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Official Opinion 98-18

Official Opinion 98-18

November 12, 1998
To: 

State School Superintendent

Re: 

Official Code of Georgia Annotated ¿ 20-2-306(a) does not authorize the State Board of Education to include home-schooled students in the Governor's Honors Program.

You have asked for my opinion as to whether home-schooled students are eligible for the Governor’s Honors Program instituted by O.C.G.A. § 20-2-306(a). Currently there is a regulation of the Georgia State Board of Education, 160-4-2-.09, which sets out the nomination and selection process for that program. You ask whether that regulation could authorize inclusion of home-schooled students in the Program.

Code Section 20-2-306(a) provides in pertinent part that “[t]he State Board of Education is authorized to inaugurate an honors program for students in the public and private high schools of this state who have manifested exceptional abilities or unique potentials or who have made exceptional academic achievements. . . . The student honors program shall be implemented and operated in accordance with criteria established by the state board . . . .” (Emphasis added.) The statutes of Georgia distinguish between public schools, private schools and home schooling programs. See, e.g., O.C.G.A. §§ 20-2-690, -690.1. See also 1986 Op. Att’y Gen. U86-19. Home schooling is not synonymous with private schooling. Id. Cf. Roemhild v. State, 251 Ga. 569 (1983).

By limiting the program to “students in the public and private high schools,” the General Assembly has shown an intention not to allow home-schooled students to participate in the Governor’s Honors Program. Nor has it left the question up to the discretion of the State Board of Education to determine by rule. Although the State Board is given the authority to establish the “criteria by which the program is implemented and operated,” that authority is limited as to the students who can attend by the words of the statute. The test for the validity of the State Board’s rules is whether they are reasonable and authorized by the statute. See Baranan v. State Bd. of Nursing Home Administrators, 143 Ga. App. 605 (1977). In the instant case, a State Board rule, which allowed home-schooled students to participate in the Governor’s Honors Program, would not be authorized by the statute.

Had the General Assembly intended that the State Board have the latitude to open the program to home-schooled students, it could have used more general language such as that used in subsection (b) of O.C.G.A. § 20-2-306, “highly gifted and talented youth of this state.” Subsection (b) deals with the residential high school program conducted during the school year rather than in the summer months like the Governor’s Honors Program. Rules of statutory construction presume that the General Assembly used the term advisedly and meant to exclude home-schooled students. In interpreting this language, we must "look diligently for the intention of the General Assembly." O.C.G.A. § 1-3-1(a). By using more specific language and omitting any reference to home-schooled students, the statute in question "invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare tacitum, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned." Department of Human Resources v. Hutchinson, 217 Ga. App. 70 (1995) (citations omitted). If the General Assembly had intended to include home-schooled students, it simply could have expressly mentioned them in subsection (a) or made the description of those eligible for the Governor’s Honors Program more general as it did in subsection (b).

Based on the foregoing, it is my official opinion that O.C.G.A. § 20-2-306(a) does not authorize the State Board of Education to include home-schooled students in the Governor’s Honors Program.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General