Could a separate Thornwell charter school use a private school’s facilities without triggering the 2006 conversion delay?

Plain-English summary

In 2006, the South Carolina Attorney General said the proposed Thornwell Charter School could use facilities and other resources of Thornwell Home for Children without triggering the law's delay for a private school converting to a charter school. The opinion depended on the charter school being an independent nonprofit corporation rather than a transformation of the existing private school.

The request said the charter school would lease facilities from Thornwell Home, require existing students to apply, and require existing staff to apply for jobs without guarantees. On those facts, the office found no conversion of Thornwell Home's school. Its answer did not decide a different arrangement in which the private school itself changed into a charter school.

Currency note

This opinion was issued in 2006. 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: Did leasing the private school's building itself count as conversion?
A: The Attorney General said it did not on the described facts because the applicant was a separate nonprofit school.

Q: Would existing Thornwell students transfer automatically?
A: The request stated that they would have to apply to the new charter school; the opinion relied on that separation.

Q: Could the new school employ existing staff automatically?
A: The request said staff would have to apply and had no employment guarantee, another fact the office considered.

Background and statutory framework

The new law imposed a delay on a private school that sought to convert into a charter school. The opinion read “convert” as transforming the existing school, then applied that meaning to the separate nonprofit, student application, staff hiring, and facility lease facts.

Citations and references

The linked opinion quotes South Carolina's 2006 charter conversion and nonprofit applicant provisions.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-1-2006-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06jun1jeff.pdf

Original opinion text

)

HENRY McMASTER
AITORNEY GENERAL

June 1, 2006

I

The Honorable Jeffrey D. Duncan
Member, House of Representatives
327-B Blatt Building
Columbia, South Carolina 29211
Dear Representative Duncan:
In a letter to this office you requested an opinion regarding a charter school's use of facilities and other resources that presently belong to a private school. You stated that a nonprofit corporation, Thornwell Charter School, is applying to open a charter school. The charter, if approved, would allow the school to open in August, 2007. Thornwell Charter School plans to utilize the resources, including facilities, that now belong to the Thornwell Home for Children. Referencing such, you have cited recently-enacted legislation, R 283, which states in a provision to be codified as Section 59-40-210 that:

