Can an Arkansas public school charge students fees or fines, and can it block enrollment for not paying?

Plain-English summary

State Representative John W. Walker asked whether Arkansas school districts could collect fees or fines from students (for things like late registration, discipline, and tuition), whether unpaid fees could be made a condition of staying enrolled, and whether districts had to account publicly for what they collected. Attorney General Dustin McDaniel started from Article 14, § 1 of the Arkansas Constitution, which requires the state to "ever maintain a general, suitable and efficient system of free public schools."

He concluded that districts generally cannot charge any fee that would compromise a student's equal access to that free system. The Arkansas Supreme Court had read the guarantee to bar conditioning attendance on tuition or a registration fee, and this office had extended that to fees for courses in the standard curriculum. Some charges are still allowed: the legislature has approved tuition for "optional" summer-school courses for non-indigent students, and the AG thought reasonable late fees or library fines might survive a challenge, though no court had decided that question. On the second question, he answered no: even where a charge is permissible, a district cannot bar a student from school for failing to pay it. He also questioned whether monetary fines are even a lawful form of discipline, since the Code's list of "discipline measures" does not mention them. On the third question, he answered yes: districts must keep records of these transactions and are subject to audit.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could an Arkansas public school charge tuition or a registration fee for regular classes?
A: No, as the AG read the law. He explained that the Arkansas Supreme Court had treated the free-schools guarantee as foreclosing the state from conditioning public-school attendance on tuition or a registration fee, and that this office had concluded a fee cannot be charged for goods or services that are necessary and integral parts of the free public school system, including courses required for graduation.

Q: Are any student fees allowed at all?
A: Some. The AG noted that the legislature had authorized charging non-indigent students tuition for "optional" summer-school courses under A.C.A. § 6-16-702(b), and courts elsewhere had upheld summer-school tuition where waivers exist for indigent students. He also thought nominal late fees for late summer-school registration or library fines might pass muster, so long as they did not foreclose equal access, but he stressed no court had yet ruled on that.

Q: Could a school hold a student out of class, or block enrollment, for unpaid fees or fines?
A: No. The AG concluded that even where a charge might be permissible, a district could not condition continued enrollment on paying it. Barring a child from public education over an unpaid debt, he said, is not consistent with Article 14, § 1.

Q: Could a school impose a fine as a punishment?
A: The AG was doubtful. He pointed out that the Code's list of permissible "discipline measures" in A.C.A. § 6-18-515(a)(2), in-school suspension, out-of-school suspension, expulsion, corporal punishment, and referral to law enforcement, conspicuously omits monetary fines, and that imposing money sanctions without regard to a student's possible indigency would at least invite very close judicial review.

Q: Did districts have to account for the fees they collected?
A: Yes. Under A.C.A. § 6-13-701(2), a school district treasurer must keep records of all financial transactions, and under A.C.A. § 6-1-101(a)(1) those records are subject to audit by the Division of Legislative Audit or a licensed accountant.

Background and statutory framework

The opinion rests on Article 14, § 1 of the Arkansas Constitution and the Arkansas Supreme Court's school-funding decisions interpreting it, notably Dupree v. Alma School District No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983), which described equal educational opportunity as basic to Arkansas society. Earlier cases had held it unconstitutional to condition attendance on tuition or a registration fee.

The AG balanced that guarantee against the reality, long recognized, that "free" has never meant students are spared every incidental expense of attending school. The legislature's authorization of summer-school tuition, presumed constitutional under cases like Paschal v. State, 2012 Ark. 127, was his main example of a permissible charge. On discipline, he read A.C.A. §§ 6-18-501 through -515 as giving districts broad policy discretion (see also A.C.A. § 6-13-620(11)) but noted the statutory silence on fines, which he declined to treat as an implied authorization to impose them.

Citations and references

Statutes:

• Ark. Const. art. 14, § 1 (free public schools)
• A.C.A. § 6-18-202(a) (Repl. 1993); § 6-18-202(b)(1) (Supp. 2011) (schools open and free)
• A.C.A. § 6-16-702(b) (summer-school tuition; meal-eligible students exempt)
• A.C.A. §§ 6-18-501 through -515 (student discipline)
• A.C.A. §§ 6-18-502 and -503 (discipline policy authority)
• A.C.A. § 6-18-515(a)(2) (defined disciplinary measures)
• A.C.A. § 6-13-620(11) (Supp. 2011) (school board discretion)
• A.C.A. § 6-13-701(2) (Supp. 2011) (school treasurer's records)
• A.C.A. § 6-1-101(a)(1) (Supp. 2011) (audit of educational institutions)

