North Carolina Board of Examiners for Speech & Language Pathologists & Audiologists v. North Carolina State Board of Education , 122 N.C. App. 15 ( 1996 )

Judge Greene

dissenting.

I believe the trial court properly granted defendants’ motion for summary judgment. Accordingly, I dissent.

As a general rule “[n]o person may practice or hold himself out as being able to practice speech and language pathology... in this State unless such person holds a current, unsuspended, unrevoked license issued by the Board” of Examiners for Speech and Language Pathologists and Audiologists (Board). N.C.G.S. § 90-294(b) (1993) (Licensure Act). There are several persons excluded from this licensing requirement including any:

person who holds a valid and current credential as a speech and language pathologist..'. issued by the North Carolina Department of Public Instruction ... if such person practices speech and language pathology ... in a salaried position solely within the confines or under the jurisdiction of the Department of Public Instruction.

N.C.G.S. § 90-294(c)(4) (1993) (emphasis added).

The issue in this case is whether teachers in the public schools employed on a “provisional” basis to teach speech-language impaired students are required to be licensed by the Board.

The Board concedes that “persons practicing speech pathology in the public schools who hold the regular, standard, unqualified certification for speech pathology of the Department of Public Instruction and State Board of Education” are exempt from the Licensure Act. The Board argues, however, that public school “provisional” personnel teaching speech-language impaired students are not exempt from the Licensure Act because these teachers do not have a master’s degree in speech and language pathology and therefore do not hold a “valid and current credential as a speech and language pathologist.” I disagree.

The Licensure Act provides that in order to obtain a license as a speech and language pathologist from the Board, the applicant must have a “master’s degree in speech and language pathology.” N.C.G.S. § 90-295(1) (1993). A person may teach speech-language impaired students in the public schools, however, if they hold a “valid and current credential” issued by the Department of Public Instruction (Department), N.C.G.S. § 90-294(c)(4), an agency of the Department of Education (State Board). N.C.G.S. § 115C-21(b)(l) (1994). Whether the credential issued by the Department is “valid and current” is a matter to be determined by the Department or State Board and is not governed by the Licensure Act. N.C.G.S. § 115C-315(d) (1994) (State Board “shall have entire control of certifying all applicants for professional positions in all public elementary and high schools of North Carolina; and it shall prescribe the rules and regulations for the renewal and extension of all certificates”); see 16 NCAC § 6C .0301 (April 1995) (State Board authorized to make rules for certification of “[a]ny person who desires to obtain employment from a [local educational agency] in a professional position”).

In this case, the evidence presented by the defendants and not contested by the plaintiff, reveals that policies promulgated by the State Board and the Department permit a person holding a bachelor’s degree in speech and language pathology to be provisionally licensed as a teacher of speech-language impaired students on the condition that the person pursue a master’s degree, complete six semester credit hours each year, and complete a master’s degree from an approved education program within five years of first being issued the provisional license. See 16 NCAC § 6C .0305(c) (Nov. 1994). A license issued consistent with these policies is a “valid and current credential.”