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AGO 1987 No. 1 - January 06, 1987
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

DISTRICTS ‑- SCHOOLS ‑- CHILD CARE PROGRAMS ‑- AUTHORITY OF SCHOOL DISTRICTS TO PROVIDE CHILD CARE SERVICES 

School districts have the authority to provide programs that offer care for children, including children not enrolled as students of the school district.  The facilities of the school district may be used to provide these programs.  School district funds may be used for the operation of the child care programs and for the construction or remodeling of facilities to house such programs.  School districts may not contract with private or other public agencies to provide child care services, either in district facilities or elsewhere, without express statutory authority.  The school districts are authorized to charge fees for child care services but, if they charge fees, they may not waive some or all of the fees otherwise chargeable based upon such factors as the income of the parents.  The districts are not authorized to furnish transportation to children in child care programs established by the district unless authorized by a specific statute.

                                                              - - - - - - - - - - - - - 

                                                                  January 6, 1987 

Honorable Frank B. Brouillet
Superintendent of Public Instruction
Old Capitol Building, FG-11
Olympia, WA 98504

Cite as:  AGO 1987 No. 1                                                                                                                  

 Dear Sir:

             By letter previously acknowledged you have requested the opinion of this office on the following questions (which we have reordered and paraphrased for clarity):

             1.         Do school districts have the authority to provide programs that offer care for children, including children not enrolled as students of the school district?

             2.         Assuming an affirmative answer to question 1, may the facilities of the district be used for this purpose?

             3.         May school district funds be used for the operation of child care programs and for the construction or remodeling of facilities to house such programs?

              [[Orig. Op. Page 2]]

             4.         May school districts contract with private or other public agencies to provide child care services, either in district facilities or elsewhere?

             5.         Are school districts authorized to charge fees for child care services and, if they may charge fees, may they waive some or all of the fees otherwise chargeable based upon such factors as the income of the parents?

             6.         Are school districts authorized to furnish transportation to children in child care programs established by the district?

             We answer questions 1, 2, and 3 in the affirmative, questions 4 and 6 in the qualified negative and question 5 in the manner set forth below.

                                                                      ANALYSIS

             Before we discuss your specific questions, we want to make clear our understanding about the terms "care for children" and "child care" as used in the questions.  As we understand them, your questions are intended to probe the extent of the authority of school districts to provide what is commonly known as "child care" or "day care" for the children of the district, especially the children of working parents.  Care of this type currently is offered by a variety of private individuals and organizations, in addition to a few day care programs sponsored in whole or in part by public agencies.1/

            We understand your questions to be directed to child care programs that are intended primarily to provide infants and children with shelter, necessities, and safekeeping when their parents or guardians are working or otherwise absent.  Although many child care programs have "educational" elements‑-ranging from attempts to teach children basic hygiene or social skills to more ambitious academic programs‑-our answers are predicated on the assumption that not all child care programs have "educational" content.

             We view this distinction as important because some child care programs may have sufficient educational content to be labeled  [[Orig. Op. Page 3]] "preschools" or "schools",2/

             in which case legal considerations arise that provide additional authority for school districts but, at the same time, make it difficult to answer your questions clearly.

             Therefore, to simplify the conceptual problems, we will assume you are asking about the authority of school districts to operate day care programs with no specific academic or educational content.  This permits for the broadest possible answers to your questions but also means that school districts proposing to establish child care programs should be aware that the legal considerations could vary depending upon the precise nature of the program proposed.

             Question (1):

             Do school districts have the authority to provide programs that offer care for children, including children not enrolled as students of the school district?

             Like most municipal corporations, school districts in Washington are subject to the "Dillon Rule" that a municipal corporation has only those powers expressly granted by the Legislature, those necessarily or fairly implied or incident to the powers granted, and those essential to the declared objects and purposes of the district.  Seattle High Sch. Chapter 200 v. Sharples, 159 Wash. 424, 293 P. 994 (1930).

