Appeal by defendants from order entered 3 May 2007 by Judge
Howard E. Manning, Jr. in Wake County Superior Court. Heard in the
Court of Appeals 9 January 2008.
Hunter, Higgins, Miles, Elam & Benjamin, PLLC, by Robert N.
Hunter, Jr.; and William Peaslee, for plaintiffs-appellees .
Tharrington Smith, L.L.P., by Ann L. Majestic and Curtis H.
Allen III, for defendants-appellants.
Kelly & Rowe, P.A., by Robert F. Orr, for amicus curiae North
Carolina Association of School Administrators.
Roberts & Stevens, P.A., by Christopher Z. Campbell and K.
Dean Shatley, II, for amicus curiae North Carolina Council of
Poyner & Spruill, LLP, by Edwin M. Speas, Jr.; and Allison
Schafer for amicus curiae North Carolina School Boards
UNC Center for Civil Rights, by Ashley Osment, for amici
curiae The Wake County Voters Education Coalition, Eugene
Weeks, Jennifer A. Bowden, Gerald Wright, Calla Wright, Erica
Edwards, Quanta Edwards and Denise Winters.
Defendant Wake County Board of Education ("the Board") appeals
from the trial court's order concluding that the Board "lacks the
statutory authority to convert traditional calendar schools to
mandatory year round schools," but ruling that the Board "is
authorized by law to operate, on a voluntary consensual basis, year
round calendar schools," so long as it obtains "informed parental
(See footnote 1)
(Emphasis original.) Based, however, upon our review
of the controlling statutes, we hold that the Board is authorized
by the General Assembly to establish year-round schools and to
assign students to attend those schools without obtaining their
parents' prior consent. We, therefore, reverse the decision below.
The facts in this case are essentially undisputed.
(See footnote 2)
County Public School System ("WCPSS" or "the school system") is one
of the fastest growing public school systems in the nation. In
recent years, its student population has increased more than 30
percent from 98,000 students in 2000 to over 128,000 students in
school year 2006-2007. The Wake County Planning Department
estimated that the school system would add another 8,000 students
in the 2007-2008 school year and an additional 65,000 students by
2015. Since July 2000, the Board has opened more than 33 newschools and renovated others to deal with the burgeoning student
The Board's building plan has not, however, been able to keep
pace with the influx of students. Many schools are overcrowded and
use cafeterias, libraries, auditoriums, offices, common areas,
teacher lounges, and converted storage rooms as classrooms. In
addition, there are more than 1,100 mobile classrooms being used,
as compared to 584 mobile units used in the 2002-2003 school year.
The 1,100 mobile classrooms seat 25,300 students. Almost one
fourth of WCPSS elementary school students are educated in mobile
classrooms, a situation that overtaxes facilities such as
restrooms, media centers, and cafeterias. At several WCPSS
elementary schools, the first lunch period begins as early as 10:30
a.m., while other students end their lunch period just before going
home for the day.
Beginning in late 2005, the Board worked with the Wake County
Board of County Commissioners and county staff to develop a long-
term construction plan that would address the school system's
increasing facility needs. The overall plan included five
different alternatives, each varying in cost based on the level of
construction. All five scenarios contemplated converting some
existing schools to a year-round calendar and building new schools
that would also operate on a year-round calendar. In developing
this plan, the Board considered information from school staff, the
results of community surveys, input from county commissioners, and
communications from parents, teachers, and community members. Itwas apparent that a majority of the community would not support a
school bond for construction and renovation of schools that
exceeded $1 billion.
Presently, the WCPSS has approximately 147 public schools.
The schools have three different calendars: a traditional calendar,
a multi-track year-round calendar, or a modified calendar (a
single-track year-round calendar). All calendars have a total of
180 school days. The traditional calender begins school in late
August and continues until a summer vacation in early June. The
modified calendar begins in late July and ends in late May. In the
multi-track year-round schools, students are divided into four
tracks, each with its own class schedule. Track schedules are then
staggered so that three tracks are in school and one track is on
break at all times. With the multi-track year-round calendar,
1,000 students can be assigned to a school that would have a
traditional-calendar capacity of only 750 students.
As of the 2006-2007 school year, WCPSS operated 16 year-round
elementary schools and four year-round middle schools. In that
school year, 91,426 students were enrolled in WCPSS elementary and
middle schools with 17,174 attending year-round schools. Although
most of the year-round schools were considered "voluntary," and
students had to apply to attend them, each year-round school has
had a portion of students involuntarily assigned to it since 2003.
For the 2006-2007 school year, there were 6,929 students
involuntarily assigned to a year-round school. In addition to the
multi-track year-round schools, WCPSS operates six magnet schoolson the single-track year-round calendar. For the 2006-2007 school
year, there were 1,320 students involuntarily assigned to magnet
In September 2006, the Board voted to convert 19 elementary
and 3 middle schools to a year-round calendar starting in the 2007-
2008 school year, adding approximately 5,000 seats. In making this
decision, the Board weighed the risk of a failed bond referendum
against a preference for more expensive traditional calendar
schools. On 7 November 2006, Wake County voters approved a $970
million bond to fund the Board's capital improvement plan.
Beginning on 8 December 2006, the Board began considering proposals
for student assignments for the 2007-2008 school year based on its
capital improvement plan.
Prior to approving a final assignment plan, the Board notified
the parents of potentially affected students that their child could
be assigned to a mandatory year-round school and gave them the
opportunity to select which "track" they preferred for their
child's schedule. On 6 February 2007, after holding three public
hearings, the Board approved its final student assignment plan for
the 2007-2008 school year. Under that plan, 20,717 students were
assigned to newly-converted or newly-built year-round schools.
17,855 of those students had previously been assigned to
traditional calendar schools.
On 13 March 2007, plaintiffs filed a class action lawsuit in
Wake County Superior Court challenging the Board's plan. The
plaintiffs include Wake Cares, Inc., a non-profit organization, andeight parents of WCPSS students, individually and as guardians ad
litem for their children. No class was certified prior to the
trial court's final order. In their complaint, plaintiffs asserted
that the Board lacked the constitutional and statutory authority to
convert traditional calendar schools to year-round schools and then
assign WCPSS students to those schools on a mandatory basis.
