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Bob Ferguson

AGO 1953 No. 155 -
Attorney General Don Eastvold


1. If a school district elects to operate kindergartens, such kindergartens become a part of the public school system.

2. It is not mandatory for school districts to transport kindergarten pupils living beyond the two-mile limit to the schools.

3. If a school district makes available transportation for some of the kindergarten pupils, it cannot discriminate against others living within the same geographical limits.

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                                                                October 27, 1953

Honorable Dewey C. Donohue
State Representative, Tenth District
Route 3
Dayton, Washington                                                                                                     Cite as:  AGO 53-55 No. 155

Dear Sir:

            In reply to your letter of October 12, 1953, we submit the following:

            The questions are:

            1. If a school district decides to maintain a kindergarten, does it become a part of the public school system?

            2. If so, is it mandatory for the district to transport kindergarten pupils living beyond the two mile limit?

            3. When the school district makes available transportation for part of the kindergarten children can they discriminate against others?

             [[Orig. Op. Page 2]]

            The answers are:

            1. Yes.

            2. No.

            3. No.


            The first question was answered in AGO 53-55 No. 8 dated April 17, 1953 [[to J. B. Hansen, State Representative]], as follows:

            "Under RCW 28.35.010, first and second class school districts are authorized to establish and maintain free kindergartens 'in connection with the common schools of their districts.'  Kindergartens so established are a part of the public school system.  (RCW 28.35.020)."

            Neither the proviso to the appropriation item for the operation of schools as set forth in chapter 288, Laws of 1953, nor chapter 6, Laws of 1953, Ex. Sess. modified or amended the provisions of the cited statutes.  Consequently they stand in their original form and require that the kindergarten, if operated, be considered a part of the public school system of the district.

            2. It is not mandatory that the school district transport kindergarten children outside the two-mile limit even if the district operates a kindergarten.  RCW 28.24.010 establishes a transportation commission for school districts.  RCW 28.24.030 authorizes the commission to arrange for transportation of pupils living outside a two-mile radius, but expressly provides that no district shall be required to transport children living within the two-mile radius of the school which such pupils attend.  RCW 28.24.060 indicates those students who must be carried.  That section provides as follows:

            "All childrenattending school in accordance with the laws relating to compulsory attendance shall be entitled to use the transportation facilities provided by the school district in which they reside."  (Emphasis supplied)

             [[Orig. Op. Page 3]]

            RCW 28.27.010 is the statute relating to compulsory school attendance.  Those who are compelled to attend are children between eight and fifteen years of age who have not attained a reasonable proficiency in the studies required by law to be taught in the first eight grades of the public schools.  It follows, then, that school districts are required to transport only those students between the ages of eight and fifteen who have not completed the first eight grades.  This would exclude children of kindergarten age.

            We have indicated in previous opinions that local school districts could make special arrangements for the operation of kindergartens to be paid for out of their local kindergarten funds, if they so desire.  This could include transportation to and from the schools.  The answer to the second question is that it is not mandatory for the district to transport kindergarten pupils living beyond the two-mile limit.

            3. School districts have a great deal of discretion in the matter of providing transportation to kindergarten pupils.

            It would be within the discretion of the boards to fix any reasonable limitation with respect to distance from the school for the purpose of determining which students would be transported and which would not.  Since the general statutes relating to school district transportation fixes a two-mile radius within which a school district is not required to furnish transportation, it seems obvious that this same limitation, if imposed by the directors upon the transportation of kindergarten students, would be proper.  No public agency could discriminate for or against particular individuals with respect to benefits to be paid for from public funds.  Certain reasonable classifications are permissible and would not be considered discriminatory.  Classification according to distance from the school is one sound basis for distinction for the purpose of determining which classes shall be entitled to transportation.  It may be that there are others, which do not immediately occur to us.

            In our opinion, a school district, if it makes transportation available to kindergarten pupils, must supply such transportation to all pupils living within the geographical area from which the district assumes the burden of transporting them.  Discrimination within the same geographical area would not be permissible.

Very truly yours,

Attorney General

Assistant Attorney General