Opinion
January 20, 1976
** Part I of Part II ** LOSS OF ACCREDITATION A high school located in a school district that serves less than one hundred ten (110) square miles and has an average daily attendance of less than fifty-five (55) students during the 1974-75 school year and an average daily attendance of more than fifty-five (55) during the 1975-76 school year would not be considered as having two, two-year probationary periods, but rather under Subsection 10 of 70 O.S. 3-104 [ 70-3-104] (1971), as last amended by Section 1, Chapter 344 O.S.L. 1975, is entitled to probationary accreditation for two consecutive years immediately following any school year during which its average daily attendance is less than fifty-five (55) students. A high school of the same category as in number 1, which has an average daily attendance of less than fifty-five (55) during a particular school year, would be entitled to probationarY accreditation for two consecutive school years immediately following any year in which its average daily attendance fell below fifty-five (55); and under Subsection 10 of 70 O.S. 3-104 [ 70-3-104] (1971), as last amended by Section 1, Chapter 344 O.S.L. 1975, after any such two-year period of probationary accreditation, such school could not continue to operate if it had not increased its average daily attendance to at least fifty-five (55) during the two consecutive year probationary accreditation period. Under Subsection 10 of 70 O.S. 3-104 [ 70-3-104] (1971), as last amended by Section 1, Chapter 344 O.S.L. 1975, a high school located in a district that serves one hundred ten (110) square miles or more and has an average daily attendance of less than fifty-five (55) students during a particular school year, would be entitled to probationary accreditation for a period of two consecutive school years immediately following any school year in which its average daily attendance fell below fifty-five (55); and after any such two-year period of probationary accreditation, such school would be entitled to accreditation if during the probationary period it increased its average daily attendance to the required number of fifty-five (55), as calculated under that provision of Subsection 10 of Section 3104 applicable to such school. Under Subsection 10 of 70 O.S. 3-104 [ 70-3-104] (1971), as last amended by Section 1, Chapter 340 O.S.L. 1975, a school of the same category as mentioned in number 3 would be entitled to probationary accreditation for two consecutive years and would be eligible to operate following those years if during the two consecutive years of probationary accreditation such school increased its average daily attendance to the required number of fifty-five (55), as calculated under the provision of the statute applicable to such school. Under the foregoing statute, an elementary school which is required to relocate its facilities because of the construction of a lake is entitled to probationary accreditation for a period of five consecutive years commencing with the 1975-76 school year and running through the 1979-80 school year, regardless of the previous years of probationary accreditation granted to such school. Under the statutory provision cited above, an elementary school whose minimum average daily attendance falls below that required by the Regulations of the State Department of Education during a school year would be entitled to a two consecutive year probationary accreditation period commencing with the school year immediately following any school year during which the school's average daily attendance fell below the required minimum for the purpose of attaining such minimum average daily attendance during the probationary period. Under the statutory provision cited above, an elementary school having an average daily attendance of less than that required by the Regulations of the State Department of Education during the 1973-74 school year would be entitled to probationary accreditation during the 1974-75 school year and the 1975-76 school year and could continue to operate during the 1976-77 school year if such school had increased its average daily attendance to that required by the Regulations during the two-year probationary accreditation period. The Attorney General has considered your request for an opinion wherein you ask, in effect, the following questions: 1. If a high school (9-12) is located in a district that serves less than 110 square miles and their ADA was less than 55 during the 1974-75 school year, and is more than 55 during the 1975-76 school year, is this considered as one of the school's two two-year probationary periods? 2. If the same school has less than 55 ADA for three consecutive years, then they have more than 55 ADA the fourth year, how long can the school continue to operate? 3. If a high school (9-12) is located in a district that serves 110 square miles or more and their ADA is 38, do they qualify for accreditation? 4. Is the same school mentioned in (3), at the end of their 2nd one year probationary period, eligible to operate another year? 5. If a school district operating an elementary school has to relocate its facilities because of the construction of a lake and was put on probationary accreditation for the following school years, 197172, 1972-73, 1973-74, 1974-75 and 1975-76, how long can this school district continue to operate? 6. Shall any elementary school district be given a two-year probationary period regardless of their ADA? 7. If an elementary school district was on probation for the school years 1974-75 and 1975-76, could they continue to operate during the 1976-77 school year? Your questions concern the provisions of Subsection 10 of 70 O.S. 1971, 3-104 [ 70-3-104], as last amended by Section 1, Chapters 344 O.S.L: 1975 (70 O.S. 3-104 [ 70-3-104] (1975)). The pertinent portion of that statute reads as follows: ". . . No high school will be denied accreditation on account of its size whose average daily attendance the previous year was at least fifty-five (55) students in legal average daily attendance. Provided, however, a high school otherwise qualified for accreditation may apply for and receive probationary accreditation for a two-year period to enable such high school to endeavor to increase its legal average daily attendance to fifty-five (55) students or more; the failure of such high school to increase its legal average daily attendance to at least fifty-five (55) students during such probationary period shall result in loss of its accreditation, and no high school shall be entitled to receive such probationary accreditation more often than twice. Provided, a