Request By:
The Honorable J. Gary Bale
General Counsel
Office of Legal Services
Department of Education
Capital Plaza Tower
500 Mero Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Fredrick J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter you requested an opinion from this office with respect to local school districts which execute "ADA agreements" pursuant to KRS 157.350 (4). That statute sets forth the eligibility requirements for each district to share in distribution of funds from the Fund to Support Education Excellence in Kentucky (SEEK). Subsection (4) requires that an eligible district include "no nonresident pupils in its average daily attendance, except by written agreement with the district of the pupils' legal residence. " In other words, so long as two districts enter into a written agreement that a particular district will allow nonresident pupils to attend, then that district which is educating the nonresident pupils may receive the pupils' share of funds from SEEK. By administrative regulation, the local boards of education that execute written agreements for average daily attendance of nonresident pupils are required to submit a copy of any agreement to the State Department of Education by November 15 of each year. 702 KAR 7:050, effective December 7, 1990. Should local boards of education fail to enter into a written agreement for nonresident pupils, then the local board of education that educates the nonresident pupil is not eligible to receive attendance credit and funding for those pupils. Id.
In your letter you explain that the standard agreement filed with the Division of Pupil Attendance is frequently supplemented by an agreement, not on file with the Department, in which "the district taking the greater number of nonresident children will agree to give back to the home district a certain percentage of the state funds attributable to the excess nonresident students." You continue, "Clearly, the district of residence could not claim state reimbursement for its children physically attending school in another district, so it is our concern that the supplemental agreements may merely be accomplishing indirectly what the resident district cannot directly accomplish under law." Therefore, you seek the advice of this office as to the legality of any supplemental agreement in which one district requires that another district agree to give back to the home district some of the state funds attributable to the nonresident students.
It is the opinion of this office that there is no statutory authorization for any district which enters into an agreement concerning the education of nonresident pupils to require that the district taking the greater number of nonresident children agree to give back to the home district a percentage of the state funds attributable to the excess nonresident students. KRS 157.320 (2) defines base funding level as "a guaranteed amount of revenue per pupil to be provided for each school district, to be used for regular operating and capital expenditures." This figure is based on average daily attendance, which is defined to mean "the agregate days attended by pupils in a public school, divided by the actual number of days the school is in session." KRS 157.320 (1). Under KRS 157.360 (2) each district shall receive an amount equal to the base funding level for each pupil in average daily attendence in the district in the previous year. Each district's base funding is subject to certain adjustments such as the one set forth in KRS 157.350 (4) which allows nonresident pupils to be included in the average attendence by written agreement with the district of the pupil's legal residence.
Districts are not without options in preventing loss of funding for educational purposes. This office has opined previously that districts have discretion on whether or not to admit nonresident pupils and whether or not to enter into agreements with neighboring districts on attendance of nonresidents. OAG 66-550, OAG 80-47. Also, if districts decide to enter into agreements on nonresident attendance they may require the parent or guardian of a nonresident to pay tuition. KRS 158.120 OAG 75-602, and OAG 78-265.
This office finds no legal authority for sending money to a district where a child is not being educated, and considers that the practice described above may lead to inequitable funding levels in violation of Section 183 of the Kentucky Constitution. That Section, which requires that the General Assembly provide for an efficient system of schools, resulted in a complete revision of the system of school finance, which has set forth careful procedures to ensure that local districts receive the necessary funding per average daily attendance to carry out the mandated education. Accordingly, we are in agreement with the Department of Education that supplemental agreements in which a district requires that the district taking the greater number of nonresident children must give back to the home district a certain percentage of state funds attributable to the excess nonresident students are impermissible and may be unconstitutional.