Dear Mr. Guinn:
This office is in receipt of your recent opinion request in which you present the following questions for our review:
1) What is the effective date of the Tuition Opportunity Program for Students (TOPS) created by Act 1375 of the 1997 Regular Session of the Louisiana Legislature?
2) Do the provisions of Act 1375 require or permit the Commission to grant Opportunity, Performance, or Honors Awards to any persons who graduated from high school prior to the effective date of TOPS?
A. Program History
Act 1375 created TOPS, a program which provides tuition assistance to eligible Louisiana high school graduates. LSA-R.S.17:3048.1. Three distinct awards are to be offered under TOPS: the Opportunity Award, the Performance Award, and the Honors Award. The Opportunity Award is modeled in large part on the Tuition Assistance Program (TAP), created by the legislature in 1989. However, the financial need requirement of the Tuition Assistance Program is not present in the Opportunity Award. Act 1375, in addition to creating TOPS, provides for the termination of TAP after the 1997-1998 school year, and provides for funding awarded under TAP to be continued as Opportunity Awards under TOPS. LSA-R.S. 17:3026 (K). The Performance Award is modeled in large part on the Louisiana Scholarship Honors Program (LSHP), created by the legislature in 1992. LSA-R.S. 17:3042.36 Act 1375 provides for the termination of the LSHP after the 1997-1998 school year, and further provides for grants awarded under LSHP to be continued as Performance Awards under TOPS.
B. Effective Date of Act 1375
Your first question concerns the effective date of TOPS. Legislation passed during a regular session of the Louisiana Legislature which does not specify an effective date becomes effective August 15 of the year it is passed. La. Const. Art. 3, § 19. Accordingly, the provisions of Act 1375 creating TOPS will become effective August 15, 1997. Therefore, the legislative mandate for the Commission to implement TOPS is effective on this date.
However, § 3048.2 of the Act provides that TOPS "awards . . . may be made by the Commission for the first time such that payments would be made beginning with 1998-1999 school year." Thus, the Commission may not implement this program in a manner such that the State would be required to make any payments prior to the 1998-1999 school year.
C. Persons Graduating Before August 15, 1997
Your second question concerns the Commission's duties with regard to persons graduating from high school before the effective date of TOPS. You ask whether the Commission is required or permitted by the Act to grant awards to persons graduating from high school before August 15, 1997.
First, it is necessary to note that the Commission is required by § 3048.1 (A)(1) to award assistance to all persons who meet the applicable eligibility requirements of the Act and who apply for assistance in accordance with application procedures the Commission is authorized to develop under § 3048.1 (B)(2)(b).1 Therefore, the Commission may not deny assistance to eligible persons who apply under the program.2
The crucial inquiry in response to your second question is whether the program eligibility requirements categorically exclude persons graduating prior to August 15, 1997 (i.e., whether such persons' date of graduation is logically incompatible with their being eligible for the program upon its implementation). The eligibility requirements for the receipt of initial assistance under TOPS are specified in § 3048.1 (A)(1). The below analysis is segmented to handle the eligibility requirements for the Opportunity, Performance, and Honors Programs separately.
1. Opportunity Program
In order to be qualified for an Opportunity Award under Act 13753, a person must have, inter alia:
1. graduated from a public or state-approved nonpublic school;
2. applied to the program within two years of the date of graduation;
3. achieved at least the specified minimum high school grade point average;
4. achieved at least the specified minimum score on the American College Test (ACT) or Scholastic Aptitude Test (SAT); and
5. enrolled in an eligible institution as a first time freshman.
Clarity will be served by the separate treatment of two classes of persons graduating from high school prior to August 15, 1997: 1) such persons who enroll in an eligible institution prior to the 1998-1999 school year, and 2) such persons who delay enrollment in college until the 1998-1999 school year.
With respect to persons graduating prior to August 15, 1997 who delay enrollment in college until the 1998-1999 school year, they are not categorically excluded from eligibility for the Opportunity Award program. There is no logical inconsistency between their date of graduation and their ability to satisfy the initial eligibility requirements.4 Eligible persons, therefore, may apply for and receive an award with the tuition assistance upon enrollment as a first time freshman in the 1998-1999 school year.
With respect to persons graduating prior to August 15, 1997 who enroll in an eligible institution prior to the 1998-1999 school year, the Commission, pursuant to its duties in implementing the Opportunity Award, is permitted under Act 1375 to make awards to such persons. As discussed above, the provisions of the Act requiring the Commission to implement TOPS are effective August 15, 1997.
