NC NC AG Advisory Opinion (1996-10-23) 1996-10-23

Can the North Carolina State Board of Education license its own speech-language teachers for public schools, or does the state's professional speech-pathology licensing board have exclusive authority over that credential?

Short answer: Yes, the State Board of Education has independent authority. The AG concluded that G.S. § 90-294(c)(4) carves public-school speech-language pathologists out of NCBESLPA jurisdiction when they work solely within DPI's confines, and the State Board's plenary constitutional authority over public schools includes the power to issue credentials it can lawfully call 'licenses.'

Disclaimer: This is an official North Carolina Attorney General advisory opinion. AG opinions are persuasive authority but not binding precedent like a court ruling. This summary is for informational purposes only and is not legal advice. Consult a licensed North Carolina attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

Plain-English summary

David Pillsbury raised a jurisdictional dispute between the North Carolina Board of Examiners for Speech and Language Pathologists and Audiologists (NCBESLPA) and the State Board of Education. NCBESLPA's view was that it had exclusive licensing authority over speech-language pathologists and that the State Board could not independently credential public-school teachers in that field. The State Board's view was that it had constitutional authority to credential its own teachers, including teachers of speech-language-impaired students, and that it could lawfully call those credentials "licenses."

Senior Deputy AG Edwin Speas and Special Deputy AG Thomas Ziko sided with the State Board on both points.

The statutory exemption. G.S. § 90-294(c)(4) expressly excludes from NCBESLPA's jurisdiction "a person who holds a valid and current credential as a speech and language pathologist or audiologist issued by the North Carolina Department of Public Instruction" when that person "practices speech and language pathology or audiology in a salaried position solely within the confines or under the jurisdiction of the Department of Public Instruction." The exemption is unambiguous. The legislature divided the field: NCBESLPA regulates speech-language pathology offered "to the public" (§ 90-292); the State Board regulates speech-language pathology practiced within the public school system.

The constitutional authority. Even setting aside § 90-294(c)(4), the State Board has plenary constitutional authority over the public schools. That authority includes the power to set qualifications for teachers and to issue credentials confirming those qualifications. A second licensing board's narrower statutory authority does not override the State Board's constitutional grant.

The "license" terminology question. NCBESLPA also argued that the State Board's credentials should not be called "licenses" because the term denoted "full professional qualification and general right to practice in all settings." The AG rejected this characterization. Under the Administrative Procedure Act, G.S. § 150B-2(3), a "license" is "any certificate, permit or other evidence, by whatever name called, of a right or privilege to engage in any activity." The State Board's credential confers a right to practice speech-language pathology in public schools and meets that statutory definition. Calling it a "license" is accurate.

The complementary scopes. The two licenses cover different jurisdictions. A State Board "license" lets the holder work in public schools but not offer services to the public. An NCBESLPA license lets the holder offer services to the public but does not authorize practice in public schools (a local board cannot hire an NCBESLPA-only practitioner without State Board credentialing per G.S. § 115C-295). Neither license gives general practice in all settings, because neither board has jurisdiction over all settings.

The opinion acknowledges that the dual-licensing structure has caused confusion and that some individuals have used the dual-jurisdiction overlap to evade discipline from one or the other board. The AG's recommendation: NCBESLPA and the State Board should coordinate disciplinary actions and educate licensees and the public about the limits of each credential.

Currency note

This opinion was issued in 1996. 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. North Carolina's speech-language pathology and special education statutes have been amended multiple times since 1996. Federal IDEA implementation has reshaped the regulatory environment for school-based speech-language services. Anyone analyzing a current jurisdictional question between NCBESLPA and the State Board (or its successor State Board policies) should review the current text of G.S. § 90-294, § 115C-295, and the current State Board licensure rules.

Background and statutory framework

North Carolina has historically licensed health-and-education professionals through two parallel tracks. The State Board of Education credentials teachers and other personnel for public-school positions. Independent occupational licensing boards regulate practitioners offering services to the public.