Plaintiffs further claimed that the Board's plan to establish
mandatory year-round schools for some students while maintaining
traditional calendar schools for other students violated
plaintiffs' federal due process and equal protection rights;
violated plaintiffs' fundamental right to a "uniform and regular
education on equal terms" as protected by the North Carolina
Constitution and Chapter 115C of the General Statutes; and violated
plaintiffs' right to procedural due process. Plaintiffs sought a
declaratory judgment as well as an injunction prohibiting the Board
from implementing its plan.
On 4 April 2007, the Board moved to dismiss plaintiffs' claims
pursuant to Rule 12(b)(1) and (6) of the Rules of Civil Procedure
based on a lack of standing, failure to exhaust available
administrative remedies, mootness, and failure to state a claim for
relief. Because the trial court chose to consider affidavits
submitted by the Board in opposition to plaintiffs' motion for a
preliminary injunction, the court converted the Board's Rule
12(b)(6) motion to dismiss into a motion for summary judgment under
Rule 56. After rejecting the Board's arguments regarding standing,
exhaustion of administrative remedies, and mootness, the trial
court concluded that "the Wake County Board of Education is
authorized by law to operate, on a voluntary consensual basis
round calendar schools, modified year round calendar schools, and
magnet schools operating as modified or year round calendar
schools." According to the trial court, however, the Board "lacks
the legal authority from the General Assembly to force children to
attend mandatory year round schools." Specifically, the court
concluded "[t]hat the Wake County Board of Education may not
the attendance of students at year round calendar schools
without informed parental consent
." (Emphasis original.) Finally,
the court asserted: "Having made the legal determination that
mandatory year round schools are not authorized under the law,
there is no need to go further." The court, therefore, entered
summary judgment in favor of plaintiffs, but left for the Board
"[t]he nuts and bolts of obtaining informed parental consent,
determining how many Wake County students and families are willing
to accept assignment
to the newly converted and formerly mandatory
year round assignments
[,] and the aftermath of such determinations
. . . ." (Emphasis added.)
The Board timely appealed to this Court. Plaintiffs did not
cross-assign error to any portion of the trial court's order. On
25 July 2007, however, plaintiffs filed with the Supreme Court a
petition for by-pass of the Court of Appeals pursuant to N.C. Gen.Stat. § 7A-31 (2007) and N.C.R. App. P. 15. That petition was
denied on 8 November 2007.
We first address the jurisdictional issues raised by the
Board. The Board claims that the trial court should have dismissed
plaintiffs' complaint based on (1) lack of standing, (2) a failure
to exhaust administrative remedies, and (3) mootness. While we
agree that Wake Cares lacks standing, and the motion to dismiss
should have been granted as to that organization, we hold that the
trial court properly denied the motion as to the Board's remaining
 With respect to Wake Cares' standing, the trial court
stated: "Wake Cares, Inc., a non-profit organization, has standing
to assert the claims which its members and constituents might have
asserted." It is undisputed that Wake Cares in fact has no
"members." The Board contends that controlling authority, which
does not address "constituents," requires dismissal of Wake Cares
as a plaintiff.
An association may have standing to sue "'in its own right to
seek judicial relief from injury to itself,'" River Birch Assoc. v.
City of Raleigh
, 326 N.C. 100, 129, 388 S.E.2d 538, 555 (1990)
(quoting Warth v. Seldin
, 422 U.S. 490, 511, 45 L. Ed. 2d 343, 362,
95 S. Ct. 2197, 2211-12 (1975)), or may assert associational
standing to seek relief "on behalf of its members." Id.
at 130,388 S.E.2d at 555. With respect to associational standing, our
Supreme Court has held:
"[A]n association has standing to bring suit
on behalf of its members when: (a) its members
would otherwise have standing to sue in their
own right; (b) the interests it seeks to
protect are germane to the organization's
purpose; and (c) neither the claim asserted
nor the relief requested requires the
participation of individual members in the
(quoting Hunt v. Wash. State Apple Adver. Comm'n
, 432 U.S. 333,
343, 53 L. Ed. 2d 383, 394, 97 S. Ct. 2434, 2441 (1977)).
In this case, the trial court did not base its conclusion that
Wake Cares had standing on any injury to Wake Cares itself, but
instead relied solely upon associational standing. Yet, it is
undisputed that Wake Cares has no members and, thus, it could not
be seeking relief "on behalf of its members." Id.
Nevertheless, the United States Supreme Court in Hunt
recognized a form of associational standing that would permit an
organization "to assert the claims of its constituents." 432 U.S.
at 345, 53 L. Ed. 2d at 395, 97 S. Ct. at 2442. In Hunt
Washington State Apple Advertising Commission, a state agency, did
not have "members," but the Court concluded that it still had
standing to "assert the claims of the Washington apple growers
and dealers who form its constituency," id.
at 344, 53 L. Ed. 2d at
395, 97 S. Ct. at 2442, because these growers and dealers
"possess[ed] all of the indicia of membership in an organization."
Neither the parties nor the trial court specifically address
's constituency basis for standing, which has also not been
previously addressed by North Carolina's appellate courts. See
Goldston v. State
, 361 N.C. 26, 35, 637 S.E.2d 876, 882 (2006)
("While federal standing doctrine can be instructive as to general
principles . . . and for comparative analysis, the nuts and bolts
of North Carolina standing doctrine are not coincident with federal
We need not, however, decide whether North Carolina should
's constituency basis for standing because even assuming,
without deciding, that Hunt
's test should apply to a private
organization like Wake Cares, Wake Cares has made no attempt to
show that it meets that test. See, e.g.
, In re Holocaust Victim
, 225 F.3d 191, 196 (2d Cir. 2000) ("In evaluating the
Commission's claim of standing, the Hunt
Court listed a number of
ways in which the Commission functioned effectively as a membership
organization."); Washington Legal Found. v. Leavitt
, 477 F. Supp.
2d 202, 208 (D.D.C. 2007) (setting forth test that must be met for
organization to be deemed "functional equivalen[t]" of traditional
membership organizations). Since Wake Cares has not demonstrated
that it would qualify as an organization entitled to represent its
constituents, it cannot rely on that theory as a basis for
establishing standing, and its claims must be dismissed. See
Holocaust Victim Assets Litig.
