Wake Cares, Inc. v. Wake County Board of Education

Justice MARTIN

dissenting.

This case arises from the decision of the Wake County Public School System (WCPSS) to change its year-round school program from voluntary to mandatory. Despite a tradition of using year-round schools as a voluntary supplemental program, and in the absence of specific legislative authorization, WCPSS mandatorily placed approximately 20,000 students at schools operating on year-round calendars.2 These students were not offered placements at schools operating on the traditional school schedule, as had previously been the expectation of students and families within WCPSS. The actions of WCPSS violate the North Carolina school calendar law. They are also inconsistent with long-standing education practice in this State. Because WCPSS exceeded its authority when it materially and substantially changed the school calendar for some of its students, I respectfully dissent.

As Judge Manning observed, mandatory placement on a year-round calendar “is a systemic, material change for the students and families” so affected. Since the advent of public education in North Carolina over 160 years ago, the overwhelming majority of our schools have operated on a traditional calendar. Although breaks from educational tradition may prove valuable and effective, the *175process used to implement such fundamental policy changes must necessarily comply with the law.

The legislature has not authorized any local school board to mandate year-round schooling for public school students. It is unreasonable to suggest that the legislature’s 2004 amendment to the school calendar statute, which was enacted to preserve summer vacation, was actually intended to grant local school boards the authority to impose on public school students a schedule that requires them to attend school throughout the summer months. A careful reading of the applicable statutes reveals that they prohibit a local school board from mandating that students attend a year-round calendar.

The trial court properly preserved our students’ legal right to. attend a traditional calendar school. This Court should require the local board to direct its policy arguments to the General Assembly. The consequences of the majority’s decision are starkly different from those of the trial court’s order. Instead of maintaining the status quo and allowing the General Assembly to consider and clearly resolve this important policy question, the majority’s holding opens the door for any local school board in North Carolina to impose mandatory year-round schools.

Despite the long history of public education in North Carolina, year-round schooling is a relatively recent innovation. The practice began in our State as an experimental program in which student and family participation was purely voluntary. WCPSS opened North Carolina’s first year-round school in 1989, and interested parents sought admission for their children via an application process. In 1991 the State Board of Education (State Board) issued a policy statement supporting local boards’ study and exploration of year-round “models.” See N.C. State Bd. of Educ., Policy Manual, Policy No. EEO-G-000 (titled “Policy supporting local efforts to implement year-round education models”) (Dec. 5, 1991), available at http://sbepolicy.dpi.state.nc.us. The local board implemented the State Board’s policy throughout the 1990s, opening a handful of voluntary year-round schools each year.

According to the local board’s own account, for most of their short history, year-round schools in WCPSS have operated only with the support of local communities and the consent of individual attendees. For example, in 1992 the local board discarded its original proposal for the first year-round middle school due to “negative community response,” whereas the first conversion of a traditional *176elementary school to a year-round calendar was spawned by “[a] high level of staff and parent support.” During the 1995-1996 school year, the local board approved a plan for “expanding the voluntary year-round calendar” in the upcoming years. In 1999 a citizens’ advisory committee recommended that WCPSS “provide more optional year-round schools, especially in areas where the year-round option does not currently exist.” In sum, WCPSS and children and families functioned under the premise that students necessarily retained the right to attend traditional calendar schools.

In 2003 the local board removed the traditional calendar option for a small number of students by mandatorily placing them at year-round schools that were otherwise populated by willing applicants. In 2006 the local board substantially expanded the new policy by developing a comprehensive plan to impose year-round schooling on a significant percentage of students. During the 2006-2007 school year, the board opened five new multi-track year-round schools populated almost entirely by mandatory placements. That year, nearly 7,000 students were involuntarily placed at year-round schools. Furthermore, the local board voted to convert nineteen additional elementary schools and three additional middle schools to a multitrack year-round schedule beginning in the 2007-2008 term. The board’s plan for the 2007-2008 term more than doubled both the number of schools designated as year-round and the number of students mandatorily slotted for year-round schools. Nearly 18,000 students who attended traditional calendar schools during the 2006-2007 school year faced involuntary placement at year-round schools in 2007-2008, bringing the total number of mandatory year-round placements to over 20,000. The local board stated that a mandatory year-round schedule for these students was necessary to address existing and anticipated overcrowding.

The year-round school schedule is fundamentally different from the traditional schedule. Specifically, the multi-track year-round schedule replaces the traditional nine and a half month instructional period followed by a two and a half month summer vacation with four rotating intervals of nine instructional weeks followed by three vacation or “track out” weeks.

