North Carolina State Board of Education v. North Carolina Learns, Inc.

751 S.E.2d 625, 231 N.C. App. 270, 2013 WL 6236081, 2013 N.C. App. LEXIS 1230
CourtCourt of Appeals of North Carolina
DecidedDecember 3, 2013
DocketNo. COA13-179
StatusPublished
Cited by3 cases

This text of 751 S.E.2d 625 (North Carolina State Board of Education v. North Carolina Learns, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
North Carolina State Board of Education v. North Carolina Learns, Inc., 751 S.E.2d 625, 231 N.C. App. 270, 2013 WL 6236081, 2013 N.C. App. LEXIS 1230 (N.C. Ct. App. 2013).

Opinion

BRYANT, Judge.

The orders of the trial court finding: (I) that petitioner was not required to act on respondent’s virtual charter school application before the March 15 deadline; (II) that the Office of Administrative Hearings was not the appropriate forum for hearing respondent’s claim; and (111) that the State Board of Education, not the Office of Administrative [272]*272Hearings, has sole authority to grant or deny respondent’s application to operate a virtual charter school, are affirmed. Because the trial court did not err in allowing the (TV) intervention of parties and (V) amendment of the record, we affirm.

In 1996, the North Carolina General Assembly adopted the Charter School Law, N.C. Gen. Stat. § 115C-238.29A (2011), governing the process for establishing and overseeing charter schools. Authority for the handling of charter schools was vested in the State Board of Education (“SBOE”). Pursuant to N.C. Gen. Stat. § 115C-238.29B, a local school board may give preliminary approval to an application for a charter school but final approval of said application must be given by the SBOE.

At the 6 October 2011 monthly meeting of the SBOE, Chairman Harrison announced that no applications for virtual charter schools would be considered for the 2012 — 2013 school year “because the e-Leaming Commission [was] examining all aspects of virtual education in North Carolina (pre-K — 16) ....”

On 1 November 2011, respondent North Carolina Learns, Inc., doing business as North Carolina Virtual Academy (“NCVA”), submitted a “fast track” application for preliminary approval of a virtual charter school to the Cabarrus County Board of Education. The Cabarrus County Board of Education reviewed the application and granted preliminary approval on 23 January 2012 to respondent for the creation of a virtual charter school. On 13 February 2012, NCVA forwarded the application to the SBOE; the SBOE received the application on 14 February 2012. Although the SBOE had a 15 March deadline to accept NCVA’s application pursuant to N.C. Gen. Stat. § 115-238.29D(a), the SBOE took no action on NCVA’s application because of its earlier decision not to review applications for virtual charter schools for the 2012 — 2013 school year.

On 21 March 2012, NCVA filed a petition for a contested case hearing with the Office of Administrative Hearings, citing the SBOE’s failure to respond to NCVA’s application by the 15 March deadline. Thereafter, NCVA amended its pleadings. The SBOE answered by filing a motion to dismiss, followed by a motion for summary judgment. NCVA then filed a cross-motion for summary judgment.

A hearing was conducted on 8 May 2012 in the Office of Administrative Hearings, and on 18 May 2012 the administrative law judge (or “ALJ”) issued a decision granting summary judgment to NCVA. The administrative law judge found that the SBOE failed to act in a timely manner upon NCVA’s application and had therefore lost jurisdiction over final approval or any other action related to the application. [273]*273The administrative law judge held that NCVA’s application for a virtual charter school was deemed approved as a matter of law.

On 23 May 2012, the SBOE filed a petition for judicial review in Wake County Superior Court. On 15 June 2012, the North Carolina School Boards Association and 89 local boards of education (“intervenors”) then sought to intervene in the matter as parties aggrieved.

On 25 June 2012, the matter was heard in Wake County Superior Court, the Honorable Abraham Penn Jones presiding. On 29 June 2012, the trial court granted the motion allowing the intervenors to join the lawsuit and reversed the decision of the administrative law judge.

NCVA appeals.

On appeal, NCVA argues that: (I) the SBOE instituted an illegal moratorium on virtual charter schools that did not reheve the SBOE of its legal duties; (II) the SBOE was required to act before the 15 March deadline and thus lost its ability to act by failing to meet the deadline; (III) the trial court erred in allowing the intervention of persons who were not parties aggrieved; (IV) the Office of Administrative Hearings was the appropriate forum for hearing NCVA’s claim; and (V) the trial court allowed the amendment of the record in contravention of the law.

I.

NCVA argues that the SBOE instituted an illegal moratorium on virtual charter schools that did not relieve it of its legal duties. We disagree.

A de novo standard of review is appropriate when reviewing decisions by a trial court based upon judicial review of an administrative agency decision. N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 659, 599 S.E.2d 888, 895 (2004).

NCVA first argues that the SBOE, in declaring a moratorium on virtual charter schools during its 6 October 2011 meeting, violated Robert’s Rules of Order. The minutes of the 6 October 2011 public meeting recorded SBOE Chairman Harrison’s comments as follows:

Chairman Harrison announced that the newly formed NC Public Charter School Advisory Council will convene for the first time on October 19. The purpose of this meeting is to begin reviewing the ‘fast-track’ charter applications in November. He explained that the ‘fast-track’ process is being targeted to charter schools that were considered [274]*274last year and for conversion schools. Other schools that might be ready to open their doors are welcome to apply, but it is probably more appropriate for these to apply in February (for a FY 2013-14 opening). Further, he explained that because the e-Leaming Commission is examining all aspects of virtual education in North Carolina (pre-.K-16), the [SBOE] will not be considering any virtual applications in the fast track’pool.

NCVA contends that this announcement by Chairman Harrison is not authoritative because the SBOE has not demonstrated that it has adopted the latest edition of Robert’s Rules of Order for conducting business. NCVA’s argument on these grounds is without merit. North Carolina General Statutes, section 115C-12 states that “[t]he general supervision and administration of the free public school system shall be vested in the [SBOE]. The [SBOE] shall establish policy for the system of... public schools, subject to laws enacted by the General Assembly.” N.C.G.S. § 115C-12 (2011); see also N.C. Const, art. IX, §§ 4, 5 (“The [SBOE] shall supervise and administer the ... public school system and the educational funds provided for its support . . . and shall make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly.”).

Under section 115C-238.29B, the SBOE is vested with sole authority regarding charter schools in North Carolina, including all decisions regarding the formation and operation of such schools. See N.C.G.S. § 115C-238.29B(c)(3) (2011) (“Regardless of which chartering entity receives the application for preliminary approval, the [SBOE] shall have final approval of the charter school.”); see also N.C.G.S. § 115C-238.29A, Editor’s Note (“Session Laws 2011-164, s.

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751 S.E.2d 625, 231 N.C. App. 270, 2013 WL 6236081, 2013 N.C. App. LEXIS 1230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-carolina-state-board-of-education-v-north-carolina-learns-inc-ncctapp-2013.