, 225 F.3d at 196 (dismissing appeal
of organization for lack of standing because organization "ha[d]not provided any information that would indicate whether it meets
these requirements" of Hunt
Although plaintiffs propose additional theories of standing
for Wake Cares, the trial court did not address any theory other
than associational standing, and plaintiffs have not cross-assigned
error to the court's failure to find standing on those bases.
Consequently, those contentions are not properly before this Court.
See Harllee v. Harllee
, 151 N.C. App. 40, 51, 565 S.E.2d 678, 685
(2002) ("[P]laintiff failed to cross-assign error pursuant to Rule
10(d) to the trial court's failure to render judgment on these
alternative grounds. Therefore, plaintiff has not properly
preserved for appellate review these alternative grounds."). We,
therefore, hold that the trial court erred in not granting the
Board's motion to dismiss Wake Cares' claims for lack of standing.
 The Board also argues that the individual plaintiffs lack
standing to sue, contending that none of the plaintiffs have
taxpayer standing and that five of the children and three of the
parents cannot establish an injury in fact. The trial court did
not specifically analyze whether the individual plaintiffs had
standing, stating only: "The Court has considered all other
arguments in relation to the [Board]'s motion to dismiss pursuant
to Rule 12(b)(1) for lack of jurisdiction and standing and rejects
those arguments without further discussion." We hold that the
individual plaintiffs have sufficiently established their standing
to bring a declaratory judgment action.
In pertinent part, the Declaratory Judgment Act provides: Any person . . . whose rights, status or
other legal relations are affected by a
statute, municipal ordinance, contract or
franchise, may have determined any question of
construction or validity arising under the
instrument, statute, ordinance, contract, or
franchise, and obtain a declaration of rights,
status, or other legal relations thereunder.
N.C. Gen. Stat. § 1-254 (2007). Thus, "[t]he Declaratory Judgment
Act permits any person affected by a statute or municipal ordinance
to obtain a declaration of his rights thereunder." Bland v. City
, 278 N.C. 657, 659, 180 S.E.2d 813, 815 (1971).
Our Supreme Court has further specified that "[a]n action may
not be maintained under the Declaratory Judgment Act to determine
rights, status, or other relations unless the action involves a
present actual controversy between the parties." Town of Emerald
Isle v. State
, 320 N.C. 640, 645-46, 360 S.E.2d 756, 760 (1987).
"A declaratory judgment may be used to determine the construction
and validity of a statute," id.
at 646, 360 S.E.2d at 760, but the
plaintiff must be "directly and adversely affected" by the statute,
Most recently, our Supreme Court has explained that a
declaratory judgment should issue "'(1) when [it] will serve a
useful purpose in clarifying and settling the legal relations at
issue, and (2) when it will terminate and afford relief from the
uncertainty, insecurity and controversy giving rise to the
, 361 N.C. at 33, 637 S.E.2d at 881 (quoting
Augur v. Augur
, 356 N.C. 582, 588, 573 S.E.2d 125, 130 (2002)).
In this case, the individual plaintiffs challenge the Board's
authority to require students to attend year-round schools. Eachof the students involved in this action was initially assigned to
a year-round school. The individual plaintiffs were, therefore,
directly affected by the action of the Board. While some of the
students were ultimately re-assigned to attend traditional calendar
schools for the calendar year 2007-2008, they may still be assigned
to year-round schools in the future. As a result, an actual
controversy still exists, and a declaratory judgment as to the
authority of the Board and the rights of the parents and students
would terminate and afford relief from the uncertainty, insecurity,
and controversy currently existing. See Charlotte-Mecklenburg
Hosp. Auth. v. N.C. Indus. Comm'n
, 336 N.C. 200, 214, 443 S.E.2d
716, 725 (1994) (plaintiffs could seek declaratory judgment that
Industrial Commission's rule limiting amounts paid hospital was
unlawful even though rule allowed plaintiffs to seek exception from
rule because plaintiffs were "not required to sustain actual losses
in order to make a test case"). Accordingly, the individual
plaintiffs have standing to seek a declaratory judgment.
Because of our disposition of this appeal, we need not address
whether plaintiffs have standing to seek injunctive relief. We
also are not required to address whether the individual plaintiffs
have taxpayer standing as set forth in Goldston
B. Exhaustion of Administrative Remedies
 The Board next contends that the trial court should have
dismissed the complaint based on plaintiffs' failure to exhaust
their administrative remedies under N.C. Gen. Stat. § 115C-369
(2007). If a plaintiff has failed to exhaust his or heradministrative remedies, the court lacks subject matter
jurisdiction and the action must be dismissed. Shell Island
Homeowners Ass'n v. Tomlinson
, 134 N.C. App. 217, 220, 517 S.E.2d
406, 410 (1999).
N.C. Gen. Stat. § 115C-369(a) provides:
The parent or guardian of any child, or the
person standing in loco parentis to any child,
who is dissatisfied with the assignment made
by a local board of education may, within 10
days after notification of the assignment, or
the last publication thereof, apply in writing
to the local board of education for the
reassignment of the child to a different
public school. . . . If the application for
reassignment is disapproved, the local board
of education shall give notice to the
applicant by registered or certified mail, and
the applicant may within five days after
receipt of such notice apply to the local
board for a hearing. The applicant shall be
entitled to a prompt and fair hearing on the
question of reassignment of such child to a
(Emphasis added.) The local board of education at the hearing
"shall consider the best interest of the child, the orderly and
efficient administration of the public schools, the proper
administration of the school to which reassignment is requested and
the instruction, health, and safety of the pupils there enrolled,
and shall assign said child in accordance with such factors." N.C.
Gen. Stat. § 115C-369(c).
We believe that this case is analogous to Charlotte-
Mecklenburg Hosp. Auth.
, 336 N.C. at 209, 443 S.E.2d at 722, in
which the plaintiffs sought a declaration that a rule of the
Industrial Commission regarding reimbursement of hospitals wasinvalid. The defendants contended that because the General
Assembly had provided a remedy by which any matter, including
charges for hospital services, could be resolved in the Industrial
Commission, the plaintiff hospitals had failed to exhaust their
administrative remedies by not first pursuing that avenue. Id.
