Opinion No. ( 2001 )

The Honorable Ann H. Bush State Representative P.O. Box 246 Blytheville, AR 72316-0246

Dear Representative Bush:

You have requested an Attorney General opinion concerning "school choice" under the Arkansas Public School Choice Act (A.C.A. § 6-18-206).

You state that a particular school district has participated in "school choice" under the Arkansas Public School Choice Act for several years, but is considering the option not to participate in the future. Accordingly, you have asked:

Will the students who have been attending the district through "school choice" be allowed to remain in the school district until they graduate or transfer, or must they return to their resident districts if the school district they have been attending will not be participating in school choice?

RESPONSE

It is my opinion that the students who have been attending the district through "school choice" while the district was participating in the program will be allowed to remain in the district after the school ceases to participate in the program, until they graduate or transfer, and should not be required to return to their resident districts.

Although neither the Arkansas School Choice Act nor the regulations of the Department of Education explicitly address this issue, and although the Arkansas Supreme Court has not interpreted this aspect of the Act, the language of the Act does provide certain indications that students who have previously been admitted to a participating school should be allowed to continue to attend that school even after the school ceases to participate in the program.

First, students are not required to re-apply for admission to a participating school each year. The Act appears to assume that once admitted to a particular school, the student will continue to attend there without having to re-apply. See Op. Att'y Gen. No. 96-250. This factor must be considered along with the fact that the provision of the Act that allows school districts to decide not to participate states that such decisions are to be made on a prospective basis. The Act refers to such decisions as taking effect in the future: "A school board may, by resolution, determine that it will not admit any nonresident pupils to its schools pursuant to this section." A.C.A. § 6-16-206(b)(3) (emphasis of future tense added). If a school district decides not to admit nonresident pupils in the future, such a decision would not encompass those students who have already been admitted (and who are therefore expected to continue to attend). Rather, it would only affect nonresident pupils who have not yet been admitted to the school district.

Accordingly, I conclude that students who have been attending the district through "school choice" while the district was participating in the program will be allowed to remain in the district after the school ceases to participate in the program, until they graduate or transfer, and should not be required to return to their resident districts. I reiterate that the Arkansas Supreme Court has not addressed this issue. Pending such judicial guidance or legislative clarification, I believe that my interpretation is reasonable and consistent with the stated intent of the Act. See A.C.A. § 6-18-206(a).

Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:SA/cyh