Opinion No.

The Honorable Barbara Horn State Senator Post Office Box 64 Foreman, AR 71836-0064

Dear Senator Horn:

I am writing in response to your request for my expedited opinion on the following question, which you have submitted on behalf of the Fouke School District:

For the purpose of Act 60, what would constitute an isolated school or campus (meeting four (4) of the five (5) criteria for isolated) being considered "open"?

You have further posed the following series of hypothetical questions for my consideration:

1. Would keeping utilities turned on and the buildings maintained constitute "open" if no students were being served in those buildings?

2. Would serving some students parts of the school week on a part day schedule every school day constitute" open"?

3. Would maintaining a pre-school program for an entire school year constitute "open"?

4. Would locating only a class of school age children receiving self-contained special education services constitute" open"?

5. Would locating one or more grades of elementary aged children constitute "open"?

6. Would locating only a district wide alternative learning environment or in-school suspension program in such a school constitute "open"?

7. Would maintaining only an adult education program in such a school constitute "open"?

8. Would locating administrative offices on such a campus constitute "open"?

9. Would scheduling interscholastic events for school aged children such as athletic tournaments, competitions, quiz bowl, etc. constitute as "open"?

10. Would leasing out facilities to an outside entity constitute as "open"?

RESPONSE

I must respectfully decline to answer your specific questions, which raise issues of fact that this office is neither equipped nor authorized to address. However, I can and will set forth the general principles that I believe the Arkansas Department of Education would apply in determining whether a particular isolated facility qualifies as "open" and hence eligible for special needs and isolated school funding. As discussed further below, the primary operative principle that I believe would provide guidance in addressing each of your specific questions is that a school facility will qualify as "open" if it accommodates in accredited classroom activities students classified as K-12. The amount of available state funding will depend upon the average daily membership of such students, possibly supplemented by special needs funding for qualifying K-12 students.

Act 60 of 2003 (2d Ex. Sess.) provides for the administrative annexation or consolidation of school districts serving fewer than 350 students, including those containing isolated schools.

Section 6-20-602 of the Code (West Supp. 2005), as enacted pursuant to Act 60 and amended pursuant to Acts 2005, No. 1397, § 2, defines the term "isolated school" as follows:

(a) "Isolated school" means a school within a school district that:

(1) Prior to administrative consolidation or annexation under this section, § 6-13-1601 et seq., and § 6-13-1405(a)(5) qualified as an isolated school district under § 6-20-601; and

(2) Is subject to administrative consolidation or annexation under this section, § 6-13-1601 et seq., and § 6-13-1405(a)(5).

Section 6-20-601(a) of the Code (Supp. 2003), as amended by Acts 2005, No. 1397, defines an "isolated school district" as follows:

As used in this section, "isolated school district" means a school district that meets any four (4) of the following five (5) criteria:

(1) There is a distance of twelve (12) miles or more by hard-surfaced highway from the high school of the district to the nearest adjacent high school in an adjoining district;

(2) The density ratio of transported students is less than three (3) students per square mile of area;

(3) The total area of the district is ninety-five square miles (95 sq. mi.) or greater;

(4) Less than fifty percent (50%) of bus route miles is on hard-surfaced roads; and

(5) There are geographic barriers such as lakes, rivers, and mountain ranges which would impede travel to schools that otherwise would be appropriate for consolidation, cooperative programs, and shared services.