Although families who elected to participate in year-round schooling presumably felt there were benefits to that schedule, the resistance of other families to a mandatory year-round program is not surprising. At least some children and families have benefitted from, and indeed have come to rely upon, summer vacation. The *177long summer break gives children the opportunity to learn about subjects school does not teach through methods school cannot use. During the summer students may pursue a passion for an instrument or sport, gain and hone skills like computer programming for future employment, spend time with family near and far, expand their perspectives by making friends from outside their neighborhoods while at camp, or simply learn self-direction as they plot their own course each day. The year-round schedule seriously hinders these opportunities, enjoyed by virtually every generation of North Carolina’s children, and upsets families’ reliance on the traditional summer vacation.

In this case, plaintiffs allege the following hardships arising from mandatory placement of public school students at year-round schools:

(1) Children within the same family unit are placed at both traditional and year-round calendar schools. Different vacation periods for children within the same family unit deprive siblings of bonding time and significantly reduce the periods available for family travel.

(2) Lack of a traditional summer vacation prevents extended trips to visit out-of-state relatives and potentially interferes with shared custody arrangements in which one divorced parent lives outside of North Carolina.

(3) Children enrolled in year-round schools cannot participate in some valuable summer programs that are scheduled to accommodate the much larger number of children who attend traditional calendar schools. Such activities include day camp; music, art, and dance programs; sports leagues; educational and university enrichment programs; and religious education and activities. For example, year-round students are precluded from participating in, among other things, the Duke University Talent Identification Program for academically gifted students and the North Carolina State University Summer Reading Skills Program (http://continuingeducation. ncsu.edu/reading/).(http://continuingeducation.ncsu.edu/reading/)

(4) Some parents, including many teachers, have chosen jobs with schedules matching the traditional school calendar, enabling them to stay at home with their children during the summer. When children of these parents are placed at year-round schools, the parents must choose between finding and paying for child care during the periodic three-week breaks, or quitting their jobs.

*178(5) Year-round schooling imposes financial hardships on many families. Particularly, year-round families often face increased difficulty and expense in securing child care arrangements because the frequent three-week track out periods preclude utilization of more traditional and less expensive child care options such as older students, summer nannies, or day care. For instance, the YMCA’s track out program, recommended to parents by WCPSS, costs $1,885 per year per child.

In sum, plaintiffs contend, that the periodic rotation in and out of school and the loss of summer vacation alter the personal development of students and interfere with many important facets of family life. Weighing the detrimental impact on individual families against the challenges facing WCPSS requires thorough examination and resolution of the mandatory year-round question by the appropriate policy-setting bodies for public education. The local board is not one of those bodies.

The General Assembly, State Board, and local school boards have different institutional roles with respect to education administration. Consideration of these roles indicates that absent legislative authorization, local boards may not fundamentally alter the customary public school calendar.

Under the North Carolina Constitution and Chapter 115C of our General Statutes, the General Assembly and State Board are responsible for setting major educational policy. Our State Constitution states that “ [t]he General Assembly shall provide ... for a general and uniform system of free public schools,” and “[t]he State Board of Education shall supervise and administer the free public school system . . . and shall make all needed rules and regulations in relation thereto.” N.C. Const, art. IX, §§ 2(1), 5. No such constitutional authority is vested in local boards of education.

Section 115C-12 of the General Statutes builds upon the constitutional provisions and specifically charges the State Board with establishing educational policy: “The general supervision and administration of the free public school system shall be vested in the State Board of Education. The State Board of Education shall establish policy for the system of free public schools, subject to laws enacted by the General Assembly.” N.C.G.S. § 115C-12 (2007). Local boards, on the other hand, are charged with “enforcing] the school law in their respective units.” N.C.G.S. § 115C-36 (2007).

*179Local boards are not well suited to consider implementation of mandatory year-round schooling without guidance from the General Assembly. There are statewide ramifications .to such a substantial policy shift. Although the local board asserts cost-savings from its use of year-round schools, the long-term implications — financial, educational, or otherwise — of imposing year-round schedules on children and families are simply not clear from the present record. The General Assembly is far better situated than any one local school board to balance the benefits of maintaining the traditional calendar for students, families, industries such as tourism, or other parties against any benefits of year-round schooling to facility use, academic achievement, or other interests.

Moreover, the majority’s proposed recourse for affected families, assignment appeals procedures and local school board elections, ignores the factual record. The trial court’s findings specifically refute any assertion that application by year-round students for reassignment to traditional calendar schools constitutes a practical solution. See N.C.G.S. § 115C-369 (2007) (permitting application to the local board for reassignment to a different school). Indeed, the trial court found that “the assignment appeals process under G.S. 115C-366, et seq. is futile and inadequate.” In this regard, the trial court observed that the traditional calendar seats available for reassignment “are materially fewer in number than [the] . . . seats mandatorily assigned to four (4) track year round schools under the [board’s] conversion plan.” Additionally, the board’s policy requires at least some of the families who are granted reassignment to provide their own transportation to the traditional calendar schools, which the trial court found “imposes an undue burden and expense on the parents.”

