The Attorney General concludes that a local public school corporation cannot bar a student's transfer based solely on their previous enrollment in a charter school, as this would violate the Indiana Constitution's requirement that the public school system be equally open to all, as well as numerous state statutes prohibiting discrimination against students transferring from charter schools. The opinion finds such an action by a school corporation to be both unconstitutional and illegal.

1. STAn: Of I IDLNA
OFFICE OF THE ATTORNEY GENERAL
I;-DIANA GoIRi'lME;';T CE:TER SOUl11, FIFTH FLOOR
GREG ZOEllER 502 W, WASHL'IGTON STREET · 1:,'UIA:APOLlS, 11 ,.620 f-2770 TELEPHO:E: 317,2.)2.6201
INDI.A KITOHEY GENERAL ww.AttomeyGeneral.JN.gov FA.X: 37 ,232.7979
August 10, 2011
Privileged and Confidential
Attorney-Client Communication
Advisory Letter #11-12
Matthew V oors, General Counsel
Office of Legal Affairs
Indiana Department of Education
151 W. Ohio Street
Indianapolis, IN 46204
RE: Right to Transfer into Local Public School After Attendance at Charter School
Dear Mr. Voors:
In your letter of June 2, 2011, you advised that a superintendent of a local public school
corporation has indicated that he will bar students attempting to transfer into the local public
school corporation from charter schools after the annual count date for Average Daily
Membership (ADM). According to your letter and the published accounts attached thereto, the
superintendent of the local public school corporation intends to bar such students solely upon
their having been enrolled in a charter school on the ADM count date, even though the students
have legal settlement in the public school corporation.
According to your letter, the Indiana Department of Education (DOE) questions whether such an
action by a superintendent of a public school corporation is contrary to Indiana law. Children of
school age are required to attend school under the Compulsory School Attendance Act, Ind.
Code § 20-33-2 et seq" and have the right to attend school in the school corporation where they
have legal settlement, pursuant to Ind. Code § 20-26-11 et seq. In addition, the DOE asserts that
school officials, including local superintendents, are required to enforce Indiana's compulsory
school attendance laws. See Ind. Code § 20-33-2-26, Ind. Code § 20-33-2-29. DOE's questions
whether the local superintendent's intention to bar such students from enrolling is contrary to
Indiana law in that it infringes upon a student's right to an education as guaranteed by the
Indiana Constitution and as provided for in statute. You asked our office to analyze these issues
and offer a legal opinion regarding the school corporation's proposed actions and questions
raised by DOE with respect to those actions.

2. Mr. Matthew Voors
10, 2011
20f5
BRIEF
A local public school corporation cannot bar a student transferring to school
based solely the previous enrollment in a charter schooL Such an action is
contrary to the Indiana Constitution, Art. 8, § 1, and numerous statutory provisions.
Indiana Constitution provides at Art. 8, § 1 as follows:
Knowledge and learning, generally throughout a community, being
essential to a free government; it be the duty of the
General by all suitable means, intellectual
and agricultural improvement; and by law, a general
uniform system Common Schools, wherein tuition shall without
equally open to all.
referred to as "Education Clause," it expresses two duties of the General Assembly.
One duty is aspirational nature (to moral, intellectual, and
improvement). "The is the duty to provide a general
common that tuition." Bonner v. Daniels, 907 N.E.2d 516, 520 (Ind.
2009) (emphasis duty is "more in that performance
must established by the legislature, to wit: establishment of system of Common
Schools l that are "general and uniform," "tuition [be] without charge," and "equally
open to all." A "common school" is one that is to the children all the inhabitants of
a town or " Embry v. o 'Bannon, 798 N.E.2d 1 162 n. 4 (Ind. 2003).
Vanderburgh School 481, 1 (Ind. 2006) duty rests
legislature to adopt the can framed[.]"); Robinson v. Schenck,
698, 705 (Ind. 1885) "imperatively enjoins general upon
legislature" to establish a system of Schools).
Pursuant to its constitutional responsibility, the
statutes to establish a system of
2
public schools: school corporation and
State tuition support a corporation and a school is significant
part by ADM pupil count. to Ind. § 20-43-4-2, a school corporation's4 ADM
is number of pupils "on a to be fixed annually" by the Indiana
I The phrase "common sehools" is synonymous with "public schools." See Slate v. 0 'Dell, 118 N.E. 530 (Ind.
1918).
2 See Ind. Code § 20-18-2-16.
3 See Ind. Code § 20-24-1-4.
4 "School corporation" for ADM purposes includes a charter school. See Ind. Code § 20-43-1-23.

