In Re the Assignment of Varner , 266 N.C. 409 ( 1966 )

146 S.E.2d 401 (1966) 266 N.C. 409

In re the Assignment of James VARNER to Trinity School.

No. 614.

Supreme Court of North Carolina.

February 4, 1966.

Smith & Casper, by Archie L. Smith, Charlie B. Casper, Asheboro, for petitioner appellee.

Miller & Beck, by G. E. Miller, Asheboro, for respondent appellant.

LAKE, Justice.

In this Court the appellant Board demurred on the ground that the Court had no jurisdiction to assign the Varner boy to a school in the Davidson County Administrative unit in absence of an agreement between the two units. The demurrer is overruled. Application for Reassignment of Hayes, 261 N.C. 616, 135 S.E.2d 645.

In its brief the appellant Board states that its decision to deny the application for the reassignment of the Varner child was reached upon the basis of the above mentioned letters to it from Messrs. Keppel and Seeley. It then refers to the Federal Civil Rights Act of 1964 and states:

"The violation of a requirement or standard set by this law or the regulations authorized by it, or actions taken pursuant to either, which curtails a program established under Federal law will transcend the limitations of State administrative or judicial power."

The Legislature of 1955 enacted what is now known as the Pupil Assignment Law, which was amended in some respects by the same Legislature at its Special Session of 1956. G.S. § 115-176 to G.S. § 115-179. That statute provides, "Except as otherwise provided in this article, the authority of each board of education in the matter of assignment of children to the public schools shall be full and complete, * * *." G.S. § 115-176. Concerning applications for the reassignment of pupils it states, "If, at the hearing, the board shall find that the child is entitled to be reassigned to such school, or if the board shall find that the reassignment of the child to such school will be for the best interests of the child, and will not interfere with the proper administration of the school, or with the proper instruction of the pupils there enrolled, and will not endanger the health or safety of the children there enrolled, the board shall direct that the child be reassigned to and admitted to such school." (Emphasis added.) G.S. § 115-178. The statute then provides for an appeal by "any person aggrieved" from the order of the board to the superior court where the matter is to be heard de novo. G.S. § 115-179. The Varners are "persons aggrieved" by the action of the Board. Re Application for Reassignment of Pupils, 247 N.C. 413, 101 S.E.2d 359.

Speaking of the Pupil Assignment Law in his concurring opinion in Application for Reassignment of Hayes, supra, Rodman, J., who served with distinction in that Legislature and played a major role in the enactment of the law, especially in the revisions of it by the Special Session of 1956, said:

"It is the duty of the board to reassign if ``the reassignment of the child to such school will be for the best interest of the child, and will not interfere with the proper administration of the school.'" (Emphasis added.)

In the same case, speaking for the majority, Higgins, J., said:

"It is worthy of note that the statute places all emphasis on the welfare of the child and the effect upon the school to which reassignment is requested." (Emphasis added.)

The State has entrusted to the appellant Board, and to like boards in other county and city administrative units, the "full and complete" power to assign and reassign each child residing within its unit to a public school, subject only to the standards and limitations prescribed by the Pupil Assignment Law, including the power of the courts of this State to hear de novo an appeal from the final order of the Board and, thereupon, to enter the appropriate order. The Act imposes upon the Board, and upon the courts on appeal from it, a solemn duty, for in applying this Act to the application for the reassignment of a child, the Board is dealing with an asset of the State which cannot be valued in the terms of the market place. It is the best interest of the applying child which must guide the deliberations and control the decision of the Board, unless the granting of the application will interfere with the proper administration of the school to which the child seeks reassignment or will endanger the proper instruction, the health or the safety of the other children enrolled therein. Of course, the board of one administrative unit cannot assign a child to a school in another administrative unit without the consent of the board of the other unit.

The Pupil Assignment Law does not authorize the Board to abdicate or delegate this duty to exercise the power so entrusted to it for the best interests of the applying child. The Board may not, in the hope of receiving money for its school, shut its eyes to the mandate of the statute. It may not, by contract or otherwise, transfer this power to an employee of the Federal Government, or bind itself to exercise it as he may direct, or in any other manner than that provided in the Act, or for any purpose other than that for which the State conferred the power upon it. No agreement of the Board with anyone, be he an employee of the Federal Government or otherwise, can authorize the Board to deny an application for reassignment which the Legislature, by a statute within its authority to enact, has provided that the Board shall grant. No such agreement of the Board can deprive the courts of this State of jurisdiction conferred upon them by such a statute, or bar the court, before which an appeal from the Board's order is brought as provided by the statute, from entering the judgment prescribed in such case by the statute.

So long as the Pupil Assignment Law remains the law of North Carolina, the courts of this State in passing upon appeals from orders of the Boards of Education concerning applications for the reassignment of children to the public schools, will determine the right to reassignment in accordance with the standards prescribed by the statute, not pursuant to agreements between the Board and another or letters from such other party setting forth his ex parte construction of the alleged agreement.

