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
...