Could a South Carolina district create two schools of choice or seek an earlier start date?

Plain-English summary

South Carolina's education superintendent asked whether a district could designate more than one “school of choice” under the 2015 statute and whether such a school could seek relief from the usual rule barring an opening date before the third Monday in August. The Attorney General concluded that the singular wording allowed one school of choice within a district. It also concluded that the school could seek an exemption from the opening-date rule, because that rule was not among the categories the Legislature excluded from exemption.

The AG emphasized that permission to seek an exemption was not an automatic waiver. A proposed exemption had to be identified at a public district-board meeting, approved by a two-thirds board vote, and then approved by the State Board of Education. The opinion distinguished a minimum student attendance rule, which the statute protected from exemption, from the school's calendar starting date.

Currency note

This opinion was issued in 2015. 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.

Common questions

Q: How many schools of choice could a district designate under the 2015 law?
A: The AG predicted one per district based on the statute's singular language.

Q: Could that school open before the usual August date?
A: It could seek an exemption; the opinion did not grant one automatically.

Q: What approvals were needed for the exemption?
A: The AG identified a public meeting, a two-thirds district-board vote, and State Board of Education approval.

Background and statutory framework

The opinion interpreted the school-of-choice statute enacted in 2012 and compared its exemption power with the separate school-calendar requirement. It relied on the Legislature's use of singular wording for the number of schools and on the specific list of requirements that a school could not avoid through this process.

Citations and references

• The AG said the statute permitted a board “to create one school of choice within its district.”
• It stressed that a proposed exemption had to be “passed by a two-thirds vote of the governing board of the district, and approved by the State Board of Education.”

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-9-2015/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/07/Spearman-M.-OS-9909-FINAL-Opinion-7-9-2015-00693562xD2C78.pdf

Original opinion text

Alan Wilson
Attorney General

July 9,2015
The Honorable Molly M. Spearman
State Superintendent of Education
South Carolina Department of Education
1429 Senate Street

Columbia, SC 29201
Dear Superintendent Spearman:

You have requested the opinion of this Office regarding the statutory interpretation of S.C. Code Ann. § 59-19-350 (Supp. 2014), which, as the caption of such section suggests, permits the creation of "[s]chools of choice exempt from state laws and regulations." You ask whether the language chosen by the Legislature in Section 59-19-350(A), permitting a district to create "a school of choice within the district," implies that only one school of choice can receive such designation within a certain district. You also question whether a school of choice is permitted to seek exemption status from the requirement that schools may not begin before the

third Monday in August, as specified in S.C. Code Ann. § 59-1-425 (2004), amended by Act No.

21, 2015 S.C. Acts

} Our analysis of your two questions follows.
Law / Analysis

Section 59-19-350 was enacted as part of Act No. 164 during the 2012 legislative session. See Act No. 164, 2012 S.C. Acts 1661, 1664, 1688-89. It reads as follows:

(A) A local school district board of trustees of this State desirous of creating an avenue for new, innovative, and more flexible ways of educating children within

their district, may create a school of choice within the district that is exempt from state

statutes which

govern

other

schools

in the district and regulations

promulgated by the State Board of Education. To achieve the status of exemption from specific statutes and regulations, the local board of trustees, at a public meeting, shall identify specific statutes and regulations which will be considered for exemption. The exemption may be granted by the governing board of the district only if there is a two-thirds affirmative vote of the board for each exemption and the proposed exemption is approved by the State Board of Education.

.

(B) In seeking exemptions, the local board of trustees may not exempt:

1 Act No. 21 of 2015 amended subsections (B) and (C) of S.C. Code Ann. § 59-1-425 (2004). S.C. Code Ann. § 59 1-425 and Act No. 21 of 2015 will hereinafter be referred to collectively as "Section 59-1-425." Rembert C. Dennis Building

• Post Office Box 11549

• Columbia, SC2921 1-1549

• Telephone 803-734-3970

• Facsimile 803-253-6283

The Honorable Molly M. Spearman

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July 9,2015

(1)

federal

and

state

laws

and

constitutional

provisions

prohibiting

discrimination on the basis of disability, race, creed, color, national origin, religion, ancestry, or need for special education services; (2) health, safety, civil rights, and disability rights requirements as are applied to other public schools operating in the district; (3) minimum student attendance requirements; (4) state assessment requirements; and