With respect to the political process: The vast majority of Wake County students are not affected by the compulsory year-round policy, and the students who are affected all reside in a particular area within the county. Together, these factors mean that year-round students and their families are unlikely to muster the political strength necessary to avoid selective imposition of mandatory year-round schooling. In sum, the inevitable difficulties associated with unilateral imposition of mandatory year-round placements at the local level emphasize the importance of the General Assembly’s statewide consideration of this issue.

Although the role local boards play in the operation of our public schools is important and multi-faceted, see, e.g., N.C.G.S. § 115C-47 *180(2007) (listing approximately fifty of the powers and duties vested in local boards by the legislature), this Court has previously stated that it is the General Assembly that “has the power to provide for a longer term for the public schools of the State.” Frazier v. Bd. of Comm’rs, 194 N.C. 49, 63, 138 S.E. 433, 440 (1927). We have also observed, “Whether the term shall exceed the minimum fixed by the Constitution must be determined from time to time by the General Assembly, in accordance with its judgment, and in response to the wishes of the people of the State.” Id. Only after our General Assembly decides that mandatory year-round calendars are appropriate in this State may a local school board impose such calendars within its district.

A careful and reasoned analysis of the calendar statute reveals that the General Assembly has not granted local boards the power to impose mandatory year-round schooling. See N.C.G.S. § 115C-84.2 (2007). First, the statute prohibits a local board from adopting a school calendar that violates the opening and closing dates set by section 115C-84.2(d). Second, as explained below, the statute precludes local boards from mandating that different children attend different school calendars. For these reasons, the local board lacked authority to place students at year-round schools on an involuntary basis.

The local board’s placement of students on a year-round calendar violates the calendar statute’s limitations on opening and closing dates. Section 115C-84.2(d) states that school shall not begin before August 25 nor end after June 10. § 115C-84.2(d). A year-round calendar, which includes instructional days outside the allowed period, does not comply with this provision. The majority holds that statutory exemptions of year-round schools from the opening and closing date requirements permit local boards to adopt mandatory year-round calendars. See id. (“Except for year-round schools, the opening date for students shall not be before August 25, and the closing date for students shall not be after June 10.”); see also § 115C-84.2(b)(2) (exempting year-round schools from the mandatory teacher vacation requirement).

The majority’s holding does not comport with our canons of statutory interpretation. In reading a statute, this Court routinely seeks the intent of the legislature. See Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 536, 135 S.E.2d 574, 577 (1964) (stating that, when the meaning of a statute is unclear, “[t]he spirit and intent of an act controls its interpretation”). Further, provisions *181“should be construed in a manner which tends to prevent them from being circumvented.” Meads v. N.C. Dep’t of Agric., 349 N.C. 656, 666, 509 S.E.2d 165, 172 (1998).

The legislature added the opening and closing date requirements and accompanying exception for year-round schools in a 2004 amendment. See Act of July 18, 2004, ch. 180, sec. 1, 2004 N.C. Sess. Laws 701, 704 (codified at N.C.G.S. § 115C-84.2(d)). It is illogical to reason that, in an amendment expressly bounding the school year and thereby preserving the traditional summer break, the legislature meant to allow all local boards to eliminate that break by imposing mandatory year-round calendars. That interpretation, adopted by the majority, permits the exception to swallow the overarching intent of the amendment: to curtail calendar expansion and protect summer vacation. The more reasonable interpretation of the statute is that the legislature, aware of year-round schools operating on a small-scale, voluntary basis throughout the State, included the statutory exception to allow for their continued existence. Had the legislature intended to allow mandatory year-round schooling for every North Carolina student — a startling break from over 160 years of educational practice — it could have, and would have, done so in a straightforward fashion.

Furthermore, other provisions of the calendar statute prohibit a local board from placing some children on a customary school schedule but placing other children on a year-round schedule. These provisions require that, for purposes of the mandatory calendar, all students in a single administrative unit attend school on the same days. Section 115C-84.2(a) states that “[e]ach local board of education shall adopt a school calendar” and “shall designate when the 180 instructional days shall occur.” § 115C-84.2(a). “A school calendar” means one school calendar, which the local board must adopt for all students in its administrative unit. Id. The statute then instructs the board to choose “the 180 instructional days.” Id. The plain language indicates that the board must adopt a single set of 180 instructional days in setting its mandatory calendar.

