Can an Arkansas school district donate a vacated school building to a city for free for municipal use?

Plain-English summary

The City of Eureka Springs asked the Eureka Springs School District to donate a vacated school property for ADA-accessible public meetings, possible city offices, and a community center, all at no cost. Senator Bryan King asked the AG whether the district had the legal authority to do that.

The AG pointed straight to Ark. Code Ann. § 6-21-108(b). That statute lets a school district donate real property when the school board determines two things: (1) the property "is not required for the [district's] present or future needs" (i.e., it's surplus), and (2) the donation "would serve a beneficial educational service for the citizens of the school district."

If both threshold conditions are met, the property can be donated to a defined list of recipients (publicly supported colleges and universities, technical institutes, community colleges, not-for-profit organizations, counties, cities, incorporated towns, or any of their entities) for one of three limited purposes:

• Having the recipient preserve, improve, upgrade, rehabilitate, or enlarge the property
• Providing a community college or higher-education institution with classroom space
• Providing community programs, beneficial educational services, social enrichment, or after-school programs

A city is on the recipient list. So the answer to the senator's first question turned on whether the donation served a "beneficial educational service" for the district's citizens, and whether the city's intended uses (ADA-accessible meeting space, possibly city offices and a community center) fit one of the three purposes.

The AG would not decide either question because both are fact-intensive. The AG attached a copy of Opinion 2015-105 (the Greenland-to-Winslow Community Center donation) as the analytical template. That earlier opinion held a donation to a community-center association was permissible because the association was a not-for-profit, the property was surplus, and the proposed uses (tutoring, after-school activities, mentoring, music productions) plainly fit the third purpose category.

A second strand from Opinion 2015-105 matters here. The Arkansas Constitution, in addition to the statute, requires that the donation benefit the district's students (not just citizens). The AG had concluded in 2015 that relieving the district from the cost of maintaining a building it didn't need was itself a benefit to students because of the cash-flow improvement.

Currency note

This opinion was issued in 2017. 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.

Background and statutory framework

Ark. Code Ann. § 6-21-108(b)(1) sets up a two-part threshold test for school property donations:

1. The board must determine that the property is not needed for present or future district needs (surplus).
2. The board must determine that the donation "would serve a beneficial educational service for the citizens of the school district."

If both conditions are met, donations are limited to a defined recipient list (public higher-education institutions, technical institutes, community colleges, not-for-profits, counties, cities, incorporated towns, or any entity thereof) and three purpose categories (preservation/improvement, classroom use by a college or technical institute, or community programs/educational services/after-school programs).

The Arkansas Constitution adds a layer. Article 14, § 1 obligates the state to maintain "a general, suitable and efficient system of free public schools." Article 14, § 2 says public school money and property "shall [not] ever be used for any other than for the ... purposes to which it belongs." Article 2, § 8 provides due-process protections. Read together with Fort Smith Sch. Dist. v. Beebe and Lake View Sch. Dist. No. 25 v. Huckabee, the constitutional thrust is that school property must serve students, not just adult citizens. Opinion 2015-105 reconciled the constitutional layer with the statute by treating cash-flow relief from maintaining unused buildings as a student benefit (more money available for student-facing purposes).

Opinion 2015-105 is also notable for declining to require that surplus property be unmarketable before it could be donated. Earlier Opinion 2013-116 had suggested the constitution might require sale rather than donation if the property had market value. The 2015 opinion rejected that as not grounded in the constitutional text or case law.

Common questions

Could an Arkansas school district donate a closed school to a city for free?
Yes, potentially. Ark. Code Ann. § 6-21-108(b) authorizes donations to cities if the school board first determines the property is surplus and the donation serves a beneficial educational service.

Did the AG approve the Eureka Springs donation?
No. The AG declined to issue a yes-or-no answer because the threshold board determinations are factual judgments that the AG can't make. The opinion provided the legal framework only.

What were the three permitted purposes for donated school property?
At the time of this opinion: (1) preservation, improvement, upgrade, rehabilitation, or enlargement by the donee; (2) classroom space for a community college, technical institute, or public higher-education institution; or (3) community programs, beneficial educational services, social enrichment programs, or after-school programs.

