Can the Cleveland County Board of Commissioners require the Cleveland County and Shelby City school boards to enter into an agreement transferring hundreds of students between the two systems to ease county overcrowding, and even if not, can the two school boards do it voluntarily?

Plain-English summary

Cleveland County commissioners asked the county school board to work with the Shelby City school board on transferring several hundred students to ease overcrowding in the county system and fill unused city classrooms. The requester asked whether the school boards could agree to those assignments and whether commissioners could compel an agreement.

The AG answered the commissioners' question firmly: they could not compel the boards to enter such an agreement. The opinion agrees with an earlier analysis on this point and cites Constantian v. Anson Co.

The answer about the school boards' own authority was more tentative. G.S. § 115C-366(d) allows assignments between systems on terms agreed in writing by the local boards, with or without tuition. In Re Varner had recognized transfers requested by a student, guided by that student's best interest. The AG said no case had decided whether boards could make cross-system assignments without a student's request and that the statutes were "not entirely clear". The lawyers were "inclined to believe" boards had that authority, subject to at least two limits: assignments must be tuition free, and students must have an opportunity under G.S. 115C-369 to show that a transfer would not be in their best interest.

Currency note

This is a 1995 advisory view of a question the AG said no case had decided at that time. Check current statutes and later decisions before using it for a present assignment plan.

Background and statutory framework

The proposed arrangement concerned system-initiated assignments of several hundred students, not individual requests to transfer. The AG distinguished that situation from In Re Varner, which involved a transfer requested by the student. The opinion identifies a written agreement between boards under G.S. § 115C-366(d) and an opportunity for affected students under G.S. 115C-369. It does not set out the mechanics of a hearing or decide whether a particular transfer plan meets those conditions.

Common questions

May county commissioners require neighboring school boards to agree on student transfers?

No. The opinion says commissioners cannot compel the boards to enter the agreement described in the request.

Did the AG definitively approve board-initiated assignments without student requests?

No. The AG was inclined to believe boards had the authority, but said the statutes were not entirely clear and no case had decided that question.

What limits did the AG identify for such an assignment?

The opinion says the assignment must be tuition free and each affected student must have an opportunity under G.S. 115C-369 to show the transfer is not in their best interest.

Citations

• G.S. § 115C-366(d) (assignments between systems)
• G.S. 115C-369 (opportunity to contest a transfer)
• Constantian v. Anson Co., 244 N.C. 221 (1956)
• In Re Varner, 266 N.C. 409, 415, 146 S.E.2d 710 (1966)

Source

• Landing page: https://ncdoj.gov/opinions/student-assignment/

Original opinion text

July 12, 1995

David R. Teddy
Teddy & Meekins, P.L.L.C.
Post Office Box 1330
Shelby, North Carolina 28151-1330

RE: Advisory Opinion; G.S. 115C-366; Student Assignment

Dear Mr. Teddy:

The Cleveland County Board of Commissioners has asked the Cleveland County Board of Education to cooperate with the Shelby City Board of Education in an effort to ease problems of overcrowding in the county school system. This request has prompted two questions about which you seek our advice: (1) whether the Cleveland County and Shelby City Boards of Education have the authority to agree to assign several hundred students from the county system to the city system to alleviate overcrowding in the county system and fill unused classroom space in the city system and (2) whether the Cleveland County Board of Commissioners may compel the two boards of education to enter into such an agreement.

You provided for our review an opinion written by Allison Schafer of the Raleigh law firm of Tharrington & Smith concerning this matter. We agree with the conclusion reached by Ms. Schafer that the Cleveland County Board of Commissioners does not have the authority to compel the Cleveland County and the Shelby City Boards of Education to enter into an agreement to assign students from one school system to another. See Constantian v. Anson Co., 244 N.C. 221 (1956).

Our views on the other question are similar to Ms. Schafer's. The General Assembly has provided that a student domiciled in one school system may be assigned to a school located in another school system "upon such terms and conditions as may be agreed in writing" between the local boards of education involved and may be "with or without the payment of tuition." G.S. § 115C-366(d). In Re Varner, 266 N.C. 409, 415, 146 S.E.2d 710 (1966) is the principal case construing this statute. Varner makes it clear that local school boards have the power to agree to transfer a student from one school system to another when requested by the student, and that the best interest of the student is the guiding standard in making such decisions ("It is the best interest of the applying child which must guide the deliberations and control the decision of the board.").

No case has considered whether the authority of school boards to enter into agreements assigning students from one system to another includes the authority to make such assignment in the absence of a request from the student. While G.S. 115C-366 and other related statutes are not entirely clear on this point, we are inclined to believe local boards do have that authority but that the exercise of that authority is limited in at least two respects. First, the assignment must be tuition free. Second, students must be given an opportunity pursuant to G.S. 115C-369 to demonstrate that a transfer would not be in their best interest.

Edwin M. Speas, Jr.
Senior Deputy Attorney General

Thomas J. Ziko
Special Deputy Attorney General