Kiddie Korner Day Schools, Inc. v. Charlotte-Mecklenburg Bd. of Ed., CHARLOTTE-MECKLENBURG

Citation55 N.C.App. 134,285 S.E.2d 110
Decision Date15 December 1981
Docket NumberCHARLOTTE-MECKLENBURG,No. 8126SC212,8126SC212
CourtCourt of Appeal of North Carolina (US)
Parties, 1 Ed. Law Rep. 972 KIDDIE KORNER DAY SCHOOLS, INC., Child Acre Culture and Development, Inc., Mini-American Associates, Inc., Doing Business as Little Red School House, Kiddieland Day Care Center, Inc. Kindercare Learning Centers, Inc., Ellie L. Brooks, Doing Business as Brooks' Day Care, Lavern M. Rabb, Doing Business as Little Learners Day Care, Melvin Hatley and Barbara Hatley, Doing Business as Eastway Day Nursery and Eastway Plaza Day Care, Marion S. Blythe and Migene B. Rappe, Doing Business as Little People's School, Bailey O. Cooper and Henry B. Cooper, Doing Business as Mary Moppet's Day Care Schools of Charlotte, Robert L. Eagle, Albert S. Roach, and Mary T. Roach v.BOARD OF EDUCATION, A Public Body Corp.

Tucker, Hicks, Sentelle, Moon & Hodge, P.A. by John E. Hodge, Jr., Charlotte, for plaintiffs-appellants.

Weinstein, Sturges, Odom, Groves, Bigger, Jonas & Campbell, P.A. by Hugh B. Campbell, Jr., Charlotte, for defendant-appellee.

BECTON, Judge.

I

Because of the complexity of this case, we detail the facts before proceeding with our analysis. The plaintiffs are owners and operators of day care centers in Charlotte, North Carolina. The defendant School Board is a duly authorized corporate body under the laws of our State.

This controversy revolves around the School Board's involvement in the initiation and operation of the Dilworth Elementary Day Enrichment (DEDE) program, which was designed to alleviate the problem of the "latch key" child. 1 After consultation with Dr. Mary E. Mayesky, an education specialist, and community persons, Dr. Jay M. Robinson, the School Superintendent, proposed the adoption of this program based on the successful implementation of a similar program in another city. The School Board, upon adopting the proposal, directed that a "representative from the Dilworth staff, parents, and the Dilworth Ministerial Association be included on the committee appointed to implement the proposed program." Such a committee was formed, and it is this group which actually administers the program. The program is operated at the Dilworth Elementary School and is open to all students enrolled there.

Instead of leaving school at the end of the regular school day, the students enrolled in the DEDE program remain at school where, under the supervision of program staff, they do homework or study, and engage in athletic or artistic activities. The program operates from 2:00 p.m. until 5:30 p.m. Students participating are not required to participate every day nor are they required to remain until 5:30. Parents are free to decide what days and until what times the children will participate.

The program is self-sufficient, the operating costs being covered by the $15.00 per month tuition charged to the participants. Arrangements are made for students who are unable to pay the tuition. A local church provides a van to transport students who need transportation home. The School Board provides the use of the Dilworth Elementary School. Although there are fuel and lighting costs associated with the use of the building, these costs are nominal and are considered by the School Board as an insignificant part of the school system's budget. None of the staff are compensated by the School Board for the services they render.

II

The plaintiffs argue that the trial court erred in granting the defendants' motion for summary judgment and in denying their motion for summary judgment. Specifically, they contend (1) that the program violates our Constitutional mandate requiring a general and uniform system of free public schools; (2) that school funds were used to establish, and are being used to maintain, the program; (3) that the expenditures for the program are not for public purposes and have not been approved by the voters; (4) that the School Board is in unauthorized competition with the plaintiffs; (5) that the program violates personal and property rights of the plaintiffs; (6) that there is no statutory authorization for the program; and (7) that the legislature could not delegate to the School Board the power or authority to maintain the program. The plaintiffs also argue that they are entitled to an award of attorneys' fees. For the reasons set forth below, we reject the plaintiffs' assertions.

