dissenting.
I respectfully dissent from the majority opinion. There are three basic grounds for my dissent which I shall discuss separately.
I.
Citing N.C.G.S. § 115C-98(b), the majority first holds that the State Board of Education did not have authority to promulgate a temporary rule governing the subject contract with Whittle because the contract involves supplementary instructional materials, an area *472whose oversight the General Assembly had exclusively delegated to local school boards. I find this to be an erroneous statement of law.
As the majority states, Article IX, section 5 of the Constitution of North Carolina mandates that “The State Board of Education shall supervise and administer the free public school system . . . and shall make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly.” The majority then argues that the legislation in N.C.G.S. § 115C-98(b) grants to the local school boards the exclusive authority over supplemental instructional materials needed for the respective schools and therefore the State Board has no authority to promulgate a rule with respect to supplemental instructional materials. N.C.G.S. § 115C-98 reads in pertinent part:
(b) Local boards of education shall adopt written policies concerning the procedures to be followed in their local school administrative units for the selection and procurement of supplementary textbooks, library books, periodicals, and other instructional materials needed for instructional purposes in the public schools of their units.
This subsection does not grant the local boards of education exclusive authority to purchase for their schools all supplementary instructional materials. The statute simply requires the local boards to adopt written policies concerning the procedures to be followed for the selection and procurement of supplementary instructional materials. It in no way grants to the local boards the sole authority with respect to such materials. In truth, the amendment to this statute adopted in 1990 was for the purpose of granting the local boards sole and exclusive authority to procure supplementary instructional materials and does so. If the local boards had this exclusive authority prior to the 1990 amendment, the amendment would indeed have been unnecessary and useless. Even a casual reading of subsection 98(b) as it existed at the time this contract was entered into discloses that this statute simply required that local boards adopt written policies concerning the procedures to be followed in the selection and procurement of such materials; it in no wise granted to the local boards the exclusive and sole authority with respect to such materials. To reach the conclusion desired by the majority it is necessary to interpret the statute contrary to the plain meaning of the words used by the General *473Assembly. I find the majority opinion to be in error in adopting this argument.
II.
Assuming for the purpose of argument that N.C.G.S. § 115C-98(b), as it existed at the time of the execution of the Whittle contract, did grant the local boards sole and exclusive authority over supplemental instructional materials, I do not find that the rule promulgated by the State Board of Education in any way interfered with the exercise of that authority by the Thomasville City Board of Education. The temporary rule adopted by the State Board of Education on 1 February 1990 prohibited any local school board from entering into a contract which
(a) Limits or impairs its authority and responsibility, or the authority and responsibility of administrators and teachers, to determine the materials to be presented to students during the school day; or
(b) Limits or impairs its authority and responsibility or the authority and responsibility of administrators and teachers, to determine the times during the school day when materials will be presented to students.
2. Local boards of education are obligated to assure that students, as a consequence of the compulsory attendance laws, are not made a captive audience for required viewing, listening to, or reading commercial advertising. Therefore, no local board of education may enter into any contract or agreement with any person, corporation, association or organization, pursuant to which students are regularly required to observe, listen to, or read commercial advertising.
N.C. Admin. Code tit. 16, r. 6D .0105 (February 1990). Under paragraph (a) of the temporary rule, the State Board of Education prohibited the Thomasville School Board from entering into a contract which impaired its authority and responsibility to determine what materials would be presented to the students during the school day. In other words, this rule prevented the local school board, local school administrators, and teachers from delegating by contract to Whittle the determination of what materials would be presented to the students during the school day. This part *474of the rule does not impair the authority of the local school board to procure supplementary instructional materials, but simply prevents the local school board from failing to exercise its duties and responsibilities in determining what materials should be used to educate the students during the school day.
By executing the Whittle contract, the local board delegated to Whittle the determination of what materials would be presented to the students during the twelve minutes when Channel One was to be exhibited to the students. Although a representative of the school could preview the Channel One program each day to determine if it was appropriate to be shown to students, the school was required under the contract to exhibit the program to students at least ninety-five percent of the number of days that school was in session. In effect, the school had no meaningful control over what materials would be used under the Whittle contract. This was in violation of the rule adopted by the State Board of Education and is a sufficient ground to invalidate the Whittle contract. Yet, paragraph (a) in no way infringes upon or impairs the alleged exclusive authority that the local school boards had at the time of the Whittle contract to procure supplementary instructional materials.
Likewise, in paragraph (b) above the State Board of Education by its rule proscribed the local school board from failing to carry out its authority and responsibility to determine the times during the school day when materials would be presented to the students. Again, it is the duty of the local school board, administrators, and teachers to determine when during the school day certain educational materials should be presented to the students. Under the Whittle contract, the local board of education and Whittle determined the times during the school day that Channel One would be presented to the students. By entering into this contract the local board failed to carry out its duty under the rules issued by the State Board.