The calendar statute does not permit variation within the local unit with respect to the 180 instructional days of the mandatory calendar. When the General Assembly did intend to grant flexibility within the unit, it did so explicitly. For example, the legislature expressly allowed for variation among schools with respect to instructional hours. See § 115C-84.2(a)(l) (“The number of instructional hours in an instructional day may vary . . . and does not have to be *182uniform among the schools in the administrative unit.”). Additionally, the legislature permitted local boards to schedule certain calendar days beyond the 180 instructional days “in consultation with each school’s principal for use as teacher workdays, additional instructional days, or other lawful purposes.” § 115C-84.2(a)(5). The language used in these provisions is markedly different from that discussing the basic 180 days, see § 115C-84.2(a)(l) (“The local board shall designate when the 180 instructional days shall occur.”), which leaves no room for flexibility within the local unit. Moreover, in a recent amendment, the legislature deleted a sentence found in prior versions of the statute providing that “[different opening and closing dates may be fixed for schools in the same administrative unit.” See ch. 180, sec. 1, 2004 N.C. Sess. Laws at 704. Because the legislature capably expressed its intent to allow for flexibility within the local unit in certain instances, but declined to allow for variation regarding the 180 instructional days, those days must be the same for every school in the unit.

Local boards may not mandate multiple, wholly different sets of 180 instructional days for different schools or students in the same administrative unit. See § 115C-84.2. Students on a year-round calendar attend school on different days than do students on a traditional calendar. Therefore, the local board’s imposition of mandatory year-round schooling on certain students in its unit, while other students remain at traditional schools, violates the calendar statute.3

The local board may, however, continue to offer year-round schooling as a voluntary program. This authority is found in section 115C-84.2(d)’s exemption of year-round schools from the opening and closing date requirements and in section 115C-84.2(e), which provides: “Nothing in this section prohibits a local board of education from offering supplemental or additional educational programs or activities outside the calendar adopted under this section.” § 115C-84.2(d), (e). The reference in section 115C-84.2(e) to “additional programs” encompasses year-round schooling.4

*183These additional programs, however, must be voluntary. This conclusion derives from the plain language of section 115C-84.2(e): “Nothing . . . prohibits a local board of education from offering” the additional programs. § 115C-84.2(e) (emphasis added). The definition of an offer is to “present[] something for acceptance.” Black’s Law Dictionary 1113 (8th ed. 2004). Therefore, the board is authorized to offer programs with alternative calendars, including year-round, but it is not authorized to compel their acceptance. Rather, the local board must make available, to all students who wish, a spot in a school operating on the traditional calendar. See § 115C-84.2(d) (setting allowable school starting and ending dates). Though students may opt for a year-round school, they retain the right to attend a school operating on the traditional calendar.

The majority points to section 115C-36 in concluding that a local school board may place students at year-round schools. See § 115C-36 (conferring on local boards of education “[a]ll powers and duties conferred and imposed by law respecting public schools [] which are not expressly conferred and imposed upon some other official” and providing that local boards “shall have general control and supervision of all matters pertaining to the public schools in their respective administrative units”). The majority further points to section 1150-47(11), which provides that local boards “shall determine the school calendar under G.S. 115C-84.2.” § 1150-47(11).

Both the residual power to supervise the public schools and the general authority to determine the local school calendar, however, must yield to the more specific limitations imposed by the legislature in section 115C-84.2. “Where there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized ...; but, to the extent of any necessary repugnancy between them, the special statute . . . will prevail over the general statute. . . .” Krauss v. Wayne Cty. Dep’t of Soc. Servs., 347 N.C. 371, 378, 493 S.E.2d 428, 433 (1997) (internal quotation marks omitted) (quoting McIntyre v. McIntyre, 341 N.C. 629, 631, 461 S.E.2d 745, 747 (1995) (alterations in original)). Section 115C-36 is a general statute, in that it grants to local boards “general control and supervision of all matters pertaining to the public schools,” but addresses no specific area of control. § 115C-36. Section *184115C-47(11) is more specific, in that it directs local boards to determine the school calendar, but it expressly states that such a determination must be in accord with section 115C-84.2. § 1150-47(11). Section 115C-84.2 sets out “minute and definite” requirements and the limited circumstances under which those requirements may be waived. Krauss, 347 N.C. at 378, 493 S.E.2d at 433 (quoting McIntyre, 341 N.C. at 631, 461 S.E.2d at 747). As discussed, mandatory year-round schools violate the provisions of section 115C-84.2. Accordingly, the argument that Chapter 115C’s general grant of residual authority permits this violation is inconsistent with well established canons this Court uses to discern legislative intent.

