Did a qualifying student with exceptional needs need an education grant to play sports at the zoned public school?

Plain-English summary

In March 2022, the South Carolina Attorney General concluded that a student who met the two definitions in the 2021–22 budget proviso did not also need to receive an education grant to participate in sports at the public school for which the student was zoned. The proviso named the definitions of exceptional-needs child and qualifying student. The office found no textual basis for adding actual grant receipt as a third condition.

The question arose after the High School League denied a student's request. The AG interpreted the state budget proviso, but expressly did not decide the league's own bylaws, hardship criteria, or every aspect of an individual student's athletic eligibility.

What this means for you

Families and students covered by that proviso

The opinion said a qualifying student did not lose the proviso's sports opportunity merely because the student had not received a grant. Its conclusion required the student to meet both definitions named in the proviso and addressed the 2021–22 budget language.

School and athletic administrators

The AG separated the state's grant-receipt question from the High School League's own criteria. It rejected adding grant receipt to the proviso's listed requirements, while leaving other league eligibility determinations outside the opinion.

Common questions

Q: Was an actual Exceptional Needs Children grant required for the sports eligibility described? A: No. The AG said the 2021–22 proviso listed two definitional requirements and did not add receipt of a grant.

Q: Which school did the proviso address?
A: The public school for which the qualifying child was zoned to attend, according to the language quoted in the opinion.

Q: Did the AG overturn every High School League eligibility rule? A: No. It expressly left the league's bylaw and hardship criteria undecided.

Background and statutory framework

A senator asked whether the High School League had improperly required a grant after denying a student's request to play at a zoned public school. The AG applied the proviso's express conditions and the principle that a court should not imply another requirement when lawmakers stated the relevant conditions. Its answer was limited to the state-law meaning of that year's budget proviso.

Citations and references

• Proviso 1.85 of the 2021–22 state budget: sports-eligibility provision quoted and interpreted by the AG.
• Section 12-6-3790(A)(2) and Section 12-6-3790(A)(5): definitions expressly incorporated by the proviso.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-student-eligibility-for-sports-offered-at-the-public-school-for-which-the-student-is-zoned-to-attend-under-proviso-185-of-the-2021-22-state-budget/
• Original PDF: https://www.scag.gov/media/d1jdi5ev/02935005.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON

ATTORNEY GENERAL

March 25, 2022

The Honorable Ross Turner
Member

South Carolina Senate
District No. 8

P.O. Box 142

Columbia, SC 29202

Dear Senator Turner:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter states the following:

I am writing you to ask for an opinion on a matter that was recently brought to my attention concerning a student’s eligibility for sports participation as an exceptional needs child. The South Carolina High School League recently denied a student’s request to play sports at River Bluff High School. In denying the request in a letter to River Bluff High School’s principal (letter attached), the Commissioner of the High School League wrote that their denial was based on their interpretation of the legislative intent behind S.C. Code Section 12-6-3790 and Proviso 1.85 of the 2021-22 State Budget. He further opines that if Proviso 1.85 was read to permit eligibility the proviso would not be tied to state funding and there would be a constitutional violation. Since his denial is based on what appears to be a misreading of both the statute and the associated Proviso as well as a improper reliance on legislative intent, I am requesting an opinion from your office.

As you may be aware, the 2021-22 Appropriations Act contains Proviso 1.85 which provides that “A student who meets the definition of Exceptional needs child in Section 12-6-3790(A)(2) and the definition of Qualifying Student in Section 12-6-3790(A)(5) of the 1976 Code shall be eligible to participate in any sport offered at the public school for which the child is zoned to attend.” The Proviso seems clear and unambiguous limiting eligibility to students who meet two statutory definitions referenced in the Proviso.

The first statutory reference in the Proviso is Section 12-6-3790(A)(2) which provides:

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The Honorable Ross Turner

Page 2

March 25, 2022

(2) “Exceptional needs child” means a child:

(a) who has been evaluated in accordance with this state's evaluation criteria, as set forth in S.C. Code Ann. Regs. 43-243.1, and determined eligible as a child with a disability who needs special education and related services, in accordance with the requirements of Section 300.8 of the federal Individuals with Disabilities Education Act; or

(b) who has been diagnosed within the last three years by a licensed speech-language pathologist, psychiatrist, or medical, mental health, psychoeducational, or other comparable licensed health care provider as having a neurodevelopmental disorder, a substantial sensory or physical impairment such as deaf, blind, or orthopedic disability, or some other disability or acute or chronic condition that significantly impedes the student's ability to learn and succeed in school without specialized instructional and associated supports and services tailored to the child's unique needs.”

Section 12-6-3790(A)(5) is the other eligibility requirement referenced in the Proviso which provides:

(5) “Qualifying student” means a student who is an exceptional needs child, a South Carolina resident, and who is eligible to be enrolled in a South Carolina secondary or elementary public school at the kindergarten or later year level for the applicable school year.

The High School League, in denying the child’s request to play sports at River Bluff High School, seems to have added another requirement in addition to the two statutory provisions listed in the Proviso. The Commissioner writes that “[i]t is the League’s position that S.C. Code Section 12-6-3790 . . . and Proviso 1.85 . . . would only mandate athletic eligibility at a public school when an exceptional needs child receives tuition assistance to attend an eligible independent school.” As you can see from the statutory provisions referenced in the Proviso and provided above that neither code section mentions the award of tuition assistance, but rather only the requirements to be eligible for tuition assistance.

