Opinion No. 76-132 (1976) Ag ( 1976 )

KINDERGARTEN — TUITION FREE ATTENDANCE Where tuition was paid permitting an underage child to attend kindergarten, such child is not entitled to attend first grade free of charge in a district other than the district of kindergarten attendance where the child does not meet the general minimum age for free first grade attendance of six years on or before November 1 presently required by 70 Ohio St. 1-114 [70-1-114] (1975). The Attorney General has considered your request for an opinion on the following question: "A child, although under age by a few days to be eligible to attend kindergarten without charge in the district of her residence is admitted to kindergarten classes in said district and completes the full kindergarten course for which full tuition is paid by her parents. The next year the child is living in a different school district, and is again under age by a few days to be enrolled in the first grade of the new school district, although having successfully completed kindergarten the previous year. The new school district denies her admission unless full tuition is paid. Was the school district within its authority under Title 70 Section 1-114 as amended?" Title 70 Ohio St. 1-114 [70-1-114] (1975) provides as follows: "All children between the ages of five (5) years on or before November 1, and twenty-one (21) years on or before September 1, shall be entitled to attend school free of charge in the district in which they reside. Provided that children who have reached the age of five (5) years on or before November 1 of the school year may be admitted to kindergarten classes approved by the State Board of Education. Except as otherwise provided by law, no child shall be enrolled in the first grade unless he or she will have reached the age of six (6) years on or before November 1 of the school year . . . Provided, tuition shall not be required for attendance in the first grade, if tuition was paid on an underage child to attend an accredited kindergarten in the same school district, and such first grade attendance shall be a legal attendance . . ." (Emphasis added) As stated in your letter, your question was answered in the negative in an opinion of the Attorney General issued January 3, 1974, 6 Okl.Op.A.G. 276 (Opinion No. 73-289). Opinion No. 73-289 construed the existing language of Section 1-114 as providing the age of five years on or before November 1 as the minimum age for free school attendance, and concluded that tuition could not be charged for attendance of a pupil who meets such minimum age even though the child does not come within the proviso underlined above. Following issuance of Opinion No. 73-289, Section 1-114 was amended by the Legislature in 1974, Laws 1974, Ch. 21, to add the following provision which is presently the third sentence of Section 1-114: ". . . Except as otherwise provided by law, no child shall be enrolled in the first grade unless he or she will have reached the age of six (6) years on or before November 1 of the school year . . ." It is apparent that the 1974 amendment generally sets a minimum age of six years for free first grade attendance and thus supersedes the conclusions of Opinion No. 73-289 that there existed only one minimum age requirement for free school attendance, that being five years on or before November 1. The proviso underlined above remains in effect as an exception to the general minimum age for free first grade attendance in that where a child pays tuition to attend kindergarten as an underage child, such child may attend the first grade free of charge in the same school district. However, your question concerns a child who wishes to attend first grade without payment of tuition after having paid tuition in a different school district the previous year as an underage pupil. Such a pupil who is not included in the proviso and who does not meet the general minimum age now expressly required for free first grade attendance is not eligible to attend the first grade without payment of tuition. It is, therefore, the opinion of the Attorney General that your question be answered in the affirmative. Where tuition was paid permitting an underage child to attend kindergarten, such child is not entitled to attend first grade free of charge in a district other than the district of kindergarten attendance where the child does not meet the general minimum age for free first grade attendance of six years on or before November 1 presently required by 70 Ohio St. 1-114 [70-1-114] (1975). (Joe C. Lockhart)