Subsection 6-20-603(b) (West Supp. 2005) further provides:

Beginning with the 2004-2005 school year and each school year thereafter, state financial aid in the form of isolated funding shall be provided to school districts containing an isolated school area in an amount equal to the prior year three (3) quarter average daily membership of the isolated school area multiplied by the per student isolated funding amount for the isolated school areas as set forth under column "C" of subsection (a) of this section.¹

As I discussed in detail in the attached Ark. Op. Att'y Gen. No. 2005-115 and will discuss further immediately below, the question of whether an isolated facility should be classified as "open" has immediate implications for the amount of state funding, if any, available to the isolated area containing the facility. With respect to the specific question of when an isolated school facility might be considered "open," I believe the pertinent inquiry is whether the facility provides instruction to an "average daily membership," as it must in order to be eligible to receive state funding. Subsection § 6-13-1601(4), enacted pursuant to Acts 2003, No. 60, § 3, defines the term "average daily membership" as follows:

(A) "Average daily membership" means the total number of days attended plus the total number of days absent by students in grades kindergarten through twelve (K-12) during the first three (3) quarters of each school year divided by the number of school days actually taught in the district during that period of time rounded up to the nearest hundredth.

(B) Students who may be counted for average daily membership are:

(i) Students who reside within the boundaries of the school district and who are enrolled in a public school operated by the district or a private school for special education students, with their attendance resulting from a written tuition agreement approved by the Department of Education;

(ii) Legally transferred students living outside the district but attending a public school in the district; and

(iii) Students who reside within the boundaries of the school district and who are enrolled in the Arkansas National Guard Youth Challenge Program, so long as the students are participants in the program[.]

This definition is repeated verbatim at Acts 2005, No. 2283, § 1, to be codified as A.C.A. § 6-20-2303(3)(A); Acts 2005, No. 2206, § 1, to be codified as A.C.A. §§ 6-20-2502(3)(a); and 6-20-2502(3)(B) — all of which provide materially indistinguishable parameters for the students to be included in the computation of average daily membership.²

Although the Code at no point defines precisely what it means for an isolated school to be "open," I believe logic dictates that it should be characterized as such if the state is obligated to provide it funds in pursuit of the state's charge to maintain "a general, suitable, and efficient system of free public schools." Ark. Const. art. 14, § 1 and A.C.A. § 6-20-2302(a)(2) (West Supp. 2005). Section 6-20-2305 of the Code (West Supp. 2005), as enacted pursuant to Acts 2003, No. 59, § 1 (2d Ex. Sess.) and amended pursuant to Acts 2005, No. 2283, § 2, provides for state funding of schools based upon their enrolled K-12 average daily memberships.³ Subsection (a)(2) of this statute provides for "foundation funding" for all K-12 schools in the 2005-2006 school year of $5,400, increasing to $5,497 in the 2006-2007 school year, multiplied by the average daily membership of the school in the previous school year. Subsection (a)(1) sets forth a formula for computing additional "state foundation funding aid" based upon the foundation funding amount. Subsection (b) of the statute sets forth additional funding for various "additional education categories" such as "alternative learning environmental funding" and "English-language learners funding," basing the additional funding on the number of students who are included in both average daily membership and an additional education category. Subsection (c) provides for more additional funding falling into various categories, including isolated funding. Again, funding under each of the recited categories turns on the number of qualifying students included in average daily membership.

To provide additional funding, Acts 2005, No 2206, § 1 enacted subchapter 25 of chapter 20 of title 6 of the Code, known as the Arkansas Public School Academic Facilities Funding Act.⁴ Subsection 6-20-2502(1) defines the term "academic facility" as follows:

(A) "Academic facility" means a building or space, including related areas such as the physical plant and grounds, where students receive instruction that is an integral part of an adequate education as described in § 6-20-2302.

(B)(i) A public school building or space, including related areas such as the physical plant and grounds, used for an extracurricular activity or an organized physical activity course as defined in Act 660 of 2005 shall not be considered an academic facility for the purposes of this subchapter to the extent that the building, space, or related area is used for extracurricular activities or organized physical activities courses, except for physical educational training and instruction under § 6-16-132.

(ii) The Division of Public School Academic Facilities and Transportation shall determine the extent to which a building, space, or related area is used for extracurricular activities or organized physical activities courses based on information supplied by the school district and, if necessary, on-site inspection.

