Equal Access to Public Education: An Examination of the State Constitutional and Statutory Rights of Nonpublic Students to Participate in Public School Programs on a Part-Time Basis in North Carolina and Across the Nation

I. INTRODUCTION Brenda is a full-time sixth-grader at Charlotte Christian Academy, a private non-denominational school in Michigan. She has her own musical instrument, but the academy does not offer a band course. Brenda 's parents are concerned that their daughter will be denied the opportunity to develop her talent, so they look for an alternative. Her parents soon learn that the Charlotte Public School District offers the desired course. Brenda and her parents do not ask for special accommodations. Like any other family, they pay property taxes to support the school district in which they live. Her parents are willing to transport their daughter to and from class, and Brenda is able to attend band class at the same time and place as her public school classmates. The school district admits that there is room for Brenda, and moreover, it would receive state school aid to cover the additional cost of her part-time attendance. However, the school district refuses to admit Brenda. It is against school district policy to admit any private or homeschool students. Only full-time, public school students are allowed to take classes in the school district. ' So, barring a change in the legal status quo, Brenda will have to learn to play her favorite musical instrument on her own. Her parents sue. Mounting two arguments, Brenda 's parents claimed that excluding their daughter violated her (1) state statutory and (2) federal constitutional rights. In a 4-3 decision, the Michigan Supreme Court ruled in favor of Brenda. Though the Justices discussed the federal constitutional issues, they based their decision on a state statute that purported to grant residents, like Brenda, the "right to attend school in [their] district. "2 The statute did not mention fall-time status as a public school student as a prerequisite or requirement for this "right to attend. "3 And so, one lawsuit and several appeals later, Brenda got to go to band class. This true story highlights a winning litigation strategy for private school and homeschool families that want to defend their children's right to participate in public school programs on a part-time basis.4 In recent years, countless private and homeschool students have been turned away from public school classes, extracurricular activities, and sports.5 Many of their parents have sued under the First and Fourteenth Amendments of the United States Constitution alleging free exercise, due process, and equal protection violations.6 However, these federal claims are seldom, if ever, successful.7 More often than not, the courts apply a rational basis review to judge the exclusion of these students, and this low standard of review almost predetermines an unfavorable outcome.8 But Brenda's story provides hope. State law can support an alternative theory for contesting the exclusion of private and homeschool students from public school programs.9 "[E]very single state's constitution addresses the state legislature's responsibility to provide for a public school system."10 These educational rights provisions in state constitutions can provide a unique, textual basis to argue for rights apart from and beyond the federal constitution.11 State statutes can also provide a basis for these rights.12 Both private and homeschool families have a lot to gain from equal access to public school programs.13 Even though many private schools have their own sports leagues and band classes, no institution can offer a perfectly comprehensive curriculum.14 Inevitably, some private school students will want to participate in programs that are not offered by their institution.15 Like Brenda, they stand to benefit from equal access to a public school system that does offer the desired class or sport.16 Homeschoolers often have an even harder time trying to establish their own interschool activities and specialized classes.17 Except in unique circumstances,18 homeschool families have fewer resources and less coordination than most private schools. …