You have asked for my unofficial opinion regarding the validity and applicability of O.C.G.A. §§ 20-2-640 through 650. These statutes were originally enacted in 1961 to authorize the provision of education grants under certain circumstances to children who attend nonsectarian private schools. You also have asked whether these statutes can be implemented with existing state funds.

Though it is technically correct to refer to the tuition grant law as the 1961 law "as amended," it should be pointed out that the bulk of the original 1961 Act has been replaced, as discussed below. As originally enacted, 1961 Ga. Laws [*2] 35 was an attempt by the General Assembly to create an entitlement of public funds for school children who attended certain private, as opposed to public, schools. This statute was passed at a time when the state legislature was enacting laws in an attempt to offset the impact of the United States Supreme Court's decision in Brown v. Board of Education, 347 U.S. 483 (1954), and its progeny. The 1961 law provided, in part, that:

Every school child in this State between the ages of six (6) and nineteen (19) who has not finished or graduated from high school, in lieu of attending the public schools, shall be entitled to receive from the local board of education or other local governing authority wherein such child resides, a grant of state and local funds to be expended for the purpose of attending a nonsectarian private school.

1961 Ga. Laws 35-6, § 2 (emphasis added). Under the original 1961 law, the funds available for such "education grants" were to come from state and local funds, non-obligated capital outlay funds, or additional sums made available by the Governor or State Board of Education. Id.

In 1962, the Act relating to payment of education grants [*3] was amended in three relevant aspects. 1962 Ga. Laws 552. First, instead of providing that a child was "entitled to receive . . . a grant of state and local funds" to attend a nonsectarian private school, the law indicated that a child was "eligible and entitled to receive a State education grant from the State Department of Education." 1962 Ga. Laws 554, § 1 (emphasis added). Second, the State Board of Education was directed to prescribe rules and regulations for the implementation of the statute, including minimum academic standards which must be met by any nonsectarian private school attended by a child in order for that child to receive an education grant. 1962 Ga. Laws 555, § 1 (now codified at O.C.G.A. § 20-2-645). Finally, the 1962 law provided that "the General Assembly shall make adequate provision [for paying State education grants] in appropriating funds to the Department of Education." 1962 Ga. Laws 556, § 1.

The General Assembly once again amended this law in 1963 in several very significant respects. 1963 Ga. Laws 514. A child applying for an education grant was no longer deemed "entitled" to receive such grant; instead, the child would "be eligible [*4] to receive an education grant . . . in the amount, manner, and subject to the provision of this Act." 1963 Ga. Laws 514-5, § 2 (emphasis added)(now codified at O.C.G.A. § 20-2-642). No education grant could be paid to any person unless "the need for the payment of such grants in a county or municipality" was determined by either the county or municipal board of education and applicable governing authorities. 1963 Ga. Laws 515-6, § 4 (now codified at O.C.G.A. § 20-2-644).

At the outset, it is important to note that, based upon the 1963 amendments, the state funding mechanism for the implementation of educational grants to nonsectarian private schools no longer exists. Assuming the appropriate local governmental authorities determine that a "need" for education grants to nonsectarian private schools, the 1963 amendment provided that the grants approved and paid by the local boards of education "shall be paid out of existing and available school funds allocated to such local systems by the State for educational purposes and from educational funds derived from local sources." 1963 Ga. Laws 518, § 8 (now codified at O.C.G.A. § 20-2-648). The 1963 amendment further states [*5] as follows:

The local board [of education] shall share in the cost of the education grant in the same proportion as it shares in the cost of the Adequate Program for Education in Georgia for such local system. The amount arrived at under such formula shall be paid by the Department of Education to the local system at the time and under the procedure specified by the State Board of Education. The state board shall include in its estimate of financial requirements to be filed with the Office of Planning and Budget, as required by law, an estimate of the amount of funds which may be needed during the next appropriations period for the purpose of paying the state's portion of the grants provided for under this article. The General Assembly shall make adequate provision thereof in appropriating funds to the Department of Education.

O.C.G.A. § 20-2-648 (emphasis added). The general state foundational program of support for public education which was deemed applicable to "education grants" under this Code section, the "Adequate Program for Education in Georgia" ("APEG"), has now been supplanted by the "Quality Basic Education Formula" ("QBE"). See O.C.G.A. § 20-2-161 [*6] et seq.

We have searched the statutes creating QBE and other relevant law and find nothing to indicate that the General Assembly intended to continue the use of APEG for any state funding of education. Therefore, because of the current manner of state funding for education through QBE, the provisions providing for state educational grants based upon the mechanism previously utilized in APEG are no longer operative.

Moreover, based upon the current language contained in O.C.G.A. §§ 20-2-640 through 650, which has been altered since the original 1961 law, children between the ages of six and 19 are not entitled to receive a "grant" of state funds to pay or defray the cost of tuition at a nonsectarian private school. The language in the 1961 law which purported to grant such children an "entitlement" to such funds was deleted by subsequent amendments, which now makes such children "eligible" to receive an education grant only if numerous prerequisites contained in the current statute are met. Consequently, the 1961 opinion rendered by this office, 1961 Op. Att'y Gen., p. 188, is no longer valid since it was based upon the entitlement language of 1961 Ga. Laws 35, which no longer [*7] exists.

There are two other important points which should be mentioned. First, as alluded to earlier, the 1961 law originally was enacted when the federal courts were issuing decisions in response to challenges to racially segregated school systems. If an attempt were made at this time to utilize O.C.G.A. §§ 20-2-640 through 650 to support the awarding of tuition grants to children attending nonsectarian private schools, that effort could well be subject to a court challenge alleging that the law was conceived with a discriminatory intent. See, e.g., Washington v. Davis, 426 U.S. 229 (1976); Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977). Issues which could arise from any such challenge or current federal laws which impact upon state public education are beyond the scope of this opinion.

Second, if the statute is amended to provide for state educational grants for nonsectarian private schools, several other things must be accomplished prior to any state funds becoming available for such grants. The General Assembly must make "adequate provision" for state funds to be used for any education grants under O.C.G.A. §§ 20-2-640 through 650 by appropriation [*8] to the State Department of Education. O.C.G.A. § 20-2-648. It is my understanding that no such funds have been appropriated for this purpose since Fiscal Year 1965. Additionally, the State Board of Education must prescribe the minimum academic standards that must be met by any nonsectarian private school attended by a child applying for an education grant, and the State School Superintendent must prepare a list of such approved schools for use by local systems. See O.C.G.A. §§ 20-2-645 and 646.

Finally, it should be noted that O.C.G.A. § 20-2-649 does authorize local school systems to use their own local education funds to support education grants to children who attend nonsectarian private schools if a determination of need for paying such grants is made in accordance with O.C.G.A. § 20-2-644. The legal consequences of a local school system making such educational grants are not addressed by this opinion.

Based upon the foregoing, it is my unofficial opinion that 1961 Ga. Laws 35, as amended, to the extent that it provided for an entitlement of state funds for children between the ages of six and 19 to attend nonsectarian private schools, is no longer operative [*9] because of the alteration of the mechanism of state funding of education from the Adequate Program for Education in Georgia to the Quality Basic Education Formula.　

Prepared by:

MARK H. COHEN

Senior Assistant Attorney General