high school with not less than forty (40) average daily attendance and serving one hundred ten (110) square miles, or more, in its transportation area shall be allocated, for accrediting purposes only, one additional average daily attendance for each ten (10) square miles or major fraction thereof so served. Provided, however, that a high school with not less than thirty-eight (38) average daily attendance and serving one hundred ten (110) square miles, or more, in its transportation area may apply for and receive probationary accreditation for a one-year period to enable such high school to endeavor to increase its average daily attendance, allocated for accrediting purposes as provided for herein, to at least fifty-five (55) students; the failure of such high school to increase its legal average daily attendance to at least fifty-five (55) students during such probationary period shall result in loss of its accreditation, and no high school shall be entitled to receive such probationary accreditation more often than twice. Provided, further, that the maximum additional allowance for accrediting purposes shall in no case exceed fifteen (15) average daily attendance. Any school district which maintains an elementary school and faces the necessity of relocating its school facilities because of construction of a lake, either by state or federal authority, which will inundate the school facilities, shall be entitled to receive probationary accreditation from the State Board of Education for a period of five (5) years after the effective date of this act and any school district, otherwise qualified, shall be entitled to receive probationary accreditation from the State Board of Education for a period of two (2) consecutive years to attain the minimum average daily attendance. . . ." It is obvious from the language of the above-quoted statute that it has for its purpose and object the assistance of smaller schools of the State in maintaining their state accreditation. It is also obvious from the above quoted statute that in applying the language used therein certain ambiguities arise. Concerning the construction of provisions of the Oklahoma School Code, Section 70 O.S. 1-103 [ 70-1-103] of Title 70 provides for a liberal construction and reads as follows: "If any section or part of the Oklahoma School Code is found to be ambiguous or otherwise subject to more than one interpretation, such section shall be liberally construed to the extent that the general purpose of the entire code and of public education may be advanced." In order to properly construe the above-quoted statutory provision, relating to the accreditation of schools, as directed by the Legislature in Section 1-103, it is necessary to analyze such provision in detail in light of the various amendments that have been made to that provision after 1971 providing for probationary accreditation to certain categories of schools. In 1971 the above-quoted statute provided for accreditation and loss of accreditation by schools, but contained no provision entitling schools to probationary accreditation under certain circumstances. The effect of loss of accreditation by a school was held in 1 Okl.Op.A.G. 55 to prohibit further operation of such school. In 1971 the pertinent portion of Subsection 10 of 70 O.S. 3-104 [ 70-3-104] (1971), read as follows: "No high school will be denied accreditation on account of its size whose average daily attendance the previous year was at least fifty five (55) students in legal average daily attendance. Provided, a high school with not less than forty (40) average daily attendance and serving one hundred ten (110) square miles, or more, in its transportation area shall be allocated, for accrediting purposes only, one additional average daily attendance for each ten (10) square miles or major fraction thereof so served. Provided, further, that the maximum additional allowance shall in no case exceed fifteen (15) average daily attendance." In 1972, Subsection 10 of Section 70 O.S. 3-104 [ 70-3-104] was amended to provide for probationary accreditation to three categories of schools in order for said schools to increase their average daily attendance to the required minimum of fifty-five (55), rather than leaving it at either accreditation or loss of accreditation, which was the case prior to the 1972 amendment. In this respect the statute would appear to be remedial in nature. With the 1972 amendment at Section 1, Chapter 241, O.S.L. 1972, the pertinent portion of Subsection 10 of Section 70 O.S. 3-104 [ 70-3-104] read as follows with the new language emphasized below: ". . . No high school will be denied accreditation on account of its size whose average daily attendance the previous year was at least fifty-five (55) students in legal average daily attendance. Provided, however, a high school, otherwise qualified for accreditation, which had a legal average daily attendance of at least fifty-three (53) students the previous year, may apply for and receive probationary accreditation for a one-year period to enable such high school to endeavor to increase its legal average daily attendance to fifty-five (55) students or more; the failure of such high school to increase its legal average daily attendance to at least fifty-five (55) students during such probationary period shall result in loss of its accreditation, and no high school shall be entitled to receive such probationary accreditation more often than once in five (5) years. Provided, a high school with not less than forty (40) average daily attendance and serving one hundred ten (110) square miles, or more, in its transportation area shall be allocated, for accrediting purposes only, one additional average daily attendance for each ten (10) square miles or major fraction thereof so served. Provided however, that a high school with not less than thirty-eight (38) average daily attendance and serving one hundred ten (110) square miles, or more, in its transportation area may apply for and receive probationary accreditation for a one-year period to enable such high school to endeavor to increase its average daily attendance, including the average daily attendance allocated for accrediting purposes as provided for herein, to at least fifty-five (55) students; the failure of such high school to increase its legal average daily attendance to at least fifty-five (55) students during such probationary period shall result in loss of its accreditation, and no high school shall be entitled to receive such probationary accreditation more often than once in five (5) years. Provided, further, that the maximum additional