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Dear Public School Unit Leaders:
Recently, the North Carolina Department of Public Instruction has been receiving questions about school attendance and the harassment or bullying of students related to increased federal immigration enforcement actions. In response to these questions, I am providing you with a summary of state law and current State Board of Education rules and policies regarding school absences and harassment or bullying of students based upon immigration status. As always, you should contact your local board attorney for further guidance.
I. School Attendance
Attendance inquiries arising out of the current immigration enforcement activities generally revolve around the legality of student absences from school based on (1) the student’s and/or the student’s caretaker’s fear of involvement in the actions or (2) absence from school to participate in protest events.
A. State Compulsory Attendance Law
North Carolina General Statute Section 115C-378(a) places responsibility for assuring student attendance in school on the parent, guardian or custodian ("caretaker") of the child. Caretakers must ensure that all students between the ages of seven and 16 years old regularly attend the school to which the student is assigned. Children who are enrolled in kindergarten through second grade must also attend school regularly unless the child is withdrawn from school.
G.S. 115C-378(b) requires a child's caretaker to notify the school of the reason for each known absence.
G.S. 115C-378(e) and (f) require that, after three unexcused absences, the principal notify the caretaker of the problem. After six unexcused absences, the principal must notify the caretaker that he or she could be prosecuted for a violation of the Compulsory Attendance Law. After 10 unexcused absences, the principal must assess the situation and determine whether the caretaker has made a good faith effort to comply with the law. If not, the principal must refer the matter to the district attorney and the director of social services in the county. Those authorities then determine whether to refer the caretaker for prosecution or the student for adjudication of delinquency.
B. Excused Absences Defined by State Board of Education Rule or Policy
Whether absences are excused, rather than unexcused, is defined by State Board of Education Rule 16 NCAC 06E.0102. That Rule allows absences from school to be marked excused upon a showing of satisfactory evidence of one of the following:
- An illness or injury that prevents the student from being physically able to attend school.
- Isolation of the student by order of the local health department or the State Board of Education.
- The death of a member of the immediate family.
- The student has a medical or dental appointment.
- The student is a party to or is under subpoena as a witness in the proceedings of a court or administrative tribunal.
- The student is absent due to a religious observance in accordance with local school board policy.
- The student has obtained prior approval for a valid educational opportunity, such as travel.
The terms “illness” or “injury” are not further defined. As a result, illnesses that prevent a student from being physically able to attend school can include a student’s physical and/or mental health illness (e.g., flu, fever, anxiety, depression).
The school or district may excuse temporary or occasional absences for other reasons in accordance with local board policies, provided that the student has been in attendance for at least one half of the school day.
The State Board’s School Attendance Manual (which is a State Board policy) also provides for other additional excused absences, which are not relevant to immigration issues.
Note that, as part of a regular review process, the State Board’s attendance rule will be reconsidered and potentially amended within the next few months. During that readoption process, there will be a public comment period during which interested parties are encouraged to provide input regarding proposed changes.
C. Conclusion
If absences from school are to be excused, then they must fall under one of the exceptions discussed above. Caretakers are responsible for providing documentation of a permissible reason for a student’s absence.
II. Harassment or Bullying of Students Based on Perceived Immigration Status
Questions also have arisen about what schools should do to address harassment or bullying of immigrant students by fellow students or others who may support immigration enforcement actions.
A. Constitutional and Statutory Rights of Students, Including Undocumented Students, to Attend Public School
On January 29, 2025, I released a message to district and school leaders explaining the constitutional right of undocumented students to attend public schools. To reiterate the key points from that document:
- In the 1982 case of Plyler v. Doe, the United States Supreme Court held that the Equal Protection Clause of the United States Constitution requires that public schools provide all school-age children with access to a free public education, regardless of their immigration status.
- Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., prohibits discrimination on the grounds of race, color or national origin by entities that receive federal financial support.
- N.C. G.S. § 115C-367 prohibits any public school from refusing admission to or excluding any child on account of race, creed, color or national origin.
B. Federal and State Laws Protecting Students from Harassment or Bullying
The Equal Protection Clause of the United States Constitution and Title VI of the Civil Rights Act of 1964, cited above, also protect students from being harassed or bullied based on their race, color or national origin.
Several state criminal laws prohibit the harassment or bullying of others. They include:
- G.S. § 14-33 (assault, battery and affray are criminal offenses).
- G.S. § 14-401.14 (ethnic intimidation is a criminal offense).
Article 29C of Chapter 115C, Sections 115C-407.15 et seq., of the North Carolina General Statutes specifically prohibits bullying of students and staff on public school grounds and requires school districts to adopt policies prohibiting bullying or harassing behavior (G.S. § 115C-407.16).
By law, all school districts must have extensive local policies that define and prohibit bullying and harassment and set out detailed procedures for addressing and correcting such behavior. In most North Carolina school districts, these will be policy codes 1710/4020/7230 through 1735/4329/7311.
C. Conclusion
Harassment or bullying of students — including conduct based on race, color or national origin — is prohibited and must be addressed promptly. Schools must follow their local policies to stop such behavior and protect all students.
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