The Supreme Court confirmed that even in a declaratory
judgment action, "'[w]hen an effective
exists, that remedy is exclusive.'" Id.
(quoting Lloyd v. Babb
296 N.C. 416, 428, 251 S.E.2d 843, 852 (1979)). Nonetheless, it
Plaintiff hospitals, however, do not seek
review of an award of any specific claims
compensation before defendant Commission;
rather, they seek a declaratory ruling that
the per diem
reimbursement rule is invalid,
and injunctive relief therefrom. [The
statutes] only provide for hearings, awards,
and review of awards in disputes between
employees and employers with respect to
specific claims for compensation, and do not
address challenges to rules and regulations
promulgated by the Commission pursuant to the
[Workers' Compensation] Act.
at 209-10, 443 S.E.2d at 722. Because the General Assembly had
not provided any procedures to challenge a rule or regulation of
the Commission, it had "not provided, within the Act, an adequate
remedy for plaintiffs." Id.
at 211, 443 S.E.2d at 723. The Court,
therefore, concluded that the plaintiff hospitals were not barred
from proceeding for failure to exhaust administrative remedies.
In this case, plaintiffs' complaint did not simply address the
assignment of individual students. The complaint challenges the"2007-2008 Growth Management Plan" adopted by the Board that,
according to plaintiffs, shifts from using year-round schools as a
"stop-gap measure" on an emergency basis for overcrowding to using
it as part of "a long range 'plan for growth.'" Plaintiffs assert
in their complaint that this plan "creat[es] a structural defect in
the operation of [the local school system] which, once implemented,
cannot be readily changed by operation of normal political
processes, nor which other branches of government can correct." In
their request for declaratory relief, plaintiffs seek a declaration
regarding the validity of the Board's plan "and other associated
regulations which, if implemented, will assign its members or
children of its members to mandatory year-round schools and will
expend funds in such a manner so that traditional schools will not
be reasonably available now or in the future to its members."
Further, plaintiffs contend that they are entitled to injunctive
relief prohibiting implementation of the plan.
These claims regarding the validity of the Board's plan to use
year-round schools to alleviate overcrowding do not fall within the
scope of N.C. Gen. Stat. § 115C-369. Plaintiffs are not
challenging specific assignment decisions, but rather an overall
plan and accompanying regulations. The question presented by this
case is thus not the reassignment of a particular child from one
school to another school, as set forth in § 115C-369(a), and none
of the factors specified in § 115C-369(c) for consideration by the
Board in making a decision under this statute would address the
issues regarding the validity of the plan. The Board, however, asserts that Cameron v. Wake County Bd. of
, 36 N.C. App. 547, 244 S.E.2d 497 (1978), dictates the
outcome in this case. In Cameron
, the plaintiffs filed a class
action against the Wake County Board of Education, seeking a
preliminary injunction against the enforcement of the 1977-1978
student assignment plan and a declaratory judgment that the plan
was unconstitutional on the grounds that it is arbitrary and
at 547, 244 S.E.2d at 497-98. The named
plaintiffs alleged "that the defendant has abdicated its student
assignment responsibilities to federal bureaucrats, should have
made its assignments on the basis of the welfare of the pupils, and
since this was not done, the court should act on behalf of the
at 550, 244 S.E.2d at 499.
In concluding that the plaintiffs had improperly failed to
exhaust their administrative remedies, this Court held that
plaintiffs could not disregard the predecessor statute to N.C. Gen.
Stat. § 115C-369 by failing to request reassignment and "tak[e] a
route wholly inconsistent with the statutes enacted by the General
at 551, 244 S.E.2d at 500. Significantly, however,
the reassignment statute would have provided precisely the relief
sought by the plaintiffs: determination by the Board, and not any
federal entity, of "'the best interests of the child'" regarding
school assignment. Id.
at 549, 244 S.E.2d at 499 (quoting N.C.
Gen. Stat. § 115-178).
In this case, N.C. Gen. Stat. § 115C-369 provides no means for
determining whether a plan for mandatory year-round schools isstatutorily or constitutionally permitted.
(See footnote 3)
The statute focuses on
the individual assignment of a student and would not supply the
relief sought in plaintiffs' complaint regarding the Board's plan
and regulations. Since the Board has not pointed to any other
statute that would provide an administrative remedy encompassing
that sought by plaintiffs, Charlotte-Mecklenburg Hosp. Auth.
controls, and the trial court properly denied the motion to dismiss
based on failure to exhaust administrative remedies.
 Finally, the Board argues that plaintiffs' challenge to
its plan to assign WCPSS students to year-round schools on a
mandatory basis has been rendered moot due to the fact that all the
plaintiffs who were initially assigned to a year-round school under
its 2007-2008 assignment plan and subsequently applied for transfer
have been reassigned to a traditional calendar or magnet school.
"[A]ctions filed under the Declaratory Judgment Act, N.C. Gen.
Stat. §§ 1-253 through -267 (2005), are subject to traditional
mootness analysis." Citizens Addressing Reassignment & Educ., Inc.
v. Wake County Bd. of Educ.
, 182 N.C. App. 241, 246, 641 S.E.2d
824, 827 (2007), disc. review denied
, 362 N.C. 234, ___ S.E.2d ___,
(2008). "A case is considered moot when 'a determination is sought
on a matter which, when rendered, cannot have any practical effect
on the existing controversy.'" Lange v. Lange
, 357 N.C. 645, 647,588 S.E.2d 877, 879 (2003) (quoting Roberts v. Madison County
, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996)).
"Courts will not entertain such cases because it is not the
responsibility of courts to decide abstract propositions of law."
(internal quotation marks omitted). "Conversely, when a
court's determination can have a practical effect on a controversy,
the court may not dismiss the case as moot." Id.
