North Carolina Public Charter Schools Association

Law Matters

LAW MATTERS:

What Health and Safety Rules Apply to Charter Schools?

David R. Hostetler, Esq.
LaCusia R. Green, Esq.

Lex-is School Law Services

Our North Carolina charter clients periodically ask whether various state health and safety education statutes or State Board of Education (SBE) policies apply to their schools. For example, the Department of Public Instruction (DPI) sent a memo on March 28 2012 to the state’s superintendents and principals informing them that DPI’s legal counsel interpreted 2011 legislative actions to require “safe schools plans to be developed at the school building level.”[1] 

“Does this apply to us?” asked one of our charter school clients who received the memo.

Regrettably, the law is not particularly clear.  Having examined state statutes, SBE policies and practices, and Attorney General opinions, it can be concluded that many school safety statutes and rules ARE NOT binding on the state’s charter schools, with the exception of those related to general public health & emergency requirements (e.g., immunizations and medical certifications, parental health notifications, fire and emergency rules, communicable disease & health reporting).

Generally, the state charter school statutes (the “Charter Act”) state,

Except as provided in [the Charter Act or a school’s charter], a charter school is exempt from statutes and rules applicable to a local board of education….[2]

 

One exception to this general exemption immediately follows:

 

A charter school shall meet the same health and safety requirements required of a local school administrative unit.[3]

 

Specific requirements noted in this section of the statute include annual parental and student notice requirements regarding issues such as meningococcal meningitis and influenza (and their vaccines); cervical cancer, related illnesses and vaccines; and lawful abandonment of a newborn baby;  as well as guidelines for individual diabetes care plans.[4]  Regarding the specific example noted above – Safe School Plans: are charter schools exempt? G.S. 115C-105.27 requires each traditional public school to develop a school improvement plan, including a plan “to address school safety and discipline concerns”[5] This statute does not indicate – explicitly or implicitly — that it applies to charter schools.  In addition, the Charter Actitself does not reference subject charter schools to the school improvement statute or related planning requirements. Thus, the general regulatory exemption in the Charter Act seems to exempt charter schools from these specific Safe School Plan requirements.

 

This interpretation is supported by comparing traditional school safety requirements. For example, local boards must comply with similar immunization and communicable disease requirements as those identified in the Charter Act,[6] as well as those pertaining to lawful abandonment of a newborn baby.[7]  Thus, while the Charter Act and regular school statutes replicate themselves in these regards, they do not do so with other safety rules that apply to traditional schools.  Why?  We can reasonably assume the legislature’s silence in the Charter Act means that traditional school safety requirements do not apply. This interpretation from legislative silence is grounded in well-established principles of statutory interpretation.

 

This interpretation is consistent with other non-public school regulatory exemptions, which are similarly accompanied by health and safety exceptions. For example, private church schools and non-public schools are not subject to any provision of state law relating to education “except requirements of law respecting fire, safety, sanitation and immunization.”[8]  Home schools are “not subject to any other provision of law relating to education except requirements of law respecting immunization.”[9]

 

In light of Charter schools general exemption “from statutes and rules applicable to a local board of education….”[10] and the other reasons stated above, it is reasonable to conclude that charter schools are exempt from all other traditional school safety and health requirements.  This includes safe school plans, rules addressing acts of school violence, emergency response plans, pesticide and arsenic-treatments, mercury levels, and diesel exhaust fumes, and other safety requirements to which local school boards are subject in G.S. 115C-47. This narrow interpretation is also most consistent with the Charter Act’s general intent to afford charter schools flexibility and opportunity for innovation. So, we encourage charter schools to make the most of their flexibility, but in a responsible manner.  Of course, non-binding health and safety rules should still be considered as a model for charter school policy.

 

Note: This article is provided strictly for informational and educational purposes. Specific legal questions should be directed to legal counsel.

 

Lex-is Services provides legal counsel, policy development, and training for North Carolina’s charter schools, over a quarter of which are Lex-is clients. Director David Hostetler has specialized in education law since 1994 and serves as counsel to the N.C. Public Charter Schools Association.  LaCusia Green is a Lex-is associate attorney and formerly served as law clerk to the Honorable Samuel J. Ervin, IV of the North Carolina Court of Appeals.

Lex-is contact info: 919-442-8593 / Services@Lex-is.com / www.Lex-is.com.

 



[1] Memo from Dr. Rebecca Garland, North Carolina Department of Public Instruction. March 28, 2012.

[2] G.S. 115C-238.29E(f)

[3] G.S. 115C-238.29(G)(a)

[4] Id.

[5] G.S. 115C-105.27(b)(2).

[6] G.S. 115C-47(51).

[7] G.S. 115C-47(52).

[8] G.S. 115C-554 and -562.

[9] G.S. 115C-565.

[10] G.S. 115C-238.29E(f).