Attorney General's Opinion

Attorney General Richard Blumenthal

December 13, 1996

Honorable Theodore S. Sergi
Commissioner of Education
State Board of Education
Box 2219
Hartford, Connecticut 06145

Dear Commissioner Sergi:

In a letter to our office you ask us whether state law permits a local board of education of a town which does not maintain a high school to pay partially the tuition for a local student to attend a state approved high school other than the high school designated under Conn. Gen. Stat. §10-33.

Your question is posed within the immediate context of correspondence with the Bozrah Superintendent of Schools.  Bozrah does not have its own high school.  Under §10-33 the Bozrah Board of Education ("the board")  must designate a high school approved by the State Board of Education ("the state board") for its high school students to attend and must pay each student's tuition at the designated high school.  Norwich Free Academy ("NFA") has been the designated high school for several years.¹ Montville High School has also been so designated by the board for those students who choose to attend it.  The board pays the tuition and provides transportation for its high school students to attend these two schools.²

According to information accompanying your letter, the board appointed a high school options committee ("the committee") to investigate "expanding the present educational opportunities" and to make recommendations on additional opportunities to the board.  Report of the High School Options Committee ("the report"), p. 2.  The committee submitted the report to the board.  In addition to retaining the presently designated high schools, the committee recommended allowing any high school student residing in Bozrah to attend any public high school in Connecticut.³  Report, p. 3.  Under this proposal the board would pay for each child attending a high school other than NFA or Montville High School the chosen high school's tuition up to the amount of the designated high school's (NFA's) tuition; parents (or guardians) would have to agree to cover any tuition differential.  Also transportation to the chosen high school would be the parents' sole responsibility.

Shortly after the superintendent received the report, he asked the board's attorney to review the committee's recommended changes to its high school attendance policy.  The board's attorney opined that the proposed plan effectively would make every public high school in the state a designated high school.   He observed that a local board of education does not have "clear statutory authority" to make multiple designations, but further stated that even if such authority is inferable from §10-33 and related statutes,⁴ there is no legal basis for any tuition cost sharing arrangements between parents and the board of education or for requiring parents to assume the responsibility for transportation arrangements and costs.

The committee chairman then wrote to you.  Alluding to the board's attorney's advice, he asked for "your opinion and guidance on how to properly proceed to implement this change."  He also pointed out that several school districts in eastern Connecticut have basically the same high school attendance policy as that proposed by the committee.   Because this letter revealed a transcendent practice in Eastern Connecticut, it spurred review within your department, with the State Board of Education and with us.   Meanwhile, the superintendent of schools wrote to you stating that the board of education was requesting an answer to the committee chairman's earlier letter.  Hence your letter asking for an opinion on the question stated above.

In answer to your question, a local board of education of a town which does not maintain its own high school is not permitted by statute to finance a student's public high school education only to the extent of the tuition it pays to the high school designated under §10-33 but must pay the student's entire tuition.⁵

Every child in Connecticut has a right to a free public elementary and secondary education. Constitution of Connecticut, Art. VIII, §1. This constitutional right has been held to be fundamental in nature; Horton v. Meskill, 172 Conn. 615, 647 (1977).  Its scope and specific components are determined by the legislature.  Constitution of Connecticut, Art. VIII, §1;  Broadley v. Board of Education, 229 Conn. 1, 6-7 (1994).  In this vein, the General Assembly has enunciated as one of the state's "education interests" that "each child shall have for the period prescribed in the general statutes equal opportunity to receive a suitable program of instruction."  Conn. Gen. Stat. §10-4a.  Each individual who is between five and twenty-one years of age is entitled to attend public school unless the individual has been graduated from a high school or is removed from a public school pursuant to Conn. Gen. Stat. §§10-233c, 10-233d.  Conn. Gen. Stat. §10-186 (a); see also Conn. Gen. Stat. §10-15c.  The General Assembly has delegated the constitutional obligation to provide free public education to towns acting through local and regional boards of education so that each town constitutes a school district.⁶  Conn. Gen. Stat. §§10-186, 10-220, 10-240; see also Horton v. Meskill, supra, 172 Conn. at 647; Cheney v. Strasburger, 168 Conn. 135, 140 (1975). 