The Pupil Assignment Law provides "A child residing in one administrative unit may be assigned either with or without the payment of tuition to a public school located in another administrative unit upon such terms and conditions as may be agreed in writing between the boards of education of the administrative units involved and entered upon the official records of such boards." G.S. § 115-176. Obviously, the Legislature contemplated agreements between boards acting within the framework of the statute and free to accomplish its purpose—the assignment of the individual child to the school where his or her "best interest" would be served without disruption of that school. It is not within the fair intendment of this law that a board may enter into an agreement with some other agency or person that, come what may and regardless of the welfare of the applying child, the board will never agree to assign any child to any school in another county. That is what the Randolph County Board of Education now tells us it has done.

The Civil Rights Act of 1964 has no application to this matter. There is nothing in the record to indicate that race had anything to do with the application of the Varners for the reassignment of their son to the East Davidson High School. On the contrary, the record contains abundant evidence that they are simply requesting that he be allowed to return to the administrative unit where he has attended schools from the beginning of his school career, where his school friends are, where the children from his neighborhood have gone to school for thirty years.

Under the Pupil Assignment Law, as amended in 1956, the board of education of one city or county administrative unit may not permit to be enrolled in one of its schools a child who resides in the territory of another unit solely upon its own willingness to do so, plus the desire of the child or its parents to attend that school. Nothing else appearing, the assent of the board of the unit in which the child resides must be obtained. Fremont City Board of Education v. Wayne County Board of Education, 259 N.C. 280, 130 S.E.2d 408. This is a protection to each unit against raids upon its student body by another unit so as to gain additional teacher allotment by the State on account of increased enrollment, or so as to gain accomplished athletes, or for any other purpose. Whether the board of the county of residence, after nine years of acquiescence in a child's going to another unit's school, may arbitrarily make him come home when, in the tenth grade, he shows ability as a football player we need not now decide. There is nothing to indicate that James Varner has any such ability.

The Pupil Assignment Law provides that, upon appeal from the Board to the Superior Court, the matter shall be heard de novo. In the matter of Application for Reassignment of Hayes, supra, this Court held that, upon such appeal, the Superior Court has the authority to reassign the child to a school of another administrative unit even though the board of education of the administrative unit wherein the child resides objects. The language of the statute, G.S. § 115-179, is:

"If the decision of the court be that the order of the county or city board of education shall be set aside, then the court shall enter its order so providing and adjudging that such child is entitled to attend the school as claimed by the appellant, or such other school as the court may find such child is entitled to attend, and in such case such child shall be admitted to such school by the county or city board of education concerned."

The matter being heard in the superior court de novo, it is as if it were before the court in the first instance. That is, the court has the same powers, the same duties and the same standards to guide it as the board had in the first instance. It has the authority to reassign the child to the school which he and his parents want him to attend, if that is in the best interest of the child and the child's enrollment therein will not interfere with the proper administration of that school or endanger the instruction, the health or the safety of the other pupils there enrolled. The court, by its order, supplies that which was found lacking in Fremont City Board of Education v. Wayne County Board of Education, supra—the consent of the unit of the child's residence. This is the protection to that unit against unwarranted raids upon the student bodies of its schools.

We need not decide now whether the court, upon such appeal, may order the enrollment of the child in a school of an administrative unit other than that in which the child resides over the objection of the board of education of that other unit. Here, the record contains a statement by the Chairman of the Davidson County Board of Education to the effect that it will accept this boy if the court assigns him to the East Davidson High School. It is not necessary under these circumstances that the Davidson Board be made a party to this proceeding.

To hold otherwise would make the child the captive of the schools of the area where he resides, however inadequate for his needs they may be, if the board of education of that area arbitrarily refuses to grant his request to go to another school willing and ready to receive him. We do not think that was the intent of the Legislature in providing for an appeal to the court from the order of the board.

It has not yet been determined where James Varner should go to school; that is, whether it is in his best interest to attend the East Davidson High School or the Trinity School, or whether his enrollment in the school of his parents' choice would interfere with the administration of that school or endanger the instruction, health or safety of the other children there enrolled. That decision must be reached through trial of the matter by a jury in the superior court, unless jury trial be waived as it was in the matter of Application for Reassignment of Hayes, supra. G.S. § 115-179.

This appeal is from an interlocutory injunction and a temporary assignment pendente lite. The purpose of such an injunction is to preserve the status quo until a trial can be had on the merits, the applicant having made a prima facie showing of his right to the final relief he seeks in the proceeding. Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590; Edmonds v. Hall, 236 N.C. 153, 72 S.E.2d 221; Harrison v. Bray, 92 N.C. 488; Strong, N.C. Index, Injunctions, § 13.

The effect of the order below is to permit James Varner to continue to attend the school system he has been attending since his education began nine years ago, pending the final determination of the matter. It would obviously be detrimental to him to shift him to an entirely different school system, which he objects to attending and where he would, presumably, be an unhappy student, and then back again to the East Davidson School if the jury finds that to be in his best interest. For this interference with his educational program he and his parents would have no adequate remedy at law. No substantial injury can be done to the appellant Board, or to the schools under its administrative control, by permitting this boy, who has never attended a school in Randolph County, to attend the East Davidson High School pending the jury's determination of the matter.

There is ample evidence in the record to support each finding of fact made by the court below, except the finding that the Trinity School is presently overcrowded. The greater weight of the evidence on that point is that it has been recently reorganized and converted into a different type of school than it formerly was, so that there is now ample space therein for the pupils assigned to it. However, this finding is relatively immaterial to the decision of the matter.

Affirmed.