3. Mr. Matthew Voors
August 10, 20 II
30f5
Board of "and as subsequently adjusted not than January 30 the rules
adopted by the state board." The annual date "must within first thirty (30) days of
school " Ind. § . The State of has the ADM
count as the Friday following Labor See5llInd.Admin. 1-3-l(h).5
From the published accounts, the local superintendent intends to enrollment to students
from charter schools who attempt to enroll in the corporation the count
even the have legal settlement in school corporation.
settlement" of a determines "responsibility" of a school corporation allow
student to attend its public schools without the payment of tuition[.]" Ind. § 20­
18-2-1l. Typically, settlement" is where the student " See Ind. § 20-26­
I 1- L are a of expand the of
and , Ind. Code § 20-26-11 Code § ","v-... v­
and Ind. § 20-26-11-30. 6 settlement" is important to a school corporation
because a school corporation has attendance areas. Charter schools do not have attendance areas.
e.g., Ind. Code § 1 ("A school.. .must be open to student who resides in
Indiana. ")
"A all who reside
school corporation in grades 1 through 12[.]" Code § 20-26-5­
1(a)(1) (emphasis added). school corporation have the authority, specific
circumstances, to suspend, expel or a from its This include
suspension and expulsion as disciplinary sanctions Ind. § 20-33-8-14 and Ind.
§ 15; legal under Ind. Code § 17;7 prohibiting
enrollment the period expUlsion or separation by a previous
permitted by Code § 20-33-8-30; for failure to present immunization
Ind. § 20-34-4-5, or exclusion illness, infestation parasites, or
communicable disease, as pennitted by Ind. Code § 20-34-3-9.
noted supra, Education Clause requires General of
Common Schools is "equally open to all." this end, legislature Indiana
public open to all children until the children complete course of subject
to the authority vested in school by law." Ind. Code § legislature
5 The local expressed an opinion that the charter schools were "enticing" students within his school
to enroll in the charter schools and then the students to re-enroll in the school corporation
after the ADM count date. If the local superintendent believes that there is an "ex.treme pattern"
or "other unusual conditions" that have caused the schoo I corporation's enro Ilment "to be unrepresentative of the
school corporation's enrollment throughout a school year," the school corporation can petition the State Board of
Education to "designate another day for the school corporation's enrollment." See Ind. Code § 20-43­
4-3.
The State Board of Education does have the authority to determine administratively the settlement" of a
as well as a student's to attend school in any school " See Ind. Code § 20-26-11
15(a)(3)(A),
7 An for lack of settlement is not a disciplinary sanction. Such an expUlsion can be appealed to the
Indiana State Board of Education under Ind. Code § 20-26-11 15(a)(I).

4. Mr. Matthew Voors
August 10, 20 II
40f5
not authorized schooII"AY'nAr<l to enrollment of students who
previously ttell0E:O a
The that a "student is entitled to be
public school the school corporation in which the student resides without to race,
color, socioeconomic or national origin," Ind. Code § 20-3 1-4(a), nor may """'''.Uh,Q
a public school based upon race, creed, or color. Ind.
5(b). The prohibited discrimination against students
public charter
IC § of students from charter to noncharter school;
discrimination
1. (a) A school that receives a transfer student from a
school may not the student in any way, including
student:
(1) in an
(2)
(3) mastered the subject matter.
(b) If a was enrolled in a charter school enrolls in
public school shall accept all credits by the
at charter school in a uniform and
that are used to accept academic
A "[d]iscriminatory a decisionmaker singled out a particular group for
disparate treatment his course of action at least in part for the purpose of
adverse on group." Nabozny v. Podlesny, 92 F.3d 446, (i h
1996). Based upon accounts, the local superintendent intends to single our an
identifiable group (former charter school students who have legal settlement in
corporation) treatment. school corporation would be a "public
school." The school is strictly prohibited from discriminating
school student legislature did not confine or
admonition.
CONCLUSION
establishment of system of Common
inter alia, "equally this end, the legislature has established two
schools, the school. A has the to
public school student resides or
to to suspend, or
The a school corporation to refuse enrollment to a
who in the school corporation based solely upon
school. The legislature has definitively prohibited a

5. Mr. Matthew Voors
August 10, 201 I
Page 5 of5
corporation from discriminating against such a student "in any way," including singling out such
a student for disparate treatment based upon previous enrollment in a charter school.
A school corporation that refused enrollment to such a student would have engaged in activity
that is both unconstitutional and illegal.
Thank you for your inquiry. Please let me know if you need anything further in this regard.
Sincerely, ~
71!Ifif ;t;4
Matthew]. Light
Chief Counsel, Advisory &
ADR Services Division