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AGO 1985 No. 13 - August 13, 1985
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

DISTRICTS ‑- SCHOOLS ‑- FEES ‑- CHILDREN

Schools are not authorized to charge fees for the administration of pre‑admission tests for early entrance of children into kindergarten or first grade classes. 

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                                                                 August 13, 1985 

Honorable Paul King
State Representative, 44th District
22804 ‑ 57th Avenue West
Mountlake Terrace, Washington 98043

Cite as:  AGO 1985 No. 13                                                                                                                

 Dear Sir:

             By letter previously acknowledged you requested the opinion of this office on a question which we paraphrase as follows:

             Do school districts have authority to charge a fee to cover costs of pre‑admission tests for early entrance of children into kindergarten or first grade classes?

             We now answer your question in the negative for reasons stated below.

                                                                      ANALYSIS

             In addressing your question, as in our prior related opinions on school fees,1/ we must be mindful of the often stated rule that school district are,

              [[Orig. Op. Page 2]]

            ". . . created by the legislature and can exercise only such powers as the legislature has granted in express words, or those necessary or fairly implied in, or incident to, powers expressly granted or those essential to the declared objects and purposes of such district. . . ."  Noe v. Edmonds School Dist., 83 Wn.2d 97, 103 (1973) citing American Fed'n of Teachers Local 1485 v. Yakima School Dist. 7, 74 Wn.2d 865 (1968); and Seattle High School Ch. 200 v. Sharples, 159 Wash. 424 (1930).

             It is also to be understood that the words "necessary" and "essential," as used in the rule, refer to legal rather than to practical necessity.  See, AGO 1977 No. 10, a copy of which is also enclosed,2/ where we further amplified this principle with the statement that implied powers are those which must be presumed to have been within the intention of the legislative grant.  Finally, with reference, generally, to legislatively granted powers it is also the rule that if there is a fair or reasonable doubt as to whether a particular power has been granted, it must be denied.3/

             Before proceeding to address your question we also note that, on the specific issue of imposition of fees by public agencies, this office has long adhered to the rule that,

             "Fees are collectible only when and to the extent authorized by law, . . ."

 SeeAGO 1973 No. 11; accord AGO 63-64 No. 19, quoting with approval from 67 C.J.S., Officers, § 90, p. 328.

             We have thoroughly searched our state statutes with the foregoing rules and principles in mind.  We have found no statutes expressly granting school districts in this state the authority to charge fees related to pre‑admission screening of any  [[Orig. Op. Page 3]] kind‑-including pre‑admission tests for early entrance into kindergarten or first grade classes in a child's resident district.4/ Nor do we find any provisions from which, in our judgment, such school district authority may be fairly implied.

             We have considered RCW 28A.58.190, establishing uniform qualifications for students which reads as follows:

             "Except as otherwise provided by law, it is the general policy of the state that the common schools shall be open to the admission of all persons who are five years of age and less than twenty-one years residing in that school district.  Except as otherwise provided by law, the state board of education is hereby authorized to adopt rules in accordance with chapter 34.04 RCW which establish uniform entry qualifications, including but not limited to birthdate requirements, for admission to kindergarten and first grade programs of the common schools.  Such rules may provide for exceptions based upon the ability, or the need, or both, of an individual student."

             We note that this statute does not include any reference to "fees" in granting the State Board of Education rule‑making authority with regard to uniform entry qualifications or exceptions.  It is also well established, however, that where a statute specifically designates things upon which it operates there is an inference that the legislature intended all omissions.  Queets Band of Indians v. State, 102 Wn.2d 1, 5 (1984).  We recognize that, in granting rule‑making authority, RCW 28A.58.190 says that such authority is inclusive of, "but not limited to," birthdate requirements.  However, we hasten to note that issues related to "fees" are quite different in kind from the subject of age, ability and need with which the statute otherwise concerns itself.  In light of the rule inQueets, supra, as well as the general law relating to municipal powers and our prior opinions noted above, we cannot read RCW 28A.58.190 as providing authority  [[Orig. Op. Page 4]] for the State Board of Education to establish fees for testing related to early entrance into kindergarten or first grade.

             Indeed, we have examined the rules promulgated by the State Board of Education pursuant to RCW 28A.58.190, supra, and found no reference therein to the charging of fees for testing for early entrance into kindergarten or the first grade.  See, WAC 180-39-020, 180-39-025, 180-39-030 and 180-39-035.  By WAC 180-39-025, the State Board of Education has purported to delegate to each school district the authority to adopt regulations that provide for individual exceptions to the uniform entry qualifications established by the Board.  However, since we have already determined that the State Board of Education itself lacks authority to establish fees for testing relating to early entrance into kindergarten or first grade, we need not address the issue of whether there was any intent on the part of the State Board of Education to delegate such authority to the school districts themselves.

             In further support of our negative answer to your question we also note that the legislature considered the precise issue during its recent (1985) session.  We have reference to House Bill No. 160 which would have added the following new language to RCW 28A.58.190:

             "For the purpose of complying with any rule adopted by the state board of education which requires a preadmission screening process as a prerequisite to granting exceptions to the uniform entry qualifications, a school district may collect fees to cover actual expenses incurred in the administration of such a screening process."

             This bill, however, died in the committee to which it was initially referred.  The introduction of HB 160 would appear to reflect an understanding that suchexpress authority was necessary in order to allow school districts to charge the subject fees.  Without such express authorization, therefore, those fees may not be imposed.5/

              [[Orig. Op. Page 5]]

            We trust the foregoing will be of use to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

DAVID W. SWAN
Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/See, e.g., AGO 1973 No. 11 involving general tuition, traffic safety education fees, fees for curricular and extracurricular bus use, periodical and textbook fees and damage deposits, and graduation ceremony attire rental fees, among others; AGO 65-66 No. 113 relating to general and special tuition fees for certain courses and textbooks and fees related to damage deposits for other supplies; and AGO 57-58 No. 94 in which we concluded that first class school districts were not authorized to collect a fee from parents of kindergarten students to make up deficiencies in public funds available for the operation of kindergartens.  Copies of these opinions are enclosed.

 2/AGO 1977 No. 10 related to the question of whether school districts may require physical examinations prior to student participation in interscholastic athletics and whether students and/or their parents may be required to obtain such physical examinations at their own expense for that purpose.

 3/See, again, AGO 1977 No. 10, citingGriggs v. Port of Tacoma, 150 Wash. 402 (1928).

 4/We assume your question does not address the special instance of non-resident students who might be charged tuition in certain circumstances as fixed by the Superintendent of Public Instruction.  See, RCW 28A.58.240 and, in general, chapter 392-137 WAC.  These provisions relating to tuition charges to non-resident students are generally applicable and we see no reason to specially interpret them as they relate to early entrance into kindergarten or first grade.

 5/As in our prior opinions, and particularly in AGO 1973 No. 11, supra, we base our answer to your question on a lack of statutory authority and not on the existence of a constitutional prohibition.  See AGO 1973 No. 11 at pp. 4-6 for a full discussion of that issue.

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