When North Carolina inmates are housed in private prisons rather than state-owned prisons, can community colleges still provide them with classes, waive tuition for them, and report their hours the same way?

Plain-English summary

President Lloyd Hackley of the North Carolina Community College System wrote to the AG with three operational questions raised by the General Assembly's recent authorization (NCGS 148-37(g)) of private prisons holding NC state inmates. The Cooperative Agreement between the Department of Correction (DOC) and the State Board of Community Colleges had assumed inmates lived in state-owned facilities. Hackley wanted to know whether the inmate-education program could extend cleanly to inmates housed in private prisons.

Senior Deputy AG Edwin Speas and Assistant AG Sylvia Thibaut, for AG Easley, answered all three questions affirmatively.

Question 1 (educational services): Yes, community colleges may serve private-prison inmates on the same terms as state-prison inmates. The 1987 Cooperative Agreement authorizes colleges to serve "all adult inmates housed in the North Carolina prison system whom DOC approves for participation through its classification review process." That language is custody-status-based, not facility-status-based. NCGS 148-37(h) reinforces this by requiring private prisons to operate "in accordance with applicable State laws," which includes the State Board of Community Colleges' authority to deliver inmate education.

Question 2 (tuition waivers): Yes, the State Board may extend the existing tuition-waiver regulation (23 NCAC 2D .0200(a)(7)) to private-prison inmates without further action. Alternatively, if circumstances at private facilities warrant different treatment, the State Board may adopt new "general and uniform regulations" distinguishing waivers based on facility type, so long as there is a rational basis for the distinction. The default position is symmetry: until the State Board acts otherwise, private-prison inmates get the same waiver treatment.

Question 3 (FTE reporting): Yes, FTE student hours for private-prison inmates report on a contact-hour basis under NCGS 115D-5(c1), the same as state-prison inmates. The statute's FTE rule is keyed to "correction education programs," not to facility ownership. As long as the educational service is being delivered to inmates in the NC prison system, contact-hour reporting applies.

The opinion's significance is principally practical. It tells community college presidents that the legislative authorization of private prisons does not require a parallel set of operational rules; the existing rules carry forward. The opinion also delivers a quiet political message: the General Assembly authorized private prisons but did not authorize inmate-education to be cut off as a side effect, and the AG reads NCGS 148-37(h) to preserve all existing inmate services unless the General Assembly speaks otherwise.

Currency note

This opinion was issued in 1997. 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 substantially scaled back private prison usage in the 2000s and 2010s. Chapter 115D community college statutes and Chapter 148 DOC statutes have been amended numerous times. The State Board of Community Colleges' regulation on inmate tuition waivers may have been renumbered or amended. Anyone working with a current inmate-education program should check the current statutes, the current State Board regulation, and the current DOC-State Board cooperative agreement.

Background and statutory framework

The North Carolina inmate education system as of 1997 was a layered arrangement:

1. Statutory authority. NCGS 115D-5(b), enacted in 1973, authorized the State Board of Community Colleges to waive tuition and registration fees for prison inmates (among other categories). NCGS 115D-5(c1) required FTE reporting for correction education programs on a contact-hour basis rather than student-membership-hour basis (which acknowledges that inmates do not attend in standard class formats).

2. Regulation. 23 NCAC 2D .0200(a)(7), adopted by the State Board, implements the 115D-5(b) waiver authority by exempting all enumerated categories (including inmates) from tuition.

3. Cooperative Agreement. Since 1987, the DOC and the State Board have operated under a Cooperative Agreement that authorizes community colleges to deliver education to any inmate DOC has approved through its classification review.

The General Assembly authorized private prisons in NCGS 148-37(g), allowing the DOC to contract with private firms for up to four confinement facilities totaling 2,000 beds. NCGS 148-37(h) imposed the operational floor: "Private confinement facilities under this section shall be designed, built, and operated in accordance with applicable State laws, court orders, fire safety codes, and local regulations." The phrase "in accordance with applicable State laws" was the textual hook that resolved the AG's analysis.

The deeper question was whether the General Assembly's authorization of private prisons implicitly carried with it a license for those facilities to be run on a different operational model: lower cost per inmate, fewer ancillary services, more contractor discretion. If the answer were yes, the inmate-education entitlement might evaporate at the prison door. The AG's answer was no: NCGS 148-37(h) requires the same operational floor regardless of facility ownership, and the inmate-education entitlement is part of that floor.