(5) certification requirements for teachers in the core academic areas as defined by the federal No Child Left Behind Act, Public Law 107-110;

however, up to twenty-five percent of the teaching staff of the school may be employed if the individual possesses a baccalaureate or graduate degree in the

subject he is hired to teach.
(C) Any school created pursuant to this section shall admit all children eligible to attend the school subject to space limitations and may not limit or deny admission or show preference

in admission decisions to

any individual or group of

individuals.
(D) A local school district that provides exemptions pursuant to subsection (A) shall provide the State Department of Education with documentation of the

approved exemptions and shall submit evaluation documentation to be reviewed by the State Board of Education after three years of the exemption to ensure that

the district continues to meet the needs of its students. Upon review, if the State Board of Education determines the continuation of the exemption does not meet

the needs of the students attending the district school of choice, the board may suspend exemptions granted by the local board of trustees with a two-thirds vote. Before suspending the exemptions, the State Board of Education shall notify the district and provide the district with any opportunity to defend the continuation of approved exemptions. S.C. Code Ann. § 59-19-350 (Supp. 2014).

As your questions are ones of statutory interpretation, several rules are relevant to our analysis. The cardinal rule of statutory construction is of course to ascertain and effectuate the intent of the legislature. Charleston County Sch. Dist. v. State Budget and Control Bd.. 313 S.C. 1, 5, 437 S.E.2d 6, 8 (1993) (citing Bankers Trust of South Carolina v. Bruce. 275 S.C. 35, 267 S.E.2d 424 (1980)). Pursuant to the plain meaning rule, a court cannot change the meaning of a clear and unambiguous statute. In re Vincent J.. 333 S.C. 233, 235, 509 S.E.2d 261, 262 (1998) (citing Paschal v. Election ComnTn. 317 S.C. 434, 454 S.E.2d 890 (1995)). Where the statute's language is plain and unambiguous, and conveys a clear and definite meaning, the rules of

statutory interpretation are not needed and the court has no right to impose another meaning. Id

The Honorable Molly M. Spearman
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July 9,2015

"What a legislature says in the text of a statute is considered the best evidence of the legislative

intent or will.

Therefore, the courts are bound to give effect to the expressed intent of the

legislature." Hodges v. Rainev. 341 S.C. 79, 533 S.E.2d 578 (2000) (quoting Norman J. Singer, Sutherland Statutory Construction § 46.03 at 94 (5th ed. 1992)) (internal quotations omitted). Courts will reject statutory interpretations that lead to absurd results clearly unintended by the legislature or that defeat the plain legislative intent. Peake v. South Carolina Dep't of Motor Vehicles. 375 S.C. 589, 599, 654 S.E.2d 284, 289 (Ct. App. 2007). I.

Should "a school of choice," as Used in Section 59-19-350(A), be Interpreted

as Having Singular or Plural Meaning?
Relating to your first question and in regards to singular and plural tense, it has been

summarized that "[a]s is always the case with statutory construction, courts prefer to rely on a word's plain, ordinary meaning where possible, and so give singular meaning to singular words

and plural meanings to plural words, absent a clear contrary intent." 2A Sutherland Statutory Construction § 47:34 Singular and plural numbers (7th ed. 2014). "The legislature is presumed to have fiilly understood the meaning of words used in a statute and, unless this meaning is vague

or indefinite, intended to use them in their ordinary and common meaning or in their welldefmed legal sense." Pee v. AVM. Inc.. 344 S.C. 162, 168, 543 S.E.2d 232, 235 (2001). Furthermore, "[i]t is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word will be

superfluous, void, nugatory, or insignificant." 82 C.J.S. Statutes § 433 (2015).

