In Re Reassignment of Hayes

135 S.E.2d 645 (1964) 261 N.C. 616

In the Matter of Application for Reassignment of Suzanne Perry HAYES from Fremont High School to Charles B. Aycock High School.

No. 313.

Supreme Court of North Carolina.

April 8, 1964.

James N. Smith, Goldsboro, for Fremont City Bd. of Ed., appellant

Bland & Freeman, by W. Powell Bland, George K. Freeman, Jr., Goldsboro, for Suzanne Perry Hayes, appellee.

HIGGINS, Justice.

This controversy arises under the Pupil Assignment Law now codified as Article 21, General Statutes of North Carolina. Section 115-176 requires each county and city board of education "to provide for the assignment to a public school of each child residing within the administrative unit who is qualified * * * for admission to a public school. Except as otherwise provided in this article, the authority of each board of education in the matter of assignment * * * shall be final. A child residing in one administrative unit may be assigned * * * 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 * * *." This section provides for assignment en masse upon the basis of residence and without hearing. Assignment may be made to a school outside the administrative unit if the boards agree in writing. The section authorizes assignment without notice, or the approval of the child, or its parents, and without hearing. No child shall be enrolled in or permitted to attend any other public school.

The foregoing is the rule for assignment in the first instance. The Legislature, however, recognized that the exact enforcement of any hard and fast rule may work hardship in individual cases. Hence, Section 115-178 provides that any parent who is dissatisfied with the assignment of his child may apply to the board in writing for a hearing "on the question of reassignment of such child to a different school." * * * "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."

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.

When the Fremont City Board refused to make the requested reassignment to the Aycock High School, the parents appealed to the Superior Court as authorized by G.S. § 115-179. "Upon such appeal, the matter shall be heard de novo in the superior court before a jury in the same manner as civil actions are tried and disposed of therein." The appeal in this de novo hearing vests the superior court with full power to make the requested reassignment if permitted by law. "The word `de novo' mean fresh or anew; for a second time; and a de novo trial in appellate court is a trial had as if no action whatever had been instituted in court below." In Re Farlin, 350 Ill.App. 328, 112 N.E.2d 736. "Power to try a case de novo vests a court with full power to determine the issues and rights of all parties involved, and to try the case as if the suit had been filed originally in that court." Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681. "The language of the statute is mandatory. It provides that on appeal from the action of the Board the circuit court `shall hear the matter de novo.' This means that the court must hear or try the case on its merits from beginning to end as if no trial or hearing had been held by the Board and without any presumption in favor of the Board's decision." Hiner v. Wenger, 197 Va. 869, 91 S.E.2d 637. "The provision that on appeal the trial shall be `under the same rules and regulations as are prescribed for the trial of other civil causes' has been interpreted to mean that the trial shall be de novo." Utilities Comm. of North Carolina v. Great Southern Trucking Co., 223 N.C. 687, 28 S.E.2d 201. "[A] trial de novo in an appellate tribunal commonly designates a trial had as though no action whatever had been instituted in the court below." 5 C.J.S. Appeal and Error § 1524.

While the statute provides for the de novo hearing before a jury, nevertheless, the parties by consenting to the reference waived the jury trial and substituted therefor the hearing before the referee. In Re Parker, 209 N.C. 693, 184 S.E. 532. However, upon exceptions to the referee's findings, the trial judge had power to affirm in whole or in part, modify, set aside, make additional findings, etc. This he may do only in passing on exceptions. Coburn v. Roanoke Land & Timber Corp., 257 N.C. 222, 125 S.E.2d 593. However, when the record comes here, we are bound by the findings if they are supported by competent evidence. Anderson v. McRae, 211 N.C. 197, 189 S.E. 639. The referee found facts and Judge Cowper approved and affirmed them.

Inasmuch as reassignment is in the nature of a special case and to be made on an individual student basis, upon the request of the parent, the referee properly excluded evidence relating to other applicants for transfer. The assignment of error based on the exclusion is not sustained. The inquiry was limited to the question whether Suzanne Perry Hayes was entitled to reassignment to the school she had attended the previous year and which was only three miles from her home, though in a different administrative unit. The reassignment was entirely satisfactory to the authorities of the Aycock High School. It was admitted on the argument that the parents would take care of her transportation to that school.

A careful review of the record convinces us the findings made by the Referee and reviewed by the Court on exception, are fully supported by competent and substantial evidence. Likewise, the conclusions of law and order based thereon are in accordance with the provisions made by the Legislature; and that the reassignment should be sustained.

The judgment of the Superior Court of Wayne County is

Affirmed.

MOORE, Justice (dissenting).