The 1997 opinion is one piece of a broader pattern in late-1990s North Carolina AG opinions reconciling the General Assembly's experiments with private prisons against the existing inmate-rights and inmate-services framework. The 1998 opinion Private Correctional Facilities and Officers and the 2000 opinion Private Prisons addressed adjacent questions (officer arrest authority, vehicle search powers, etc.). The 1997 opinion is the entry point for the education sub-issue and stakes out the symmetry position.

Common questions

Could the General Assembly carve out private prisons from inmate education?

Yes. The AG opinion construes existing law; it does not bind the legislature. If the General Assembly amended NCGS 115D-5 or 148-37 to limit inmate education to state-owned facilities, the AG's reasoning would not prevent the change. The opinion's framing makes the legislative choice transparent: the default is symmetry, and any divergence is the General Assembly's call.

Could a private prison operator refuse to host community college classes?

The opinion does not address that directly. The DOC's classification authority controls inmate movement and program participation. If a private prison contract did not include space for educational services, that would be a contracting issue between the DOC and the private operator, not a legal entitlement issue for the inmate. Private operators do not have unilateral authority to override state law; they must follow "applicable State laws" under NCGS 148-37(h).

Why does FTE reporting matter?

Community college funding from the State follows FTE counts. If private-prison inmate education did not generate FTE credit, the community colleges would have a financial disincentive to serve those inmates, and the program would atrophy. The 1997 opinion's holding on FTE reporting protects the financial mechanism that makes the program viable.

What is the "rational basis" the State Board could use to distinguish private-prison inmates?

The AG opinion does not give examples. Plausible rational-basis distinctions might include differences in security clearances, available class space, contractor-imposed costs the colleges have to recover, or different DOC classification rules for private-prison inmates. The opinion is permissive but not prescriptive; any distinction must be defensible if challenged.

Does this opinion apply to federal inmates housed in NC private prisons?

No. The opinion is anchored to inmates in the "North Carolina prison system," meaning state inmates assigned by the NC DOC. Federal inmates housed in NC private prisons under federal contracts are governed by federal law and the federal Bureau of Prisons's rules, not by NCGS Chapter 115D.

Source

• Landing page: https://ncdoj.gov/opinions/community-college-services-provided-to-inmates-housed-in-private-prisons/

Citations

• N.C. Gen. Stat. §§ 115D-5(b), 115D-5(c1), 148-37(g), 148-37(h)
• 23 N.C.A.C. 2D .0200(a)(7)
• 1973 N.C. Sess. Laws ch. 768
• DOC-State Board of Community Colleges Cooperative Agreement (1987)

Original opinion text

April 21, 1997

Lloyd V. Hackley, President
North Carolina Community College System
200 West Jones Street
Raleigh, North Carolina 27603

RE: Advisory Opinion; Community College Services Provided to Inmates Housed in Private Prisons; N.C. Gen. Stat. §§ 115D-5(b) and 5(c1)

Dear President Hackley:

You have written to request the Attorney General's opinion regarding three issues concerning inmates housed in private prisons in North Carolina. Those issues are: (1) whether inmates housed in private prisons, as authorized by state statute, can be provided with the same educational services that community colleges have historically provided to inmates housed in State-owned prisons; (2) whether the State Board of Community Colleges may provide tuition waivers to inmates housed in private prisons and enrolled in community college programs; and (3) whether community colleges that provide educational services to inmates housed in private prisons may report the full-time equivalent (FTE) student hours for inmates housed in private prisons on the same basis as inmates housed in State-owned prisons. It is our opinion that the community colleges may provide the same educational services to inmates housed in private North Carolina prisons as they provide to inmates housed in State-owned North Carolina prisons; that inmates housed in private prisons may be granted tuition waivers; and that community colleges may report the FTE student hours for inmates housed in private prisons on the same basis as for inmates housed in State-owned prisons.

Since 1973, the General Statutes have provided that:

In lieu of any tuition charge, the State Board of Community Colleges shall establish a uniform registration fee, or a schedule of uniform registration fees, to be charged students enrolling in extension courses for which instruction is financed primarily from State funds; provided, however, that the State Board of Community Colleges may provide by general and uniform regulations for waiver of tuition and registration fees for. . . prison inmates. . . .