The question now, I believe, is whether the Commissioner's ruling that the Proviso requires tuition assistance in order to be eligible and whether his assertion that such an extra requirement for eligibility was the legislature’s intent despite the clear and unambiguous language contained in Proviso 1.85. It seems that if the legislature had wished to make the grant a requirement for athletic eligibility it could have done so simply by referencing Section 12-6-3790(C) in addition to those code sections in the Proviso. By not doing so when it could have, it seems the legislature did not wish to make receipt of tuition assistance a requirement for athletic eligibility especially when not all qualifying students might get tuition assistance since the amount available for assistance is capped and are awarded on a first come first served basis.

The Honorable Ross Turner
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March 25, 2022

Based on the information above, I am asking whether a student who has been evaluated as an exceptional needs child and who is qualifying student is eligible to participate in any sport offered at the public school the child is zoned to attend as provided in Proviso 1.85 despite the child not receiving tuition assistance.

Law/Analysis

It is this Office’s opinion that Proviso 1.85 of the 2021-22 State Budget does not require a student, who is eligible for an Educational Credit for Exceptional Needs Children, to actually receive a grant thereunder to participate in sports offered at the public school for which the child is zoned to attend. To evaluate whether a student must be awarded a grant from the Educational Credit for Exceptional Needs Children's Fund before the student is eligible for the benefits of Proviso 1.85, this opinion will interpret the proviso according to the rules of statutory construction. Statutory construction primarily requires a determination of the General Assembly's intent. Mitchell v. City of Greenville, 411 S.C. 632, 634, 770 S.E.2d 391, 392 (2015) (“The cardinal rule of statutory interpretation is to ascertain and effectuate the legislative intent whenever possible.”). Where a statute's language is plain and unambiguous, “the text of a statute is considered the best evidence of the legislative intent or will.” Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). Further, “[a] statute as a whole must receive a practical, reasonable and fair interpretation consonant with the purpose, design, and policy of lawmakers.” State v. Henkel, 413 S.C. 9, 14, 774 S.E.2d 458, 461 (2015), reh'g denied (Aug. 5, 2015).

As describe above, Proviso 1.85 expressly lists two conditions: (1) meet the definition of “Exceptional needs child” in Section 12-6-3790(A)(2), and (2) meet the definition of “Qualifying Student” in Section 12-6-3790(A)(5). The plain language of the proviso states that when a student satisfies these conditions, the student is then “eligible to participate in any sport offered at the public school for which the child is zoned to attend.” It seems then that a plain reading of Proviso 1.85 demonstrates the Legislature intended to avoid making students who are determined to need “special education and related services” to choose between attending independent schools that meet those educational needs and their opportunity to participate in athletics at the public school for which they would otherwise attend.

This Office finds no support in the text or structure of Proviso 1.85 to additionally require a student actually receive a grant. Because the proviso lists express conditions, a court is unlikely to find the General Assembly intended to impliedly include others. See Hodges, 341 S.C. at 86, 533 S.E.2d at 582 (The rule of statutory construction “‘expressio unius est exclusio alterius' or ‘inclusio unius est exclusio alterius' ... holds that ‘to express or include one thing implies the exclusion of another or the alternative.’”), Interpreting the proviso as the S.C. High School League suggests is not reasonably consistent with the purpose of the legislation and would instead create an absurd result. Under this construction, students that receive grant assistance from the Educational Credit for Exceptional Needs Children's Fund could both attend an independent school with aid and participate in sports offered at the public schools they are zoned to attend, while students that are not grant recipients would be forced to choose between attending independent schools that can provide for their special educational needs without aid

The Honorable Ross Turner
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March 25, 2022

and being able to participate in sports offered at the public schools they are zoned to attend. It is this Office’s opinion that a court would not construe Proviso 1.85 to create such a punitive result for those children who otherwise qualify as an “exceptional needs child” and “qualifying student” but do not receive a grant.

Conclusion

As discussed more fully above, it is this Office’s opinion that Proviso 1.85 of the 2021-22 State Budget does not require a student, who is eligible for an Educational Credit for Exceptional Needs Children, to actually receive a grant thereunder to participate in sports offered at the public school for which the child is zoned to attend. Proviso 1.85 expressly lists two conditions: (1) meet the definition of “Exceptional needs child” in Section 12-6-3790(A)(2), and (2) meet the definition of “Qualifying Student” in Section 12-6-3790(A)(5). Because the proviso lists express conditions, a court is unlikely to find the General Assembly intended to impliedly include a further requirement; specifically here that a student also receive a grant from the Educational Credit for Exceptional Needs Children's Fund.

This opinion does not address the High School League’s interpretation of its own bylaws and criteria for hardship requests under the extraordinary circumstances, medical, and financial special conditions. This Office does not seek to replace the High School League’s role in determining student eligibility for student athletics. However, this Office is certainly authorized to advise the members to the General Assembly on issues of state law as we have here.

Sincerely, Vi

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Lal LMP Lr fo Cook

Solicitor General