Opinion No.

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

Dear Representative Bush:

This official Attorney General opinion is issued in response to your recent question regarding the statutory requirement that students prove a "C" average before they can receive a driver's license. This requirement is set forth in A.C.A. § 27-16-701(d)(1)(A)(i), which states:

(d) Every application for an instruction permit or for a driver's license by a person less than eighteen (18) years old on October 1 of any year shall be accompanied by:

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(i) A student enrolled in school shall present proof of a "C" average for the previous semester or grading period in order to be issued a license.

A.C.A. § 27-16-701(d)(1)(A)(i) (emphasis added).

All school districts in the state make the required certification of students' grades on a form that is provided to the districts by the Department of Education. The districts, in turn, provide the form to the students for presentation upon applying for a license.

You indicate that in the Blytheville School District, the student's semester grade is the only one recorded on the student's permanent record, and that the school district has a policy of using the semester grade for determining whether or not a student is eligible to participate in any extracurricular activities sponsored by the district. For the sake of consistency in its student participation policies, the Blytheville School District would like to use only the semester grade for driver's license purposes. I assume that the school district does in fact have an intermediate grading period that is shorter than the semester grading period — for example a nine-week grading period — but wishes to use only the permanent semester grade for purposes of certifying the student's eligibility to receive a first-time driver's license.

Accordingly, you have presented the following question:

Is it permissible for a school district to use only the semester grade for verification that a student has met the requirements of A.C.A. § 27-16-701(d)(1)(A)(i)?

It is my opinion, as explained more fully below, that it is not only permissible, but is required that school districts use only the semester grade (or a school district's equivalent of a semester grade if some other unit of time other than a semester is used for recording permanent grades) as a basis for proof of the student's "C" average. This conclusion is based upon an interpretation of A.C.A. §27-16-701(d)(1)(A)(i) under which the phrase "previous semester or grading period" means previous semester in school districts that divide their school years by semesters, or similar permanent grading periods such as trimesters or quarters in school districts that do not use semesters.

The language of A.C.A. § 27-16-701(d)(1)(A)(i) is admittedly somewhat ambiguous and could benefit from legislative clarification or judicial interpretation. Statutory language is said to be "ambiguous" when it is susceptible of two or more interpretations. Russellville Canning Co. v.American Can Co., 87 F. Supp. 484 (1950), rev'd on other grounds,191 F.2d 38. The ambiguity in A.C.A. § 27-16-701(d)(1)(A)(i) arises from the fact that it could be read in either of the following ways:

(1) As allowing a choice (either by the student or by the school) as to whether to use the semester or some intermediate unit of grading period as a basis for proof of the" C" average; or

(2) As requiring proof of the "C" average based on the school's shortest period for which grades are recorded as part of the student's permanent record, whether that happens to be semesters or some other unit of division, such as trimesters or quarters.

Because the obtaining of a state driver's license is a matter of state-wide concern, I am reluctant to interpret the phrase "previous semester or grading period" as allowing each school district (or each student) to choose to use any intermediate grading period as a basis for proof of the "C" average.¹ Such an interpretation could result in wide variance among school districts, with some districts requiring certification to be based upon semester grades, and others allowing certification based on any intermediate grading period that the school or the student might choose — even an average of recent test scores. I cannot conclude that the legislature intended such disparate treatment of students, or that it intended to leave the determination of a state standard to the discretion of individual school districts.

A more reasonable interpretation of the phrase "previous semester or grading period" is one under which each school is required to use its shortest permanent grading division of the school year as a basis for proof of the student's "C" average — whether that division happens to be semesters or some other division of the school year, such as trimesters or quarters. This is the only interpretation of the phrase that would result in a consistent standard for the obtaining of a driver's license by students across the state.

On the basis of this interpretation of the statute, I must conclude that school districts are not only permitted, but are required to use the student's grade for the semester or for the school's permanent grading division of the school year that is equivalent to a semester, as the basis for proof of the "C" average.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Suzanne Antley.

Sincerely,

WINSTON BRYANT Attorney General

WB:SBA/cyh

¹ Although school districts are generally accorded a high degree of latitude in formulating their internal policies, (see King v. Cochran,419 F. Supp. 54 (W.D. Ark. 1976), aff'd 551 F.2d 1133; Cato v. Collins,394 F. Supp. 629 (E.D. Ark. 1975), aff'd 539 F.2d 656; Appler v. MountainPine School Dist., 342 F. Supp. 1131 (W.D. Ark. 1972); Evans v. McKinley,234 Ark. 472, 352 S.W.2d 829 (1962); Safferstone v. Tucker, 235 Ark. 70,357 S.W.2d 3 (1962)), the issue of the standard that must be met in order to obtain an Arkansas driver's license is not an internal school policy, but rather is a matter of state-wide concern.