allowance for accrediting purposes shall in no case exceed fifteen (15) average daily attendance. Any school district which maintains an elementary school and faces the necessity of relocating its school facilities because of construction of a lake, either by state or federal authority, which will inundate the school facilities, shall be entitled to receive probationary accreditation from the State Board of Education for a period of two (2) years. . . ." (Emphasis added) Thus, the foregoing 1972 amendment entitled the following three categories of schools to receive probationary accreditation: 1. High schools with at least an average daily attendance of fifty three (53) students during the previous year; 2. High schools with at least an average daily attendance of thirty eight (38) students and which serve one hundred ten (110) square miles or more in their transportation areas; and 3. The elementary schools required to relocate their facilities because of the construction of a lake. The 1972 amendment entitled the schools in the first two categories to a one-year period of probationary accreditation in which to attain the required minimum ADA of fifty-five (55), subject to a limitation that no such school could receive probationary accreditation more often than once in five (5) years. Regarding the probationary accreditation for elementary schools in the third category, relocated because of the construction of a lake, the 1972 amendment entitled these schools to a two year period of probationary accreditation in which to attain the required minimum ADA. In 1973 the pertinent portion of Subsection 10 of Section 3-104 was again amended at Section 1, Chapter 17 O.S.L. 1973, to enlarge the first category of schools to include all high schools with less than a fifty-five (55) student ADA by deleting the qualifying reference "which had a legal average daily attendance of at least fifty-three (53) students the previous year." In 1974, the pertinent portion of Subsection 10 of Section 3-104 was amended at Section 1, Chapter 146 O.S.L. 1974, to increase the probationary accreditation period for the schools in the first category from one year to two years, and to increase the probationary accreditation period for schools in the third category from two years to five years, and to additionally provide as follows: ". . .And any school district, otherwise qualified, shall be entitled to receive probationary accreditation from the State Board of Education for a period of two (2) consecutive years to obtain the minimum average-daily attendance. . . ." In 1975 the pertinent portion of Subsection 10 of Section 3-104 was amended at Section 1, Chapter 344 O.S.L. 1975, to change the limitation on probationary accreditation for the first two categories of schools from "once in five (5) years" to not "more often than twice", and to add the phrase "after the effective date of this act" immediately following the granting of a five-year probationary accreditation period to schools in the third category. Your first question involves the first category of schools. Their entitlement to probationary accreditation would appear to arise after any school year in which a school of that category fell below the required minimum ADA of fifty-five (55). Thus, if the ADA during the 1974-75 school year was less than fifty-five (55), the school would commence its probationary accreditation beginning with the 1975-76 school year and such period would run for two years. The pertinent portion of Subsection 10 of Section 3-104 relating to schools in the first category goes on to provide that: "No high school shall be entitled to receive such probationary accreditation more often than twice." This provision immediately quoted above, when read with the statutory language which immediately precedes it, is subject to two interpretations. First is that the quoted language relates back to and amplifies the reference to the two-year probationary period which is before the semicolon and; therefore, a high school in the first category would be entitled to two, two-year probationary accreditation periods and no more. The second interpretation is that the language quoted above only relates back to and amplifies the language which immediately precedes it and which is after the semicolon and which has reference to the failure of a school to attain the minimum ADA during its two (2) year probationary accreditation period thereby resulting in loss of accreditation; and therefore, the quoted language only refers to each consecutive year of probationary accreditation during the two-year probationary accreditation period and does not limit the total number of "probationary accreditation periods" to which a school may be entitled. The fundamental rule of statutory construction is to ascertain and give effect to the intention of the Legislature, as expressed in the statute. Clinton v. Mullens, 110 P.2d 917 (Okl. 1941); Russett School District No. C-8 of Johnston County v. Askew, 141 P.2d 555 (Okl. 1943); Price v. Shell Oil Company, 185 P.2d 211 (Okl. 1947); Trask v. Johnson, 452 P.2d 575 (Okl. 1969); and Becknell v. State Industrial Court, 512 P.2d 1180 (Okl. 1973). As pointed out previously, the Legislature has declared in Section 1103 of the School Code that such Code is to be given a liberal construction to carry out its purpose. Further, where a statute is remedial in nature it should be liberally construed so as to afford all relief which the language of the act indicates the Legislature intended to grant. Russett School District No. C-8 of Johnston County v. Askew, supra. It has also been held that it is presumed that the Legislature intends to benefit and not to injure those interested in the subject of a statute. Williamson v. Longmire, 281 P.2d 949 (Okl. 1955). It would, therefore, follow that any ambiguity or doubt as to which interpretation stated above is applicable in this instance should be resolved in favor of the local schools falling within the category of schools benefitted by the act. Thus, under the facts set forth in your first question, the one-year period during which a high school has less than an ADA of fifty-five (55) would not be considered as one of the school's two, two-year probationary periods for the reason that such school is not limited to two, two-year probationary periods, and would prospectively be entitled to probationary accreditation for two consecutive years commencing the school year immediately following any school year during which its ADA fell below fifty-five (55), regardless of the number of times previously said school had been granted probationary accreditation.