Opinion No. 74-246 (1975) Ag ( 1975 )

EDUCATIONAL CLASSROOM SIZE

The provisions of 70 O.S. 18-113 [70-18-113] (1974), pertaining to class size are not applicable to kindergarten classes. A school system may not, consistent with the provisions of said Section 18-113, combine students of the second and third grades into a classroom exceeding the per class or per teacher limits provided therein. The Attorney General is in receipt of your opinion request wherein you ask, in effect, the following questions: 1. Does 70 O.S. 18-113 [70-18-113] (1974), pertaining to class size apply to kindergarten classes? 2. May a school system combine the second and third grades in one classroom where the combined class exceeds the maximum provided by Section 18-113? Title 70 O.S. 18-113 [70-18-113] (1974) provides as follows: "A. For the school years hereinafter indicated no child enrolled in grades one through six shall be included in the Average Daily Attendance of a school district for the purpose of computing and paying Foundation Program Aid or Incentive Aid if that child is, during the school year indicated, regularly assigned to a class that includes more than the number of children hereinafter set forth for the school years indicated: "1. for the school year 1971-1972, more than 32 students per class or per teacher if more than one teacher is regularly assigned to the class; "2. for the school year 1972-1973, more than 30 students per class or per teacher if more than one teacher is regularly assigned to the class; "3. for the school year 1973-1974, more than 28 students per class or per teacher if more than one teacher is regularly assigned to the class; and "4. for the school year 1974-1975, more than 25 students per class or per teacher if more than one teacher is regularly assigned to the class; provided that school districts which, at the beginning of the school year, do not have sufficient classrooms to meet the twenty-five-student-teacher ratio, as determined by guidelines established by the State Board of Education, to enable them to reduce class size to the maximum number required herein and which have voted indebtedness through the issuance of bonds for more than eighty-five percent (85%) of the maximum allowable under Article X, Section26 of the Oklahoma Constitution as shown on the school district budget filed with the State Equalization- Board for the current school year and which on that date are voting the maximum millage allowable for the support, maintenance, and construction of schools as provided in Article X, Section 9(a), (c), (d), and (d-l), and ArticleX, Section 10 of the Oklahoma Constitution shall not be penalized for failure to reduce class size. "B. Provided, however, for the school years hereinafter indicated no child enrolled in grades seven through nine shall be included in the average daily attendance of a school district for the purpose of computing and paying Foundation Program Aid or Incentive Aid if that child is, during the school year indicated, regularly assigned to any class, except those specified below, that includes more than the number of children hereinafter set forth for the years indicated: "1. for the school year 1971-1972, more than 42 students per class or per teacher if more than one teacher is regularly assigned to the class; "2. for the school year 1972-1973, more than 40 students per class or per teacher if more than one teacher is regularly assigned to the class; "3. for the school year 1973-1974, more than 38 students per class or per teacher if more than one teacher is regularly assigned to the class; and "4. for the school year 1974-1975, and thereafter, more than 36 students per class or per teacher if more than one teacher is regularly assigned to the class. "C. Provided, however, that classes in the following subjects will not be subject to the limitations on numbers of students per class set forth in subsection B: "1. physical education; 2. music, vocal and instrumental; 3. art; 4. typing; or 5. vocational courses. "D. Provided, however, if, in adjusting the class size ratio set out above, based on the number of classes in each grade in the previous year, a district, using a five percent (5%) deviation factor under the maximum set out, cannot meet the obligation so specified, the State Department of Education shall allocate two thirds (2/3) of the minimum salary to hire an additional teacher, which teacher must be used in the grade affected to reduce each class in said grade so that each said class shall be as nearly equal in number as possible. "E. If a grade has only one teacher, the above ratio shall not be required if the second class would be less than sixteen students, and the penalty provisions of this act shall not be applicable. "F. If there is more than one class per grade and, after using the proviso of subsection D, above, a school would have a class of less than sixteen, said students shall be equally divided in the remaining classes and the penalty provisions of this act shall not be applicable. "G. If a court has ordered a school district to group its grades as grades one through five, grades six through eight, and grades nine through twelve, then as to such district subsection A above shall apply to grades one through five rather than one through six, and subsection B above shall apply to grades six through eight rather than grades seven through nine." As to your first question, subsection A of Section 70 O.S. 18-113 [70-18-113] of Title 70 specifically applies to the class sizes of children enrolled in grades one through six. Subsection B expressly applies to grades seven through nine. Neither kindergarten nor grades above nine are made subject to the statute, and the unambiguous language of the statute must be viewed as applicable only to the grades specified. As to your second question, the statute does not expressly deal with the situation of a class consisting of pupils of more than one grade. The statute refers to the assignment of a child enrolled in one of the specified grades to a "class" that includes more than the number of children set forth, with the only exception being where more than one teacher is regularly assigned to the class and the number of students "per teacher" is less than the maximum provided. There is no exception provided for exceeding the "per class" or "per teacher" maximum based on combining students of two or more grades. It is, therefore, the opinion of the Attorney General that your questions be answered as follows: The provisions of 70 O.S. 18-113 [70-18-113] (1974), pertaining to class size are not applicable to kindergarten classes. A school system may not, consistent with the provisions of said Section 70 O.S. 18-113 [70-18-113], combine students of the second and third grades into a classroom exceeding the per class or per teacher limits provided therein. (Joe C. Lockhart)