On September 5, 2007 the Ohio Attorney General issued two opinions addressing the legality of school districts charging tuition for certain educational programs. In Opinion No. 2007-027, the Attorney General wrote that a board of education lacks express statutory authority to charge tuition to residents of the school district who enroll their children in kindergarten programs that extend beyond the half day required by Ohio law. Needless to say, the Attorney General's views have caused more than a bit of consternation among school administrators, board members, parents and other members of the school community. We understand the rationale and analysis employed by the Attorney General's Office and the various legal authorities that support his conclusion. As well, we believe a different result, also supported by Ohio precedent and analysis, could have been reached, and may indeed be reached if and when the question is considered by the Ohio courts.

Putting that debate to one side, an immediate problem facing many districts is whether parents who have paid tuition for optional half-day kindergarten programs are entitled to some sort of refund for the current or prior years. The answer with respect to school year 2007-2008 will require some additional review. However, as to 2006-2007 and prior years, we believe refunds are not required. Assuming Opinion No. 2007-027 is correct in concluding that boards lack the legal authority to charge tuition for the extra half day, it appears that where parents voluntarily paid the tuition and in return received a benefit that the districts were not otherwise required to offer, no refund should be due. Further, we believe the courts likely would find granting a refund inequitable to school districts because the parents, through their children, received a benefit for the amount paid – the additional half day of kindergarten.

We intend to continue our research to see what arguments might be available with respect to the 2007-2008 school year. Factors to be considered include: (1) the terms of any contracts or agreements to provide for the half-day kindergarten, (2) whether those agreements call for payment of "tuition" as opposed to "fees" and (3) whether the extra half day could be recast as an extended day or latchkey-type program. Ohio law does authorize boards to offer such programs and to charge fees or tuition.

In the interim, should you have any specific questions regarding these issues or other legal problems you are facing, please feel free to contact your principal Squire Sanders lawyer or one of the individuals listed in this Alert.