55 N.C.A.G. 060.

• Case Date: December 18, 1985
• Court: North Carolina

North Carolina Attorney General Opinions 1985. 55 N.C.A.G. 060. December 18, 1985Opinion No. 55 N.C.A.G. 060Subject: Education; Students; Right to Attend Particular Elementary and Secondary Public Schools; Discretionary Enrollment in Other Schools.Requested by: C. Wade Mobley, Superintendent Rowan County SchoolsQuestions: Which school system does a student have a right to,attend? Whose domicile determines the school system which a student has a right to attend? (3) May a local board of education enroll a student who.does not have a right to attend its schools? (4) If a local board of education refuses to enroll students who do not have a statutory right to attend its schools, does such action infringe any constitutional rights of students? (5) What process, if any, is due a pupil in determining whether he is domiciled in the school district? Conclusions: (1) Except for certain limited exceptions in G.S. §115C-140.-L and 366.2 principally concerning children in foster or group homes, a student has a right to attend only the schools of the school system within which the student, his parents or legal guardian are domiciled. (2) The domicile of the parents or properly appointed legal guardian controls the school system which a minor student has a right to attend unless the minor student is emancipated. (3) Yes. (4) No, provided such decisions are not based upon discriminatory policies or practices. (5) The procedures set forth in G.S. §115C-45(c) will afford due process to the student who makes a prima facie showing of domiciliary status. In 1970 we opined that a student has a right to attend school only in the system where he, his parents or legal guardian make their permanent home. 41 NCAG 5 (1970) The laws relating to this issue have changed since then, and we have recently had a number of inquiries from school officials regarding this matter. We, therefore, think it appropriate to re-examine in some detail the duty, responsibilities and authority of local boards of education concerning the enrollment of students. The first task is to identify those students who have a right to attend school within a particular school system. Except for the limited circumstances set forth in G.S. §115C-140.1 and 366.2 which relate principally to handicapped children in foster or group homes, a student of eligible age has a right to attend only the schools where he, his parents or guardian are " domicile "domiciled. G.S. §115C-366. The word it I is a word of art and means more than mere residence. Under our statutes we think it is clear that the General Assembly did not intend to confer the right to attend the schools of a particular school system upon students who simply reside, or whose parents or guardian simply reside, within the school system. That right extends only to students who are domiciled, or whose parents or guardian are domiciled, in the school system. Prior to 1981, G.S. §115C-366 (then G.S. §115C-163) provided that a student was entitled to attend school in the system where he, his parents or guardian resided. In 1981 the General Assembly amended G.S. §115C-366 to substitute the word "domicile" for the word "reside". Chapter 567, 1981 Session Laws. See G.S. §115C-140.1 and 366.2 where the General Assembly expressly distinguishes the word "domicile" from the word "residence" for school enrollment purposes. In construing the effect of the General Assembly's substitution of the word "domicile" for the word "reside" it must be presumed that the General Assembly comprehended the import of the difference between these words. Transportation Company v. Robeson Count , 283 N.C. 494, 196 S.E. 2d 770 (1973). This difference was explained by the Supreme Court in Hall v. Board of Elections, 280 N.C. 600, 605-606, 187 S.E. 2d 52 (1972).

Precisely speaking, residence and domicile are not convertible terms. A person may have his residence in one place and his domicile in another. Residence simply indicates a person's actual place of abode, whether permanent or temporary. Domicile denotes onels permanent, established home as distinguished from a temporary, although actual, place of residence. When absent therefrom, it is the place to which he intends to return (animus revertendi); it is

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