Additionally, the majority’s reliance on section 115C-366(b), which gives local boards authority to assign students to the public schools, is misplaced. As stated by the trial court, this- is not a case about the assignment of students to a particular school. Rather, this case is about the local board’s decision to “materially and decisively change the schedule and manner in which students and their families are required to attend school during the calendar year.” Section 115C-366 itself states that the local board’s assignment authority is complete and final “[e]xcept as otherwise provided by law.” N.C.G.S. § 115C-366(b) (2007). Because section 115C-84.2 requires operation of a calendar beginning no sooner than August 25 and ending no later than June 10, and because it requires that local boards make that calendar available to all students, the local board is prohibited from mandatorily placing students at year-round schools.

Perhaps because year-round schooling is a fairly recent development in North Carolina and has thus far been implemented on an experimental, overwhelmingly voluntary ba'sis, our General Assembly has not yet taken the opportunity to address the propriety of mandatory year-round calendars. In this situation, when the current statutes do not permit mandatory year-round calendars, the local board must argue the benefits of its new education policy to the legislature rather than to this Court.

The legislature is best equipped to craft a solution that balances the legitimate needs of local school systems with the interests of students and their families. See Leandro v. State, 346 N.C. 336, 357, 488 S.E.2d 249, 261 (1997) (“[T]he administration of the public schools of the state is best left to the legislative and executive branches of government.”).

*185The members of the General Assembly are popularly elected to represent the public for the purpose of making just such decisions. The legislature, unlike the courts, is not limited to addressing only cases and controversies brought before it by litigants. The legislature can properly conduct public hearings and committee meetings at which it can hear and consider the views of the general public as well as educational experts and permit the full expression of all points of view ....

Id. at 355, 488 S.E.2d at 259; see also Hoke Cty. Bd. of Educ. v. State, 358 N.C. 605, 645, 599 S.E.2d 365, 395 (2004) (observing that the legislative and executive branches “have developed a shared history and expertise in the field that dwarfs that of this and any other Court”). There is no doubt that the legislative and executive branches enjoy a myriad of institutional advantages over this Court in setting education policy.

Although this Court has not hesitated to defend our citizens’ right to a sound basic education, see Leandro, 346 N.C. at 347, 488 S.E.2d at 255; Hoke County, 358 N.C. at 609, 599 S.E.2d at 373, we have repeatedly emphasized the primacy of the General Assembly in enacting new policy. We have consistently refused to allow courts to intrude “into an area so clearly the province, initially at least, of the legislative and executive branches.” Leandro, 346 N.C. at 357, 488 S.E.2d at 261. For example, we reversed a trial court when it mandated that the State begin educating four-year-olds to rectify a failure to provide a sound basic education. See Hoke County, 358 N.C. at 645, 599 S.E.2d at 395. We overturned the trial court’s choice of a specific policy both in recognition of courts’ institutional limitations and because failing to give our coordinate branches the initial chance to craft a solution would have “effectively undermine[d] the authority and autonomy of the government’s other branches.” Id. at 643, 645, 599 S.E.2d at 393, 395.

The circumstances here cry out for the legislature to speak first, before this Court or any local board of education, on the question of mandatory year-round schooling. This case concerns a policy question of great importance to our State’s educational institutions and its public school students and their families. In support of its position, the local board advocates for a statutory interpretation counter to the vast weight of traditional education practice. Nothing in the current education statutes indicates, however, that the General Assembly intended to permit local school boards to mandatorily place students at year-round schools. Accordingly, this Court should uphold the trial *186court’s order and preserve students’ legal right to attend a traditional calendar school.

I respectfully dissent.

Justices BRADY and NEWBY join in this dissenting opinion.

. This new policy was initiated in 2003 with a small number of students but has now been expanded to approximately 20,000 students. The instant case is the first legal challenge to the new policy.

. A multi-track schedule on its own violates the calendar statute, because the different tracks operate to assign students in the same administrative unit to different sets of 180 instructional days.

. Year-round schooling is described elsewhere in the education statutes as an optional program. See N.C.G.S. § 115C-238.31(a) (2007) (listing “[c]alendar alternatives,” including year-round school, in Article 16, titled “Optional Programs”). Like year-round schooling, the other optional programs discussed in Article 16, including adult education programs, summer schools, and charter schools, are far more extensive than mere after school activities. See N.C.G.S. §§ 115C-230 to -238.55 (2007). For *183instance, a large portion of the Article is devoted to charter schools, which constitute a full replacement for the customary public education program. See §§ 115C-238.29A to -238.29K.