We believe the plain language of S.C. Code Ann. § 59-19-350 (Supp. 2014) is unambiguous and evidences the Legislature's intent of providing local school districts with requirements and procedures for creating a new, innovative, and flexible way of educating

children. This intent is expressed in the Act's title2 as well as in the body of the statute itself, both providing that: "[a] local school district board of trustees of this State desirous of creating an avenue for new, innovative, and more flexible ways of educating children within their district, may create a school of choice within the district that is exempt from state statutes which govern other schools in the district and regulations promulgated by the State Board of Education." S.C. Code Ann. § 59-19-350(A); Act No. 164, 2012 S.C. Acts 1661, 1664 (emphasis added). Looking only to the plain language of the S.C. Code Ann. § 59-19-350 (Supp. 2014), we believe the legislature's intent of providing "an avenue" for "new, innovative, and more flexible

ways of educating children" is effectuated by allowing a district to create "a school of choice." In other words, we believe it was the legislature's intent that singular meaning be given to "a school of choice" within the phrase "[a] local school district board of trustees . . . may create a school of choice. . . S.C. Code Ann. § 59-19-350 (Supp. 2014). Such interpretation does not produce an absurd result.

2 As we have previously noted,

. . the title or caption of an act may be properly considered to aid in the

construction of a statute and to show the intent of the Legislature." Op. S.C. Att'v Gen.. 2004 WL 245 1474 (Oct. 15, 2004) (citing Lindsay v. Southern Farm Bureau Cas. Ins. Co.. 258 S.C. 272, 188 S.E.2d374 (1972)).

The Honorable Molly M. Spearman
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This conclusion is further strengthened by the legislature's choice of the singular tense of the word "avenue," in providing districts with "an avenue for new, innovative, and more flexible ways of educating children .

Id.

Furthermore, in characterizing between "a school of

choice" and "other schools in the district" a clear distinction is made between the use of singular tense in the former and plural tense in the later, which we believe must be interpreted as intentional. Id. (emphasis added). An example of a district that has created more than one school of choice which you provided in your opinion request further indicates that the legislature did not intend for "a school of choice," as used in Section 59-19-350(A), to have plural meaning.

Specifically, you explain

that: "[a] county school district has created an all choice district in that all thirty (30) schools in the district are choice schools, pursuant to § 59-19-350." First we point out that in this instance,

by giving plural meaning to singular words, le.9 a school of choice, portions of S.C. Code Ann. § 59-19-350 (Supp. 2014) would lack meaning.

To explain, the legislature distinguished that a

"district may create a school ofchoice within the district that is exempt from state statutes which govern other schools in the district . ..." Id. (emphasis added). If a district chose to implement all schools of choice as described above, this provision would lack meaning being that no "other

schools in the district" governed by state statutes would exist. As we believe the statute's language conveys a clear and definite meaning, does not

produce an absurd result when interpreted, and gives meaning to all provisions of the statute, it is our opinion that a court would find S.C. Code Ann. § 59-19-350 (Supp. 2014) permits a local school district board of trustees to create one school of choice within its district for the purpose

of providing new, innovative, and more flexible ways of educating children. II.

Can a School of Choice Seek Exemption from § 59-1-425?

As is also included in the title of Act 164, it is clear the legislature intended to provide "the requirements and procedures to implement . . . schools of choice." Act No. 164, 2012 S.C. Acts 1661, 1664. Section 59-19-350 therefore provides the requirements and procedures to implement a school of choice and obtain the status of exemption from specific state statutes and regulations. Section 59-19-350(A) provides in part that:

[t]o achieve the status of exemption from specific statutes and regulations, the local board of trustees, at a public meeting, shall identify specific statutes and regulations which will be considered for exemption. The exemption may be granted by the governing board of the district only if there is a two-thirds affirmative vote of the board for each exemption and the proposed exemption is approved by the State Board of Education. S.C. Code Ann. § 59-19-350(A) (Supp. 2014). However, Section 59-19-350(B) prohibits certain types of laws and requirements from exemption, specifically stating that:
[i]n seeking exemptions, the local board of trustees may not exempt:

The Honorable Molly M. Spearman
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July 9,2015

(1) federal and state laws and constitutional provisions prohibiting

discrimination on the basis of disability, race, creed, color, national origin, religion, ancestry, or need for special education services; (2) health, safety, civil rights, and disability rights requirements as

are applied to other public schools operating in the district;

(3) minimum student attendance requirements;
(4) state assessment requirements; and
(5) certification requirements for teachers in the core academic areas as defined by the federal No Child Left Behind Act, Public Law 107-110; however, up to twenty-five percent of the teaching staff of the school may be employed if the individual possesses a

baccalaureate or graduate degree in the subject he is hired to teach. S.C. Code Ann. § 59-19-350(B) (Supp. 2014).