(C) Buildings or spaces, including related areas such as the physical plant and grounds, used for prekindergarten education shall not be considered academic facilities for purposes of this subchapter.

(D) District administration buildings and spaces, including related areas such as the physical plant and grounds, shall not be considered academic facilities for the purpose of this subchapter[.]

As with the foundation funding discussed in the previous paragraph, the level of academic facilities funding turns on average daily membership as defined at A.C.A. § 6-20-2502(3) — a definition that tracks verbatim the definition set forth above.

With respect to your specific question, I consider the term "academic facility" as defined above coterminous with the term "school or campus" as you have used it. I am struck by the fact that the legislature has restricted its definition of "academic facility" to an area "where students receive instruction that is an integral part of an adequateeducation as described in § 6-20-2302" (emphasis added). Section6-20-2302 provides in pertinent part:

(c) The General Assembly finds that a suitable and efficient system of public education should:

(1) Assure the availability of substantially equal and constitutionally appropriate expenditures by the state for the education of each similarly situated child in the public schools, regardless of where that child resides within the state;

(2) Assure that each school-age child resides in a school district that offers a competitive minimum salary for classroom teachers;

(3) Assure that:

(A) All students graduating from high school are able to demonstrate a defined adequate level of competence in:

(i) English, oral communications, reading, and writing;

(ii) Mathematics skills; and

(iii) Science and social studies disciplines; and

(B) An adequate level of competence evolves over time to higher levels[.]

In my opinion, the "integral" skills recited in this statute are those taught in the core K-12 curriculum offered to students who comprise a facility's average daily membership. Accordingly, I believe that any facility that does not teach those skills to K-12 students falling within the categories set forth at A.C.A. § 6-13-1601(4)(B) could not be characterized as "open." Only district administrators and the Department of Education are situated to determine whether a facility in any particular instance qualifies as "open" under this standard.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General

MB/JHD:cyh

¹ Subsection (e) of this statute provides:

No school district or isolated school area which may qualify under other law to receive additional state aid because its average daily membership is less than three hundred fifty (350) shall be eligible to receive funding under this section except that a district qualifying under other law for such aid and qualifying for funds under this section may elect to receive funds under this section in lieu of aid under the other.

In my opinion, the effect of subsection (e) is to enable a former school district listed in column C of subsection (a) to receive isolated school funding even if, as is the case in a number of instances, the former school district does not qualify as "isolated" under the criteria set forth at A.C.A. § 6-20-601.

With respect to the formula recited in A.C.A. § 6-20-603(b) for computing isolated school funding, I opined in the attached Ark. Op. Att'y Gen. No. 2005-115 that in the year a school is closed or partially closed, isolated school funding should be based upon current-year average daily membership pursuant to A.C.A. § 6-20-604(h), which was enacted pursuant to Acts 2005, No. 1452. I further opined in response to the first question in the attached Ark. Op. Att'y Gen. No. 2005-122 that no isolated school could be closed before August 12, 2005, which is the effective date of Act 1397 of 2005, which authorizes such closings. See Ark. Op. Att'y Gen. No. 2005-110 (noting the effective date of legislation enacted in 2005 without an emergency clause). The analysis that led me to this conclusion is rather complicated and I will not repeat it here.

² Subsection 6-20-2303, contained within the Public School Funding Act of 2003, A.C.A. § 6-20-2301 through -2306 (West Supp. 2005), added to this definition the following subsection (3)(B):

In those instances in which the average daily membership for fewer than three (3) quarters is specified, the number of days used in the calculation shall be the days in the specified period of time.

³ Quite logically, for the purpose of computing average daily membership, the Department of Education treats a part-time student as a fraction of a student.

⁴ Section 2 of Act 2206 repealed subchapter 24 of chapter 20 of title 6, which was enacted pursuant to Acts 2003, No. 69, § 1 (2d Ex. Sess.), known as the Supplemental School District Funding Act of 2003.