If a group is applying to start a North Carolina charter school, can it run an enrollment period and admission lottery for the next school year before the State Board of Education grants final charter approval?
Plain-English summary
NC adopted the Charter School Act in 1996, codified at G.S. § 115C-238.29A et seq. The Act has three main parts: the charter application and approval process, the operation of approved charter schools, and the revocation or termination of charters. A new charter school must run a lottery to admit students if applications exceed capacity.
State Superintendent Michael E. Ward asked the AG a sequencing question: can a charter applicant hold its enrollment period and run its lottery before the State Board of Education grants final approval of the charter? The AG said no.
The statutory analysis. The application sections (§§ 115C-238.29B, 29C, 29D) consistently use the term "applicant" for the entity seeking a charter. The operational section (§ 115C-238.29E) refers to a "charter school" that has been approved by the State. The enrollment and lottery provisions in § 115C-238.29F(g) all apply to "the charter school." No provision authorizes an "applicant" to enroll or lottery. So an applicant has no statutory authority to do either.
The legislative-intent overlay. The lottery requirement exists to give every qualified student a fair, equal chance at admission. The Act also forbids discrimination on the basis of ethnicity, national origin, gender, or disability and pushes charter schools to achieve diversity in race and ethnicity. The AG read those goals as cutting against pre-approval enrollment: a pre-approval applicant working a parent base into the school before the State Board has reviewed its admission policies risks pre-selecting a population that may not survive State Board scrutiny.
The common-sense overlay. An applicant cannot commit to parents, and parents cannot commit to the applicant, until the application is approved. The application itself must include the "admission policies and procedures" and "the number of students to be served," which the State Board reviews. So the AG concluded it is "logically impossible" to have a meaningful enrollment period that precedes final approval, because the applicant does not yet know which of its proposed admission policies and student capacity numbers the State Board will accept.
Bottom line. A charter applicant may not enroll students or run a lottery before the State Board has granted the charter. The enrollment window, including the lottery if oversubscribed, opens only after the approval.
Currency note
This opinion was issued in 1998. 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.
NC's charter school statutes have been amended multiple times since 1998. The State Board's role in charter approval has shifted (a separate Charter School Advisory Board now plays a major role; the legislature created the Charter Schools Review Board to take over approval authority in 2023). The lottery requirement remains. Anyone planning a current NC charter launch should look at the current statutes, the current charter approval body's policies, and any subsequent AG opinions on the enrollment sequencing question.
Common questions
Q: What is a charter school in NC?
A: A public school operated under a charter granted by the State (originally the State Board of Education; now the Charter Schools Review Board) instead of by a local school administrative unit. Charter schools are tuition-free, open to any qualifying NC student, and subject to most of the same academic and accountability standards as district public schools, with more operational flexibility.
Q: Why does the law require a lottery when applications exceed capacity?
A: To prevent charter schools from cherry-picking students or favoring connected families. The lottery is the standard tool for fair, random admission. The legislature wanted to ensure broad and diverse access.
Q: Could an applicant get around this by collecting "interest forms" or a waitlist before approval?
A: The AG opinion does not address informal interest collection. The legal line drawn is "enrollment" and "lottery." An applicant probably can publicize plans and collect non-binding interest. What it cannot do is run an admissions process that purports to enroll students before the State Board grants the charter.
Q: What if the State Board takes a long time to approve and the school year is approaching?
A: That is a practical problem for the applicant. The AG opinion does not bend the rule based on timing pressure. The applicant has to plan for adequate post-approval lead time, or the State Board has to act sooner.
Q: What happens if a charter school runs a pre-approval lottery anyway?
A: The opinion implies the enrollment would be void as not authorized by statute. The State Board could withhold final approval, or revoke a granted charter, for procedural noncompliance. In NC, AG opinions are persuasive but not binding, so a court could decide differently, but the textual case for the AG's reading is strong.
Q: Does this apply to expansion of an already-approved charter school?
A: The opinion is about initial approval, not expansion. An already-approved charter school is by definition a "charter school" under the Act and may run enrollment for subsequent years.
Background and statutory framework
The Charter School Act of 1996 was NC's entry into the charter school movement. The model is approval-by-State (initially the State Board of Education), with charters granted to "any person, group of persons, or nonprofit corporation" that meets the application requirements. The Act tried to balance autonomy (charter schools are largely exempt from local board of education rules under § 115C-238.29E(f)) with accountability (charter approval is the gating function).
The structural choice to make charter approval State-level and binary (approved or not) reflects the legislative trust in a centralized review body to filter applications for academic quality, financial viability, and nondiscriminatory admission policies. The pre-approval status of an "applicant" matters because it limits what the entity can promise before the State has validated its plans.
The lottery requirement in § 115C-238.29F(g)(6) was modeled on charter school statutes in other states. NC's version is straightforward: when oversubscribed, students "shall be accepted by lot." The AG's opinion fills in the question of when that lottery can happen, reading the statute's repeated use of "charter school" (not "applicant") as drawing a bright line at final approval.
Citations
- N.C. Gen. Stat. § 115C-238.29A et seq. (Charter School Act of 1996)
- N.C. Gen. Stat. §§ 115C-238.29B, 29C, 29D (charter application and approval process)
- N.C. Gen. Stat. § 115C-238.29E (charter school operation, requires State Board approval)
- N.C. Gen. Stat. § 115C-238.29F(g) (enrollment, lottery, nondiscrimination)
- Stevenson v. Durham, 281 N.C. 300, 188 S.E.2d 281 (1972) (legislative intent controls statutory interpretation)
- Hobbs v. County of Moore, 267 N.C. 665, 149 S.E.2d 1 (1966) (statutes construed to avoid absurd results)
Source
Original opinion text
June 23, 1998
Michael E. Ward
State Superintendent of Public Instruction
301 N. Wilmington Street
Raleigh, North Carolina 27601-2825
Re: Advisory Opinion; Student Lottery for Admission to Proposed Charter School Must Be Conducted After the State Board Grants the Charter; G.S. § 115C-238.29E.
