Can an Arkansas public school require students to pay for private lessons or summer camps as a condition of participating in extracurriculars or graded courses?

Plain-English summary

State Representative Andy Mayberry asked Attorney General Leslie Rutledge in 2018 whether Arkansas public schools could require students to pay for private lessons, summer camps, or transportation as a condition of participating in extracurricular or curricular activities. The questions covered four scenarios: (1) requiring private lessons at a specific business, (2) requiring summer-camp attendance, (2B) requiring out-of-state transportation to camp, and (3) whether the answer changes if the activity occurs during the school day or earns physical-education credit toward graduation.

The AG declined to give yes-or-no answers because the legality of any specific fee depends on facts the AG could not verify in the abstract. But the opinion laid out the legal framework. Article 14, Section 1 of the Arkansas Constitution requires the state to "ever maintain a general, suitable and efficient system of free public schools." The Arkansas Supreme Court has held that registration and tuition fees for attending public schools are unlawful (Dowell v. School District No. 1; Special School District No. 65 v. Bangs). The AG read those holdings to mean that schools cannot impose fees that condition a student's access to goods or services that are necessary and integral parts of the free public school system.

Applying that framework, the AG drew a working line. Fees for elective, non-credit activities (the AAA Handbook, for example, expressly contemplates students paying for athletic camps and clinics outside of their sport season) are generally permissible because they are not integral to the free system. Fees for activities that earn graduation credit or are required for graduation are constitutionally suspect because they functionally condition the right to a free education on the student's ability to pay. Whether private lessons or summer camps fall on one side or the other depends entirely on the specific activity and whether it carries credit, is required for graduation, or is offered as part of the regular curriculum.

The AG also flagged a key statutory cross-current. Ark. Code Ann. § 6-16-137(h) says that organized physical activity courses are "not a requirement for an adequate education" and "shall not be considered a core academic requirement." But the Arkansas Department of Education's Standards for Accreditation explicitly require students to earn 1½ units of "Health and Safety Education and Physical Education" to graduate from grades 9-12. So PE sits in an awkward middle ground: not a "core academic requirement" by statute, but functionally required for graduation by ADE rule. The AG said schools must factor that ADE requirement into the fee analysis.

Transportation fees got a separate but related analysis. School districts have broad statutory discretion under Ark. Code Ann. §§ 6-19-102 and 6-12-102 to decide whether and how to transport students. That discretion implies a power to charge transportation fees. The U.S. Supreme Court upheld a transportation-fee scheme in Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988), where no suspect class was affected and the distinctions among students were not arbitrary. Equal protection and other constitutional concerns can still constrain a particular scheme, but the baseline is broad district discretion.

The AG also flagged ethical and conflict-of-interest issues when a school requires students to use a "specific private business." Under Ark. Code Ann. §§ 6-24-101 et seq., school board members, administrators, and employees have an affirmative duty to disclose any interest they have in a transaction. Section 6-24-112(a) makes it a breach of ethical standards to offer or accept a gratuity in connection with any contract or transaction of a public educational entity. Districts choosing a specific vendor for required lessons need to verify that no school official has a financial relationship with the vendor that would create a conflict.

Currency note

This opinion was issued in 2018. 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

Article 14, Section 1 of the Arkansas Constitution: "The State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education." DuPree v. Alma School District treats equal access to education as foundational.

Dowell v. School District No. 1 and Special School District No. 65 v. Bangs hold that registration and tuition fees for attending public schools are unconstitutional. Subsequent AG opinions extend that holding: fees for required courses or required purchases (like a chemistry-class kit) are constitutionally impermissible (Op. Att'y Gen. 83-154); fees for non-credit driver's-education classes are permissible (Op. Att'y Gen. 90-227); fees for required elective courses where the elective is required to graduate are constitutionally suspect (Op. Att'y Gen. 91-219).

Other-state authority cited approvingly: East Jackson Public Schools (Mich. Ct. App.) and Granger (Mont.) on whether interscholastic athletics are "integral" to the free school system; Kiddie Korner (N.C. Ct. App.) on supplemental-program fees; Norton (N.M.) on elective-course fees.

Federal IDEA carve-out: 20 U.S.C. § 1412 separately requires a "free appropriate public education" for students with disabilities, with its own legal framework. The 2018 opinion expressly does not address IDEA-specific issues.

Common questions

Can my child's school require us to pay for private golf or tennis lessons to play on the school team?
Probably yes, if the team participation is purely extracurricular and earns no graduation credit. The AAA Handbook itself says "students or their parents pay for these camps or clinics." But if participation in the team somehow folds into a credit-bearing course or a graduation requirement, the calculus changes and the fee becomes constitutionally suspect.

