The Honorable Lonnie P. Clark State Representative P.O. Box 406 Berryville, AR 72616
Dear Representative Clark:
This is in response to your request for an opinion regarding Act 609 of 1989, the Arkansas Public School Choice Act of 1989. Your questions are restated as follows:
1. Does the term "by resolution" in Sections 5 and 6 of Act 609 of 1989 mean a resolution such as a city or county would adopt, i.e., must this resolution be read and adopted in compliance with other laws, or does this mean that minutes of the board meeting are sufficient for the school district to not admit nonresident students?
2. What, specifically, does the phrase "specific standards for acceptance or rejection of applications", in Section 6 of the act, mean?
3. What is the procedure that a parent or guardian must follow in order to send a nonresident pupil to a district for the 89-90 school year?
In response to your first question, we cannot conclude, in the absence of a clearer expression of legislative intent, that the procedure for adoption of a resolution by either a city or a county will generally apply in this regard.
Act 609, which establishes a public school choice program, states in Section 5 that "[a] school board may, by resolution, determine that it will not admit any nonresident pupils to its schools pursuant to this Act." (Emphasis added.) Section 6, which addresses the basis for admission decisions, states in part that "[t]he school board of any participating district must adopt, by resolution, specific standards for acceptance and rejection of applications." (Emphasis added.)
The act does not define or outline the requisite procedure for adoption of these resolutions. Arkansas Code of 1987 Annotated
With regard to the applicability of any procedures for resolutions of other governmental entities, it must be noted that there is no standard procedure in this regard; rather, the general procedures vary. For instance, with respect to cities, the general requirements that bylaws or ordinances "be recorded in a book kept for that purpose" (A.C.A.
On the other hand, quorum courts must maintain a county ordinance and resolution register, as a permanent record of the court. A.C.A.
The apparent varied nature of these procedures precludes a determination that any specific one applies for purposes of the school board resolutions envisioned under Act 609 of 1989. It is also significant to note that the legislature has in some instances specified the filing and publication procedures for particular school board resolutions. Under A.C.A.
The complete language of Section 6 of Act 609 must be initially considered in response to your second question. This section states:
Section 6. BASIS FOR ADMISSION DECISIONS. The school board of any participating district must adopt, by resolution, specific standards for acceptance and rejection of applications. Standards may include the capacity of a program, class, grade level or school building. Nothing in this Act requires a school district to add teachers or classrooms or in any way exceed the requirements and standards established by existing law. Standards may not include an applicant's previous academic achievement, athletic or other extracurricular ability, handicapping conditions, English proficiency level, or previous disciplinary proceedings.
It thus appears that the required "specific standards" are meant to establish the basis or criteria for admission decisions. The definition of the word "standard" in Webster's Seventh New Collegiate Dictionary (1972) includes the following: "something established by authority, custom, or general consent as a model or example: CRITERION." Webster's at 853. The legislature has indicated the type of information or criteria that may be included in the standards wherein it states, under Section 6, that the standards "may include the capacity of a program, class, grade level, or school building." The type of information or requirements that may not be included is also specified. See Section 6, above.
This office is not in a position to state, specifically, what the phrase "specific standards for acceptance and rejection of applications" means. The school board has apparently been granted some discretion in devising these standards, bearing in mind the above-mentioned limitations. And, of course, the board must be mindful of other limitations mandated under constitutional principles, such as equal protection concerns. Arbitrary or unreasonable standards must be avoided. Section 4 of Act 609 of 1989 must be considered in response to your final question. This section states:
Before a pupil may attend a school in a nonresident district, the pupil's parent or guardian must submit an application to the nonresident district. This application must be postmarked not later than February 1, of the year in which the pupil would begin the fall semester at the nonresident district.
The language of Section 4 appears to preclude attendance at a nonresident district in the 1989-90 school year. A few examples of application dates will serve to illustrate this point. July 1, 1989, the effective date of Act 609, was the first date upon which application could be made under the act. Such an application would not, however, have been made by February of the year in which the pupil would begin the fall semester, i.e., February of 1989. We must also conclude that one cannot make application during the 1989-90 school year, for example in January of 1990, for attendance during that year, since the fall semester would already have begun at that point. Section 4 is clearly drafted in prospective terms wherein it refers to the year in which the pupil "would begin the fall semester."
In conclusion, therefore, attendance at a nonresident district will not be possible until the fall semester of the 1990-91 school year. Application must be made by February 1, 1990 for such attendance.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.