Dear Dr. Ward:
You have requested the opinion of this office regarding the following inquiry:
May a charter school applicant legally have an enrollment period and conduct its lottery prior to the final approval of its application by the State Board of Education?
In our opinion, the answer to your inquiry is "no."
In responding to the question you have raised, we recognize that several basic principles of statutory construction are applicable. Our courts have long held that the "primary rule of statutory construction is that the intent of the legislature controls the interpretation of a statute." Stevenson v. Durham, 281 N.C. 300, 303, 188 S.E.2d 281 (1972). In ascertaining this intent, courts "consider the language of the statute, the spirit of the act, and what the act seeks to accomplish." Id. at 303. The language of a statute will be construed so as to avoid an absurd result. Hobbs v. County of Moore, 267 N.C. 665, 149 S.E.2d 1 (1966). Bearing in mind these fundamental principles, we turn now to examine the Charter School Act itself.
The Charter School Act, Part 6A of Chapter 115C of the General Statutes, which governs charter schools in this state, can be fairly divided into three major sections: the charter application and approval process; the operation of approved charter schools; and the revocation or termination of such charters. Sections 115C-238.29B, 115C-238.29C, and 115C-238.29D, for example, describe the application process up to and including final approval of the charter application. Those sections consistently use the term "applicant" when referring to the entity seeking to establish a charter school. G.S. 115C-238.29B(a) provides that, "Any person, group of persons, or nonprofit corporation seeking to establish a charter school may apply to establish a charter school." (Emphasis added). Subsection (c) of that section provides that, "An applicant shall submit the application to a chartering entity for preliminary approval." (Emphasis added). Likewise G.S. 115C-238.290 provides that, "The State Board shall grant final approval of an application if it finds that the application meets the requirements set out in this Part or adopted by the State Board. . . ." (Emphasis added).
Following those sections of the Act governing the charter application and approval processes is a section entitled "Charter School Operation," G.S. 115C-238.29E. Subsection (a) of that section states, in part, that, "A charter school that is approved by the State shall be a public school within the local school administrative unit in which it is located." From the foregoing sections of the statutes, it is evident that up until final approval of a charter school application by the State Board, the entity seeking to establish a charter school is not a "charter school" but rather is an "applicant."
The relevant provisions regarding enrollment are found in G.S. 115C-238.29F(g). All of those provisions govern what a "charter school" may or may not do during the admissions process. For example, subsection (g)(1) provides that, "Any child who is qualified under the laws of this State for admission to a public school is qualified for admission to a charter school." The lottery requirement found in (g)(6), provides, in relevant part, as follows:
During each period of enrollment, the charter school shall enroll an eligible student who submits a timely application, unless the number of applications exceeds the capacity of a program, class, grade level, or building. In this case, students shall be accepted by lot. G.S. 115C-238.29F (Emphasis added).
The Charter School Act thus distinctly separates the entity that applies for the charter, the "applicant," from the entity that is the "charter school" itself. There is no provision for an "applicant" to enroll students or to conduct a lottery. That authority is clearly given to the charter school which cannot and does not exist prior to the State Board's final approval of the application. Thus an applicant may not, consistent with the plain language of the statute, enroll students or conduct a lottery prior to the final approval of the application.
Moreover, it is difficult to envision how the enrollment of students prior to the approval of the charter could satisfy the clear legislative intent for charter schools to be open to all students in North Carolina. G.S. 115C-238.29F(g)(1) and (4). The legislature intended that charter schools not discriminate against children "on the basis of ethnicity, national origin, gender, or disability," and that it achieve diversity in terms of race and ethnicity. G.S. 115C-238.29F(5). Most importantly, the lottery requirement itself is intended to insure that all students have a fair and equal opportunity to be admitted to the school should more students apply to a charter school for enrollment than the school can accommodate under its charter. G.S. 115C-238.29F(6). Enrolling students and conducting a lottery prior to the approval of the charter application could well run afoul of the legislative intent that charter schools be open to every qualified student.
Finally, a contrary interpretation of the enrollment and lottery provisions of the Act would defy common sense. An applicant for a charter school cannot commit to parents and parents cannot commit to the applicant until the application for charter school status is finally approved. An applicant has no way of knowing what provisions of its application the State Board will or will not approve. In fact, the statutes require at a minimum that certain things be included in the charter school application to be reviewed in the approval process. Among other requirements, the applicant must include in the application "admission policies and procedures" and "the number of students to be served." G.S. 115C-238.29B. An applicant seeking to establish a charter school has no way to determine beforehand whether the State Board will approve its enrollment request or its admissions policies. Thus, it is logically impossible to have a meaningful "enrollment" period that precedes the granting of final approval as a charter school.
In summary, it is our opinion that the legislature intended for a charter school to begin and end its enrollment period, and to conduct a lottery if necessary, only after the State Board of Education has finally approved the issuing of the charter. Insofar as the charter school does not exist prior to that time, it is not legal, nor is it possible, for an applicant that has not received final chartering approval to "enroll" students in a charter school. We hope this adequately addresses your inquiry.
signed by:
Grayson Kelley
Senior Deputy Attorney General
Thomas J. Ziko
Special Deputy Attorney General