             As you undoubtedly are aware, there is express statutory authority for school districts to conduct nursery schools and child care programs, and your questions arise not from ignorance of that statute but from doubts about its meaning given its unusual history.

             The statute in question is codified as chapter 28A.34 RCW.  The following two sections of this chapter are most relevant to your first question.  RCW 28A.34.010 provides:

              [[Orig. Op. Page 4]]

             The board of directors of any school district shall have the power to establish and maintain nursery schools and to provide before‑and-after-school and vacation care in connection with the common schools of said district located at such points as the board shall deem most suitable for the convenience of the public, for the care and instruction of infants and children residing in said district.  The board shall establish such courses, activities, rules, and regulations governing nursery schools and before‑and-after-school care as it may deem best:  PROVIDED, That these courses and activities shall meet the minimum standard for such nursery schools as established by the United States Department of Health, Education and Welfare, or its successor agency, and the state board of education.  Except as otherwise provided by state or federal law, the board of directors may fix a reasonable charge for the care and instruction of children attending such schools.  The board may, if necessary, supplement such funds as are received for the superintendent of public instruction or any agency of the federal government, by an appropriation from the general school fund of the district. (Emphasis added.)

             RCW 28A.34.050 provides:

             Every board of directorsshall have power to establish, equip and maintain nursery schools and/or provide before‑and-after-school care for children of working parents, in cooperation with the federal government or any of its agencies,when in their judgment the best interests of their district will be subserved thereby.

            (Emphasis added.)

             These two sections, and especially the portions underscored, clearly authorize school districts to provide "before‑and-after-school and vacation care" at the discretion of local school boards.  Although the statutes give the board of directors of a school district broad authority to determine whether to establish a child care program and the type of program to be established, the proviso in RCW 28A.34.010 establishes certain conditions upon nursery schools and day care provided by school districts:  (1) that these courses and activities meet the minimum standards for such nursery schools as established by the  [[Orig. Op. Page 5]] U.S. Department of Health, Education and Welfare, or its successor agency, and (2) that they meet any standards established by the State Board of Education.

             We understand that there is concern among school districts about relying on the authority granted in RCW 28A.34.010 because the statute originally was enacted by the 1943 Legislature for what appeared to be a temporary and limited purpose‑-the establishment of child care centers for the children of working mothers during World War II.

             The statutory provisions under examination all were enacted originally as chapter 220, Laws of 1943, and probably were intended by the 1943 Legislature to meet a special and temporary wartime need.  Section 5 of the 1943 act (now codified as RCW 28A.34.050) then had an explicit reference to "children of working mothers", and the 1943 act contained an uncodified section 6 that read:

             This act is necessary for the immediate preservation of the public peace, health and safety and shall take effect immediately, and it shall remain in force for the duration of the existing war and for six months after termination thereof by the signing of a definitive treaty of peace, or by the proclamation of the President of the United States that hostilities have ceased or that the emergency in justification of extraordinary wartime powers no longer exists.

 Laws of 1943, ch. 220, § 6, p. 680.

             Even if the 1943 Legislature intended that school districts be involved in nursery schools and child care only to meet a wartime emergency, the acts of succeeding Legislatures clearly made the authorization to conduct child care programs permanent.  Most significantly, the 1945 Legislature repealed section 6 of the 1943 act, thus making the chapter a permanent part of statutory law.  Laws of 1945, ch. 247, § 2, p. 726.  Section 1 of the 1943 act (now codified as RCW 28A.34.010) was slightly amended and strengthened in the 1945 act.  Laws of 1945, ch. 247, § 1, p. 725.  Any remaining doubt about the permanence of these provisions disappeared in 1969, when the Legislature reenacted and recodified the statutes noted above in chapter 28A.34 RCW.  Laws of 1969, 1st Ex. Sess., ch. 223, §§ 28A.34.010 ‑ 28A.34.050, p. 1734.  Finally, the 1973 Legislature amended the term "working mothers" in RCW 28A.34.050 to the more neutral term "working parents."  Laws of  [[Orig. Op. Page 6]] 1973, 1st Ex. Sess., ch. 154, § 45, p. 1144.  All these changes clearly indicate a continued vitality to chapter 28A.34 RCW.3/

