Bennett, 122711 INAGO, AGO 2011-9

Case DateDecember 27, 2011
CourtIndiana
Dr. Tony Bennett
AGO 2011-9
Official Opinion No. 2011-9
Indiana Attorney General Opinion
December 27, 2011
         Dr. Tony Bennett          Superintendent of Public Instruction          Indiana Department of Education          200 W. Washington St.          Indianapolis, IN 46204 RE: Denying or Delaying Enrollment to Students Who Attempt to Enroll After Deadline          Dear Dr. Bennett:          In your correspondence of July 27, 2011, you asked whether it is permissible for an Indiana public school corporation to deny or delay enrollment to a student who otherwise has legal settlement because the student was not presented for enrollment during the registration period designated by the Indiana public school corporation. You also asked whether an Indiana public school corporation may deny enrollment to a student who presents himself for enrollment in the middle of the semester. According to your correspondence, it has been reported that some school corporations have advised such students to return at the beginning of the next semester.          The Indiana Department of Education (DOE) believes that the unilateral refusal by a public school corporation to enroll an otherwise eligible student based solely on the time the student presents himself for enrollment contravenes several particulars of the Compulsory School Attendance Act, Ind. Code § 20-33-2 et seq. This will be addressed in more detail infra.          BRIEF ANSWER          An Indiana public school corporation cannot bar or otherwise prevent a student who has legal settlement in the school corporation from enrolling in the school corporation based solely upon the time the student presents himself for enrollment. Such unilateral action is contrary both to the Indiana Constitution, Art. 8, § 1, and numerous statutory provisions; violates other statutory provisions; and undermines expressed legislative intent that the public schools will be open equally to all and denied to none.          ANALYSIS          The Indiana Constitution provides at Art. 8, § 1 as follows:
Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government; it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual scientific, and agricultural improvement; and provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.
Often referred to as the “Education Clause,” it expresses two duties of the General Assembly. One duty is aspirational in nature (to encourage moral, intellectual, scientific, and agricultural improvement). “The second is the duty to provide for a general and uniform system of open common schools that do not charge tuition.” Bonner v. Daniels, 907 N.E.2d 516, 520 (Ind. 2009) (emphasis original). The second duty is “more concrete” in that certain performance standards must be established by the legislature, to wit: establishment of system of Common Schools [1] that are “general and uniform,” where “tuition shall [be] without charge,” and “equally open to all.” Id. A “common school” is one that is “open to the children of all the inhabitants of a town or district.” Embry v. O’Bannon, 798 N.E.2d 157, 162 n. 4 (Ind. 2003). See also Nagy v. Evansville-Vanderburgh School Corporation, 844 N.E.2d 481, 491 (Ind. 2006) (“The duty rests on the legislature to adopt the best [school] system that can be framed[.]); Robinson v. Schenck, 1 N.E. 698 (Ind. 1885) (the Education Clause “imperatively enjoins the general duty upon the legislature” to establish a system of Common Schools).
         Legal Settlement and “Equally Open To All”          Pursuant to its constitutional responsibility, the General Assembly has enacted a number of statutes to establish a system of Common Schools, which includes the school corporation.2          “Legal settlement” of a student determines the “responsibility” of a school corporation “to allow the student to attend its local public schools without the payment of tuition[.]” Ind. Code § 20-18-2-11. Typically, “legal settlement” is where the student “resides.” See Ind. Code § 20-26-11-1. There are a number of statutory provisions that expand upon the concept of “legal settlement” and assist in its determination. See, e.g., Ind. Code § 20-26-11-2, Ind. Code § 20-26-11-2.5, and Ind. Code § 20-26-11-30.[3] “Legal settlement” is important to a school corporation because a school corporation has attendance areas.4          Public schools in Indiana “are matters of State, and not of local jurisdiction,” with “[t]he authority over schools and school affairs… [as] a central power residing in the legislature of the State.” State ex rel. Clark v. Haworth, 23 N.E. 946, 947 (Ind. 1890). The Indiana Supreme Court added that “our Constitution, in language that cannot be mistaken, declares that [the control of schools and school affairs] is a matter of the State and not the locality.” Id. The Court later observed:
[T]he Constitution recognizes that the business of education is a governmental function and makes public education a function of state government as distinguished from local government. It was evidently the intention of the framers of the Constitution to place the common school system under the direct control and supervision of the state, and make it a
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