Legal Analysis of Select Issues The State Board of Education's Legal Affairs Office has created interpretations of select issues affecting North Carolina schools.

Tab/Accordion Items

Legal Requirements

Interpretive Analysis

It should be noted that G.S. 115C-364 differs from the former school entry age statute which specified separate entry ages for kindergarten and first grade. The current statute specifies a single entry age for enrollment in a public school and designates kindergarten as the initial point of entry into the system.
It is also important to remember, as a practical matter, that each decision about eligibility to enroll may and often does require two decisions:

  1. Does the child meet the age requirements for school entrance? and,
  2. At what grade level can the child best be served?

The first question is easy to answer. If the child reaches the age of five years on or before August 31st of the year he is presented for enrollment, the child is eligible to enroll. If his fifth birth date falls on or after September 1st, the child is not eligible to enroll. Proof of age can be required.

The second question may be somewhat more complicated. The statute contemplates that the vast majority of children presented for enrollment belong in kindergarten and will be automatically assigned there. However, the statute recognizes that some students will be presented for enrollment who can be more appropriately served at a higher grade level, and it authorizes the school principal to make such assignment when he decides that it is in the child's best interest. The key point to remember here is that this is an educational rather than a chronological decision and that it takes place after it has been determined that the child meets the statutory age requirement for school entry. In reaching such a decision, the principal may use both objective and subjective criteria, keeping in mind only that the decision must be reasonably and rationally related to the facts of the specific situation.

The following questions and answers are provided as specific examples of the manner in which the statute should be implemented.

Kindergarten Enrollment
State Residents

Is kindergarten compulsory in North Carolina?
No. All public school systems must offer kindergarten, but children are not required to attend. Compulsory attendance applies to children between the ages of seven and sixteen and also children aged 5 or 6 as long as they are enrolled in public school.

Must a seven-year-old child who has never attended school be placed in kindergarten?
No. The principal has the authority to place the child.

May a child be retained in kindergarten or be demoted to kindergarten after advancing to the first grade?
Yes, in both instances. The principal has the responsibility for the classification of students within the school organization, including kindergarten.

May a child enrolled in public kindergarten be promoted during the school year if the principal feels such reclassification is appropriate?
Yes, the principal has the authority to place a child in a class where the principal feels the child could most appropriately function.

Must a principal accept a kindergarten student who enrolls late in the school year?
Under the present statute, a principal is not required to accept a kindergarten student after the first six months of school. However, principals are encouraged to evaluate any enrollment on what is best for the child.

Nonpublic Schools

Is there an age limitation for a child enrolling in kindergarten in a nonpublic school?
There is no statutory age limitation for kindergarten as far as the nonpublic schools are concerned.

If a child, not old enough to attend public kindergarten in North Carolina, enrolls in a private school and then transfers to a public school in the same school year, should the public school accept the student?
The public school cannot legally accept such a child for enrollment within the same school year.

May a child who does not meet North Carolina's age requirement complete a nonpublic kindergarten and enroll in the first grade in a public school the next year?
Any child who enters public school at the initial entry point of kindergarten must be five years of age on or before August 31 of that school year. If a child has attended a nonpublic kindergarten during one year and is enrolled in public school the following year, the principal in compliance with any applicable local board policy, has discretion as to whether that child will be enrolled in kindergarten or first grade.

Is there an age limitation for entering first grade?
No. The only age limitation is at the kindergarten level (the initial point of entry).

Out-of-State Residents

Where would a child be placed in a North Carolina school who has completed kindergarten in another state and would have been enrolled in the first grade if he had remained in the original state?
If the kindergarten experience can be documented, the child is eligible to enroll in the first grade. However, the principal has the prerogative of deciding where the child can best be served.

May a child, who does not meet North Carolina's kindergarten age requirement, attend a North Carolina public kindergarten during the same year the child was attending a public kindergarten in another state? (This question assumes the child's parents resided in the state of original enrollment and moved to North Carolina during the school year.)
A child may be accepted for enrollment in a North Carolina public kindergarten if the child has been attending a public kindergarten in another state during the same year, notwithstanding the fact that the child does not meet North Carolina's age requirement for kindergarten acceptance. This answer also applies to a child who moves from another country.

Where would a child be placed in North Carolina whose parents deliberately send the child to out-of-state kindergarten for the purpose of enrolling the child in the first grade in a North Carolina school the following year?
It is assumed that this action was to evade the law and the attorney general has ruled that such an action is not in good faith. The child would repeat kindergarten in North Carolina, unless the principal finds as a fact that the child can best be served in another setting.

Legal Requirements North Carolina's statutes regarding home school include G.S. 115C-563 through 565.

