Did changes to the salary schedule for North Carolina school psychologists and speech pathologists in the 1990 and 1996 appropriations acts strip these employees of eligibility for career status (tenure)?

Plain-English summary

Career status in NC public schools is the rough analog of tenure. Once a teacher (or qualifying employee) achieves career status, they can be dismissed only for cause through statutory procedures. The eligibility rule had been steady since 1973: under G.S. § 115C-325(a)(6), an employee qualified if they (1) held a current Class A or regular vocational certificate from the State Board of Education, (2) taught, supervised teaching, or were classified or paid under the salary schedule for classroom teachers, and (3) worked in a full-time, permanent position. School psychologists and speech pathologists had always met those criteria, and the AG's office had said so in opinion letters going back to 1977 (Drain) and 1980 (Rogister).

Two budget-act provisions later raised eyebrows. The 1990 Current Appropriations Act (1989 N.C. Sess. Laws ch. 1066 § 110) directed an $800,000 reclassification for school psychologists and set their starting salary at step 5 of the "G teacher" master's-degree teacher schedule. The 1996 Current Appropriations Act (ch. 18 § 28.14(d)) said speech pathologists with master's degrees would be paid on the school-psychologist salary schedule. Watauga County asked whether either provision had silently disqualified these employees from career status.

Senior Deputy AG Edwin M. Speas, Jr. answered no. The General Assembly never created a separate salary schedule for school psychologists; it only pointed at higher starting points on the existing teacher master's-degree schedule. Speech pathologists were then routed onto the same school-psychologist starting points, which still sat on the master's-degree teacher schedule. Under the second prong of § 115C-325(a)(6), they were still "paid as a classroom teacher."

The AG then leaned on two canonical rules of NC statutory construction: appropriations-act provisions should not be read to alter substantive law absent a clearly evident contrary intent (citing 82 C.J.S., Statutes § 253), and a newly enacted law should not be read to silently change established policies (citing Porth v. Porth, 3 N.C. App. 485 (1969)). Reading a salary-rewarding provision to also strip career-status eligibility would invert legislative intent.

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. Career status itself has been substantially restructured: in 2013 the General Assembly enacted legislation (S.L. 2013-360) aimed at phasing out career status for new and many existing teachers, though portions of that law were later litigated and partly invalidated in N.C. Association of Educators v. State, 368 N.C. 777 (2016). Anyone analyzing a current career-status question should look at the present version of Chapter 115C, current State Board policies, and the latest case law, not the 1997 framework.

Background and statutory framework

G.S. § 115C-325 was the master career-status statute in 1997. Subsection (a)(6) defined who was eligible to enter the multi-year probationary track leading to career status. The 1973 amendment that fixed the three-part test was meant to draw a line between regular classroom teachers (and analogous certified personnel) on the salary schedule for teachers, on one side, and other school-system employees on a different framework, on the other. School psychologists, school speech pathologists, school social workers, school counselors, and certain other support roles had historically been bucketed onto the teachers' salary schedule (or a schedule keyed to it), so they had been treated as eligible since 1977.

The 1990 and 1996 appropriations adjustments were aimed at recruitment and retention. School psychology had a chronic shortage, and the General Assembly responded by lifting the starting point for new hires up the existing master's-degree teacher salary schedule. Speech pathologists, who had a similar shortage and credentialing profile, were piggybacked onto the same starting-salary structure in 1996. Both reforms left the rest of the master's-degree teacher salary table intact.

The AG's opinion is an application of the principle that the statutory text controls and that appropriations acts do their work by setting numbers, not by silently rewriting substantive eligibility provisions in Chapter 115C. The AG's prior 1977 and 1980 letters had already established the AG's office's view on this question, and the 1997 opinion confirmed it in light of the more recent budget provisions.

Common questions

Why was Watauga County asking this question now?

The 1996 appropriations rewrite was fresh enough that local boards were trying to figure out the practical effect on speech pathologist contracts. If speech pathologists were ineligible for career status, the local board would not extend tenure-track contracts to them. The AG's opinion let boards continue the prior practice.

What were the "G teacher" and master's-degree schedules?

NC's teacher salary schedules at the time used letter codes for different credential and experience levels. "G teacher" was shorthand for the salary schedule applicable to teachers holding master's degrees. The 1990 reclassification placed school psychologists at step 5 on that schedule.

Did the AG cite any earlier AG opinions on this question?

Yes. The opinion references a May 31, 1977 letter to Theodore R. Drain and a February 8, 1980 letter to George Rogister, both concluding that school psychologists and speech pathologists employed full-time in permanent positions were eligible for career status.

What rule of construction did the AG rely on?

Two rules: (1) appropriations-act provisions don't alter substantive law absent a clearly evident contrary intent, and (2) newly enacted laws don't silently change established policies. Porth v. Porth supplied the citation for the second rule.