Each local board of education must "furnish, by transportation or otherwise, school accommodations" to its students.  Conn. Gen. Stat. §10-186(a).  While each local board maintains its own schools for its elementary school students, several local boards of education, which are not part of regional school districts, do not choose, or are unable, to construct and to maintain their own high schools, usually because of small population bases.  See Waterford v. Connecticut State Board of Education, 148 Conn. 238, 242 (1961).  To make certain that each student's right to a free secondary education is fulfilled the General Assembly has since 1931 required each local board which does not maintain a high school to designate for its students a high school in accordance with §10-33.  1931 P.A. <st1:country-region>Ch.</st1:country-region> 249, §42;⁷  see also Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 547 (1980); Hackett v. New Haven, 103 Conn. 157, 160 (1925).

The board has complied with its duty to furnish school accommodations by arranging for and paying for its students to attend NFA.  Students may also elect at the board's expense to attend and to be transported to Montville High School.  As mentioned above, the board's attorney observed in his opinion that §10-33 "does not clearly authorize" the designation of "multiple" high schools.  Although §10-33 provides that a local board must designate "a high school," we do not read the statute as requiring a local board to designate only one high school or conversely as prohibiting the designation of more than one high school. This interpretation is consistent with Conn. Gen. Stat. §10-220 which in setting out a local board's general responsibilities provides that the board  ". . . shall make such provision as will enable each child . . . to attend some public day school. . . ." 

In carrying out its responsibility under §10-33, a local board of education may not, however, enter into types of arrangements not sanctioned expressly or impliedly by §10-33 or other pertinent statutes.   A local board possesses only those powers delegated to it expressly by statute or by necessary implication.  Herzig v. Board of Education, 152 Conn. 144, 150 (1964).  While §10-33 gives a local board discretion to designate one or more high schools for its students, it also provides that a board ". . . shall pay the tuition of such child. . . ."  Neither §10-33 nor any related statute contains any language from which may be inferred authority for a board to pay less than the full tuition by virtue of an agreement with parents.  In fact, §10-34, which directly governs the board's sending its students to NFA, mandates that the board "shall pay that whole of the tuition fees of pupils attending. . ." NFA.  (Underscoring added.)  Thus, under the proposed policy the board, having effectively made every public high school or approved academy a designated high school, would be required to pay the full tuition for each student attending each such school.

The same result obtains for transportation arrangements and costs under the proposed plan.  As noted above, §10-186 requires a local board to provide school accommodations, "by transportation or otherwise", to its students.  Sec. 10-220 generally requires such board to provide such transportation  "whenever transportation is reasonable and desirable."  This clause has been construed by our Supreme Court to encompass only distance and safety considerations.   Waterford v. Connecticut State Board of Education, supra, 148 Conn. at 243 (1961); see also Synder v. Newtown, 147 Conn. 374, 382 (1960).  This concept has never been held to include a fiscal component.  Our Supreme Court has further concluded:

Reading §§10-186 and 10-220 together, as they must be read, we conclude that the failure of a town to provide the transportation which is reasonable and desirable (§10-220) for the safety of children attending the particular school they are required to attend constitutes a failure to furnish school accommodations within §10-186.

Waterford v. Connecticut Board of Education, supra 148 Conn. at 238.

Consistent with this joint mandate of §§10-186 and 10-220, the General Assembly requires local or regional school districts not maintaining high schools to pay "the reasonable and necessary cost of transportation of any pupils. . ."  to the designated high school.  Conn. Gen. Stat. §10-277(b).  But this statute is not limited to transportation to the designated high school.  Specifically, §10-277(b) provides in relevant part:

Any town or regional school district which does not maintain a high school shall pay the reasonable and necessary cost of transportation of any pupil under twenty-one years of age who resides with such pupil's parents or guardian in such school district and who, with the written consent of the board of education, attends any high school approved by the State Board of Education.  The town or regional board of education may, upon request, enter into a written agreement with the parents of any high school pupil permitting such pupil to attend an approved public high school other than that to which transportation is furnished by the school district and each may pay such costs of transportation as may be agreed upon.  Such necessary and reasonable cost of transportation shall be paid by the town treasurer or the regional school district treasurer upon order or the superintendent of schools, as authorized by the board of education⁸ 

These sentences of §10-277(b), read together and read in harmony with §§10-33, 10-34, 10-186 and 10-220, effectively provide that a local board of a district without its own high school may consent to a student attending an approved public high school other than the designated high school and may contract with the student's parents to assume or to share the transportation costs.  Under the third sentence of §10-277(b), the school district is, nonetheless, responsible for payment of transportation costs to the transportation provider and must look to the parents for advance payment or for reimbursement of their agreed upon share, which may be the entire cost of the transportation.⁹  Finally, §10-277(b) is silent about tuition costs.  Since no statute authorizes a local board to pass on to the parents any tuition costs in whole or in part,  it must bear such costs.¹⁰ 

          In summary, the answer to your specific question is that state law does not permit a local or regional board of education of a district which does not maintain a high school to make only partial payment of tuition for students attending a high school designated under §10-33.  Additionally, it follows from the above discussion that:

1. A local or regional board of such a district may designate more than one high school under §10-33.

2. If the board does, it must pay the entire tuition, and under the standards set out in §§10-186, 10-220, it must provide transportation to those designated schools.