The Commission may, in applying the statutory provisions to the unique factual situation of persons graduating prior to August 15, 1997 who enroll in college prior to 1998-1999 school year, permit such persons to apply for awards in the 1997-1998 school year as first time freshmen, however, this is subject to the limitation that it may not make any payments pursuant to these awards. Subject to the proviso that no financial assistance will be disbursed pursuant to the award prior to the 1998-1999 school year, the Commission could grant Opportunity Awards5 to eligible persons in the 1997-1998 year.6
Furthermore, the Commission may classify such persons as continuing recipients in determining their eligibility for tuition assistance for the 1998-1999 school year. The additional requirements of § 3048.1 (a)(4) may be applied toward such persons for 1998-1999. This approach is a reasonable way for the Commission to implement the program in an even-handed manner, and yet comply with the statutory mandate not to make awards such that payments would have to be made under TOPS prior to the 1998-1999 school year. Of course, in order to implement the program in the 1997-1998 school year, the Commission would have to quickly develop application procedures, disseminate information about the application procedures, and process award applications. In conclusion, the Commission is permitted to grant Opportunity Awards in the 1997-1998 school year, provided the Commission does not grant any financial assistance pursuant to such an award prior to the 1998-1999 school year.
2. Performance Program
In order to qualify for a Performance Award under the Act7, a person must have, inter alia:
1) graduated from a public or state-approved nonpublic high school in the top five percent of her class or, if home-schooled, score in the top five percent in the state on the National Merit Examination;
2) enrolled in an eligible institution within two years of graduation;
3) achieved at least the specified minimum high school grade point average; and
4) achieved at least the specified minimum score on the ACT or SAT.
None of these requirements categorically excludes persons graduating prior to August 15, 1997 from eligibility for an award, regardless of whether the person delays enrollment in college until the 1998-1999 school year.8 The person does not have to be a first time freshman to initially qualify for assistance under the program, as § 3048 (A)(1)(h) explicitly contemplates the possibility of persons attending college prior to accepting a Performance or Honors Award.9 This office finds, therefore, those persons who have enrolled into an eligible institution prior to the 1998-1999 school year, who would have qualified for the program, and who meet all the criteria enunciated in § 3048 (A)(1)(h) are eligible for the Performance Award beginning in the 1998-1999 school year.
3. Honors Program
In order to be qualify for an Honors Award under the Act10, a person must have, inter alia:
1) graduated from a public or state-approved nonpublic high school with at least the specified minimum grade point average;
2) achieved at least the specified minimum score on the ACT or SAT; and
3) enrolled in all eligible institution within two years of the date of graduation.
As with the Performance Program, none of these requirements categorically excludes persons graduating from high school prior to 1998 from eligibility for an award, regardless of whether the person delays enrollment in college until the 1998-1999 school year.11 A person does not have to be a first time freshman to qualify for initial assistance under the Honors Program, as § 3048 (A)(1)(h) explicitly contemplates the possibility of persons attending college prior to accepting a Performance or Honors Award.12 This office finds, therefore, those persons who have enrolled into an eligible institution prior to the 1998-1999 school year, who would have qualified for the program, and who meet all the criteria enunciated in § 3048 (A)(1)(h) are eligible for the Honors Award beginning in the 1998-1999 school year.
D. Conclusion
The effective date of Act 1375 is August 15, 1997. However, pursuant to the terms of the Act, no payments may be made before the 1998-1999 school year.
Since the benefits awarded in Act 1375 expand existing scholarship programs, they can be likened to remedial legislation which must be liberally construed in favor of the intended beneficiaries. See, White v. Board of Trustees, 276 So.2d 714 (1st Cir. 1973), writ refused, 270 So.2d 694 (La. 1973). Therefore, persons who graduated from high school prior to the effective date of Act 1375 are eligible for the program in the 1998-1999 school year as follows:
1) Persons who wait to enroll in an eligible institution as first time freshmen until the 1998-1999 school year and who meet all the requirements for an Opportunity Award are eligible for that award.
2) Persons who enroll into an eligible institution prior to the 1998-1999 school year and who meet all the requirements for an Opportunity Award may be permitted, at the discretion of the Commission, to be granted award under the program. However, the student will not reap the financial benefits of the award until the 1998-1999 school year. If the Commission chooses not to implement the program in this manner, those students who enroll before the 1998-1999 school year, who otherwise were qualified for the Opportunity Program, are forever ineligible to apply for the program.
3) Persons who enroll into an eligible institution prior to the 1998-1999 school and who meet all the requirements for the Performance Award including the criteria in § 3048 (A)(1)(h) are eligible for the award in the 1998-1999 school year.
4) Persons who enroll into an eligible institution prior to the 1998-1999 school year and who meet all the requirements for the Honors Program including the criteria in the § 3048 (A)(1)(h) are eligible for the award in the 1998-1999 school year.
We trust the foregoing has been helpful. Should you have any further questions, please contact our office.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
By: ___________________________ SHERRY L. TEW Assistant Attorney General
RPI:SLT:rd:lrg
1 Section 3048.1(A)(1) of Act 1375 provides, in pertinent part:
As part of the Louisiana Tuition Opportunity Program for Students, the state shall financially assist any student who enrolls in [an eligible college or university] to pursue an academic undergraduate degree, and who meets the qualifications on Subparagraphs (c), (d), or (e) and all of the applicable following requirements.