Did the property have to be unmarketable to be donated?
No, according to Opinion 2015-105, which the AG attached. The constitution does not require that the surplus property have no market value before it can be donated.

Why does the constitution add a separate test?
Because Article 14 requires public school resources to serve students. The statute's "beneficial educational service for the citizens" test could in theory benefit non-students. The constitutional layer narrows that focus. In Opinion 2015-105, the AG read both tests as satisfied because relieving the district from maintaining unused property freed up money that would benefit students.

Could a school district donate to a private nonprofit?
Yes, if the nonprofit is on the statutory recipient list and the use fits a permitted purpose. Opinion 2015-105 approved a donation to the Winslow Community Center Association on this basis.

Source

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

Original opinion text

Opinion No. 2017-105
November 15, 2017
The Honorable Bryan B. King
State Senator
871 County Road 814
Green Forest, AR 72638-2657
Dear Senator King:

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

This is in response to your request for an opinion concerning the possible donation of school property by the Eureka Springs School District to the City of Eureka Springs. As background for your questions, you state:

The city has asked the school district to donate a vacated school property to the city for municipal use. The city would like to use the property for ADA [Americans with Disabilities Act] accessible public meetings and possibly for city offices and a community center. The city would like the school property to be donated to them at no cost.

In this regard, you have asked:

1) Is the school district allowed to donate the property to the city in this scenario?
2) Can a school district give an abandoned/vacated school property to the city for their use and at no cost to the city?

RESPONSE

Your questions are governed by Ark. Code Ann. § 6-21-108(b) (Supp. 2015), which authorizes the donation of school property under certain conditions. I cannot determine, based on the limited facts set forth in your request, whether the proposed donation would meet these statutory conditions. I cannot act as a factfinder in issuing official Attorney General opinions. For this same reason, I cannot provide a definitive answer to your second question. This opinion must be limited instead to a discussion of the general legal framework for evaluating the proposed donation.

DISCUSSION

I addressed the governing statutory framework in Attorney General Opinion 2015-105, a copy of which is attached for your convenience. As explained therein, section 6-21-108(b) establishes two threshold conditions for the donation of school property. The school district's board of directors must determine (1) that the school property "is not required for the [district's] present or future needs" [i.e., it is surplus property] and (2) that the donation of the property "would serve a beneficial educational service for the citizens of the school district."

If both of these conditions are met, then the property can be donated to a limited pool of recipients for certain purposes:

[T]he school district may donate real property to a publicly supported institution of higher education, a technical institute, a community college, a not-for-profit organization, a county, a city, an incorporated town, or any entity thereof for the following limited purposes:

(A) Having the real property preserved, improved, upgraded, rehabilitated, or enlarged by the donee;
(B) Providing a publicly supported institution of higher education, a technical institute, or a community college with the donated property in which to hold classes; or
(C) Providing community programs and beneficial educational services, social enrichment programs, or after-school programs.

A city is therefore potentially a proper recipient of donated, surplus school property. But the school board must make a threshold determination that the donation to the city would provide a "beneficial educational service" for the school district's citizens. And the intended use of the surplus property must meet one of the above "limited purposes." These involve factual considerations that must be evaluated in consultation with local counsel.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure

[Attached Opinion No. 2015-105 incorporated as enclosure. That opinion analyzed a proposed donation by the Greenland School District of former Winslow School District property to the Winslow Community Center Association, and concluded the donation would not violate the Arkansas Constitution. Opinion 2015-105 set out the same statutory test used in this opinion, found the Association was a not-for-profit recipient, found the proposed uses (tutoring, after-school activities, mentoring, musical productions, community garden) fell within § 6-21-108(b)(1)(C)'s permitted purposes, and concluded that the constitutional requirement that donated school property benefit students was satisfied because relieving the district of unused-building costs improved cash flow available for student-focused spending. Opinion 2015-105 also rejected the suggestion in Opinion 2013-116 that surplus property must be unmarketable before being donated.]