Historical Perspective

In 1979, the General Assembly passed nonpublic schools legislation which radically deregulated the operation of nonpublic schools and removed any supervisory authority from the State Board of Education. As long as a school provided certain information to an authorized state representative in the governor's office, kept attendance records, complied with health and safety requirements, and administered periodic standardized tests, legislative requirements were satisfied.

As a result of the legislation, immediate attempts were begun to teach children at home. In August of 1979 the attorney general ruled that instruction of a child in his home by his parents or a tutor was not a "school" within the meaning of the Compulsory Attendance Law. The State Board of Education relied on this ruling for several years.

In 1982, a federal court ruled that North Carolina was prohibited by the First Amendment of the United States Constitution from enforcing the compulsory attendance law against the Duro family in Tyrrell County whose alleged religious beliefs required them to educate their children in their home. The Duro case was reversed on appeal and the appeals court concluded that the state's interest in compulsory education was of sufficient magnitude to override the parents' religious interest. Meanwhile in the North Carolina courts, a case involving home instruction by the Delconte family in Harnett Count ultimately was appealed to the State Supreme Court. That court ruled North Carolina statutes did not prohibit home instruction as an alternate means of complying with the compulsory attendance statute. The decision stated that North Carolina could prohibit home instruction altogether or could permit home instruction and regulate it to the degree it wished, but that existing statutes had done neither.

In 1988, the General Assembly enacted the current provisions that recognize home schooling as an alternative to public schools.

Present Situation

It should be noted that the wording of the Compulsory Attendance Act is at variance with --indeed, conflicts with -- the provisions of the nonpublic school statutes. Pertinent portions of the Compulsory Attendance Act have not been amended since 1969 and still mandate that nonpublic schools, at which attendance suffices to meet the requirements of the act, must be approved by the State Board of Education. The passage in 1979 of the nonpublic schools acts invalidated all provisions relating to State Board approval of nonpublic schools, although the language of the Compulsory Attendance Act remained unchanged.

Such an ambivalent approach makes meaningful enforcement of the compulsory attendance law very difficult.

Does a parent have to be certified as a teacher to conduct home instruction?
No. Formerly no qualifications for home school teachers existed, but the law provides that the home school instructor have as a minimum a high school diploma or its equivalent.

Must home schools follow a prescribed course of study for each grade level?
No. However, a required standard course of study is essential if the child is to reach his full educational potential. This in no way should be perceived as conflicting with the right of church affiliated or other nonpublic schools to include doctrinal teaching in their instructional programs, but such teaching should be in addition to and not as a substitute for academic requirements as spelled out in the North Carolina Standard Course of Study.

Are there minimum scores for home school students taking the achievement tests? Are the testing sessions monitored?
No, to both questions. Although the law does require standardized testing on an annual basis, no minimum score is stipulated and no external monitoring is provided.

When a child transfers from a home school setting to the public school system, how is his placement in the public schools determined?
The principal places the child where the child can best be served. If the parent provides test scores form a nationally standardized test or equivalent measure that are adequate to determine proper grade placement, the principal cannot require further testing for placement purposes. This system works satisfactorily for elementary children, but poses very real problems at the secondary level where units of credit become the criteria for graduation.

If a home school fails to comply with nonpublic school laws regarding attendance, what action should be taken?
The school superintendent must consult with the Division of Non-Public Education to determine that the parents are not complying with the nonpublic school laws. When this is determined to be true, the superintendent or designee should notify the district attorney's office and initiate specific legal action against the parent.

If a child under the age of sixteen drops out or is dismissed from a nonpublic school (including home schools), who has the responsibility of enforcing the compulsory attendance law?
The local board of education has the primary responsibility in assigning a child to a school. If the child gives up his statutory right to attend a nonpublic school, the board's authority to assign the child to a school operated by the board is once more in effect.

Is there a requirement that a nonpublic school must notify appropriate public school officials when a student drops out or is dismissed from a nonpublic school?
No. Under the existing statute, the only method of dealing with students who drop out or are dismissed is continuous communication between the local school boards and nonpublic schools.

Legal Requirements

N.C. Gen. Stat. ß 115C-271(b) provides that school boards are to file a copy of the superintendent's contract with the State Board of Education before the person is eligible to hold that office.

We must also verify that the person hired as superintendent possesses valid credentials for that position. This verification is accomplished by use of the Certification of Election of Superintendent form.

Please submit this form and a copy of the superintendent's current contract, either by regular mail, as an e-mail attachment to , or by fax to 984.236.2210.

If you need an accessible form, please contact Luke Landis at 984.236.2210 or .