RighttoEducationinNorthCarolina
There is no federal constitutional right to an education. However, the state of North Carolina
gives its children a right to an education through both the state constitution and state laws.
The North Carolina Constitution addresses a right to education in two places.
Article I, Section 15 says “The people have a right to the privilege of education, and it is
the duty of the State to guard and maintain that right.”
Article IX: Education has ten Sections
o Section 1 says “… the means of education shall be forever encouraged”
o Section 2 addresses the duty of the state and local government to provide a
uniform system of free public schools “…wherein equal opportunities shall be
provided for all students.”
o Section 3 addresses school attendance
o Sections 5, 6 and 7 reference “free public schools.”
There are also state laws that make education a right in North Carolina. One of them is N.C.G.S.
115C-1, which says:
A general and uniform system of free public schools shall be provided
throughout the State, wherein equal opportunities shall be provided for
all students, in accordance with the provisions of Article IX of the
Constitution of North Carolina. Tuition shall be free of charge to all
children of the State, and to every person of the State less than 21 years
old, who has not completed a standard high school course of study….
In 1997, the North Carolina Supreme Court determined that children in NC are entitled to a
“sound basic education,” which means there is a qualitative component to the NC system of
public schools. The case is Leandro v. State, 346 N.C. 336 (1997).
What is a “sound basic education?”
o Sufficient ability to read, write, speak English and sufficient knowledge of
fundamental math and physical science to enable students to function in a
complex and rapidly changing society
o Sufficient fundamental knowledge of geography, history, basic economic and
political systems to enable students to make informed choices about issues that
affect the student (personally, or in the student’s community, state, and nation)
o Sufficient academic and vocational skills to enable the student to successfully
engage in post-secondary education or vocational training and to compete with
others in further formal education or gainful employment.
WhoMustAttend(SeeN.C.G.S.115C‐378)
Compulsory Attendance Age
Children between the ages of 7 and 16 years old; however, if a child is under 7 years old
and is enrolled in Kindergarten, first or second grade, the compulsory attendance law
applies to that child. Under NC law, children may enroll in school at 5 years old (G.S. §
115C-364)
Unexcused Absences Thresholds
A school principal, superintendent, or designee may excuse a child’s temporary absence
from school because of a child’s “sickness or other unavoidable cause.” These are often
referred to as an “excused absence.” “Other unavoidable cause” for an excused absence
is defined in the NC Administrative Code as:
Health officer/State Board of Health orders student isolated
Death of immediate family member
Medical or dental appointment for student
Student is party to or subpoenaed to testify in a court or administrative
proceeding
Religious observance in compliance with local school board policy
Prior approval to take advantage of valid educational opportunity, which
may include travel
Other reasons established by local school board
See, 16 NCAC 6E.0102
Absences for other reasons are “unexcused.”
NC law defines excessive absences as more than three unexcused absences in a school
year
More than six unexcused absences in a school year may be a violation of compulsory
attendance laws, resulting in notice to the parent, guardian or custodian of the possible
violation and initiates the involvement of a school’s attendance counselor.
After 10 unexcused absences in a school year, the principal (or designee) shall discuss the
absences with the student and the parent, guardian, custodian. If the principal believes
the parent, guardian, or custodian made a good faith effort to have the child attend school,
the principal can file a complaint for an undisciplined juvenile with a juvenile court
counselor. If the principal does not believe the parent, guardian, or custodian acted in
good faith, the principal may notify the district attorney or county DSS. If the principal
makes a report to DSS, the director must determine if it warrants an assessment under
G.S. 7B-302.
o NEGLECT CASES:
Despite being well fed, clothed and cared for, a 13 and 10 year old were
neglected due lack of academic instruction. It is fundamental that a child
who receives proper care and supervision in modern times is provided a
basic education. A child does not receive ‘proper care’ and lives in an
‘environment injurious to his welfare’ when he is deliberately refused this
education, and he is ‘neglected.’ Matter of McMillan, 30 N.C. App. 235,
238, 226 S.E.2d 693, 695 (1976)
o Parent's insistence on attempting to teach a child with an intellectual disability
(formerly referred to as mental retardation) constitutes neglect, if it denies that
child the right to attend special education classes critical to the child's
development and welfare. Matter of Devone, 86 N.C. App. 57, 60, 356 S.E.2d
389, 391 (1987)
DeterminingWhichSchoolDistrict(SeeN.C.G.S.115C‐366)
General Rule
A student attends the school district where he or she is domiciled; however, domicile is
not defined in the NC education laws, unlike the NC social services law.
