates."
It is our opinion that these statutes reflect the General Assembly's intent to provide local boards the flexibility to contract with independent driver education instructors subject to the State Board's authority to set minimum qualifications for instructors. In light of that intent, it is our opinion that the provisions that driver education instructors shall not be required to hold teacher certificates were intended to be limitations on the State Board's regulatory authority, not local board's contractual authority.
This opinion is supported by the fact that under N.C. Gen. Stat. § 20-88.1(b) local boards may continue to employ driver education instructors who hold teacher certificates, provided they are paid on the teacher salary schedule and work the same number of hours for a day's pay as regular classroom teachers. Furthermore, there is nothing in these statutes which would prohibit a local board from requiring persons who contract to provide driver education to have the same qualifications that the State Board requires for issuing a teacher certificate.
Therefore, it is our opinion that the General Assembly intended only to prohibit the State Board from requiring local boards to contract with persons who hold teacher certificates. Those provisions were not intended to limit a local board's authority to require driver education instructors to meet higher standards, including possession of a certificate to teach drivers education.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
Edwin M. Speas, Jr.
Senior Deputy Attorney General
Thomas J. Ziko
Special Deputy Attorney General