Wake Cares, Inc. v. Wake County Board of Education

Justice BRADY

dissenting.

The majority opinion evinces a dramatic shift from the traditional maxim that “mother knows best” to the “progressive” idea that “bureaucrat and elected official knows best.” I cannot sit silently and watch as this Court removes the ultimate responsibility of education from the hands of parents to the hands of the education establishment. While I concur fully in Justice MARTIN’s well-reasoned dissenting opinion, I write separately to emphasize both the importance that family plays in the education of our young citizenry and how the majority opinion fails to consider the harmful effect of its decision on the family.

Initially, I note that the majority has failed to properly construe the statutes at issue. “When the language of a statute is clear and without ambiguity, it is the duty of this Court to give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required.” Diaz v. Div. of Soc. Servs., 360 N.C. 384, 387 , 628 S.E.2d 1, 3 (2006) (citing Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209 , 388 S.E.2d 134, 136 (1990)). The majority’s construction of N.C.G.S. § 115C-1, which mandates “[t]here shall be operated in every local school administrative unit a uniform school term of nine months,” is strained. To interpret that statute to mean anything other than a consecutive nine month calendar is farcical. Yet, the majority allows local school boards the authority to stretch these nine months of instruction over twelve months and then strips parents of the right to choose whether their child should be subjected to this schedule in contravention of our Constitution and the intent of the General Assembly.

The absence of reason presented by this construction is easily demonstrated through hypothetical situations involving interpretations of the word “term.” Members of this Court serve an eight year term. N.C. Const, art. IV, § 16. Certainly no one would interpret that provision to mean that a member of the Court may sporadically spread his or her eight year term over the course of his or her lifetime as long as the sum total of service is only eight years. Were this a mat *187 ter of an employment contract in which an employee was contractually obligated to work a nine month term, this Court certainly would not interpret that contract to allow the employee to work for three months and then take a one month vacation before resuming work without being in breach of contract. However, when the question involves placing more control of traditional family matters in the hands of government officials, such a construction suddenly becomes plausible. In effect, the majority has assumed the role of the General Assembly and rewritten the statute to say whatever it wants. I refuse to join in this blatant violation of the separation of powers.

After having contorted principles of statutory construction, the majority has now taken yet another decision relating to the education of our children out of the hands of parents, placing it into the hands of the education establishment. For years, families have been able to rely upon the traditional school calendar to plan family vacations and other family-oriented activities, which are important not only to individual families, but to the health of our culture, economy, and society in general. Now, however, the distinct probability exists that multichildren families will be presented with mandatory year-round schedules that place each of their children in a different calendar track, leaving little to no time when all the children in the family unit are free from school responsibilities. Parents may have also wished to opt for a traditional school calendar in order to give their teenagers opportunities to gain valuable employment experience during the extended summer vacations found in a nine month calendar, thereby increasing their career skills and learning the personal responsibility required of adults at an early age. For some unfortunate families in Wake County, that choice is no longer an option. 5 The majority additionally fails to recognize the severe economic impact defendants’ action would have on seasonal employment, especially in the service industry, where many students experience the transition from teenagers to young adults during the summer months.

Furthermore, the uneven geographical distribution of Wake County schools subject to a mandatory year-round calendar is problematic. The mandatory year-round schedule has been implemented by the board for schools located outside of the Interstate 440 Beltline. *188 Many families choose to live in the suburban areas outside the Beltline for reasons including school choice, economic feasibility, and familial concerns. Yet, between forced year-round schedules and the ever-raging reassignment debate, which has been chronicled in the local media, families no longer receive what they bargained for in their choice of the neighborhood in which they raise our most valuable assets.

While constitutional issues of liberty are not before the Court, the language used by this Court and the Supreme Court of the United States in dealing with such issues demonstrates the long-standing deference our judiciary and society has given to traditional family decisions on education. The liberty “interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by” the Supreme Court of the United States. Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality). No other right has been so glowingly discussed and vigorously protected by our nation’s highest court. See, e.g., Parham v. J.R., 442 U.S. 584, 602 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course . . . .”); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.” (citations omitted)); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925) (“The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty to recognize and prepare him for additional obligations.”).

This Court has likewise held the right of parents to direct the upbringing of their children in high regard. See, e.g., Owenby v. Young, 357 N.C. 142, 145 , 579 S.E.2d 264, 266 (2003) (“The protected liberty interest complements the responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child.” (citations omitted)); Petersen v. Rogers, 337 N.C. 397, 403-04 , 445 S.E.2d 901, 905 (1994) (holding that “absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of *189 parents to custody, care, and control of their children must prevail”); Delconte v. State, 313 N.C. 384 passim, 329 S.E.2d 636 passim (1985) (discussing home schools in relation to compulsory school attendance statutes). Yet, today the majority decision gives no deference to the traditional notion of family control of educational decisions. While it could be argued that parents have the right to remove their children from public schools and provide alternative forms of education, such an opportunity is simply not practical for many families. Considering today’s decision, one cannot help but wonder about the majority’s dedication to this Court’s prior pronouncements on the importance of the family in educational decisions.

In the end, the majority decision is simply another chapter in the ongoing saga in which more and more traditional decisions made by the family are handed over to the government. While I certainly sympathize with the plight of the Wake County School System and the explosive population growth in the county, ease of administration should never take precedence over the preservation of the oldest institution — the family. I respectfully dissent.

. The school calendar act passed in 2004 and now codified in N.C.G.S. § 115C-84.2(d) was intended to preserve the traditional lengthy summer vacation enjoyed by families across North Carolina. Incredibly, this act, sought by an organization called “Save our Summers North Carolina,” provided the death knell for the traditional summer for many Wake County students because of a passing mention of year-round schools relied upon by the majority in fashioning its argument.