AGO IAL 021908.

• Case Date: February 19, 2008
• Court: New Mexico

New Mexico Attorney Gen eral Opinions 2008. AGO IAL 021908. February 19, 2008IAL 021908The Honorable Al Park New Mexico State Representative 1840 Dakota NE Albuquerque, NM 87110 Re: Opinion Request - Open Enrollment and Distance Education Dear Representative Park: You have requested our opinion whether the open enrollment statute, NMSA 1978, Section 22-1-4 (2003), applies to distance education/virtual schools. If the open enrollment statute does apply to all groups of students across the state, you ask whether the Public Education Department's regulations at NMAC 6.30.8.1 to 6.30.8.11 are inconsistent with Section 22-1-4. Based on our examination of the relevant New Mexico constitutional, statutory and case law authorities, and on the information available to us at this time, we conclude that Section 22-1-4 does not address distance education/virtual schools and, accordingly, do not find any regulatory inconsistency with that statute. Section 22-1-4, by its language, does not address distance education/virtual schools. The statute makes available a free public school education for school-age persons and provides for withdrawal, transfer and re-enrollment mechanisms. As evidenced by its language, Section 22-1-4 contemplates the physical presence of students in schools. Section 22-1-4 provides, in part:

E. A local school board shall adopt and promulgate rules governing enrollment and re-enrollment at public schools other than charter schools within the school district. These rules shall include:

(1) definition of the school district boundary and the boundaries of attendance areas for each public school;

(2) for each public school, definition of the boundaries of areas outside the school district boundary or within the school district but outside the public school's attendance area and within a distance of the public school that would not be served by a school bus route as determined pursuant to Section 22-16-4 NMSA 1978 if enrolled, which areas shall be designated as "walk zones";

(3) priorities for enrollment of students as follows:

(a) first, students residing within the school district and within the attendance area of a public school;

(b) second, students enrolled in a school ranked as a school that needs improvement or a school subject to corrective action;

(c) third, students who previously attended

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