Cases:

• Dupree v. Alma School District No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983), equal educational opportunity under the free-schools guarantee
• Dowell v. School District No. 1, 220 Ark. 828, 250 S.W.2d 127 (1952)
• Horton v. Meskill, 376 A.2d 359 (Conn. 1976)
• Granger v. Cascade County School District No. 1, 499 P.2d 780 (Mont. 1972), summer-school tuition permissible
• Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3 (1962), deference to school-board discretion
• Paschal v. State, 2012 Ark. 127, statutes are presumed constitutional

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-075

October 11, 2013

The Honorable John W. Walker
State Representative

1723 Broadway Street

Little Rock, Arkansas 72206-1220

Dear Representative Walker:

I am writing in response to your request for my opinion on three questions I will
paraphrase as follows:

1. Are school districts authorized by law to collect from public
   school children fees or fines for late fees, student discipline and
   tuition?

2. If so, may payment of such fees or fines be a condition for
   continued enrollment?

3. Must a school district account to the public for such fees or fines
   collected?

RESPONSE

With respect to your first question, in my opinion, school districts are generally
prohibited from charging any fees that might compromise students’ equal access
to “a general, suitable and efficient system of free public schools” as guaranteed
by Article 14, § 1 of the Arkansas Constitution. The Arkansas Supreme Court has
generally interpreted this guarantee as foreclosing the state from conditioning
public-school attendance upon the payment of tuition or registration fees. The
Arkansas legislature, however, in legislation that is presumed constitutional, has
approved charging tuition to non-indigent students for “optional” summer-school
courses — a category that may well include make-up course work offered during

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The Honorable John W. Walker
State Representative

Opinion No, 2013-075

Page 2

the summer term. No court has yet addressed the constitutional propriety of
charging “late fees” for untimely summer-school registration. In my opinion,
however, reasonable late fees of this sort might pass constitutional muster. The
same conclusion applies to other traditional varieties of “late fees” such as library
fines, which might also be deemed acceptable so long as they do not foreclose
equal access to a free public education. In the absence of judicial guidance,
however, I am not situated to opine definitively on this question. In my opinion,
the answer to your second question, which appears to be concerned with the
propriety of indefinite suspension pending the payment of a fine, is “no.” In my
opinion, the answer to your third question is “yes.”

Question 1; Are school districts authorized by law to collect from public school
children fees or fines for late fees, student discipline and tuition?

I must note initially that the term “late fees” in your question is ambiguous,
inasmuch as it might denote a variety of expenses, ranging from a surcharge for
late registration for summer courses to penalties for such infractions as tardiness or
the untimely return of library materials. Whatever has prompted your concern in
this regard, the ensuing discussion should provide guidance regarding the
permissibility of such fees under any circumstances.

My consideration of whether a school district may impose any of the three
categories of charges you have listed begins with and must at all times be bounded
by the principle that “the State shall ever maintain a general, suitable and efficient
system of free public schools.”’ The application of this directive regularly arises
within the context of school financing, and it has prompted the Arkansas Supreme
Court to offer the following explanatory credo:

[Wle believe the right to equal educational opportunity is basic to
our society. “It is the very essence and foundation of a civilized
culture; it is the cohesive element that binds the fabric of our society
together.” Horton. _ 2] Education becomes the essential

' Ark. Const, art. 14, § 1. This provision closely resembles constitutional guarantees of free public
education applicable in other states. See Note, The Constitutional Mandate for Free Schools, 1971 Wis.
L.Rev. 971 (1971).

? Horton v. Meskill, 376 A.2d 359, 377 (Comn. 1976), Bogdanski, J., concurring.

The Honorable John W. Walker
State Representative

Opinion No. 2013-075

Page 3

prerequisite that allows our citizens to be able to appreciate, claim
and effectively realize their established rights.’

In accordance with this principle, the court has previously deemed it
unconstitutional to condition attendance at a public school upon the payment of
tuition or a “registration fee." As one of my predecessors noted:

Our constitution and statutes require that the public schools be free.
Ark. Const. art. 14, § 1; A.C.A. § 6-18-202(a) (Repl. 1993)."! Asa
result, school districts cannot impose direct tuition fees or other
charges that indirectly violate the legal requirement that instruction
be gratuitous, even if such fees are authorized by statute. Prior
opinions of this office, which are consistent with judicial opinions
from other jurisdictions addressing the issue, might fairly be
characterized as stating that these constitutional and statutory
provisions mean that a fee may not be charged for goods or services
that are necessary and integral parts of the required system of free
public schools, and that, conversely, fees for other goods or services
may be imposed without violating the requirement that the schools
be free.