              At least since 1945, the Legislature intended the statutes in question to provide permanent and express authority for school districts to operate nursery schools and child care programs.  The only additional source of possible confusion on this point arises from RCW 28A.34.050.  Although RCW 28A.34.010 seems to grant broad authority to school districts to operate child care programs, RCW 28A.34.050 provides:

             Every board of directors shall have power to establish, equip and maintain nursery schools and/or provide before‑and-after-school care for children of working parents,in cooperation with the federal government or any of its agencies. . . .  (Emphasis added.)

             Does this phrase in RCW 28A.34.050 establish an additional condition upon the providing of child care, that it may be provided only in cooperation with some federal program?  We think not.  Both RCW 28A.34.010 and RCW 28A.34.050 were enacted by the 1943 Legislature.  An act must be construed as a whole giving effect to all language used, considering all provisions in relation to each other and, if possible, harmonizing all to ensure proper construction of each provision.  Newschwander v. Board of Trustees, 94 Wn.2d 701, 620 P.2d 88 (1980);Greenwood v. State Bd. for Comm'ty College Educ., 82 Wn.2d 667, 513 P.2d 57 (1973).  Applying this familiar principle, we conclude that the purpose of the phrase "in cooperation with the federal government or any of its agencies" was not to limit the authority already granted in RCW 28A.34.010 but rather to extend additional authority for school districts to cooperate with federal agencies in connection with the nursery schools and day care programs they operated.  This construction seems more consistent with the obvious legislative purpose to authorize nursery schools and child care programs and to permit the expenditure of state and local, as well as federal, funds.

             Having resolved that possible ambiguity in RCW 28A.34.050, we conclude that the provisions of that statute and RCW 28A.34.010  [[Orig. Op. Page 7]] authorize school districts to provide programs offering care for children, thus dictating an affirmative answer to your first question.

             Another part of your first question asks whether child care services can be extended to children who are not enrolled as students of the school district.  Again, we answer in the affirmative because of the specific language in RCW 28A.34.010 that speaks of the "care and instruction of infants and children residing in said district."  We note that the Legislature consistently uses a narrower term like "student" when referring to programs operated for children enrolled in school in a district.  The use of the broader term "residents" together with the term "infants" (that term generally being used for children too young to be enrolled in school) makes it clear that child care may be extended to any infant or child resident of the district, whether or not enrolled in school.  Similarly, RCW 28A.34.050 refers to "care for children of working parents" and seems to include all such children, not only those enrolled in school.

             Question (2):

             Assuming an affirmative answer to question 1, may the facilities of the district be used for this purpose?

             Your second question asks whether the facilities of the district may be used for child care purposes.  Again, we conclude in the affirmative, because RCW 28A.34.010 speaks of "before‑and-after-school and vacation care in connection with the common schools of said district located at such points as the board shall deem most suitable for the convenience of the public . . ."  This reading is consistent with statutes such as RCW 28A.58.040, granting broad authority to school district boards of directors over school district property.  Thus, we answer your second question by concluding that the facilities of a district may be used for nursery school or child care purposes to whatever extent the board determines they shall be used, and consistent with any standards established by federal agencies or the State Board of Education.

             Question (3):

             May school district funds be used for the operation of child care programs and for the construction or remodeling of facilities to house such programs?

              [[Orig. Op. Page 8]]

             Your third question asks whether school district funds may be used for the operation of such programs and for the construction or remodeling of facilities.  Again, we answer in the affirmative.  RCW 28A.34.010 provides:

             The board may, if necessary, supplement such funds as are received for the superintendent of public instruction or any agency of the federal government, by an appropriation from the general school fund of the district.

 RCW 28A.34.020 provides mechanical instructions for setting up a system for expending state and federal funds and RCW 28A.34.040 authorizes the use of state‑appropriated funds pending receipt of federal funds.

