The Honorable Hoye D. Horn State Representative Box 64 Foreman, AR 71836
Dear Representative Horn:
This is in response to your request for an opinion regarding the legality of a public school assessing a fee for students to take non-required courses, such as Driver Education. You note that upon completion of such a course, the student would receive credit. You have referenced Attorney General Opinion Number 83-154, which addressed the assessment of fees for courses that are required for graduation. Your question pertains to non-required courses.
Although Opinion Number 83-154 was issued with regard to the assessment of fees in connection with courses required for graduation, the discussion included reference to previous Opinion Number 73-137, which concluded that:
[t]he fact that the Constitution of Arkansas requires `free public schools' requires the conclusion that the 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 towards graduation from such school. [Emphasis added.]
Op. Att'y Gen. No. 83-154, at 1, citing Op. Att'y Gen. No. 73-137, at 9 (copies enclosed).
This conclusion was reached after the following discussion of the arguable distinction between required and non-required courses:
It might be argued that a distinction between courses which are required of all students and those which are not should be made. However no such distinction is made by the Arkansas Constitution. Elective courses are an integral part of Arkansas education and the State Board of Education currently requires at least ten units of electives to be successfully completed before students may be graduated from an accredited high school. [Citation omitted.]
Op. Att'y Gen. No. 73-137, at 8.
Although the precise question has not yet been addressed by an Arkansas court, a review of cases from other jurisdictions indicates that fees for elective courses are problematic if the courses are part of a given number which must be taken in order to meet the total educational requirements for graduation. See,e.g., Granger v. Cascade County School District No. 1,159 Mont. 516, 499 P.2d 780 (1972). The courses are non-required, that is, optional, in the sense that students may elect which specific courses to take in order to satisfy such total requirements. Id. Assessing a fee for such courses is, in my opinion, constitutionally suspect. See Op. Att'y Gen. No. 73-137 (copy enclosed). See also generally Op. Att'y Gen. No. 90-227 (copy enclosed).
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:arb