This office has interpreted this mandate as in all likelihood foreclosing charging
any tuition or registration fee even for elective courses, at least to the extent that

3 Dupree v. Alma School District No. 30,279 Ark. 340, 346, 651 S.W.2d 90 (1983).

‘ Special School District No, 65 v. Bangs, 144 Ark. 34, 221 S.W.2d 1060 (1920); Dowell v. School District
No. 1,220 Ark, 828, 250 S.W.2d 127 (1952).

• Subsection 6-18-202(b)(1) of the Code (Supp. 2011) currently provides in pertinent part:

The public schools of any school district in this state shall be open and free through
completion of the secondary program to all persons in this state between the ages of five
(5) and twenty-one (21)....

® Op. Att’y Gen. 96-072 (footnote omitted), citing Ops. Att’y Gen. 93-393, 91-219, 90-227, 83-154, 73-

137. In Op. Att’y Gen. No. 2000-230, one of my predecessors addressed generally what the constitutional
     mandate of “free” public schools means. As reflected in that discussion, determining whether particular
     charges runs afoul of that mandate will often be inherently factual in nature and hence beyond the scope of
     an Attorney General opinion.

The Honorable John W. Walker
State Representative

Opinion No. 2013-075

Page 4

the completion of elective courses is a requirement to graduate from high school.’
As one of my predecessors noted in the regard:

[T]he Constitution prohibits Arkansas public schools from requiring
the payment of any fee as a prerequisite to any student being
permitted to receive instruction for credit in a course offered for
credit towards graduation from such school.®

This conclusion is consistent with the generally accepted premise that a guarantee
of free public education forecloses charging fees for courses offered in the
standard curriculum.”

It does not follow from the foregoing that the public schools are foreclosed from
charging tuition under any and all circumstances. As one of my predecessors has
observed:

Historically, neither school administrators nor any legislature in the
country, including those with a constitutional mandate for “free
public schools,” has ever interpreted this term to mean that citizens
must be spared any and all expenses incidental to public school
attendance.'”

Among the charges the legislature has deemed it permissible to impose upon non-
indigent students is tuition for “optional” summer-school courses designed to
supplement the core public school curriculum.'’ Various other jurisdictions

” See, e.g, Ops. Att'y Gen. 93-393; 91-219 (“[F]ees for elective courses are problematic if the courses are
part of a given number which must be taken in order to meet the total education requirements for
graduation.”); 73-137 (noting that “[e]lective courses are an integral part of Arkansas education” and that a
specified number must be completed in order to graduate).

• Opinion 73-137.

” See discussion in 1985 Ga. Op. Att’y Gen. 81, citing Cardiff v. Bismark Public School District, 263
N.W.2d 105, 113 (N.D. 1978) and Note, Student Fees in Public Schools: New Statutory Authority, 16
Washburn L.J. 429, 442 (1977),

' Op, Att’y Gen. 2000-230, citing Jeffrey F. Ghent, Annotation, Validity of Exaction of Fees from Children
Attending Elementary or Secondary Public Schools, 41 A.L.R.3d 752 (1972 &, currently, Supp. 2013);
accord Ops. Att’y Gen. 99-224,

" See subchapter 7 of title 6, chapter 16 of the Arkansas Code (Repl. 2007), which authorizes charging
tuition for optional summer-school courses. The tuition obligation does not apply to students who qualify

The Honorable John W. Walker
State Representative

Opinion No. 2013-075

Page 5

subject to a constitutional guarantee of a “free” public school education have
likewise concluded that charging tuition for summer-school classes does not
offend this guarantee. 12

As noted by one of my predecessors, perhaps the most that can be declared
regarding the scope of the constitutional guarantee of a “free” public education is
that no fees can be imposed that would deny children equal access to education."
Courts in other jurisdictions have further concluded that so long as school policy
provides for tuition waivers in the event of indigency — as does the legislation at
issue in this instance — the constitutional principle of equal protection is not
implicated.'* The Arkansas legislation authorizing charging tuition for “optional”
course-work is deemed constitutional.!°