In determining whether plaintiffs' claims may be considered
moot, we are bound by Goldston
. Because we hold that plaintiffs
have standing to pursue a declaratory judgment regarding the
Board's authority to establish year-round schools and to assign
students to those schools on a mandatory basis, the fact that
individual plaintiffs have been reassigned does not address the
unsettled controversy concerning the Board's authority. See
, 361 N.C. at 34-35, 637 S.E.2d at 882 (holding
"declaratory judgment remains an appropriate remedy" despite
plaintiffs' abandoning their claim "to compel return of the
challenged assets" because "[i]f plaintiffs ultimately prevail,
their point is made"). Stated differently, the plaintiffs'
individual reassignments do not "terminate the uncertainty and
controversy giving rise to th[is] action" as would a declaration
that the Board does, or does not, have the authority to implement
its plan. Id.
at 34, 637 S.E.2d at 881. As a consequence,
plaintiffs' claims are not moot.
 We now turn to the trial court's decision on the merits.
We first note that plaintiffs, in arguing that the trial court's
order should be affirmed, couch their contentions in the rhetoric
of constitutional rights. The trial court, however, based its
decision solely on the Board's lack of "statutory authority" and
its conclusion "that mandatory year round schools are not
authorized under the law." It then concluded that "there is no
need to go further." The court did not address plaintiffs' state
and federal constitutional claims. Since plaintiffs have not
cross-assigned error on the grounds that those arguments present
alternative bases for upholding the trial court's decision, they
are not properly before us. Harllee
, 151 N.C. App. at 51, 565
S.E.2d at 685.
The trial court identified the merits issue as "whether or not
the Wake County Board of Education, or for that matter, any Board
of Education, has the legal authority to establish mandatory year
round schools? This is the critical determination in this case."
We believe that the trial court's articulation of the issue
actually presents two questions: (1) Does the Board have authority
to establish year-round schools, and (2) does the Board have
authority to assign students to such schools without their parents'
With respect to the authority of the Board to establish year-
round schools, the trial court's order ultimately seems to conclude
that the Board does have such authority. The court specifically
concluded that the Board is "authorized by law to operate, on avoluntary consensual basis
, year round calendar schools . . . ."
Even plaintiffs, in their brief to this Court, assert that the
Board "misstate[s] Plaintiffs' position as an argument that school
boards do not have authority to operate year-round schools . . . ."
The trial court's order, however, appears to base its requirement
that attendance at such schools be only on "a voluntary consensual
basis" on a lack of express statutory authority to operate such
schools except as a program supplemental to traditional calendar
schools. We, therefore, first address the Board's authority to
create and operate year-round schools.
 The North Carolina Constitution specifies that "[t]he
General Assembly shall provide by taxation and otherwise for a
general and uniform system of free public schools, which shall be
maintained at least nine months in every year, and wherein equal
opportunities shall be provided for all students." N.C. Const.
art. IX, § 2(1). The Constitution, however, further provides that
"[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, subject to laws enacted by the
General Assembly." N.C. Const. art. IX, § 5. The General Assembly
has codified this constitutional authority of the State Board of
Education in N.C. Gen. Stat. § 115C-12 (2007), which states: "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 freepublic schools
, subject to laws enacted by the General Assembly."
Nevertheless, as our Supreme Court has explained, the General
Assembly "may delegate to local administrative units the power to
make such rules and regulations as may be deemed necessary or
expedient, and when so delegated it is peculiarly within the
province of the administrative officers of the local unit to
determine what things are detrimental to the successful management,
good order, and discipline of the schools in their charge and the
rules required to produce those conditions." Coggins v. Bd. of
Educ. of Durham
, 223 N.C. 763, 767, 28 S.E.2d 527, 530 (1944).
Consistent with Coggins
, the General Assembly has exercised its
right to delegate power to local school boards by providing a broad
grant of authority:
All powers and duties conferred and
imposed by law respecting public schools,
which are not expressly conferred and imposed
upon some other official, are conferred and
imposed upon local boards of education. Said
boards of education shall have general control
and supervision of all matters pertaining to
the public schools in their respective
and they shall enforce
the school law in their respective units.
N.C. Gen. Stat. § 115C-36 (2007) (emphasis added). See also
Gen. Stat. § 115C-40 (2007) ("Local boards of education, subject to
any paramount powers vested by law in the State Board of Education
or any other authorized agency shall have general control and
supervision of all matters pertaining to the public schools in
their respective local school administrative units . . . .");Hughey v. Cloninger
, 297 N.C. 86, 94, 253 S.E.2d 898, 903 (1979)
("In the scheme of public education adopted by the General
Assembly, the 'general control and supervision of all matters
pertaining to the public schools in their respective administrative
units' is delegated to the county and city boards of education,
subject to any paramount powers vested by law in the State Board of
Education or any other authorized agency." (quoting N.C. Gen. Stat.
In addition to this broad grant of authority, the General
Assembly has also set out a list of specific powers and duties
vested in local school boards. See
N.C. Gen. Stat. § 115C-47
(2007). These enumerated powers complement the "general control
and supervision" vested in local school boards by §§ 115C-36 and
-40, with the result that "[e]ach County Board of Education is
vested with authority to fix and determine the method of conducting
the public schools in its county so as to furnish the most
advantageous method of education available to the children
attending its public schools." Coggins
, 223 N.C. at 767, 28 S.E.2d
N.C. Gen. Stat. § 115C-47(11) specifies that "[l]ocal boards
of education shall determine the school calendar under G.S.
115C-84.2." N.C. Gen. Stat. § 115C-84.2(a) (2007), in turn,
requires that each local board of education "adopt a school
calendar consisting of 215 days all of which shall fall within the
fiscal year." In addition, the statute mandates "[a] minimum of
180 days and 1,000 hours of instruction covering at least ninecalendar months." Id.
The local board, however, "shall designate
when the 180 instructional days shall occur." Id.
subsection (a) of § 115C-84.2 concludes by stressing: "Local boards
and individual schools are encouraged to use the calendar
flexibility in order to meet the annual performance standards set
by the State Board." Id.
Thus, local school boards have been
granted the flexibility to adopt the school calendars best suited
to fulfilling the State's educational mandates.
N.C. Gen. Stat. § 115C-84.2 does, however, place some
limitations on the design of a school calendar, including a mandate
that the calendar include 42 consecutive days when teacher
attendance is not required "unless . . . the school is a year-round
school." N.C. Gen. Stat. § 115C-84.2(b)(2). Further, although
reiterating that "[l]ocal boards of education shall determine the
dates of opening and closing the public schools under subdivision
(a)(1) of this section," the statute specifies that "[e
, the opening date for students shall not be
before August 25, and the closing date for students shall not be
after June 10." N.C. Gen. Stat. § 115C-84.2(d) (emphasis added).
