OFFICIAL OPINION No. 21

OFFICIAL OPINION No. 21 Pu~lic .sc~ools-Co:·itracts !oith Pri l'r1le, .No·n-Religiuus Institutions for Vocational Er/ucatwn-A 1•e 1 age Dai.ly Mernbersh l ]J Reimbursement 1. Th.e S c~ool. Code provides for a comprehensive program of vocational.education primarily m the public schools of Pennsylvania. 2. When the. nature of the program, i.e. cost, availability, teacher training, warrants .1t. programs of vocational education may be secured in private non- rel1g10us mst1tut10ns by contract. using public funds. 3. Pupils attending such a program are enrolled in the public schools and may be mcluded for ADM reimbursement. Hon. John C. Pittenger Secretary of Education Harrisburg, Pennsylvania Dear Secretary Pittenger: Harrisburg, Pa. April 24, 197 4 You have requested our advice on posed several related questions concerning the enrollment of public secondary pupils in private schools for vocational education. Specifically, you asked: (1) Can a public school district, through contracts with private, non-religious training facilities, obtain vocational-technical serv- ices for resident public school pupils? (2) May a public school district use local tax funds to pay tuition to private, non-religious training schools which provide vocational- technical instruction to their resident pupils on a contract basis? (3) Can pupils from comprehensive high schools who are educated in the above-described manner be included for ADM reimburse- ment to the public school districts for the portion of time they are enrolled in the private school? It is our opinion, and you are advised, that such programs, as ex- plained below, are lawful, and the Department may reimburse the school district for the attendance of its students in such programs. I. The Public School Code, 24 P .S. §18-1801 et seq. and the regulations promulgated by the State Board of Education, 22 Pa. Code §6.1 et seq. provide for a comprehensive program of vocational education in every school district. Vocational education is defined in 24 P.S. §18-1801(2) as follows: (2) "Vocational education" shall mean any form of educa- 72 OPINIONS OF THE ATTORNEY GENERAL tion of less than college grad~, gi".'en i:i ~c~ool or elsewhere, the purpose of w~ich 1s to.fit an md1v1dual to pursue effectively a recognized prof1~able employment, whether pursued for wages or otherwise. Section 6.71 of the regulations, 22 Pa. Code §6.71 reads: Vocational education shall be part of a comprehensive educational program in every school district to assist in providing career awareness, career exploration and preparation for occupational specialization on the secon- dary level. Thus it is the intent of both the Legislature and the State Board to have diverse programs of vocational education in various sur- roundings so long as the goal of total career educational program- ming is being served. 22 Pa. Code §6.72. Of course, the primary responsibility for providing vocational education programs lies with the public schools. The whole scheme of the School Code is designed to have public programs of educa- tion take place in the public schools, consonant with the regulations and standards of the State Board and the Department of Education. However, this general rule, absent prohibitory laws or regulations, is subject to exception. It is quite easy to conceive of a program of vocational education which would help fit an individual to a potential employment situation, of interest to the pupil, and of need to society which, because of its nature, has heretofore been unavailable in the public schools or which cannot be provided efficiently in the public sector. For instance, expensive and technologically complicated equip- ment might be needed which is available in the private sector but which the public schools cannot afford. Such programs may also require teachers and supportive staff which, due to the nature of the discipline, cannot be secured by the public schools. In view of the above and after a review of the school laws we can find .no reason wh.y ~school district may not lawfully contr~ct with a private, non-relig10us school for programs as described above. However, the districts must be cautioned to use this tool with reservation . s~ that thei,r primary responsibility to provide programs w1thm the public schools is not ignored. II. As to y~mr third question, it is our opinion, and you are advised, that pupils attending a program similar to the type described above a~e enrolled in ~he public schools for ADM purposes and may b~ mcluded ~or re1rpbursen:ient computations. By way of ex- planat10n, we are mcludmg herem our discussion on this subject as OPINIONS OF THE ATTORNEY GENERAL 73 contained in the October 16, 1972 memorandum to Commissioner Carroll, which you have attached to your request. Se~tion 2501(3) of the Public School Code, 24 P.S. §25-2501(3) provides that Average Daily Membership be computed in accor- dance :vith rules of procedure established by the Secretary of Educat10n. These rules are currently set forth in a booklet entitled "Instructions for School Attendance Register," published in 1969 by the Department of Education. In this booklet, ADM is defined as follows: "Average Daily Membership is the average number of pupils belonging each day in a classroom (or report group), school or school district for the period of the report." The key to this definition is the word "belonging." Its use, rather than "present" or "in attendance" is why the contract system should not interfere with ADM reimbursements. The rules further state that "a pupil belongs from the date of en- try in school to the date of withdrawal." Therefore, a student who enters or enrolls in a given school is counted for ADM purposes, whether he is present or not. He no longer belongs only when he withdraws. The word "withdraws" presents another hurdle. Withdrawal classification W3 of the above-cited rules states: "Promoted or transferred to nonpublic school." "Nonpublic school" is defined as one not supported by taxation. It would then seem that assignment to a private school under contract would be a withdrawal, thus removing the student from the ADM. However, a careful look at the definition of "withdrawal" overcomes this argument. The rules define "withdrawal" as permanently severing connection with classes, grades and schools for the school year. This is certainly not true of the program being considered. The student receives grades, promotion, control, disciplinary sanctions, etc., from the public school. There is no permanent severance contemplated. In summary, as long as the method of reimbursement is based on pure Average Daily Membership (ADM) and not some measure that takes into consideration the actual physical presence of the student in the 1rnblic school facility, the use of educational services by contract will not prevent the appropriate school authority from counting the student for purposes of ADM reimbursement. Very truly yours, Larry B. Selkowitz Deputy Attorney General Israel Packel Attorney General 74 OPINIONS OF THE ATTORNEY GEN ERAL