Opinion No. 69-184 (1969) Ag ( 1969 )

Kindergarten Students — Transfers It is not mandatory for a County Superintendent to approve a transfer if a school district does not offer kindergarten and a transfer is requested for a pupil of kindergarten age. The Attorney General has had under consideration your recent letter in which you state and inquire as follows: "Oklahoma laws provide that it is mandatory that a County Superintendent of Schools grant a transfer in the event the grade is not offered in a school district. If a school district does not offer kindergarten and a transfer is requested for a pupil of kindergarten age, would it be mandatory that the County Superintendent approve the transfer?" Title 70 O.S. 8-1 [70-8-1] and 70 O.S. 8-3 [70-8-3] (1961), are pertinent to your inquiry and provide as follows: "Section 8-1 Any child residing in a school district maintaining a school or schools within the district in the State of Oklahoma that does not offer the grade which such child is entitled to pursue shall be entitled to be transferred to a school district which offers the grade which he is entitled to pursue, and to have appropriated and expended, from the funds of the district in which he resides, or from funds provided by the Legislature for the support and maintenance of the public schools, the per capita cost for the previous year of the district to which he is transferred. Such appropriation and expenditure shall be made by paid to the district to which such child is transferred, . . ." "Section 8-3(a) The county superintendent of schools shall grant an application for transfer of a child from the district in which such child resides to another school district furnishing instruction in the grade he is entitled to pursue if (1) the school district in which the pupil resides does not offer the grade which the pupil is entitled to pursue and such pupil wishes to attend school outside the transportation area where the pupil resides, . . ." These statutory provisions were interpreted by the case of Duncan v. Askew, 207 Okl. 542, 251 P.2d 515, in which the court stated that these provisions for transfer are mandatory if a child is residing in a school district that does not offer a grade which the child is entitled to pursue. While these statutory provisions do not mention age as a requisite for transferring a child, they do indicate an intention to include only those children who have a right to attend school or those who can attend school free of charge and at public expense. Title 70 O.S. 1-16 [70-1-16] (1961), specifies the ages of children who are entitled to attend school free of charge and provides for discretionary admittance of children under age and the payment of tuition by children who wish to transfer to a school district other than the one in which they reside. Section 70 O.S. 1-16 [70-1-16], supra, provides as follows: "All children between the ages of six (6) on or before November 1st and twenty-one (21) years on or before September 1st shall be entitled to attend school free of charge in the district in which they reside. Provided, that children who have not reached such age of six (6) years may be admitted to nursery and kindergarten classes approved by the State Board of Education at public expense. Provided further, that children who do no reside in a school district and who have not been transferred thereto, or children who are underage not in attendance in a kindergarten or nursery class approved by the State Board of Education, may be admitted to the schools of such district on a tuition basis only; and no such non-resident and non-transferred pupil, or any such underage pupil, shall be allowed to attend school in any school district unless there shall have been paid in advance yearly or by semester as determined by the local board of education, to such district, before such attendance during any period, a tuition fee equal to the per capita cost of education for a similar period in such district during the preceding year. If the State Board of Education discovers that such attendance has been allowed without prior payment of the tuition fee in advance as herein required, no further payment of any State Aid funds shall be made to the district until such district has shown to the satisfaction of the State Board of Education that all such tuition fees have been paid or that such tuition pupil will no longer be allowed to attend school until the required tuition fee has been paid." This statute clearly indicates that only those children between the ages of six on or before November 1, and twenty-one on or before September 1, have an absolute right to attend school free of charge while those under age six, or not residing in a school district and have not been transferred thereto, or under age six and not in attendance in a kindergarten or nursery class approved by the State Board of Education may be admitted on a discretionary basis. O.S.L. 1969, ch. 172 (70 O.S. 1210.101 [70-1210.101] — 70 O.S. 1210.105 [70-1210.105] [70-1210.105] (1969)) contains the Kindergarten Act of 1969, and provides in pertinent part as follows: "Section 2. It is the purpose and intention of the Legislature through financial aid to encourage the school districts of Oklahoma to provide tuition free kindergarten for all five year old children in Oklahoma and this Act shall be liberally construed to accomplish that purpose." "Section 3. All children who have attained the age of five (5) years by November I of the school year and who are attending an accredited kindergarten program operated by the school district for which no tuition is charged shall be included in the computation of average daily attendance. . . ." While this act encourages the school districts in Oklahoma to provide tuitiori free kindergarten for all five year old children and to include all such children attending in the computation of average daily attendance, it does not make it an absolute right of all children five years of age to attend school. Therefore, kindergarten would not be a grade which all children are entitled to pursue and children in such age category would not come within the mandatory transfer provisions of 70 O.S. 8-1 [70-8-1] and 8-3, supra. It is, therefore, the opinion of the Attorney General that it is not mandatory for a County Superintendent to approve a transfer if a school district does not offer kindergarten and a transfer is requested for a pupil of kindergarten age. (Gary F. Glasgow) ** SEE: OPINION NO. 71-260 (1971) **