Opinion No.

The Honorable Dave A. Bisbee State Representative 14068 Pyramid Drive Rogers, AR 72758-0116

Dear Representative Bisbee:

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

1. Can a local school district require students to attend summer school to be eligible for promotion to the next grade?

2. If the answer to the preceding question is yes, can the school district charge some of the students fees and permit students who qualify for free or reduced-price meals to attend at no charge, but only as space is available?

With regard to your first question, it should be noted that reference to the particular grade in this connection may be necessary for a conclusive response. Clearly, however, summer school attendance is not only permissible, it is required for students in kindergarten through grade three who did not perform at grade level during the regular school year. See A.C.A. § 6-16-703 (b)(1) (Supp. 1997). Additionally, local school districts may, at the option of their boards of directors, require summer school attendance for students in grade four or five who did not perform at grade level. Id. at subsection (b)(3).

Regarding any other mandatory summer school program, not addressed in A.C.A. § 6-16-703 , I am unable to offer a conclusive response in the absence of further information concerning the particular proposal. Consideration would also have to be given to the possible applicability of state administrative rules and regulations. It may well be within a local district's authority to impose summer school requirements. I suggest, however, that the State Department of Education be consulted for further consideration.

In response to your second question concerning the charging of fees, it is my opinion that the answer is "no." School districts cannot, in my opinion, charge fees for attending mandatory summer school. Arkansas Code Annotated § 6-16-703 makes it clear that the school districts may either individually or cooperatively "provide free summer school . . ." to those students in the grade levels addressed therein. See A.C.A. § 6-16-703 (a)(2) and (3) (Supp. 1997) (emphasis added). I believe it is clear from this language that the legislature does not envision the charging of fees for mandatory summer school. Indeed, fees in this regard would, in my opinion, likely be unconstitutional under our "system of free public schools." See Ark. Const. art. 14 , § 1 ; see also generally Dowell v. School Dist. No. 1, 220 Ark. 828 , 250 S.W.2d 127 (1952) (regarding the illegality of registration fees).

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

WB:EAW/cyh