My interpretation of the Pupil Assignment Law, G.S. § 115-176 to G.S. § 115-179, differs from that of a majority of the Court. To me the conclusion seems inescapable that a child has no such vested legal right to attend a school, outside the administrative unit in which he or she resides, as will permit him or her to appeal from a denial of permission therefor by the board of education of the home unit.

It is provided that "Each county and city board of education is * * * authorized and directed to provide for the assignment to a public school of each child residing within the administrative unit who is qualified under the [public] laws of this State for admission to a public school." G.S. § 115-176. This imposes a positive duty on each board of education. It is contemplated that the assignments will be to schools in and maintained by the administrative unit. The board of education has the correlative duty to provide and maintain schools for the pupils to attend.

Obviously emergencies may arise or unusual circumstances exist which would require or make advisable the assignment of children or a child to a school or schools outside the unit. To provide for such contingency it is written: "A child residing in one administrative unit may be assigned * * * 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. This provision is permissive ("* * * may be * * *") and not mandatory, and presupposes consent and agreement in writing between the boards of education of the affected units. It confers no right upon a child in the absence of the affirmative consent of both boards involved. In the instant case there is no writing and the Fremont Board has not consented.

Ordinary general assignments are made summarily by boards of education. Parents or guardians desiring their children to be reassigned may request such in writing and if the request is denied may obtain a hearing. "If, at the hearing, the board shall find that the child is entitled to be reassigned to such school (to which assignment is desired), or if the board shall find that the reassignment of the child to such school will be for the best interests of the child, 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." G. S. § 115-178. Patently "such school" referred to in this provision is not a school of an outside administrative unit. Certainly it was not contemplated by the General Assembly that the board of education of Unit A should pass upon and make a determination of what will interfere with the proper administration, interfere with the proper instruction of pupils, and will endanger the health or safety of students, of a school of Unit B. A board is in a position to determine the conditions in one of its own schools, but not in a school under the jurisdiction of another board. The hearing and appeal provisions of the law do not logically apply to a proceeding such as that attempted in the case at bar.

It was not intended that upon a showing that a child will receive better advantages in another administrative unit, and the unit can receive the child without injury, such child thereby becomes legally entitled to transfer to that unit if the "welcome mat" is out. Carried to its extreme but logical conclusion this theory could depopulate the schools of a small county, having small schools. Weaker administrative units will be helpless to prevent their desiccation.

BOBBITT, J., joins in dissenting opinion.

PARKER, Justice (concurring).

In my opinion, the interpretation in the majority opinion of the relevant parts here of the Pupil Assignment Law as enacted by the General Assembly is correct. The expediency of enacting such a statute, and all the parts thereof, is a matter of which the General Assembly is the proper judge, and not this Court. Should one or more provisions of this statute prove in practice not desirable or ill-advised, the General Assembly has plenary power, unless prohibited by some provision of the Federal or State Constitution, to alter or amend the statute, as they in their sound judgment and discretion deem proper in the best interest of the education of the children of the State.

RODMAN, Justice (concurring in result).

Each school board is authorized to determine the school which the children within its boundaries shall attend. Such determination is an assignment. G.S. § 115-176. If a parent is dissatisfied with the assignment so made, he may apply to the board for reassignment—that is, assignment to a different school. 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." The board finding these facts directs "that the child be reassigned to and admitted to such school." G.S. § 115-178.

If the parent is not satisfied with the findings and conclusion made by the school board in which the child resides, the parent may appeal to the Superior Court. Upon such appeal, there is a hearing de novo. If the facts be there established as plaintiff contends, it becomes the duty of the Court to make an order fixing the school which the child shall attend. G.S. § 115-179.

Ordinarily, a school board can only assign or reassign children to the schools of the unit in which they reside, but pupils residing in one administrative unit may be assigned to a school located in another administrative unit upon such terms and conditions as the respective boards may agree upon. G.S. § 115-163.

There is no evidence in this record of any written contract between the Wayne County and Fremont City School Boards. But it is established by Fremont Board's evidence that it had a contractual arrangement with Wayne County Board by which Fremont could, and did, reassign children to Wayne County schools. In fact, some were reassigned to the Aycock School.

Fremont does not contend that the applicant is not within the class covered by the contract between the two boards. It denies applicant's right to transfer on the theory that such transfer is not to the best interest of the Fremont school.

So long as Fremont has a contractual right to assign children to the Aycock School, it has, in my opinion, the duty to reassign, if applicant establishes facts requisite for reassignment. Fremont cannot pick and choose between qualified applicants. It is at liberty to make a contract with the Wayne County Board describing with particularity classes or groups which may be reassigned. Only those within the described class may be assigned, or reassigned, to the contracting school; Fremont City Board of Education v. Wayne County Board of Education, 259 N.C. 280, 130 S.E.2d 408; but anyone within the described class may apply for reassignment. If he establishes the facts required by the statute, he must be reassigned.