Request By:
Honorable Charles E. Dunn
Attorney at Law
302 Pike Street
Covington, Kentucky 41011
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the attorney for the Covington Independent Board of Education you have requested the Office of the Attorney General for an opinion regarding the following question:
"May a local independent school district fix the tuition fee charged non-resident students at an amount less than the per pupil contribution arising from the district's local tax effort?"
You have informed us that written agreements have been made with the school districts of the nonresident student's legal residence. Therefore, these nonresident students are being included in Covington's average daily attendance for purposes of the state Foundation Program calculations. KRS 157.350 and 703 KAR 2:050(7). Moreover, while there no longer is a required local tax effort in order to be eligible to share in the distribution of funds from the Foundation Program, we take it you are referring to Covington's local tax effort in the sense of the excess cost of educating a child not covered by federal and state education money which is paid for from local school tax revenues. Thus, your question is whether the tuition to be charged must be at least equal to the amount of money calculated to be expended per capita by the school district and not received from state or federal school funds.
Each school district has a statutory obligation to provide an education to the residents of that district. KRS 158.100. It stands to reason that the taxpayers of a school district should not be expected to subsidize the nonlocal taxpayer by educating the nonlocal taxpayer's children in the local schools. To this very end the General Assembly enacted KRS 158.120 to permit the charging of a tuition fee from the nonresident child. KRS 158.120 provides in relevant part as follows:
"Any board of education may charge a reasonable tuition fee per month for each child attending its schools whose parent, guardian or other legal custodian is not a bona fide resident of the district. Any controversy as to the fee shall be submitted to the state board of education for final settlement. The fee shall be paid by the board of education of the school district in which the pupil resides, except in cases where the board makes provision for the child's education within his district. If a board of education is required to pay a pupil's tuition fee, the pupil shall be admitted to a school only upon proper certificate of the board of education of the district in which he resides. "
One of the cases wherein the predecessor statute to KRS 158.120 was considered by the Kentucky Court of Appeals is instructive relative to your question. In White v. Board of Education, City of Maysville, 263 Ky. 1, 91 S.W.2d 539 (1936), it had been alleged that an independent school district was furnishing education for a number of pupils in the grade and high schools who resided in the county outside the independent school district or outside the county itself and that the independent school district was charging a tuition figure less than the computed per capita cost. The allegation went on to say that the independent board of education was therefore illegally using the money of the taxpayers of the independent school district for education of nonresidents in violation of both the state and federal Constitutions. 91 S.W.2d at 540.
The Court of Appeals, in responding to this allegation, admittedly in dictum, stated that the fact the school board did not drive as sharp a bargain as was possible concerning the tuition charge did not appear to be a corrupt practice or one exercised in bad faith. The Court did not touch on the constitutional issue which had been presented but did in passing note that the nonresident students had not increased the independent school's overhead of operation, required additional teachers or other help, or increased the number of grades necessary.
Taking the above into consideration, it is our opinion that it is truly in the discretion of the local board of education to establish a reasonable tuition fee for nonresident students. We do believe, however, the better practice would be for a local board to attempt to establish a tuition fee sufficient to defray any reasonably calculated per capita costs not funded through the state Foundation Program funds for educating a nonresident child.