The foregoing sets the framework for assessing the constitutionality of charging
what you term “late fees” — a general designation that may in this instance refer to
fees charged for untimely summer-school registration.'® In gauging the propriety

for free or reduced-price meals. A.C.A. § 6-16-702(b), Tuition may be charged even for summer courses
taken as make-up work for courses unsuccessfully completed in the core curriculum offered in the regular
academic session. Jd. The premise underlying this provision is apparently that the state’s constitutional
obligation to offer a “free” education is fulfilled by making the course-work available in the regular school
session at no charge. Compare Granger v. Cascade County School District No. 1, 499 P.2d 780, 786
(Mont. 1972) (stating that the Montana Constitution’s guarantee of a “free” public education generally bars
tuition if “a given course or activity [is] reasonably related to a recognized academic and educational goal
of the particular school system,” but that this bar does not apply to summer-school courses).

2 See, e.g., Washington y. Salisbury, 306 S.E.2d 600 (S.C. 1983); Crim y, McWhorter, 252 SE.2d 421 (Ga.
1979); Granger, supra note 11; 1979-1980 Mich, Op. Att’y Gen. 628, 1979-1980 Mich. OAG No. 5656,
1980 WL 114025 (Mich. A.G.) (citing Crim and Granger, opining under a similar constitutional provision
that “school districts may impose a charge for persons voluntarily attending summer school”); compare
1982 Iowa Op. Att’y Gen. 227, 1981 WL 37133 (lowa A.G.) (opining that the Iowa legislature’s enactment
of a statute permitting charging tuition for summer-school courses did not violate the constitutional
guarantee of a free public education but that charging tuition for any regular-term courses was
impermissible).

Op. Att’y Gen. 2000-230.
M4 See, ¢.g., Crim, supra note 11, at 424-25.

5 See, e, g., Paschal v. State, 2012 Ark. 127, 8 (“Statutes are presumed constitutional, and the burden of
proving otherwise is on the challenger of the statute.”).

'© | have been provided what may be a representative flyer captioned “Little Rock School District 2013
Middle School Summer Schoo] Announcement: Grades 6—8,” which sets forth late registration fees and

The Honorable John W. Walker
State Representative

Opinion No. 2013-075

Page 6

of assessing such fees, I am again guided by the legislature’s apparent
determination that charging for optional summer course-work does not offend the
guarantee of a “free” education set forth in Article 14, § 1. Although the Code
contains no express provision authorizing the imposition of “late fees” for
untimely summer-school registration, I must note that the legislature has afforded
school districts considerable autonomy in the setting of policy.'’ I do not consider
the legislature’s silence on the specific issue of late fees as in itself amounting to a
prohibition against their imposition. Moreover, the propriety of imposing such
fees might be supported if they applied only to non-indigent students, as the
legislature has mandated with respect to summer-school tuition. Having offered
these observations, however, I must further note that no court has yet found
occasion to address the propriety of imposing such fees.

I am unaware either of current practice regarding or of any Arkansas authority
addressing the propriety of other varieties of “late fees” such as library fines for
late returns. Late fees for such infractions as the tardy return of library books are,
in my estimation, at least potentially subject to challenge inasmuch as such
infractions might well be characterized as inevitable in the course of providing a
“general, suitable and efficient system of free public schools.” On the other hand,
the charging of fines for untimely return of library books appears to be accepted
practice in at least certain jurisdictions. To the extent that your question embraces
such “late fees,” I can only note that I have found no precedent directly addressing
their propriety. A reviewing court might conclude that imposing nominal late fees
of this sort does not run afoul of constitutional proscriptions and falls within the
range of school district discretion. Without judicial guidance, I cannot opine
definitively on this issue.

The legislature has devoted an entire subchapter of the Code to the question of
discipline policy in public schools.'® Although no provision in this subchapter
expressly addresses the issue of imposing fines or fees as disciplinary measures,

various tuition fees for attendance at the Mann Magnet Middle School. Not being a finder of fact, I am
unaware of how common the practice announced in this flyer is.

"7 See A.C.A. § 6-13-620(11) (Supp. 2011) (investing a school district board with discretion to “[d]o all...
things necessary and lawful for the conduct of efficient free public schools in the school district”) and
Safferstone v. Tucker, 235 Ark. 70, 72, 357 S.W.2d 3 (1962) (barring interference with a school board’s
exercise of this discretion absent “a clear abuse” thereof established “by clear and convincing evidence”).

"8 A.C.A. §§ 6-18-501 through -515 (Repl. 2007 & Supp. 2011), as amended by Acts 2013, Nos. 71; 1138,
§ 48; and 1329.