The NC Court of Appeals determined a domicile is someone’s permanent, established
home, which is distinguishable from a temporary, although actual, place of residence
(actual place of abode). Unemancipated minors may not establish a domicile different
from their parents or legal guardian, and they cannot on their own select, acquire, or
change their domicile. See, Graham v. Mock, 143 N.C. App. 315, 318 (2001).
Some Exceptions Related to Children at Risk of or Adjudicated A/N/D
1. A student may attend school where student resides if the student is living with an adult
who is a domiciliary of that school unit because the student’s parent or legal guardian:
Is incarcerated, seriously ill, or deceased
Abandoned the student (failed to provide substantial financial support and
guidance)
Was adjudicated to have abused or neglected the student
Is unable to adequately care for and supervise the student due to the
parent’s or legal guardian’s physical or mental condition, or
Relinquished physical custody and control of the student in response to a
DSS or Division of Mental Health recommendation
Lost their home due to natural disaster (this includes uninhabitability)
Is on active military duty deployment (more than 30 days)
And, the student is not under suspension or expulsion
And, the caregiver adult and parent/legal guardian have signed separate affidavits
Confirming the criteria listed above
Attesting residency of child is not primarily to attend a particular school
Attesting that the caregiver adult has been given and accepts responsibility
for the educational decisions for the child
o If the parent or legal guardian does not provide the affidavit, the caregiver adult
shall attest to that fact
2. A child who lives in and is cared for and supported by an institution that is established
and operated for the purpose of rearing and caring for children who do not live with their
parents is resident of the school district where the institution is located
3. A student placed in licensed facility is eligible to attend school district where licensed
facility is located
o A “licensed facility” includes foster home. See: G.S. §115C-366(h)(7); N.C.G.S.
131D-10.3
4. A student is domiciled in local school unit if he/she resides in:
o a preadoptive home through DSS or licensed child placing agency, or
o the home of legal custodian who resides in local school district
5. Local school boards can agree to allow a student domiciled in one school district to
attend in the non-domicile school district; effective for current school year; may be
renewed annually
EducationalStability
Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering
Connections)
Specifically addresses educational stability via the child’s case plan
A case plan must be developed jointly with the parent or guardian of a child coming into care
and written within 60 days of a child coming into care [45 C.F.R. § 1356.21(g)]
Definition of case plan [42 U.S.C.A. § 675(1)]
Written document that contains at least…
(C) the health and education records of the child, including the most recent information
available regarding:
(i) the names and addresses of the child's health and educational providers;
(ii) the child's grade level performance;
(iii) the child's school record;…
(vii) any other relevant health and education information concerning the child
determined to be appropriate by the State agency
…and
(G) A plan for ensuring the educational stability of the child while in foster care,
including--
(i) assurances that each placement of the child in foster care takes into account the
appropriateness of the current educational setting and the proximity to the school
in which the child is enrolled at the time of placement; and
(ii)(I) an assurance that the State agency has coordinated with appropriate local
educational agencies to ensure that the child remains in the school in which the
child is enrolled at the time of each placement; or
(II) if remaining in such school is not in the best interests of the child, assurances
by the State agency and the local educational agencies to provide immediate and
appropriate enrollment in a new school, with all of the educational records of the
child provided to the school.
Costs: Foster Care Maintenance Payments
Include school supplies and reasonable travel for the child to remain in the school
he or she was enrolled in at the time of placement [42 U.S.C.A. § 675(4)(A)]
School Attendance [42 U.S.C.A. § 671(a)(30)]
Every child of compulsory school age receving IV-E funds (foster care, adoption
assistance or subsidized guardianship payments) must be a full-time elementary or
secondary student, unless the child has completed secondary school.
Records: Updating and Releasing [42 U.S.C.A. § 675(5)(D)]
The case review system includes a procedure for reviewing and updating the
education records for children in care and providing a copy to the foster parent or
foster care provider with whom the children are placed, at the time of placement.
If the child reaches the State’s age of majority (18 in N.C.) and ages out of the
A/N/D system as a result, he or she is entitled to receive, at no cost, a copy of
his/her education records at the time of leaving foster care.