In discussing this issue, the majority apparently assumes that N.C.G.S. § 115C-97 authorized the State Board of Education to “discontinue handling . . . supplementary instructional materials.” However, an examination of the statute reveals that it authorizes the State Board of Education to discontinue the adoption of supplementary textbooks and discontinue the distribution of supplementary textbooks as well as the purchase and resale of library books. *475Nowhere in the statute is the State Board of Education authorized to “discontinue handling ... supplementary instructional materials.”
Under paragraph 2 of the temporary rule, the local boards could not compel students to view commercial advertising; this part of the rule was based upon the compulsory attendance laws. It is plainly apparent that paragraph 2 of the rule does not in any way affect the authority of the local board to procure supplementary instructional materials, as it only prohibits the local board from requiring students to view commercial advertising. The authority granted the local boards under subsection 98(b) is not impaired.
For these reasons, assuming local boards were granted exclusive authority to procure supplementary instructional materials prior to the amendment of N.C.G.S. § 115C-98(b), the rule adopted by the State Board of Education in no way conflicted with or impaired such authority of the local board. The statute and the temporary rule are not mutually exclusive. Thus, by executing the Whittle contract the Thomasville School Board violated the temporary rule of the State Board of Education.
III.
Finally, N.C.G.S. § 115C-98(b), the statute in effect at the time of the Whittle contract, referred to supplementary instructional materials needed for instructional purposes in the public schools. In order for the local board to procure materials pursuant to this statute the materials must be supplementary, they must be instructional, and they must be needed for instructional purposes. The materials in question were supplementary. However, there is a serious issue as to whether Channel One is instructional. The evidence discloses that the students are not required to use Channel One in any way. They are not required to view it, and during the time when it is being exhibited every student in the school could absent himself from the showing of Channel One. How can materials be instructional if the students are not required to use them? Further, there is no evidence that any teacher or other person explains Channel One or uses it in any way while it is being exhibited or thereafter. No teacher expounds upon Channel One to any students, whether assembled to watch Channel One or in any other way. In short, Channel One is not used as instructional material. Also, there is no evidence that students are tested in any way upon the matters broadcast over Channel One. No teacher ques*476tions any student concerning his viewing of Channel One, and no student is required to prepare any essay or other written material concerning Channel One. The students are not in any way required to demonstrate any knowledge of the materials contained in Channel One that they might acquire en passant. It is apparent that whatever is broadcast over Channel One is not “instructional” material, but is more in the nature of entertainment which students might enjoy during recess.
The record also does not contain any evidence that these materials are needed for instructional purposes as required by the statute. Having viewed the Channel One programs submitted to this Court as exhibits, I find nothing in those materials which is needed for instructional purposes for the students. The materials are admittedly edited and designed for exhibition to persons of school age. Such preparation of materials creates the risk that the program may be slanted to favor the best interests of Whittle and its advertisers.1 Also, one-sixth of the total program is devoted to commercial advertising of such things as Snickers candy bars, Coca Cola, and other goods which would appeal to school-age children. I doubt that it can be said that the advertisements contained in Channel One broadcasts are needed for instructional purposes as recognized by the statute, or portray products which are beneficial to the students.
A recent study by the Southeastern Educational Improvement Laboratory in Research Triangle Park2 surveyed 3,000 high school students and 140 teachers in North Carolina and Mississippi concerning Channel One.3 This survey reviewed twenty-six schools in North Carolina. The students were tested twice, in October and December 1990, on current events. This study found that such programs had no significant effect on what students retained unless teachers reinforced the broadcasts with additional lessons. Further, *477the students responded that they thought that the products advertised during the broadcast were good for them because they would not be shown in the school if this were not true. This study is a challenging indictment of the Channel One program and lends support to the conclusion that these materials are not instructional and are not needed for instructional purposes within the meaning of the controlling statute.
For these reasons I respectfully dissent from the majority’s opinion. Channel One does not improve the education of North Carolina’s school children. The contract in this case is in actuality a means by which schools acquire the use of television equipment by allowing Channel One to broadcast commercial advertising to the school students. Channel One is neither instructional nor needed for instructional purposes. To the contrary, it endorses and exacerbates the prevalent habit of watching TV which inhibits the education of our school children. As demonstrated, by contracting with Whittle Thomasville has failed to carry out its duties concerning the materials which may be used in the school program, when they may be used, as well as by procuring materials which are neither instructional nor needed within the meaning of the controlling statute. The board did not have authority to so contract with Whittle. My vote is to reverse.
Chief Justice EXUM joins in this dissenting opinion.. All school instructional materials should be for the best interests of the students, not commercial ventures.
. A summary of this study appeared in the Raleigh News and Observer newspaper on 21 March 1991.
. CNN Newsroom has a somewhat similar program; however, it does not use commercials nor does it require schools to show at least ninety percent of its broadcasts as required by Channel One in order to keep the video equipment which schools receive on loan as consideration for exhibiting the commercial advertisements.