Request By:
Mr. Roger C. Noe, Co-Chairman
Interim Joint Committee on Education
Legislative Research Commission
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
On behalf of the Interim Joint Committee on Education, you have requested an opinion from our office regarding the following issue:
Whether the expenditure of state tax dollars, or the use of state owned facilities, for the purpose of providing special educational opportunities for the children of owners, managers, or other employees of foreign owned corporations is constitutional or with statutory authority.
Within your request, you restate the question with a slight variation as follows:
" . . . may state facilities be used and state funds be expended to provide exclusive educational privileges and opportunities to a specific ethnic group, specifically, Japanese children whose parents work for a Kentucky corporation?"
The way the question is presented, we are being asked to assume that state funds would be expended to provide exclusive educational privileges for only the children of employees of certain foreign owned corporations.
Kentucky Constitution Section 171 requires that public funds be used only for public purposes. See, McGuffey v. Hall, Ky., 557 S.W.2d 401 (1977). Additionally, Kentucky Constitution Section 3 prohibits the use of public funds to grant exclusive privileges except in consideration of public services. As a result, the use of state funds to provide exclusive educational privileges to only the children of employees of certain foreign owned corporations would appear to be unconstitutional under these provisions.
However, we doubt that this conclusion is instructive as to your specific concern. From the way the question is posed, it is apparent that the concern as to legality is focused upon the Japanese Saturday school being administered by the University of kentucky as a result of an agreement between the Governor and Toyota. With this in mind, our office has made inquiries to obtain additional information to be assumed so that an opinion can be provided that will be useful to you.
The persons directly responsible at the University of Kentucky (U.K.) for administration of the Japanese Saturday school have stated that it is funded by interest generated from private donations to U.K. Normally, this interest would go into a contingency fund for emergency uses.
As to the facilities being used for operation of the Japanese Saturday school, U.K. has a memorandum of agreement with the Fayette County Board of Education to allow use of Tates Creek Elementary and Middle Schools on Saturday to conduct the educational program. Under this agreement, U.K. has agreed to pay the electricity, maintenance and all other overhead incurred for use of these facilities on Saturday. It is our understanding that the private fund account described above is being utilized to pay for these facility use-related expenses.
As for admission criteria for eligibility to attend the Japanese Saturday school, we have been informed that one must be a Kentucky resident and pass a reading and writing entrance examination demonstrating proficiency in the Japanese language. The purpose of the school is to provide instruction enabling the students to retain proficiency in reading and writing in the Japanese language. It is our understanding there is no tuition charged.
If we assume the information provided by the administrators of the Japanese Saturday program, then there are no constitutional issues presented since no public money is involved. However, that does not permanently resolve your question, because we have been informed that U.K. will request from the 1988 General Assembly an appropriation of public funds to continue the Japanese Saturday school effective with F.Y. 88. If the 1988 General Assembly provides the public funding to continue this program, then the issue is whether providing public funds through a public university's budget for a tuition-free advanced foreign language class is legally permissible.
In response to this issue, we note that the public funds would be used for an educational purpose and the program would be available to any Kentucky resident demonstrating sufficient proficiency in the Japanese language to benefit from the instruction. As a result, it does not appear either Section 3 or Section 171 of the Kentucky Constitution would prohibit this arrangement. In addition, Sections 183-186 and 189 of the Kentucky Constitution are not applicable to this situation, since the appropriation would be for a program operated by U.K. and would not involve funds generated for or appropriated for the public common schools.
In effect, this would seem to be the equivalent of offering an advanced foreign language class. By way of analogy, it is noted that there are several public education gifted programs around the state providing after school advanced foreign language instruction to the qualifying gifted students. Another analogy is provided by the minimum admission requirements at some of the state universities in Kentucky.
In summary, the opinion of our office is as follows: It would be unconstitutional under Sections 3 and 171 of the Kentucky Constitution to utilize state facilities and expend state funds to provide exclusive educational privileges to only children of employees of certain foreign owned corporations. However, in the case of the Japanese Saturday school being presently administered by the University of Kentucky, since the program is being operated with 100% private funds and it does not involve providing exclusive educational privileges to only children of employees of certain foreign owned corporations, it appears to be a legally permissible endeavor. If the 1988 General Assembly decides to provide a public appropriation through the University of Kentucky to continue the Japanese Saturday program, we know of no constitutional impediment to doing so since it would be to promote the public educational purpose of providing an advanced foreign language class, eligibility for which only involves being a Kentucky resident and demonstrating a certain level of proficiency in reading and writing in the Japanese language.