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AGO 1957 No. 94 - July 09, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington


SCHOOL DISTRICTS ‑- KINDERGARTENS ‑- COLLECTION OF FEE

A school district of the first class may not collect a fee from parents of kindergarten pupils in order to make up a deficiency in public funds available for operation of kindergartens.

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                                                                     July 9, 1957

Honorable John J. Lally
Prosecuting Attorney of Spokane County
Spokane County Court House
Spokane 1, Washington                                                                                                                Cite as:  AGO 57-58 No. 94

Attention:  !ttDonald N. Olson
            Civil Deputy

Dear Sir:

            You have requested an opinion from this office on several questions relating to kindergartens in school districts of the first class.  We paraphrase your questions as follows:

            (1) May a school district of the first class collect a fee from parents of kindergarten pupils in order to make up a deficiency in public funds available for operation of kindergartens?

            (2) If your answer to question (1) is in the negative, may a school district establish kindergartens in those areas of the district in which classrooms are available and for which teachers can be hired with the limited funds available?

            Question number (1) is answered in the negative.  Question number (2) is answered in the analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            The statutes necessary for a determination of your questions read in pertinent part as follows:

            Sec. 1, Ch. 82, Laws of 1911 (RCW 28.35.010)

            "The board of directors of any school district of the first and second classes shall have power to establish and maintain free kindergartens in connection with the common schools of said district for the instruction of children between the ages of four and six years, residing in said district, . . ."  (Emphasis supplied)

            Sec. 1, Ch. 127, Laws of 1917 (RCW 28.35.030 and 28.35.060)

            "The cost of establishing and maintaining such kindergartens shall be paid from the general school fund of the district. . . .  Such kindergartens shall constitute a part of the common school system and shall be open to all children of proper age resident in the district maintaining same. . . ."

            The general rule in this jurisdiction is that a school district possesses only such powers as are granted to it by legislative enactment.  State ex rel. School District No. 301 v. Clausen, 109 Wash. 37, 41.

            Consequently, the board of directors of a school district has no inherent power to establish and maintain kindergartens.  While the legislature, by virtue of Sec. 1, Ch. 82, Laws of 1911, has authorized a school district to establish and maintain kindergartens, that authority has been specifically limited to "free" kindergartens.  In our opinion a "free" kindergarten is one at which no fee is charged for attendance.

            That the legislature intended that no fee be charged for attendance at kindergarten is further evidenced by the fact that it has prescribed, in Sec. 1, Ch. 127, Laws of 1917, that "the cost of establishing and maintaining such  [[Orig. Op. Page 3]] kindergartens shall be paid from the general fund of the district" and has appropriated funds to be apportioned to school districts for "kindergarten support."  See Sec. 2, Ch. 301, Laws of 1957.

            We conclude, therefore, that a school district of the first class may not collect a fee from parents of kindergarten pupils in order to make up a deficiency in public funds available for the maintenance and operation of kindergartens.

            We find no statute requiring a school district of the first class to maintain a certain number of kindergartens or requiring that kindergartens be located at any particular place in the district.  Consequently, it is our opinion that a school district of the first class may establish kindergartens in those areas of the district in which classrooms are available and for which teachers can be hired with the limited funds available.  However, such a plan may not be practicable in view of Sec. 1, Ch. 127, Laws of 1917.  This statute specially provides that "such kindergartens . . . shall be open to all children of proper age resident in the district maintaining same."  Consequently, the kindergartens established and operated by the school district must admit all children of proper age resident in the district regardless of whether or not such children reside in the approximate vicinity of the school.  Thus, limited facilities may not be sufficient to meet the demands of children residing in the district.

            We trust that the above information is of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ELVIN VANDEGERG
Assistant Attorney General

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