             A question may be raised whether, in the absence of state appropriations or federal funds, school districts may use their funds for nursery schools and child care programs.  We note that there currently is no explicit state appropriation for the purpose of nursery schools or child care, nor are we aware of any current federal programs providing for child care in public schools.

             Nothing in the statute, however, seems to make the receipt of state‑appropriated funds or federal funds a necessary condition to the operation of nursery schools or child care programs.  Although the term "supplement" in the final sentence of RCW 28A.34.010 may imply the Legislature contemplated that nursery school and child care programs would be funded in part from federal funds or state appropriations, the grammar and context of the sentence make it unlikely that the Legislature intended to limit the authority granted to school districts to operate nursery schools and child care programs to instances in which either state or federal funds were appropriated for that purpose.  Thus, even without state or federal appropriations, school districts may operate nursery schools and child care programs using locally generated revenues, including revenues derived from charging fees (discussed below in our answer to question 5).

             Question (4):

             May school districts contract with private or other public agencies to provide child care services, either in district facilities or elsewhere?

             Your fourth question asks whether school districts can contract with private or other public agencies to provide child  [[Orig. Op. Page 9]] care services, either in district facilities or elsewhere.  Except in the particular circumstances discussed below, we answer this question in the negative.

             Like most other municipal corporations, school districts have only such authority as is explicitly granted by statute or necessarily implied from an explicit grant of authority.  State ex rel. School Dist. 301 v. Clausen, 109 Wash. 37, 186 P. 319 (1919).  As with our similar observations in connection with your sixth question, we note that the Legislature has employed a pattern of specifically authorizing school districts to contract out particular types of services, without providing school districts any general contracting authority.  Therefore, we conclude that, except where a specific statute authorizes a contract, a district cannot establish day care centers by contracting with private or other public agencies for that purpose.

             Having so concluded, we do note some statutes that provide limited authority in this area.  First, RCW 28A.34.050 refers to "cooperation with the federal government or any of its agencies", thus explicitly authorizing some sort of contract with federal agencies.4/

             Second, chapter 39.34 RCW, the Interlocal Cooperation Act, gives school districts fairly broad authority to enter into agreements with other local agencies, agencies of the stat government, agencies of the United States, recognized Indian tribes, and political subdivisions of other states‑-authority that conceivably could be used to carry out the purposes of chapter 28A.34 RCW.  Third, RCW 28A.58.075 permits school districts to cooperate with one another in offering joint programs.

             In addition to these statutes there is limited case law support for the notion of implied authority for school districts to perform some functions by contract,e.g.,Pehrson v. School Dist. 334, 194 Wash. 334, 77 P.2d 1022 (1938) (implied authority of school district to engage architect and pay for services);State ex rel. Dysart v. Gage, 107 Wash. 282, 181 P. 855 (1919) (implied authority of school district to employ special counsel).  These cases, however, appear to involve contracts that were legally necessary in order to carry out some school district function.

             We are aware of no other explicit statutory authority to contract (particularly with private agencies) to establish day care  [[Orig. Op. Page 10]] facilities, nor do such contracts seem to be legally necessary to carry out the purposes of chapter 28A.34 RCW.

             To summarize, school districts have fairly broad authority to contract with other public agencies to provide services contemplated by chapter 28A.34 RCW but only the most limited authority to contract with private parties for that purpose.  Except where there is express authority, we answer in the negative.

             Question (5):

             Are school districts authorized to charge fees for child care services and, if they may charge fees, may they waive some or all of the fees otherwise chargeable based upon such factors as the income of the parents?

             Again, an affirmative answer is dictated to this question because of the specific language in RCW 28A.34.010, which provides that "[e]xcept as otherwise provided by state or federal law, the board of directors may fix a reasonable charge for the care and instruction of children attending such schools . . . ."  We have been unable to discover any other state or federal law affecting the authority of a school district to charge for a child care program, which means that boards of directors have authority to fix "reasonable" charges.