2 This requirement is subject to the availability of funding for the program. In the event that there is insufficient funding to award assistance to all eligible persons, the Commission is authorized to develop a procedure for reducing the number of students to whom awards shall be made in accordance with guidelines provided by the legislature in § 3048. 1(N) of the Act.
3 In order to be qualify for an Opportunity Award under Act 1375, LSA-R.S. 17:3048.1 (A)(1)(c), a person must meet the following qualifications:
Has graduated from a public school or a nonpublic school which has been approved by the State Board of Elementary and Secondary Education, has applied within two years of the date of graduation, has a minimum cumulative grade point average of 2.50 calculated on a 4.00 scale, has a composite score on the 1990 version of the American College Test which is at least equal to or higher than the state's average composite score rounded to the nearest whole number, reported for the prior year but never less than nineteen or an equivalent concordant value on an enhanced or revised version of such test or on the Scholastic Aptitude Test, and has enrolled in an eligible college or university as a first time freshman. As distinguished form all other students qualifying for this program, a student who meets the requirements of this Subparagraph shall be the recipient of an "Opportunity Award" for the purposes of this program. (Emphasis added)
The Opportunity Award requires that the recipient be a first time freshman in an eligible college or university. However, the Honors and Performance Awards do not have this same requirement.
4 In order to receive an Opportunity Award, such persons must of course satisfy the applicable eligibility requirements, including the requirement that application to the program be made within 24 months of the date of high school graduation.
5 A structural reading of the statute supports a construction in which a person's status as an Award recipient is at least partially independent of that person's receipt of financial assistance from the State. For example, a person qualifying under the program may be excluded from financial assistance if the legislature appropriates insufficient funds in any given year. The Commission could reasonably award financial assistance to such persons in subsequent years should sufficient funds be appropriated. Therefore, a person's status as an award recipient is not wholly dependent upon her receipt of tuition assistance under the program.
6 These payments may be made only prospectively (i.e., no payments can be applied toward the payment of tuition debts incurred prior to the 1998-1999 school year). Although there expenses is no explicit prohibition against such "reimbursement" in the Act, the structure of the Act as a whole overwhelmingly supports the conclusion that payments under TOPS are to be applied only to current year educational.
7 In order to qualify for a Performance Award a student must meet the following criteria:
LSA-R.S. 17:3048.1 (A)(1)(d)
Has been certified as provided in Subsection C of this Section to have graduated among the top five percent of the graduating class in each public high school or nonpublic high school which has been approved by the State Board of Elementary and Secondary Education or be a student enrolled in a state-approved home study program and score in the upper five percent in the state on the National Examination, has enrolled at an eligible institution within two years of the date of graduation, has achieved a minimum cumulative grade point average of 3.50 calculated on a 4.00 scale, and has a composite score on the 1990 version of the American College Test of twenty-three or higher or an equivalent concordant value on any enhanced or revised version of such test or on the Scholastic Aptitude Test. As distinguished from all other students qualifying for this program, a student who meets the requirements of this Subsection shall receive and be recognized as the recipient of a "Performance Award" for the purposed of this program.
8 As discussed in note 4 above, no payment may be applied toward any tuition debts incurred prior to the 1998-1999 school year.
9 Section 3048.1 (A)(1)(h) provides:
Any person certified as receiving a Performance or Honors Award in accordance with Subsection A(1)(d) and (e) and who hasattended college prior to accepting tuition payment under thisprogram, shall provide a transcript of all college work evidencing a cumulative grade point average of at least 3.00 on a 4.00 scale. (Emphasis added).
10 In order to qualify for an Honors Award, a person must meet the following qualifications:
LSA-R.S. 17:3048.1 (A)(1)(e)
Has been certified as provided in Subsection C of this Section to have graduated from a public or state-approved nonpublic high school with a minimum cumulative grade point average of 3.50 on a 4.00 scale and a score of twenty-seven or higher on the 1990 version of the American College Test or an equivalent concordant valued on any enhanced or revised version of such test or on the Scholastic Aptitude Test, and has enrolled in an eligible institution within two years of the date of graduation. As distinguished from all other students qualifying for this program, a student who meets the requirements of this Subsection shall receive and be recognized as the recipient of an "Honors Award" for the purposes of this program.
11 As discussed in note 4 above, no payment may be applied toward any tuition debts incurred prior to the 1998-1999 school year.
12 Section 3048.1 (A)(1)(h) provides:
Any person certified as receiving a Performance or Honors Award in accordance with Subsection A(1)(d) and (e) and who hasattended college prior to accepting tuition payment under thisprogram, shall provide a transcript of all college work evidencing a cumulative grade point average of at least 3.00 on a 4.00 scale. (Emphasis added).