For speech-language pathology, the split is statutory:

NCBESLPA jurisdiction: under Chapter 90, Article 22, NCBESLPA regulates persons offering speech-language pathology or audiology services "to the public." G.S. § 90-292.
State Board jurisdiction: under Chapter 115C and the constitutional grant of authority over public schools, the State Board credentials teachers and ancillary personnel for school employment. G.S. § 115C-295 requires local boards to hire only State-Board-credentialed personnel.
Statutory exemption: G.S. § 90-294(c)(4) takes State-Board-credentialed practitioners out of NCBESLPA's jurisdiction when they work solely within DPI's confines.

The opinion's interpretive contribution is to confirm that the exemption was meant to give the State Board independent licensing authority, not to subordinate the State Board to NCBESLPA. The constitutional foundation of the State Board's authority reinforces the statutory exemption.

The terminology piece (whether the State Board credential is a "license") matters because the law makes consequences turn on the label. APA hearing rights, professional standards, discipline procedures, and reciprocity all depend on whether a credential is a "license." The opinion's confirmation that the State Board credential is a license under § 150B-2(3) gives the State Board the same procedural and substantive footing as any other state agency that issues licenses.

Common questions

Did this opinion let State-Board-licensed practitioners offer services to the public?

No. The exemption in § 90-294(c)(4) works only when the practitioner works "solely within the confines or under the jurisdiction of" DPI. A State Board licensee who took on private clients would either need an NCBESLPA license or would face NCBESLPA enforcement action. The two licenses authorize practice in non-overlapping spheres.

Could NCBESLPA license someone to work in public schools?

Not without State Board credentialing. § 115C-295 requires local school boards to hire only State-Board-credentialed personnel for the positions covered. An NCBESLPA license alone does not satisfy that requirement. A practitioner wanting to work in a public school had to either obtain a State Board credential or be hired under some other arrangement that did not require credentialing.

What about the discipline-evasion problem the opinion mentioned?

The opinion noted that some practitioners had used dual licensure to evade discipline: stripped of one credential, they would continue practicing under the other. The AG's recommendation was coordination between the two boards. The structural fix would have been an information-sharing agreement and a policy of reciprocal discipline, neither of which the AG could mandate as advisory counsel.

Did this opinion address audiology separately?

The statute treats speech-language pathology and audiology in parallel and the opinion does the same. The same analysis applies: State Board credentials are valid for school-based audiology practice; NCBESLPA credentials are valid for public-facing practice; dual jurisdiction is permitted; neither credential confers practice rights in the other's domain.

Was the State Board's "license" terminology challenge a real legal risk?

The opinion treated it as a serious enough question to address explicitly. NCBESLPA had presumably made a representational claim that only it could issue "licenses" in the field. The APA's broad definition of "license" undercuts that exclusivity claim. Without the APA backstop, NCBESLPA might have had a stronger argument that the State Board was misappropriating professional terminology.

How did this affect federal IDEA-related school practice?

The Individuals with Disabilities Education Act requires school districts to provide speech-language services to qualifying children. The State Board's credentialing authority was the operational mechanism for ensuring that the school-based providers were qualified. The AG's confirmation of the State Board's authority secured the credentialing pipeline that IDEA implementation depended on.

Source

Landing page: https://ncdoj.gov/opinions/authority-of-license-teachers-of-speech-language-impaired-students/

Citations

N.C. Gen. Stat. § 90-292
N.C. Gen. Stat. § 90-294
N.C. Gen. Stat. § 115C-295
N.C. Gen. Stat. § 150B-2

Original opinion text

(4) A person who holds a valid and current credential as a speech and language pathologist or audiologist issued by the North Carolina Department of Public Instruction or who is employed by the North Carolina Schools for the Deaf and Blind, if such person practices speech and language pathology or audiology in a salaried position solely within the confines or under the jurisdiction of the Department of Public Instruction or the Department of Human Resources respectively.