             In response to the second element in your question‑-asking whether the fees charged could be waived in whole or in part based upon such factors as the income of the parents‑-we conclude that there is simply no statutory authority for such a process.  Compare, for instance, RCW 28A.58.113 providing for the waiver or reduction of certain fees based upon low income and RCW 28A.59.180(9) respecting the providing of free textbooks for indigents under certain circumstances.

             While the State Constitution (art. 8, § 7) would permit the Legislature to consider the special needs of the poor or infirm in connection with nursery schools and child care programs, we can find nothing in chapter 28A.34 RCW or elsewhere indicating that the Legislature has chosen to do so.  Thus, we conclude that the authority granted in RCW 28A.34.010 to set reasonable charges does not imply any authority to reduce or waive the charges based upon the ability of parents to pay.

              [[Orig. Op. Page 11]]

             Question (6):

             Are school districts authorized to transport children in child care programs established by the district?

             The statutes authorizing school districts to conduct nursery schools and child care programs are silent on the question of transportation at school district expense.  We, therefore, look to chapter 28A.24 RCW to determine the extent of a school district's authority to offer such transportation.  These statutes permit transportation of students and others under a number of circumstances, but they nowhere provide for the transportation of children to or from nursery schools or school-sponsored child care programs.

             The provisions of chapter 28A.24 RCW authorize furnishing school transportation under the following circumstances:  (1) transporting students enrolled in the schools of the district (RCW 28A.24.055); (2) transporting children attending certain private schools if certain conditions are met (RCW 28A.24.065); (3) leasing school buses to nonprofit organizations to transport handicapped children and elderly persons to and from the site of activities or programs (RCW 28A.24.110); (4) renting or leasing school buses in the event of natural emergencies (RCW 28A.24.170); (5) transporting members of the general public to interscholastic activities under certain circumstances (RCW 28A.24.175); (6) transporting parents, guardians, or custodians of students under certain circumstances (RCW 28A.24.178); (7) transporting students or members of the general public pursuant to agreements with other governmental entities under certain circumstances (RCW 28A.24.180).

             None of these provisions is broad enough to authorize school districts to provide school district transportation to infants and children attending school-sponsored nursery schools or child care programs, except, of course, those "enrolled in school" and those qualifying for school transportation, for one reason or another, pursuant to one of these specific statutes.

             If a statute specifically designates things or classes of things upon which it operates, the maxim "expressio unis est exclusio alterius" gives rise to an inference that the Legislature intentionally omitted all things or classes of things not appearing in the statute.  Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973); Washington Natural Gas Co. v. Public Util. Dist. 1, 77 Wn.2d 94, 459 P.2d 633 (1969).  Since neither chapter 28A.34 RCW nor chapter 28A.24 RCW contains any authority for school districts  [[Orig. Op. Page 12]] to provide transportation at district expense to district-sponsored nursery schools or child care programs, we must answer your final question in the negative.  However, we wish to point out that the general authority to transport students enrolled in school would authorize those students to be transported to other school-sponsored activities as well, and that, in certain cases at least, specific infants or children in school-sponsored nursery schools or child care programs might qualify for school transportation under the specific statutes noted above.

             We trust the foregoing will be of assistance to you.

 Very truly yours,
  KENNETH O. EIKENBERRY
Attorney General

JAMES K. PHARRIS
Sr. Assistant Attorney General 

                                                         ***   FOOTNOTES   ***

 1/See, for instance, RCW 41.04.370-41.04.380, providing for limited day care services for the children of state employees.

 2/The 1985 Legislature established a preschool state education and assistance program, Laws of 1985, ch. 418 (codified as RCW 28A.34A [28A.34]), for qualifying "approved preschool programs" as defined in that chapter.  The 1986 Legislature established a voluntary accreditation system for preschools.  Laws of 1986, ch. 150 (codified as RCW 28A.34.100-28A.34.130).

 3/As noted in footnote 2, the 1986 Legislature added additional provisions to chapter 28A.34 RCW, relating to voluntary accreditation of nursery schools.

 4/As of this date we are unaware of any federal agencies administering such programs.

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