Can a school require us to pay for transportation to an out-of-state summer camp?
Districts have broad discretion over transportation under Ark. Code Ann. §§ 6-19-102 and 6-12-102, and that discretion implies a power to charge fees. Kadrmas (the U.S. Supreme Court case) upheld a transportation-fee scheme. The AG's framework would scrutinize the fee under equal protection and the free-education clause if the camp itself is a required activity for credit.

Does it matter if the activity is during the regular school day?
The AG said no, the analysis does not change based on when the activity happens. What matters is whether the activity is integral to the free public education system: required for graduation, credit-bearing, or otherwise part of the "necessary and integral" core. Time-of-day is not the test.

What about physical education credit?
PE is the trickiest case. Ark. Code Ann. § 6-16-137(h) says it is "not a core academic requirement," but the ADE accreditation rules require students to earn 1½ units of health and PE to graduate from grades 9-12. The AG said schools must take the ADE-graduation-requirement reality into account; you cannot simply rely on the § 6-16-137(h) "not core academic" label to justify charging a fee for the activity that earns PE credit.

Is it OK for the school to require we use a specific private business?
Maybe, but with conflict-of-interest scrutiny. Under Ark. Code Ann. §§ 6-24-101 et seq. and § 6-24-112(a), school officials must disclose any interest they have in a vendor relationship. ADE rules also require disclosure before the district enters a contract. Districts choosing a specific vendor for required lessons or activities need to verify there is no improper financial relationship.

What recourse do I have if I think a fee is unlawful?
Take it to the school district first; the district has to make the eligibility/fee determination based on the specific facts. If the district sticks with the fee and you think it conditions your child's access to a graduation-required course or an otherwise integral part of the free education system, you would need to consult an Arkansas attorney about a possible constitutional challenge.

Citations

• Ark. Const. art. 14, § 1 (free public schools clause)
• Ark. Code Ann. § 6-12-102(b) (school district discretion to hire or purchase school buses)
• Ark. Code Ann. § 6-16-137 (organized physical activity courses; § 6-16-137(h) "not a core academic requirement")
• Ark. Code Ann. § 6-19-102(a) (school board authority to provide transportation "when necessary")
• Ark. Code Ann. §§ 6-24-101 et seq. (school ethics; § 6-24-112(a) gratuity prohibition)
• 20 U.S.C. § 1412 (federal IDEA "free appropriate public education")
• DuPree v. Alma Sch. Dist. No. 30 of Crawford Cty., 279 Ark. 340, 651 S.W.2d 90 (1983)
• Dowell v. Sch. Dist. No. 1, 220 Ark. 828, 250 S.W.2d 127 (1952)
• Special Sch. Dist. No. 65 v. Bangs, 144 Ark. 34, 221 S.W.2d 1060 (1920)
• Att'y Gen. v. East Jackson Pub. Schs., 372 N.W.2d 638 (Mich. Ct. App. 1985)
• Granger v. Cascade Cty. Sch. Dist. No. 1, 499 P.2d 780 (Mont. 1972)
• Kiddie Korner Day Schs., Inc. v. Charlotte-Mecklenburg Bd. of Educ., 285 S.E.2d 110 (N.C. Ct. App. 1981)
• Norton v. Bd. of Educ., 553 P.2d 1277 (N.M. 1976)
• Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450 (1988)
• Ops. Att'y Gen. 73-137, 83-154, 90-227, 91-219, 93-393, 96-072, 98-224, 98-276, 2000-230, 2001-098, 2013-075
• Arkansas Activities Association Handbook 2017-2018
• Arkansas Department of Education, Rules Governing Standards for Accreditation of Arkansas Public Schools and School Districts (July 2018)
• Ark. Admin. Code 005.01.2-22.00 (March 2016)

Source

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

Original opinion text

Opinion No. 2018-030
September 11, 2018
The Honorable Andy Mayberry
State Representative
3022 East Woodson Lateral Road
Hensley, AR 72065

Dear Representative Mayberry:

This is in response to your request for an opinion on the following questions:

(1) May a public school or school district require students who are participating in an extracurricular activity, interschool athletic program, physical activity course, or other activity to take lessons at a specific private business in order to participate, with the cost of the lessons being borne by the student?

(2) (A) May a public school or school district require students to pay for a summer camp that specializes in a certain activity relating to an extracurricular activity, interschool athletic program, physical activity course, or activity in which the student is participating, as a requirement for that participation?

(B) May a public school or school district require the student to pay for the transportation, either in-state or out-of-state, of the student to the summer camp?