1973 N.C. Sess. Laws c. 768; N.C. Gen. Stat. § 115D-5(b) (1996). Pursuant to that authority, the State Board of Community Colleges adopted a regulation, 23 N.C.A.C. 2D .0200(a)(7), that exempts from tuition all the persons in the categories listed in N.C. Gen. Stat. § 115D-5(b), including inmates. Further, in 1987, the DOC and the State Board of Community Colleges entered into a Cooperative Agreement under which community colleges are authorized to offer educational services to all adult inmates housed in the North Carolina prison system whom DOC approves for participation through its classification review process.

Finally, N.C. Gen. Stat. § 115D-5(c1) (1996) provides that: Community colleges shall report full-time equivalent (FTE) student hours for correction education programs on the basis of contact hours rather than student membership hours.

The State Board of Community Colleges relies on this statute when reporting full-time equivalent student hours for correction educational services provided to inmates in the North Carolina prison system.

Based on these laws and the Cooperative Agreement, our opinions on the issues you have presented follow.

Question 1: May community colleges provide inmates housed in private prisons in the North Carolina prison system the same educational services that community colleges provide to inmates housed in state-owned prisons?

Answer: Yes.

As noted above, the Cooperative Agreement between the DOC and the State Board of Community Colleges authorizes community colleges to provide educational services to all adult inmates housed in the North Carolina prison system whom DOC approves for participation through its classification review process. It is our opinion that the fact that DOC now houses some of its inmates in private prisons has no effect on the authority of community colleges to provide educational services to those inmates.

N.C. Gen. Stat. § 148-37(g) (1996) provides that:

The Secretary of Correction may contract with private for-profit or nonprofit firms for the provision and operation of four or more confinement facilities totaling up to 2,000 beds in the State to house State prisoners when to do so would most economically and effectively promote the purposes served by the Department of Correction.

Further, subsection N.C. Gen. Stat. § 148-37(h) provides that:

Private confinement facilities under this section shall be designed, built, and operated in accordance with applicable State laws, court orders, fire safety codes, and local regulations.

In our opinion, the Legislature's instruction that private prisons be operated "in accordance with applicable State laws" encompasses the authority of the State Board of Community Colleges to provide educational services to inmates assigned to private prisons, just as they offer those programs to inmates housed in State-owned prisons.

Question 2: Are inmates housed in private prisons in North Carolina entitled to tuition waivers for educational services provided by community colleges?

Answer: The State Board in its discretion may apply its current regulation or adopt reasonable regulations applicable to any special circumstances in private prisons.

As noted above, N.C. Gen. Stat. § 115D-5(b) (1996) simply provides that "the State Board of Community Colleges may provide by general and uniform regulations for waiver of tuition and registration fees for. . . prison inmates. . . ." There is nothing in that statute that would prohibit the State Board of Community Colleges from waiving tuition for inmates housed in private prisons on the same terms as inmates housed in State-owned facilities. Correspondingly, provided there is a rational basis for distinguishing between inmates housed in private prisons and inmates housed in State-owned facilities, it is our opinion that the State Board of Community Colleges may adopt a regulation distinguishing waivers of tuition and registration fees for prison inmates housed in private prisons from those housed in State-owned prisons.

Question 3: May community colleges that provide educational services to inmates housed in private prisons in North Carolina report the FTE student hours for those inmates on the same basis as inmates housed in State-owned prisons?

Answer: Yes.

As discussed above, community colleges may provide educational services to inmates housed in private prisons. The State Board of Community Colleges may allow tuition waivers for those inmates. In any case, if inmates in private prisons participate in community college correction educational programs, then N.C. Gen. Stat. § 115D-5(c1) requires the community colleges to report the FTE student hours for those students on the basis of contact hours, not student membership hours.

In summary, it is our opinion that when authorizing private prisons the General Assembly did not intend to prohibit inmates housed in those prisons from participating in community college education programs. Instead, the General Assembly left undisturbed the State Board of Community Colleges' authority to provide those services and to adopt "general and uniform" regulations governing tuition waivers for prison inmates. However, under N.C. Gen. Stat. § 115D-5(c1), community colleges are required to report FTE's for educational services provided to inmates housed in private prisons as they would for educational services provided to inmates housed in State-owned prisons, i.e., on a contact hour basis, not a student membership hour basis.

Very truly yours,

Edwin M. Speas, Jr.
Senior Deputy Attorney General

Sylvia Thibaut
Assistant Attorney General