Thus, N.C. Gen. Stat. § 115C-47 grants local school boards
broad authority to set the school calendar in accordance with N.C.
Gen. Stat. § 115C-84.2, which, in turn, encourages local school
boards to consider calendar flexibility as a means of achieving
educational standards. N.C. Gen. Stat. § 115C-84.2 does require
180 days of instruction over "at least nine calendar months," but
exempts "year-round schools" from the requirement of a 42-day breakfor teachers and from the restrictions on opening and closing
dates. The express language exempting year-round schools from the
calendar-design restrictions demonstrates that the General Assembly
recognized a year-round calendar as a valid alternative to the
traditional calendar (which includes a significant summer
Although the issues in this case have been discussed in terms
of "traditional" calendar schools versus "year-round" calendar
schools, both of these school calendar options comply with the
requirements set out in § 115C-84.2(a) and (b). Indeed, there has
been no suggestion that a year-round calendar such as the one
adopted by the Board in this case fails to comply with N.C. Gen.
Stat. § 115C-84.2. Thus, the Board has authority under these
statutes to operate year-round schools.
 While the trial court seemed to agree that the Board has
this authority, it also concluded that the Board cannot assign
students to year-round schools without informed parental consent.
This conclusion is precluded by N.C. Gen. Stat. § 115C-366(b)
(2007), which provides:
Each local board of education shall assign to
a public school each student qualified for
assignment under this section. Except as
otherwise provided by law, the authority of
each board of education in the matter of
assignment of children to the public schools
shall be full and complete, and its decision
as to the assignment of any child to any
school shall be final
(Emphasis added.) The only restrictions placed on a Board's
assignment authority are set forth in N.C. Gen. Stat. § 115C-367(2007), which prohibits local school boards from assigning students
to a given school "on account of race, creed, color or national
If, as we have held, the Board has authority to operate
schools in the WCPSS on a year-round calendar, then N.C. Gen. Stat.
§ 115C-366(b) grants "full and complete" authority to the Board to
assign children to such schools. Indeed, the Board's decision to
assign a child to "any school" _ which by its plain language must
include all lawfully-operated schools _ "shall be final." Id.
It appears that the trial court and plaintiffs base their
requirement that any assignment to a year-round school be voluntary
on a strained reading of N.C. Gen. Stat. § 115C-84.2 combined with
N.C. Gen. Stat. § 115C-1 (2007). According to the trial court,
N.C. Gen. Stat. § 115C-1 provides a right for students to attend a
traditional calendar school:
The text of [§ 115C-1] makes mandatory what
the text of the constitution leaves
discretionary. Because the constitution
references the phrase "uniform school term" as
being at least nine months, and the
legislature has required that the term be nine
months, the school term is a feature of public
school uniformity inherent in the
constitutional mandate of a general and
uniform school system. A nine month term is
therefore mandatory upon local school
administrative units throughout the state.
Equal access to a nine month school term is
part of the constitutional privilege of a
general and uniform system of free public
schools and a part of "the property right" of
The trial court and plaintiffs attempt to reconcile this "right"
with N.C. Gen. Stat. § 115C-84.2 by reading that statute asequating "year-round schools" with voluntary "supplemental or
additional educational programs or activities," as provided for in
According to the trial court, "[t]he permissive use of the
term year round schools in G.S. 115C-84.2(d) does not alter the
force or effect of the mandatory language in G.S. 115C-1 relating
to a uniform nine month term." The trial court's construction of
the statutes and plaintiffs' contentions cannot be reconciled with
the plain language of the statutes or prior appellate opinions.
N.C. Gen. Stat. § 115C-1 states:
A general and uniform system of free
public schools shall be provided throughout
the State, wherein equal opportunities shall
be provided for all students, in accordance
with the provisions of Article IX of the
Constitution of North Carolina. . . . There
shall be operated in every local school
administrative unit a uniform school term of
nine months, without the levy of a State ad
valorem tax therefor.
This Court has previously held that "§ 115C-1 simply codifies the
'general and uniform' and 'equal opportunities' clauses of the
Constitution . . . ." Leandro v. State
, 122 N.C. App. 1, 14, 468
S.E.2d 543, 552 (1996), aff'd in part and rev'd in part
, 346 N.C.
336, 488 S.E.2d 249 (1997).
Initially, we note that there is no dispute regarding whether
the Constitution provides the right to a uniform nine-month term
asserted by plaintiffs and recognized by the trial court; it does
not. Article IX provides for a "uniform system" that "shall be
maintained at least
nine months in every year . . . ." N.C. Const.art. IX, § 2(1) (emphasis added). "[T]he word 'uniform' modifies
the word 'system,' not the word 'term.' The Constitution,
therefore, does not require a uniform 180 day term." Morgan v.
Polk County Bd. of Educ.
, 74 N.C. App. 169, 174, 328 S.E.2d 320,
324 (1985) (citing Bd. of Educ. v. Bd. of Comm'rs of Granville
, 174 N.C. 469, 473, 93 S.E. 1001, 1002 (1917)).
The language of art. IX, § 2(1) does not explicitly require
uniformity with respect to the opening and closing dates. It
requires the State to maintain a free public school system with a
minimum quantum of instruction of nine months each year. Frazier
v. Bd. of Comm'rs of Guilford County
, 194 N.C. 49, 63, 138 S.E.
433, 440 (1927) (prior N.C. Const. art. IX, § 3, now N.C. Const.
art. IX, § 2(1), "is not a limitation as to the length of the
school term; it is the minimum required by the Constitution").
Our Supreme Court has also specifically considered what the
references to a "uniform system" and "equal opportunities" mean:
[The North Carolina Constitution] places upon
the General Assembly the duty of providing for
"a general and uniform system of free public
schools . . . wherein equal opportunities
shall be provided for all students." N.C.