As to whether a school of choice can seek exemption status from Section 59-1-425, which includes the requirement that schools may not schedule the opening date for students

before the third Monday in August, we look to the well-established cannon of statutory construction titled "expressio unius est exclusio alterius" which means that the enumeration of particular things excludes the idea of something else not mentioned. Little v. Town of Conway. 171 S.C. 27, 171 S.E. 447, 448 (1933); see dso Hodses v. Rainev. 341 S.C. 79, 86-87, 533

S.E.2d 578, 582 (2000). Under this rule, "[t]he enumeration of exclusions from the operation of a statute indicates that the statute should apply to all cases not specifically excluded. Exceptions strengthen the force of the general law and enumeration weakens it as to things not expressed." Rainev. 341 S.C. at 87, 533 S.E.2d at 582.

With this rule in mind, the content of Section 59-1-425 relates to the beginning and length of the statutory school term; make-up days for times when a school was required to close for snow, extreme weather, or other disruptions; requirements for the length and content of instructional days; and a provision regarding waiver of the school opening date requirement. Thus, the contents of Section 59-1-425 do not appear to fall within the list of types of laws and requirements prohibited from exemption specified in § 59-19-350(8), i.e. anti-discrimination laws and constitutional provisions; health, safety, civil rights, and disability requirements applied

to other public schools operating in the district; minimum student attendance requirements3; or 3 We believe minimum student attendance requirements are clearly distinguishable from the required length and beginning date of the statutory school term. Compare S.C. Code Ann. § 59-l-425(A) (2004) (stating in part that "[t]he statutory school term is one hundred ninety days annually and shall consist of a minimum of one hundred eighty days of instruction covering at least nine calendar months. However, beginning with the 2007-2008 school year the opening date for students must not be before the third Monday in August, except for schools operating on a year-round modified school calendar") with 24A S.C. Code Ann. Regs. 43-274 (Supp. 2014) (providing in part that "[t]he district board of trustees, or its designee, shall approve or disapprove any student's absence in excess of ten days, whether lawful, unlawful, or a combination thereof, for students in grades K-12. For the purpose of awarding

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state assessment requirements.

Pursuant to the maxim "expressio unius est exclusio alterius,"

since the contents of Section 59-1-425 are not included in the list of exclusions enumerated in Section 59-19-350(B), it is our opinion that this implies that the General Assembly did not intend

to limit a school of choice from seeking exemption status from Section 59-1-425, including the prohibition from scheduling the opening date for students before the third Monday in August. Conclusion

In line with the legislature's intent in enacting Act No. 164 of 2012, it is our opinion that a court would interpret Section 59-19-350 of the South Carolina Code as permitting a local school district board of trustees to create one school of choice within its district.

It is also our

opinion that a court would find that the General Assembly did not intend to limit a school of choice from seeking exemption status from Section 59-1-425 of the South Carolina Code,

including the prohibition from scheduling the opening date for students before the third Monday in August.

Prior to achieving the status of exemption, we reiterate that a proposed exemption

must be introduced by the local board of trustees at a public meeting, passed by a two-thirds vote of the governing board of the district, and approved by the State Board of Education. Should you have any additional questions, please do not hesitate to contact our Office.

Very truly yours,

Anne Marie Crosswell

Assistant Attorney General
REVIEWED AND APPROVED BY:

D. Coo
Solicitor General

credit for the year, school districts must approve or disapprove absences in excess of ten days regardless as to whether those absences are lawful, unlawful, or a combination of the two").