We note initially that on a motion for summary judgment the moving party has the burden of proving that there are no genuine issues of material fact. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974); Askew's, Inc. v. Cherry, 11 N.C.App. 369, 372, 181 S.E.2d 201, 203 (1971); G.S. 1A-1, Rule 56(c). We also note that the DEDE program is not a day-care center. Our legislature has enacted statutes to protect children who are put in day-care facilities. These statutes outline a detailed plan for the licensing and regulation of these facilities. G.S. 110-85 et seq. G.S. 110-86(3) defines a day-care facility to

[include] any day-care center or child-care arrangement which provides day care on a regular basis for more than four hours per day for more than five children, wherever operated and whether or not operated for profit, except that the following are not included: public schools; nonpublic schools whether or not accredited by the State Department of Public Instruction, which regularly and exclusively provide a course of grade school instruction to children who are of public school age....

The DEDE program does not fit this definition. Our analysis of the program, therefore, will be in terms of an educational service operated by a school sponsored committee.

A.

We reject plaintiffs' argument that the DEDE program is in violation of the uniform system requirement of our Constitution. Our Constitution declares that "[r]eligion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, libraries and the like means of education shall forever be encouraged." North Carolina Const. art. 9, § 1. The Constitution further provides 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. 9, § 2(1).

Our Supreme Court has, on many occasions, interpreted the import of these provisions. Very early in the history of public education in our State, the Supreme Court stated:

It will be observed that it is to be a "system," it is to be "general," and it is to be "uniform." It is not to be subject to the caprice of localities, but every locality, yea, every child, is to have the same advantage, and be subject to the same rules and regulations.

Lane v. Stanly, 65 N.C. 153, 157-58 (1871). Further, in Board of Education v. Board of Commissioners, 174 N.C. 469, 473, 93 S.E. 1001, 1002 (1917), the Court stated:

The term "uniform" here clearly does not relate to "schools," requiring that each and every school in the same or other district throughout the State shall be of the same fixed grade, regardless of the age or attainments of the pupils, but the term has reference to and qualifies the word "system" and is sufficiently complied with where, by statute or authorized regulation of the public-school authorities, provision is made for establishment of schools of like kind throughout all sections of the State and available to all of the school population of the territories contributing to their support.

It is clear, therefore, that the constitutional mandate relates to the statewide scheme for public education. The mandate does not require every school within every county or throughout the State to be identical in all respects. Such a mandate would be impossible to carry out as there are differences within a given school as the caliber of teachers and students differ.

The School Board has not violated the constitutional mandate by formulating the DEDE concept or by allowing it to operate at Dilworth Elementary School. The School Board is required to provide a general and uniform education for the students in the Charlotte-Mecklenburg System. This it has done. There is no requirement that it provide identical opportunities to each and every student. Since it is the Dilworth Committee, and not the School Board, which operates the program, we fail to see how the School Board can be held to violate the constitutional mandate of a general and uniform system. That the School Board, through its Superintendent, was initially involved in the development of the idea does not alter our opinion.

B.

The plaintiffs also argue that, because tuition is charged the participating students, the program is not free as is required by the Constitution. Our Constitution does not require that public education be completely free. Our Supreme Court, in Sneed v. Board of Education, 299 N.C. 609, 264 S.E.2d 106 (1980), held that supplemental fees charged its students by the Greensboro Board of Education were not unconstitutional. There the Court stated:

So long as public funds are used to provide the physical plant and personnel salaries necessary for the maintenance of a "general and uniform" system of basic public education, our public school system is "free"--that is, without tuition--within the meaning of our state constitution. That the administrative boards of certain school districts require those pupils or their parents who are financially able to do so to furnish supplies and materials for the personal use of such students does not violate the mandate of Article IX, Section 2(1). Nor do we perceive any constitutional impediment to the charging of modest, reasonable fees by individual school boards to support the purchase of supplementary supplies and materials for use by or on behalf of students. Accordingly, we hold today that the fee schedule...

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