Const. art. IX, § 2(1). We conclude that at
the time this provision was originally written
in 1868 providing for a "general and uniform"
system but without the equal opportunities
clause, the intent of the framers was that
every child have a fundamental right to a
sound basic education
which would prepare the
child to participate fully in society as it
existed in his or her lifetime. The 1970
amendment adding the equal opportunities
clause ensured that all the children of this
state would enjoy this right
Leandro v. State
, 346 N.C. 336, 348, 488 S.E.2d 249, 255-56 (1997)
(emphasis added) (internal citations omitted). As § 115C-1 is a
codification of the constitutional provision, this analysis
necessarily also controls as to § 115C-1.
established that the requirement of "equal
opportunities" was added to ensure that all children had equal
access to a sound basic education. The Court stressed: "Although
we have concluded that the North Carolina Constitution requires
that access to a sound basic education be provided equally in every
school district, we are convinced that the equal opportunities
clause of Article IX, Section 2(1) does not require substantially
equal funding or educational advantages
in all school districts."
, 346 N.C. at 349, 488 S.E.2d at 256 (emphasis added).
Since there is no contention that plaintiffs are being denied equal
access to a sound basic education by being assigned to year-round
(See footnote 4)
N.C. Gen. Stat. § 115C-1 does not provide
plaintiffs with a right to "equal opportunity" to attend a school
with a traditional calendar.
Further, we cannot agree with the trial court's assumption
that § 115C-1's reference to a "uniform school term of nine months"
necessarily means a term of no more and no less than nine months.
The statute, especially as a codification of the Constitution, can
equally be read as setting a floor for the quantum of educationrequired. Any other construction of the statute would place §
115C-1 in conflict with § 115C-84.2(a)(1)'s requirement that a
school calendar include "[a] minimum of 180 days and 1,000 hours of
instruction covering at least nine calendar months
Our Supreme Court has held that the statutes governing
education "are to be construed in pari materia
" and, "[i]f
possible, they are to be reconciled and harmonized." Bd. of Educ.
of Onslow County v. Bd. of County Comm'rs of Onslow County
N.C. 118, 126, 81 S.E.2d 256, 262 (1954). In order to do so, the
Court directed the following "judicial approach":
"The different sections should be regarded,
not as prior and subsequent acts, but as
simultaneous expressions of the legislative
will; but, where every means of reconciling
inconsistencies has been employed in vain, the
section last adopted will prevail, regardless
of their relative positions in the code or
revision. An unnecessary implication arising
from one section, inconsistent with the
express terms of another on the same subject,
yields to the expressed intent, and the two
sections are not repugnant."
(quoting 82 C.J.S. Statutes
§ 385(b)). See also Whittington v.
N.C. Dep't of Human Res.
, 100 N.C. App. 603, 606, 398 S.E.2d 40, 42
(1990) ("[W]hen one statute speaks directly and in detail to a
particular situation, that direct, detailed statute will be
construed as controlling other general statutes regarding that
particular situation, absent clear legislative intent to the
contrary. . . . [S]tatutes relating to the same subject should be
construed in pari materia
, in such a way as to give effect, ifpossible, to all provisions without destroying the meaning of the
Here, construing § 115C-1, a general statute codifying the
constitutional provision, as mandating a term of precisely nine
months rather than establishing a minimum term of nine months (as
set out in the constitution) would conflict with the later-enacted
§ 115C-84.2. That more recent statute, however, specifically
addresses the requirements for school calendars and requires "at
least nine months." The construction of § 115C-1 adopted by the
trial court is unnecessary and should, therefore, "yield" to the
express intent in § 115C-84.2. Bd. of Educ. of Onslow County
N.C. at 126, 81 S.E.2d at 262.
We hold, therefore, that § 115C-1, consistent with the purpose
of the constitutional provision it was designed to implement, does
not mandate equal access to a school term of nine consecutive
months, but rather refers to the minimum quantum of educational
instruction required. How that minimum quantum of instruction is
translated into an annual school calendar is then prescribed by §
115C-84.2, which sets out certain requirements, but otherwise
mandates that "[t]he local board shall designate when the 180
instructional days shall occur" and specifically recognizes "year-
round school[s]" as a permissible calendaring scheme. N.C. Gen.
Stat. § 115C-84.2(a)(1), (b)(2), (d).
The trial court and plaintiffs, however, construe § 115C-84.2
as denying local school boards the authority to operate schools on
a year-round calendar except, according to the trial court, as partof "supplemental or additional programs which supplement or add to
the uniform school calendar," referencing § 115C-84.2(e). N.C.
Gen. Stat. § 115C-84.2(e) states: "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." The trial court apparently believed
that this subsection of § 115C-84.2 permitted year-round schools as
"supplemental" to the nine-month calendar, but because such schools
were merely supplemental programs, students could not be assigned
to them without parental consent. We cannot accept this reading of
It is, of course, fundamental "that when construing a
statutory provision, the words in the statute are to be given their
natural or ordinary meaning, unless the context of the provision
indicates that they should be interpreted differently."
, 100 N.C. App. at 606, 398 S.E.2d at 42. In this case,
§ 115C-84.2(d) expressly exempts "year-round schools" from the
statute's requirement regarding opening and closing dates of school
calendars: "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." (Emphasis added.) N.C. Gen.
Stat. § 115C-84.2(e) relates only to "supplemental or additional
educational programs or activities outside the calendar adopted
under this section
." (Emphasis added.) Since the provision in §
115C-84.2(d) referencing "year-round schools" governs calendars
permitted under the statute, "year-round schools" necessarily donot constitute programs "outside the calendar" permitted by the
Nonetheless, the trial court ruled that "it is clear the way
to reconcile this exception in the opening and closing of schools
[in N.C. Gen. Stat. § 115C-84.2(d)] with N.C. Gen. Stat. § 115C-1
is to define year round schools or modified calendar schools as
schools which are 'additional' or 'supplemental' and having a
voluntary aspect to participation by students." The court then
added: "[T]he only way the Legislature would allow school boards
to operate schools which did not adhere to its protection of summer
vacation provisions was to allow a school board to have
'supplemental' or 'additional' school programs."
Contrary to this assumption by the trial court, N.C. Gen.
