Can a Virginia school board pay capital renovation costs for a regional Governor's School building owned by another county's school board?

Plain-English summary

Thomas Jefferson High School for Science and Technology (TJHS) is one of Virginia's premier Academic-Year Governor's Schools, drawing top students from across Northern Virginia. The school is owned and operated wholly by the Fairfax County School Board. Several surrounding jurisdictions, including Loudoun County, send students there under a Cooperative Agreement that pays tuition based on per-pupil costs.

In 2013, Fairfax County proposed adding a charge for a portion of TJHS's capital renovation costs to the tuition bills paid by Loudoun and other participating divisions. Delegate May asked whether Loudoun County School Board had the legal authority to pay that portion.

The AG said no.

The authority problem. Virginia follows the Dillon Rule: school boards have only the powers expressly granted by the General Assembly, those fairly implied from express grants, or those essential and indispensable. Va. Code § 22.1-79(3) gives each school board the duty to "[c]are for, manage and control the property of the school division and provide for the erecting, furnishing, equipping, and noninstructional operating of necessary school buildings and appurtenances and the maintenance thereof by purchase, lease, or other contracts." That is a duty tied to the board's own property, including leased property.

Section 22.1-79(5) is similar: it directs the board to operate and maintain "the public schools in the school division." TJHS is not in Loudoun's school division. It is in Fairfax's.

The leasehold limit. Even when a school board leases property, Va. Code § 22.1-129(B) limits expenditures to repairs or improvements with a "useful life" equal to or shorter than the lease term. The General Assembly's evident concern was that a school board's spending on facility improvements should track the board's actual interest in the facility. That is consistent with Loudoun lacking authority to spend on TJHS, where Loudoun has no ownership or leasehold interest at all.

The tuition statute. Virginia's school tuition statute, § 22.1-5(C), specifically excludes capital outlays and debt service from inter-division tuition charges, unless the school boards have fixed tuition by contract. That's a generally applicable rule limiting how one school division can underwrite another's capital costs through tuition. The exception (contractually fixed tuition) didn't apply here.

The Cooperative Agreement. The Loudoun/Fairfax agreement explicitly stated that TJHS was a Fairfax institution under FCSB's sole direction and control. LCSB committed to pay "actual costs" for special services and "full costs for each student attending based on per-pupil costs." That was per-pupil, not fixed tuition. So § 22.1-5(C)'s general rule (no capital outlays in inter-division tuition) applied and barred capital cost recovery via the existing tuition mechanism.

The AG also noted that the cited Cooperative Agreement was a two-year agreement expiring June 30, 2013. A new agreement could potentially fix tuition contractually to include capital costs, but the existing agreement did not.

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.

Virginia's regional Governor's Schools have been the subject of various statutory amendments since 2013, and the Loudoun/Fairfax Cooperative Agreement on TJHS has likely been renegotiated multiple times. Current authority and current agreements should be checked directly.

Common questions

What is a regional Academic-Year Governor's School?
A specialized high school program in Virginia that draws gifted students from multiple school divisions. TJHS in Alexandria is the most famous, focused on science and technology. Several others operate around the state, organized variously as joint school programs or as host-division operations.

Why can Fairfax operate TJHS as its own facility if other divisions send students?
TJHS is run by Fairfax County Public Schools under sole FCSB direction. Other divisions pay tuition for their students to attend. The arrangement is contractual, not joint ownership. So the building belongs to Fairfax.

Why does the Dillon Rule matter here?
Because Virginia school boards (like other local governments) cannot exercise powers the General Assembly hasn't granted. There is no general grant of authority for one school division to fund capital improvements on another school division's facilities. Without that grant, the spending isn't authorized.

What is § 22.1-5(C)?
Virginia's school tuition statute. The relevant rule for this opinion: "No tuition charge authorized ... in this section shall exceed the total per capita cost of education, exclusive of capital outlay and debt service, ... except that if the tuition charge is payable by the school board of the school division of the pupil's residence pursuant to a contract entered into between the two school boards, the tuition charge shall be that fixed by such contract."

Could Loudoun and Fairfax legally restructure to allow capital cost sharing?
Yes. The opinion's analysis assumes the current Cooperative Agreement's structure (per-pupil costs). If the two boards negotiated a new contract that fixed tuition (rather than tracking per-pupil costs), § 22.1-5(C)'s exception would let the fixed tuition cover capital outlays.

Could Loudoun pay for capital improvements directly to FCSB outside the tuition?
The opinion says no. There is no general statutory authority enabling LCSB to pay capital costs for a Fairfax-owned facility, regardless of the payment mechanism. The authority gap is the same.

What if TJHS were jointly owned or under a joint board?
That would change the analysis significantly. Joint ownership or a joint board would create direct interests for each participating division and would trigger different statutory provisions about joint operations and shared capital costs.

Why did prior AG opinions reach similar conclusions?
The AG cited 1955-56, 1960-61, and 1996 opinions all reaching similar results in analogous fact patterns. The Dillon Rule analysis has been consistent for many decades: a school board's spending authority is anchored to its own property and its own students.

Background and statutory framework

The statutory framework:

• Va. Code § 22.1-79(3): school board duty to care for, manage, and control the property of "the school division" and to provide for the erecting, furnishing, equipping, and maintenance of "necessary school buildings."
• Va. Code § 22.1-79(5): duty to operate and maintain "the public schools in the school division."
• Va. Code § 22.1-129(B): limits leasehold expenditures to repairs/improvements with useful life within lease term.
• Va. Code § 22.1-5(C): tuition statute, with capital outlays excluded unless fixed-tuition contract.

