North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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REPLY TO: Thomas J. Ziko Education Section Telephone: (919) 716-6920 FAX: (919) 716-6764

March 15, 1999

Mr. Brad Sneeden Deputy Superintendent North Carolina Department of Public Instruction 301 N. Wilmington Street Raleigh, NC 27601

Re: Advisory Opinion; Operation of Charter School for Fewer than 180 Days; G.S. § 115C-238.29F(d)(1).

Dear Mr. Sneeden:

On behalf of the State Superintendent and the Department of Public Instruction, you have requested an opinion from this office regarding the requirement in G.S. § 115C-238.29F(d)(1) that charter schools provide instruction for at least 180 days each year. More specifically, you have asked whether a charter school applicant that proposes to operate a five month residential school can meet that statutory requirement by extending its “school day” so that the school provides at least 1000 hours of instruction while students are in residence. In our opinion, a five month instructional term does not satisfy the statutory requirement for 180 days of instruction irrespective of the number of instructional hours offered during those months.

From conversations with you and representatives of the proposed charter school, we understand that the N.C. National Guard has heretofore operated the “Tarheel ChalleNGe” program with funding from the United States Department of Defense and with the cooperation of Sampson County Community College. Consistent with federal legislation, Tarheel ChalleNGe is a program designed to improve the life skills and employment potential of high school dropouts between the ages of 16 and 18. In order to secure the state matching funds required under the federal legislation, the National Guard now desires to convert the Tarheel ChalleNGe program into a charter school.

The proposed Tarheel ChalleNGe Charter School would serve two separate groups of students. Each group of students would attend the school for a term of 22 weeks. The school terms would be consecutive but distinct. The student populations would not overlap and no student would be in attendance for more than one 22 week term. Consequently, assuming a traditional five-day instructional week, no student would receive instruction for more than 110 days. Even assuming the instructional week included all seven days, the total instructional program would still be only 154 days. However, the school’s residential format provides the Brad Sneeden October 14, 1999 Page 2

opportunity for more daily teacher-student contact hours than a traditional public school. At present, the school has represented that it expects to provide more than 1000 hours of instruction during each five month term. The question, therefore, is whether a charter school can satisfy the statutory requirement of 180 days of instruction by offering at least 1000 hours of instruction.

The general requirements for the operation of a charter school, such as health and safety standards and minimum liability insurance coverages, are specified in G.S. § 115C-238.29F. The minimum requirements of charter school “instructional programs” are specified in G.S. § 115C-238.29F(d) which, among other things, states, “The school shall provide instruction each year for at least 180 days.” In our opinion, this 180 instructional day requirement reflects the requirement in Article IX, Sec. 2(1) of the North Carolina Constitution that the General Assembly “shall provide . . . for a general and uniform system of free public schools, which shall be maintained at least nine months in every year . . . . “1 That constitutional requirement is echoed in G.S. § 115C-1, which provides that “there shall be operated in every local school administrative unit a uniform school term of nine months. . . .” In G.S. § 115C-84.2, the General Assembly once again makes clear that “traditional public schools,” i.e., non-charter schools, must provide a minimum of 180 days and 1000 hours of instruction.

In short, there is nothing in the General Statutes to indicate that the General Assembly intended to permit a charter school, or any public school for that matter, to offer less than 180 days of instruction. The charter school’s proposal to satisfy its instructional obligation by extending its instructional day so that it can offer more than 1000 hours of instruction within a five month period is inadequate for several reasons. First, it is quite clear from the statutes above that the General Assembly intended “traditional public schools” to offer instruction for at least 1000 hours and 180 days. G.S. § 115C-84.2. These are separate requirements. There is no indication that the General Assembly has ever intended to permit public schools to satisfy their obligation to offer 180 days of instruction by offering 1000 hours of instruction. Second, the Charter School Act, G.S. § 115C-238.29F(d)(1), specifically obligates charter schools to offer 180 days of instruction -- there is no statutory option to substitute a specific number of instructional hours for those 180 days of schooling. Finally, the General Assembly has specifically prohibited the State Board of Education from granting any local school administrative unit’s request to waive the requirement to provide at least 180 days and 1000 hours of instruction in their schools. G.S. § 115C-105.26(b)(2). This is a strong indication of the legislative intent that all children in public schools have the opportunity for at least 180 days of instruction during the school year.

It is a basic tenet of statutory construction that where the language of a provision is clear and unambiguous, there is no room for statutory construction and the courts will give the

1 9 months times 20 instructional days per month equals 180 instructional days.

Brad Sneeden October 14, 1999 Page 3

language its plain meaning. State ex rel. Utilities Com. v. Edmisten, 291 N.C. 451, 232 S.E.2d 184 (1977). In interpreting a statute, the intent of the legislature prevails. State v. Hart, 287

N.C. 76, 213 S.E.2d 291 (1975). The plain language of G.S. 115C-238.29F(d)(1) obligates charter schools to provide at least 180 days of instruction. Charter schools are “public” schools and utilize public funds generated by taxpayers in their operation. G.S. § 115C-238.29E and § 115C-238.29H. They are free to children who attend and they are part of the “free public school system” required by the Constitution. As is evidenced by numerous statutory provisions, it is clearly the public policy of this State to require all public schools to operate and provide instruction to students for at least nine months. There is simply no indication that the legislature intended charter schools to be exempt from that obligation.

In conclusion, despite the greater flexibility given to charter schools in general, they must abide by the clear statutory obligations in the Charter Schools Act. One of those clear obligations is to provide at least 180 days of instruction. In order to meet its instructional obligations, a charter school must offer all students at least 180 days of instruction, not merely 1000 hours of instruction. In our opinion, a charter school cannot meet that statutory obligation by offering two separate terms of 22 months to separate student populations.

Sincerely,

Grayson G. Kelley Senior Deputy Attorney General

Thomas J. Ziko Special Deputy Attorney General

Laura E. Crumpler Assistant Attorney General