N.C. Gen. Stat. § 90-294(c)(4) (emphasis added).

In light of the State Board's plenary constitutional authority and the express limitations on the NCBESLPA's statutory authority, it is our opinion that the State Board has the authority to issue credentials to persons to teach speech-language impaired students in the public schools even if they do not hold a license from NCBESLPA.

Second, we disagree with your assertion that the State Board does not have the authority to call the credential it issues to a person qualified to teach speech-language impaired students a "license." Black's Law Dictionary defines a "license" as a "certificate or the document itself which gives permission." The North Carolina Administrative Procedures Act (APA), N.C. Gen. Stat. § 150B et seq., defines a "license" as any certificate, permit or other evidence, by whatever name called, of a right or privilege to engage in any activity, except licenses issued under Chapter 20 and Subchapter I of Chapter 105 of the General Statutes and occupational licenses. N.C. Gen. Stat. § 150B-2(3).

Correspondingly, the APA defines "occupational license" as any certificate, permit, or other evidence, by whatever name called, of a right or privilege to engage in a profession, occupation, or field of endeavor that is issued by an occupational licensing agency. N.C. Gen. Stat. § 150B-2(4a).

Finally, the APA defines "occupational licensing agency" as any board, commission, committee or other agency of the State of North Carolina which is established for the primary purpose of regulating the entry of persons into, and/or the conduct of persons within a particular profession, occupation or field of endeavor, and which is authorized to issue and revoke licenses. "Occupational licensing agency" does not include State agencies or departments which may as only a part of their regular function issue permits or licenses. N.C. Gen. Stat. § 150B-2(4a) (Emphasis added).

In light of these definitions, it is clear that whatever the name NCBESLPA or the State Board might give to the credentials they issue, the law considers those credentials to be "licenses." Insofar as the law considers the credentials that the State Board issues to teachers to be "licenses," it naturally follows that the State Board may call the credentials it issues "licenses."

In reaching this conclusion, we expressly reject your assertion that the term "license" necessarily "denotes full professional qualification and general right to practice in all settings." The "right" or "privilege" granted by a "license" is always limited to the jurisdiction of the granting authority. The "license" which the State Board issues to teachers of speech-language impaired students is limited to the practice of speech and language pathology or audiology in a salaried position solely within the confines or under the jurisdiction of the Department of Public Instruction. N.C. Gen. Stat. § 90-294(c)(4). A person holding a license from the State Board to serve speech-language impaired students in the public schools cannot offer speech-language pathology services to the general public without a license from the NCBESLPA. Correspondingly, the "license" which the NCBESLPA issues to speech-language pathologists is limited to persons offering speech and language pathology and audiology "services to the public." N.C. Gen. Stat. § 90-292. Local boards of education cannot employ persons who hold licenses from NCBESLPA to serve speech-language impaired students in the public schools unless they hold or are qualified to hold a valid license from the State Board. N.C. Gen. Stat. § 115C-295. Thus, neither the State Board's "license" nor NCBESLPA's "license" denotes a "general right to practice in all settings" because neither the State Board nor NCBESLPA has general jurisdiction over all settings in which instruction of persons with speech-language impairments may occur. To the contrary, each license is specifically limited to practice within the jurisdiction of the agency or board that issues the license.

Your letter also notes several cases in which individuals have either been confused by the difference between the licenses issued by the State Board and the NCBESLPA or have taken advantage of dual licensure to evade the discipline of one or the other licensing body. While these cases are regrettable, they serve only to prove that the NCBESLPA and the State Board should work closely together to assure that their licensees and the public are aware of the limitations on their respective practices and should strive to coordinate their disciplinary actions to assure the public safety.

Edwin M. Speas, Jr.
Senior Deputy Attorney General

Thomas J. Ziko
Special Deputy Attorney General