The Honorable John W. Walker
State Representative

Opinion No. 2013-075

Page 7

this silence in itself is not necessarily tantamount to a prohibition of such charges.
The Code expressly invests school districts with considerable discretion in the
setting of disciplinary policy.'? In my opinion, however, this discretion is
bounded both by (1) the constitutional directive that public education — an
enterprise that will necessarily entail imposing discipline in various forms — be
provided free of charge; and (2) the Code’s failure at any point even to mention
monetary fees or fines as acceptable disciplinary measures.

With respect to the former of these factors, one of my predecessors, after noting
the legislature’s acknowledgement “that the only place that many individuals are
likely to learn self-control and good behavior is in the public schools,””” offered
the following pertinent remarks:

I am reluctant to conclude, in light of this statement, that the general
authority and responsibility of school districts to develop student
discipline policies (see A.C.A. §§ 6-18-502 and -503) includes the
authority to extract payments from students for time spent in
detention in order to fund the districts’ expenses in this regard. If
discipline is deemed a necessary or essential element of the
educational process, can it reasonably be contended that the
legislature intended for school districts to be authorized to impose a
charge or fee for programs that are developed in the interest of
discipline? Would such a fee be constitutional, in any event, if the
discipline program is a necessary part of the “general, suitable and
efficient system of free public schools ... [?]” I believe this latter
question would be the focus of the inquiry in the event of a
constitutional challenge.”!

I fully concur in this analysis,

Subsection 6-18-502(a) of the Code (Repl. 2007), as amended by Acts 2013, No. 1329, § 4, directs the
Department of Education to “establish guidelines for the development of school district student discipline
policies.” Subsection (b) of this statute charges the school district to develop policies in compliance with
these guidelines.

?° Acts 1994 (2nd Ex. Sess.), No. 51, § 9 (emergency clause).

7! Op. Att’y Gen. 96-104 (footnotes omitted).

The Honorable John W. Walker
State Representative

Opinion No. 2013-075

Page 8

With respect to the latter of the two factors listed above — namely, the statutory
silence regarding discipline-related fees or fines — I note that the Code as recently
amended provides the following catalog of permissible “disciplinary measures”:

“Discipline measure” means:

(A) In-school suspension;

(B) Out-of-school suspension;

(C) Expulsion;

(D) Corporal punishment; and

(E) Referrals to law enforcement authorities[.]’”

Conspicuously absent from this list is any reference to monetary fees or fines. In
my opinion, imposing monetary sanctions as a form of discipline, particularly if
done without regard to a student’s possible indigency, would at the very least
invite extremely close judicial review.

Question 2: If so, may payment of such fees or fines be a condition for
continued enrollment?

No.

Given the state’s paramount concern with educating its children, even in those
instances in which it might be permissible to charge tuition or a late fee, I do not
believe that it would be permissible to “condition . . . continued enrollment” upon
the payment of such a fee. Simply stated, I do not believe barring a student from
public education for failure to pay a debt owed a school district is consistent with
the mandate of Article 14, § 1. Moreover, as noted above, I question that fines are
even a permissible disciplinary option. If they are, however, for the reasons
stated, I do not believe a school could condition continued enrollment upon their
payment.”°

2 AC.A. § 6-18-515(a)(2). The statute identifies these measures as pertinent in determining “disciplinary
disparities” among subgroups.

3 This conclusion seems in all respects in accord with the following legislative finding expressed in Acts
2013, No. 1329, § 1(3): “Discipline that keeps students engaged in the learning process and in the school
community is more effective than discipline that interrupts the learning process and separates the student
from the school community.”

The Honorable John W. Walker
State Representative

Opinion No. 2013-075

Page 9

Question 3: Must a school district account to the public for such fees or fines
collected?

Yes.

The treasurer of a school district is statutorily charged “[t]o keep a record of all
financial transactions of the school district on forms approved by the Department
of Education and the Division of Legislative Audit.”** These transactions are
subject to the following audit procedure:

An audit of a publicly funded educational institution shall be
performed by the Division of Legislative Audit or other independent
person licensed to practice accounting by the Arkansas State Board
of Public Accountancy selected by the governing body of the
educational institution.”

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

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/JHD:cyh

4 A.C.A. § 6-13-701(2) (Supp. 2011).

5 ACA. § 6-1-101(a)(1) (Supp. 2011), as amended by Acts 2013, No. 1155, § 1.