Source

• Landing page: https://ncdoj.gov/opinions/eligibility-of-school-psychologists-and-speech-pathologists-for-career-status/

Citations

• N.C. Gen. Stat. § 115C-325(a)(6)
• N.C. Gen. Stat. § 115C-296
• 1989 N.C. Sess. Laws ch. 1066, § 110
• 1996 N.C. Sess. Laws ch. 18, § 24.18
• 1996 N.C. Sess. Laws ch. 18, § 28.14(b)(2), (c), (d) (Second Extra Session)
• Porth v. Porth, 3 N.C. App. 485 (1969)

Original opinion text

August 21, 1997

Mr. Jim Deni, Vice-Chair
Watauga County Board of Education
P.O. Box 1790
Boone, NC

Re: Advisory Opinion; G.S. § 115C-325(a)(6); Eligibility of School Psychologists and Speech Pathologists for Career Status

Dear Mr. Deni:

The eligibility of public school employees for career status is prescribed by G.S. § 115C-325(a)(6). That statute, which has not been amended since 1973, establishes three criteria for eligibility for career status. They are (1) that the public school employee hold a current, not provisional or expired, Class A or regular vocational certificate issued by the State Board of Education pursuant to G.S. § 115C-296; (2) that the employee teach, supervise teaching or be classified or paid under the salary schedule for classroom teachers; and (3) that the employee be employed in a full-time, permanent position.

In the years after the 1973 amendment to G.S. § 115C-325(a)(6) questions arose about the eligibility for career status of public school employees serving in student support positions, like school psychologist and speech pathologist. In letters to school officials beginning in 1977, we expressed the opinion that certified school psychologists and speech pathologists employed in full-time, permanent positions were eligible for career status because they were paid as classroom teachers under regulations and salary schedules adopted by the State Board of Education. See May 31, 1977 letter to Theodore R. Drain and February 8, 1980 letter to George Rogister, copies attached. Others reached the same conclusion and school systems for many years have awarded career status to those employees.

Two recent actions by the General Assembly have raised doubts about the continued eligibility for career status of certified school psychologists and speech pathologists employed in full-time, permanent positions. You have requested our opinion about the effect of these actions.

Section 110 of the 1990 Current Appropriations Act, 1989 N.C. Sess. Laws ch. 1066, directed "the State Board of Education [to] use $800,000 for a salary reclassification for school psychologists" and provided that "the starting salary for school psychologists shall be step 5 . . . on the salary schedule for certified personnel of the public school who are classified as G teachers," i.e., teachers holding masters' degrees. Similarly, Section 28.14(d) of the 1996 Current Appropriations Act, 1996 N.C. Sess Laws ch. 18 (1996 Second Extra Session) provided "speech pathologists who hold masters' degrees and who are employed in the public schools as speech and language specialists shall be paid on the school psychologist salary schedule."

In our opinion, neither of these acts had the effect, or were intended by the General Assembly to have the effect, of making either school psychologists or speech pathologists ineligible for career status. Properly certified school psychologists and speech pathologists employed in full-time permanent positions remain eligible for career status today just as they were in 1973 when G.S. 115C-325(a)(6) was last amended.

Our opinion is based on the wording of the special provisions of the 1990 and 1996 Current Appropriations Acts and the rules of statutory construction. Under G.S. § 115C-325(a)(6), a properly certified public school employee serving in a full-time, permanent position is eligible for career status if he or she "is paid as a classroom teacher." Prior to 1990 school psychologists were paid on the precise same salary schedule as classroom teachers. Section 110 of the 1990 Current Appropriations Act does not alter that status. It directs that school psychologists shall be paid on the salary schedule for teachers with master's degrees, albeit at a higher initial salary. Indeed, the General Assembly has never created a separate and distinct salary schedule for school psychologists. All the General Assembly has done is to identify the points on the salary schedules for teachers with masters degrees at which school psychologists will be paid. See 1996 Sess. Laws, ch. 18, § 28.14(b)(2) and (c) (Second Extra Session). The General Assembly's action with respect to speech pathologists is essentially the same. Like psychologists, they are paid on the salary schedule for teachers with masters degrees, albeit at a higher starting point on the schedule, and no separate schedule was established by the General Assembly for them. Id., sec. (d).

Furthermore, reading Sections 110 of the 1990 Current Appropriations Act and Section 24.18 of the 1996 Current Appropriations Act to encompass an intention by the General Assembly to change the substantive provisions of G.S. 115C-325 (a)(6) would be contrary to the established rules of statutory construction. Except where a contrary intention is clearly evident, the provisions of an appropriations act should not be read to alter existing laws. 82 C.J.S., Statutes, Sec 253. Likewise, except where a contrary intent is evident, newly enacted laws should not be viewed to alter established policies and practices. Porth v. Porth, 3 N.C. App. 485, 493-94, (1969). Reading provisions of appropriation acts plainly intended to reward school psychologists and speech pathologists with salary increase to carry silently with them a legislative decision to strip them of eligibility for career status would violate these rules.

In sum, it is our opinion that properly certified school psychologist and speech pathologists employed in full-time, permanent positions in the public schools are eligible for career status.

Edwin M. Speas, Jr.
Senior Deputy Attorney General