[a] school established as a private school, on the effective date of this section, which desires to convert to a charter school shall dissolve and must not be allowed to open as a charter school for a period of twelve months. Pursuant to another provision in R. 283 to be codified as Section 59-40-60(D), (e)xcept as provided in subsection (F), an applicant who wishes to form a charter school shall: (1) organize the charter school as a nonprofit corporation pursuant to the laws of this State.... For purposes of this legislation, the term "applicant" is defined by Section 59-40-40(3) as
...the person who or nonprofit corporate entity that desires to form a charter school and files the necessary application with the South Carolina Public Charter School District Board of Trustees or the local school board of trustees in which the charter school is to be located. The applicant must also be the person who applies to the Secretary of State to organize the charter school as a nonprofit corporation.

~~~ ~ -

The Honorable Jeffrey D. Duncan
Page2
June 1, 2006

Also, pursuant to a provision to be codified as Section 59-40-40(1 ), a "charter school" is defined as
... a public, nonreligious, nonhome-based, nonprofit corporation forming a school that
operates within a public school district or the South Carolina Public Charter School
District, but is accountable to the school board oftrustees of that district which grants
its charter.
Therefore, reference is made to the formation of a nonprofit corporation in order to form a charter
school. 1 Also a current regulation dealing with charter schools, S.C. Reg. 43-601(1I)(G), states that
"(t)he charter school must be organized as a South Carolina non-profit corporation and the
application must include a copy ofthe non-profit corporation's articles ofincorporation and bylaws."
R. 283 became effective May 3, 2006 upon approval of the Governor. You have questioned
whether Section 59-40-210 would prohibit the Thornwell Charter School from using resources and
facilities that were used by the Thornwell Home for Children school ifthe Home closes its school
in May, 2007. It is my information that the Thornwell Home for Children is considered to be a
private school.
I have been informed that the Thornwell Charter School is a nonprofit corporation pursuant
to IRC § 501(c)(3) that is totally separate from the Thornwell Home for Children and its school. I
have also been advised as follows:
The application of the Thornwell Charter School has been carefully crafted as an
independent, nonprofit corporation unrelated to the current Thornwell Home for
Children. All students ofthe Thornwell Home for Children, including the residential
students (orphans), will need to apply to Thornwell Charter School. No preferences
in enrollment will be provided other than the specified preferences allowed in the SC
Charter School statutes.
The application, furthermore, is specifically at "arms length" in its relationship with
"Thornwell" as a private school, particularly in reference to the Planning (Start-Up)

1

As to a public school becoming a charter school, a provision to be codified as Section 59-40100(A) states that
[a]n existing public school may be converted into a charter school if two-thirds of the
faculty and instructional staff employed at the school and two-thirds of all voting
parents or legal guardians of students enrolled in the school agree to the filing of an
application with the local school board of trustees for the conversion and formation
of that school into a charter school.

r ,.

,j

The Honorable Jeffrey D. Duncan
Page 3
June 1, 2006

Committee members who are listed as trustees of the Thornwell Charter School
Corporation. Corporate bylaws are also provided and concur with the charter school
as a separate corporation from the private school. The Thornwell Charter School will
lease facilities from the Thornwell Home for Children as documented in the
application.
I was also advised that all staff members of the present Thornwell Home for Children school will
have to apply for positions with the Thornwell Charter School and there are no guarantees of
employment with the Charter School.

I

When interpreting the meaning of a statute, certain basic principles must be observed. The
cardinal rule of statutory interpretation is to ascertain and give effect to legislative intent. State v.
Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). Typically, legislative intent is determined by applying
the words used by the General Assembly in their usual and ordinary significance. Martin v.
Nationwide Mutual Insurance Company, 256 S.C. 577, 183 S.E.2d 451 (1971). Resort to subtle or
forced construction for the purpose oflimiting or expanding the operation of a statute should not be
undertaken. Walton v. Walton, 282 S.C. 165, 318 S.E.2d 14 (1984). Courts must apply the clear
and unambiguous terms of a statute according to their literal meaning and statutes should be given
a reasonable and practical construction which is consistent with the policy and purpose expressed
therein. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991); Jones v. South Carolina State
Highway Department, 247 S.C. 132, 146 S.E.2d 166 (1966).

r-1
i

I

L

As referenced, Section 59-40-210 states that "[a] school established as a private
school...which desires to convert to a charter school shall dissolve and must not be allowed to open
as a charter school for a period of twelve months." The term "convert" is defined as "to change into
another form, substance, state, or product" or to ''transform". American Heritage Dictionary
(Houghton Mifflin 2nd College Edition, 1985) at 320. As stated in the opinion of the Texas Attorney
General dated September 29, 1988 the term "convert" means " ... to change or tum from one state to
another... to change or tum from one use, purpose, or function to another."
Upon review of the factual situation regarding the proposed establishment of the Thornwell
Charter School, in the opinion of this office, there does not appear any "desires" by the present
school associated with the Thornwell Home for Children "to convert" that school to the Thornwell
Charter School as that term is defined above. Inasmuch as it is indicated that the Thornwell Charter
School is established as a nonprofit corporation totally separate from the Thornwell Home for
Children and its school, there can be no "conversion" of the Thornwell Home school to the
Thornwell Charter School. Therefore, based upon my understanding and the common and ordinary
definition of the term "convert'', there is no "transformation" of the Thornwell Home school to the
Thornwell Charter School or "opening" by the Thornwell Home school as the Thornwell Charter
School . Instead, it appears that there is the establishment of a separate school, the Thornwell
Charter School, a separate, nonprofit corporation, which simply plans to utilize the facilities and

The Honorable Jeffiey D. Duncan
Page4
June 1, 2006

resources of the Thornwell Home for Children school. As a result, in the opinion of this office, there
is no conflict with Section 59-40-210 in such planned opening of the charter school.
If there is anything further, please do not hesitate to contact me.

With kind regards, I am,

a?~#~~

I

Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General

I