3. The board may consent, however, upon the parents' request, to a student attending a high school other than a designated high school.

4. If the board does so consent, it must pay the entire tuition of the student but may contract with the parents for advance payment or reimbursement of all or part of the transportation costs.

   Very truly yours,

   Richard Blumenthal

   Attorney General

   Bernard F. McGovern, Jr.

   Assistant Attorney General

   RB:BFM:sad

   
   

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   ¹NFA is an endowed, incorporated academy approved by the state board under Conn. Gen. Stat. §10-34 so as to be eligible for designation under §10-33.  It has the same status as a public high school.  See Petrowski v. Norwich Free Academy, 199 Conn. 231, 232 , n. 1 (1986). 
   

   ²Consistent with state law, Bozrah high school students also may attend and be transported to Norwich Vocational-Technical School (Conn. Gen. Stat. §10-97(a)) and the Lebanon High School for its vocational-agricultural program (Conn. Gen. Stat. §10-97(b)).

   ³Presumably this group would include endowed or incorporated academies approved under §10-34.  See n. 1 above.  According to state board listings that group consists of the Gilbert School and Woodstock Academy as well as NFA.

   ⁴The board's attorney did not treat §10-33 as a bar to the designation of more than one high school on the basis that "there are school districts in Connecticut that have sent students to multiple high schools without apparent difficulty."  Board Attorney's Opinion, p. 4.  In any case, the number of schools which a local board may designate was not material to his opinion.

   ⁵Our opinion applies only to students in regular programs and not to students in special education programs.  See Conn. Gen. Stat. §10-76a et seq.
   

   ⁶Two or more towns may voluntarily establish a regional school district.  Conn. Gen. Stat. §10-39 et seq.  References herein to "local boards" apply likewise to "regional boards of education", which govern regional school districts.

   ⁷Sec. 10-33 has remained substantially unchanged.  From 1897 to 1931, towns which did not maintain high schools were required to pay the tuition of a resident child who ". . . with the consent of the school visitors, or town school committee. . ."  attended a state board of education approved high school in another town.  1897 P.A. Ch. 249, §1; 1902 Rev. §2239; 1918 Rev. §994; 1930 Rev. §847. 

   ⁸The statute originated as 1903 P.A., Ch. 182 and consisted of, with certain immaterial variances, the first and third sentence of §10-277(b).  The second sentence was inserted in 1963 by P.A. 492, §1.

   ⁹In introducing to the House the 1963 bill (H.B. 3632) which inserted into §10-227(b) its second sentence, Rep. LaGrotta stated:

   House Bill 3632 would make it possible for any such Board of Education and the parents of any such pupil to agree to have the pupil attend a school other than the one [to] which the Board of Education furnishes transportation and for the parents to pay the entire costs of the transportation.

   10 H.R. Proc. Pt. 8, 1963 Sess., p. 3103.

   ¹⁰The payment of tuition costs was not mentioned either in the House or in the Senate proceedings on HB 3632 (see n. 10-11, supra).  However, during the Education Committee's public hearing on HB 3632, its primary proponent, Bethlehem First Selectman Ames Minor, stated that the purpose of the bill was to legalize arrangements between towns and parents for students in towns without  high schools to attend non-designated high schools; under these arrangements towns paid tuition and the parents the transportation costs.    Local boards had been advised by a State Education Department official that §10-277, as it existed prior to 1963, required a local board which consented to students attending non-designated high schools to pay both tuition and transportation costs.  This turn of events was discouraging local boards from consenting to such attendance arrangements.  Joint Standing Committee Hearings, Education, Pt. 1,1963 Sess., pp. 73-77.  As a general rule, only proceedings on the floors of the House and Senate are considered in construing legislation; State v. Galino, 201 Conn. 435, 445 (1986); Baker v. Norwalk, 152 Conn. 312, 316 (1965); but legislative committee testimony will be considered when expedient.  Í‚FGay and Lesbian Law Students Association v. Board of Trustees, 223 Conn. 453, 477, n. 19 (1996); Mahoney v. Lensink, 213 Conn. 548, 559, n. 15 (1990); Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57, 58, n. 8, 10 (1981).

    

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