(3) Would the analysis of the above questions change if:

(A) The extracurricular activity, interschool athletic program, physical activity course, or other activity is a class period during the instructional school day?

(B) The student is eligible under § 6-16-137 or other law to receive by his or her participation in the extracurricular activity, interschool athletic program, physical activity course, or other activity the physical education credit or other credit required for graduation?

RESPONSE

The factual nature of these questions prevents definitive resolution in an opinion from this office. I can address the general, guiding legal framework, which I believe centers on whether requiring payment for the activity or service compromises students' right under the Arkansas Constitution to a free public education. But I must emphasize that any questions concerning what I will refer to as public school "activity fees" are decidedly factual and ultimately cannot be satisfactorily addressed in the abstract.

DISCUSSION

Question 1 and Question 2A: I have grouped these questions together because they turn on the same inquiry regarding students' right to free public schools.

The imposition of school activity fees is bounded by the principle that "the State shall ever maintain a general, suitable and efficient system of free public schools." School districts, therefore, are generally prohibited from charging fees that might compromise students' equal access to this system of "free public schools." The Arkansas Supreme Court has held in this regard that registration or tuition fees for attending public schools are unlawful. I believe it reasonably follows from the Court's pronouncement regarding registration or tuition fees that the right to a free public education includes the right to goods or services that are necessary and integral parts of the required system of free public schools.

Determining whether an activity fee compromises the right to free public schools requires an independent, factual inquiry into the fee and the particular course, activity, or service for which the fee is being charged. Factual inquiries of this sort are outside the ordinary scope of an opinion from this office. However, I can identify the criteria often used to determine the legality of particular fees. Although there are no Arkansas appellate court cases regarding the constitutionality of activity fees, there is support in other jurisdictions for focusing the inquiry on whether the course, activity, or service is an integral part of the free school system. And other jurisdictions have held that a required fee cannot infringe on a student's right to receive instruction in a course offered for credit towards graduation. It is similarly untenable to charge tuition or fees for an elective course, at least to the extent that the completion of the elective course is a requirement to graduate from high school.

By contrast, fees for elective, non-credit courses or activities are less constitutionally suspect. Indeed, the fact that a course or activity does not offer credit usually indicates that it is not a necessary part of the system of free public schools. Indeed, requiring fees as a condition to participate is certainly contemplated in some organizational rules regarding such courses and activities.

Because your questions are ultimately decidedly factual in nature, I cannot opine further as to the legality of a required fee for private lessons or for a summer camp. Whether mandatory costs will infringe upon a student's right to free public education depends largely upon the particular course or activity involved, and what, if any, impact that course or activity has on a student's right to receive a free education.

Question 2B: May a public school or school district require the student to pay for the transportation, either in-state or out-of-state, of the student to the summer camp?

School districts generally have broad discretion with respect to whether and how to transport students. Thus, by implication, school districts have an equally broad power to impose transportation fees. That power, however, may in certain contexts be limited by equal protection and other constitutional concerns. But importantly, this, too, requires a factual analysis that is outside the scope of my opinion.

Question 3A: Would the analysis of the above questions change if: The extracurricular activity, interschool athletic program, physical activity course, or other activity is a class period during the instructional school day?

"No," in my opinion, the above analysis would not change if the course or activity occurs during the instructional school day. It is my opinion that the answer to your question is still contingent upon the status of the activity, program, or course in relation to a student's access to a "free public education," and whether a required fee will impact that right.

Question 3B: Would the analysis of the above questions change if: The student is eligible under § 6-16-137 or other law to receive by his or her participation in the extracurricular activity, interschool athletic program, physical activity course, or other activity the physical education credit or other credit required for graduation?

As explained above, the fact that a particular course is required for graduation is a factor that must be considered when assessing the legality of a fee. You specifically reference section 6-16-137, which provides that students in grades nine through twelve are eligible for one-half unit of physical education credit for graduation. This provision further states that "physical activity courses [as provided in this section] are not a requirement for an adequate education and shall not be considered a core academic requirement ...." Nevertheless, the Arkansas Department of Education's ("ADE") Standards for Accreditation of Arkansas Public Schools and School Districts explicitly requires that students earn physical education credit in order to graduate. Accordingly, while physical education is statutorily "not a core academic requirement," school districts must still take into consideration the fact that ADE requires this course in order for students to graduate when assessing mandatory fees.

While your question does not list any other specific courses or activities, I believe that the above analysis would still apply. That is, if a particular course is required for a student to graduate, then it is constitutionally suspect to charge a fee for such a course. Whether any other individual course fee is permissible is highly factual in nature, and thus I am unable to opine further in the context of an Attorney General's opinion.

Sincerely,
Leslie Rutledge
Attorney General