The interpretive moves:

• Dillon Rule applies to school boards as it applies to other local entities: only granted powers, fairly implied, or essential and indispensable.
• The statutes anchor school board property authority to the board's own division.
• The tuition statute's capital-outlay exclusion is general; the contractually-fixed-tuition exception is narrow.
• The Cooperative Agreement's per-pupil structure does not qualify as "contractually fixed" tuition.

Citations

• Va. Code § 22.1-5(C)
• Va. Code § 22.1-79(3), (5)
• Va. Code § 22.1-129(B)
• 1955-56 Op. Va. Att'y Gen. 175
• 1960-61 Op. Va. Att'y Gen. 265
• 1996 Op. Va. Att'y Gen. 121
• Cooperative Agreement Concerning the Establishment and Operation of Thomas Jefferson High School for Science and Technology

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-028_May.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

June 28, 2013

The Honorable Joe T. May
Member, House of Delegates
Post Office Box 2146
Leesburg, Virginia 20177-7538

Dear Delegate May:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the Loudoun County School Board (LCSB) currently has the legal authority to pay a portion of the capital renovation costs for the Thomas Jefferson High School for Science and Technology (TJHS), an educational facility owned by the Fairfax County School Board (FCSB).

Response

It is my opinion that the Loudoun County School Board does not currently have the legal authority to fund capital renovation costs for school property that it does not lease and which is fully owned and operated by the Fairfax County School Board.

Background

You state that TJHS is a facility that is neither owned in any part nor under lease to the LCSB, but rather, is a regional Academic-Year Governor's School that is wholly owned and operated exclusively by the FCSB. In addition, you note that TJHS has no joint governing board and there is no joint ownership of the land upon which it is situated. The contract between the two school divisions regarding the establishment and operation of TJHS provides for the LCSB to pay to FCSB "the full costs for each student attending based on the per-pupil costs at Thomas Jefferson adjusted for transportation and state aid ...."[1]

Applicable Law and Discussion

The powers and duties of a local school board are specifically enumerated, in part, within § 22.1-79 of the Code of Virginia. The statute provides that:

A school board shall:

3. Care for, manage and control the property of the school division and provide for the erecting, furnishing, equipping, and noninstructional operating of necessary school buildings and appurtenances and the maintenance thereof by purchase, lease, or other contracts; ...
4. Insofar as not inconsistent with state statutes and regulations of the Board of Education, operate and maintain the public schools in the school division ...[2]

The statute vests the responsibility for maintenance and improvements of school property in the board that has authority in the locality in which a given facility is located. Moreover, § 22.1-129(B) limits a school board's authority to expend funds in regard to property it leases to repairs or improvements with a "useful life" that is equal to or shorter than the term of the lease, demonstrating the intent of the General Assembly to limit a school board's expenditures for leasehold improvements to ensure that its division will yield the full benefit of them.[3] In addition, Virginia's school tuition statute, § 22.1-5(C), specifically excludes capital outlays and debt service from inclusion in tuition between school divisions unless the school boards have fixed tuition by contract.[4]

In regard to TJHS, the two-year Cooperative Agreement, in effect until June 30, 2013, defines the relationship between LCSB and FCSB. This Agreement specifically states that the FCSB "established" TJHS "within the Fairfax County School Division" and that "Thomas Jefferson is an institution of Fairfax County Public Schools under the sole direction and control of FCSB."[5] In that agreement, LCSB commits only to pay for "actual costs" for special services and "full costs for each student attending based on per-pupil costs[.]"[6] The agreement's terms therefore make no mention of LCSB's payment of capital expenditures through fixed tuition, but instead, appear to tie those payments to per-pupil educational costs. Indeed, the agreement does not contractually fix tuition amounts. Notably, your inquiry indicates that any requirement for LCSB to pay for a portion of FCSB's capital expenditures represents a new development; heretofore, it has been foreign to the parties' understanding and interpretation of the Cooperative Agreement's terms.[7]

Thus, it is my opinion that no general statutory authority exists to enable the LCSB to pay for a portion of capital renovation costs to TJHS, an educational facility located outside of its division in which it neither owns any part nor possesses a leasehold interest.[8] Moreover, based upon the information you provide, it further is my opinion that, under the terms of the existent Cooperative Agreement with FCSB, the terms of § 22.1-5(C) do not apply so as to allow LCSB to contribute to such improvements through contractually fixed tuition payments on behalf of the students from its division that attend TJHS.[9]

Conclusion

Accordingly, it is my opinion that the Loudoun County School Board does not currently have the legal authority to fund capital renovation costs for school property that it does not lease and which is fully owned and operated by the Fairfax County School Board.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

[1] Cooperative Agreement Concerning the Establishment and Operation of Thomas Jefferson High School for Science and Technology, Fairfax County Public Schools, ¶ 9, dated 2011 (hereinafter "Cooperative Agreement").

[2] Va. Code Ann. § 22.1-79(3) & (5) (2011) (emphasis added).

[3] Section 22.1-129(B) (Supp. 2012).

[4] Section 22.1-5(C) (2011).

[5] Cooperative Agreement, ¶ 1.

[6] Id. at ¶¶ 8-9.

[7] In relevant part, you state that the FCSB "proposes to add a charge for a portion of the capital renovations costs for ... [TJHS] ... to the tuition bill paid by the ... [LCSB] ... and other participating school divisions."

[8] Prior Opinions of this Office have reached similar conclusions. See 1955-56 Op. Va. Att'y Gen. 175; 1960-61 Op. Va. Att'y Gen. 265-266; and 1996 Op. Va. Att'y Gen. 121.

[9] See § 22.1-5(C) (which states in relevant part that, "No tuition charge authorized ... in this section shall exceed the total per capita cost of education, exclusive of capital outlay and debt service, ... except that if the tuition charge is payable by the school board of the school division of the pupil's residence pursuant to a contract entered into between the two school boards, the tuition charge shall be that fixed by such contract.").