Stat. § 115C-84.2(b)(2), in fact, does specifically exempt year-
round schools from the statute's apparent protection of a teacher's
summer vacation: "The calendar shall include at least 42
consecutive days when teacher attendance is not required unless:
(i) the school is a year-round school . . . ." This provision _
within the portions of the statute setting out standards for school
calendars and unrelated to "supplemental" programs _ runs counter
to the trial court's construction of the statute. Indeed, the
General Assembly could not have intended in this reference to
"year-round schools" to equate such schools with "supplemental" or
"additional" programs as set forth in N.C. Gen. Stat. § 115C-
84.2(e). Subsection (b)(2) was added in 1997, 1997 N.C. Sess. Laws
443, s. 838, while subsection (e), addressing supplementalprograms, did not come into existence until 2004, 2004 N.C. Sess.
Laws 180, s. 1.
As support for its construction of § 115C-84.2, the trial
court relied upon legislative history regarding the General
Assembly's amendments to § 115C-84.2 in 2004. That legislation
added the limitation on opening and closing dates (with the
exception for year-round schools) and added subsection (e)
discussing supplemental educational programs. 2004 N.C. Sess. Laws
180, s. 1. According to plaintiffs, the fact that the House and
Senate Conference Committee that produced 2004 N.C. Sess. Law 180
chose to remove proposed definitions of "year-round schools" from
the Act while adding the authorization in subsection (e) of
supplemental programs necessarily means that year-round schools are
supplemental or additional programs under § 115C-84.2(e).
The Supreme Court has, however, stressed that "where the
language of a statute expresses the legislative intent in clear and
unambiguous terms, the words employed must be taken as the final
expression of the meaning intended unaffected by its legislative
history." Piedmont Canteen Serv., Inc. v. Johnson
, 256 N.C. 155,
161, 123 S.E.2d 582, 586 (1962). We believe that the language of
N.C. Gen. Stat. § 115C-84.2(a)(1) and (d) is clear and unambiguous.
Legislative history cannot, therefore, be relied upon to force a
construction on that statute inconsistent with the plain language.
In any event, the inference drawn by the trial court and
plaintiffs from the events in 2004 is at best tenuous. One can
just as readily infer that the General Assembly felt that it wasunnecessary to define "year-round schools" and that any such
definition would inappropriately constrain local school boards from
"us[ing] the calendar flexibility in order to meet the annual
performance standards set by the State Board," as encouraged by
N.C. Gen. Stat. § 115C-84.2(a).
Moreover, the trial court's and plaintiffs' legislative
history analysis overlooks the General Assembly's adoption in 1997
of the exemption for "year-round school[s]" in the calendar
limitation regarding teacher vacation days. This prior amendment
adding an exception for year-round schools, long before a
subsection relating to supplemental programs existed, undercuts the
inference drawn by the trial court from the _ at best _ ambiguous
Neither the trial court nor plaintiffs have presented any
other statutory basis for a requirement of informed parental
consent prior to assignment of a child to a year-round school. We
note further that the trial court's approach is inconsistent with
N.C. Gen. Stat. § 115C-84.2(a)'s requirement that "[l]ocal boards
of education shall consult with parents and the employed public
school personnel in the development of the school calendar." While
this provision requires only consultation, the trial court's order
requires agreement by parents in their children's calendar.
"[W]hen confronted with a clear and unambiguous statute, courts
'are without power to interpolate, or superimpose, provisions and
limitations not contained therein.'" In re R.L.C.
, 361 N.C. 287,
292, 643 S.E.2d 920, 923 (quoting In re Banks
, 295 N.C. 236, 239,244 S.E.2d 386, 388-89 (1978)), cert. denied
, ___ U.S. ___, 169 L.
Ed. 2d 396, 128 S. Ct. 615 (2007). Thus, we cannot impose a duty
to obtain consent when the statute provides only a duty to consult.
We, therefore, hold that the Board has the authority under
N.C. Gen. Stat. § 115C-84.2 to create and operate year-round
schools. Further, no authority exists to support the trial court's
requirement of informed parental consent prior to assignment to
such schools. To the contrary, under N.C. Gen. Stat. § 115C-
366(b), when a local school board exercises its "full and complete"
authority to assign a student to a year-round school, that decision
is "final" subject only to an application by the student under N.C.
Gen. Stat. § 115C-369 for reassignment.
We note that much of the trial court's decision as well as the
materials submitted by the parties to the trial court addressed the
advantages and disadvantages of a year-round calendar. Such
questions are for the local boards of education, the State Board of
Education, and the General Assembly to decide. As our Supreme
Court stressed in its landmark education decision:
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 as to what curricula will best ensure
that every child of the state has theopportunity to receive a sound basic
, 346 N.C. at 355, 488 S.E.2d at 259. The Court
"reemphasize[d] [its] recognition of the fact that the
administration of the public schools of the state is best left to
the legislative and executive branches of government." Id.
488 S.E.2d at 261.
The Court also recognized more than 60 years ago that "[i]f
the opinion of court or jury is to be substituted for the judgment
and discretion of the board at the will of a disaffected pupil, the
government of our schools will be seriously impaired, and the
position of school boards in dealing with such cases will be most
, 223 N.C. at 769, 28 S.E.2d at 531. As the
Court stated then, "complaints of disaffected pupils of the public
schools against rules and regulations promulgated by school boards
for the government of the schools raise questions essentially
political in nature, and the remedy, if any, is at the ballot box."
Thus, if plaintiffs disagree with mandatory assignment to
year-round schools, their remedy lies with the electoral process or
through communications with the legislative and executive branches
of government. We cannot improve upon the incisive statement
contained in the amicus brief filed on behalf of the North Carolina
Association of School Administrators:
To the extent that the General Assembly
wanted to limit or even eliminate "year round"
calendar schools, it has the power to do so.
It has not done so, obviously recognizing theimportance of giving school boards the
necessary flexibility to deal with diverse
student populations and the particular
challenges faced during a school year by
different districts from the mountains to the
coast, from small rural districts to large
urban districts. To allow the trial court's
order and reasoning to stand would
significantly impair the ability of boards and
school administrators to tailor school
calendars and assignment policies of each
district so as to provide each student an
opportunity for a sound basic education and to
prudently utilize the tax resources which fund
Accordingly, we reverse the decision below and remand for entry of
judgment in favor of the Board.
Judges McCULLOUGH and STEELMAN concur.