Opinion No. ( 1993 )

The Honorable Mike Wilson State Representative P.O. Box 5269 Jacksonville, AR 72076

Dear Representative Wilson:

This is in response to your request for an opinion regarding whether a child may be admitted to public kindergarten in Arkansas despite the fact that the child will not have attained the age of five years on or before October 1 of the enrolling year. You have attached to your request a letter from yourself to the Arkansas Department of Education posing this and other related questions, as well as a letter from the Department of Education answering your questions.

In my opinion, as the Department of Education concluded, the answer to your question is "no."

As the letter from the Department of Education notes, Art. 14, §1 of the Arkansas Constitution permits the state legislature to provide for the spending of public funds on the education of persons under the age of six (6). The Arkansas legislature has apparently chosen to provide for the public education of children aged five (5) through twenty-one (21). See A.C.A. § 6-18-202 (Supp. 1991). The minimum age for enrollment in public school is governed by A.C.A. § 6-18-207 (Supp. 1991), which provides:

(a) Students may enter kindergarten in the public schools of this state if they will attain the age of five (5) years on or before October 1 of the year in which they are seeking initial enrollment. Any student who has been enrolled in a state-accredited or approved kindergarten program in another state for at least sixty (60) days, who will become five (5) years old during the year in which he is enrolled in kindergarten and who meets the basic residency requirement for school attendance, may be enrolled in kindergarten upon written request.

(b) Students may enter the first grade in the public schools of this state if they will attain the age of six (6) years on or before October 1 of the year in which they are seeking enrollment. Any student who has been enrolled in first grade in a state-accredited or approved elementary school in another state for at least sixty (60) days, who will become six (6) years old during the year in which he is enrolled in grade one (1) and who meets the basic residency requirement for school attendance may be enrolled in first grade.

In my opinion, § 6-18-207(a) must be interpreted to mean that a child may enter kindergarten only if he or she will reach the age of five years on or before October 1 of the enrolling year. The legislature's use of the word "may" in the provision merely reflects, in my opinion, the parents' option not to enroll a child in kindergarten despite the fact that the child will attain the age of five (5) years on or before October 1 of that year and should not be interpreted to mean that a younger child may be admitted to public kindergarten. See A.C.A. § 6-18-201(a)(2) (as amended by Act 320 of 1991) (Supp. 1991). The only exception to this age requirement is specifically noted: if a child has been enrolled in an accredited or approved kindergarten in another state for at least sixty (60) days and will attain the age of five during the school year, the child may be enrolled in kindergarten in this state, upon written request, although he or she may not have reached the age of five on or before October 1 of the school year.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Catherine Templeton.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh