Attorney General Opinion No. 73-129The Oklahoma Compulsory Attendance Statute does not require that a private school be accredited by the State Department of Education or that a private tutor hold an Oklahoma teaching certificate so long as the private instruction is supplied in good faith and is equivalent in fact to that afforded by the State. While a board of education has discretion to classify students as it deems appropriate and to require examinations relative thereto [for readmission to the public schools - ed.], credit for private instruction may not be denied solely because the private instructor did not hold an Oklahoma teaching certificate. A board of education is not required to furnish textbooks or other materials to a child residing in the district not attending a district-operated school.
OKLAHOMA COMPULSORY ATTENDANCE STATUTE -- PRIVATE SCHOOLS
The Oklahoma Compulsory Attendance Statute does not require that a private school be accredited by the State Department of Education or that a private tutor hold an Oklahoma teaching certificate so long as the private instruction is supplied in good faith and is equivalent in fact to that afforded by the State. While a board of education has discretion to classify students as it deems appropriate and require examinations relative thereto, credit for private instruction may not be denied solely because the private instructor did not hold an Oklahoma teaching certificate. A board of education is not required to furnish textbooks or other materials to a child residing in the district not attending a district-operated school.
The Attorney General has considered your opinion request wherein you ask the following questions:
"1. If a child's parents choose to have the child attend a school other than an accredited public school, must the school which the parent chooses be one that is accredited by the Oklahoma State Department of Education?
"2. If a child's parents choose to have the child not attend any school, but to have the child tutored by a parent or other person, must the parent or other person doing the tutoring be the holder of a teacher certificate issued by the Oklahoma State Department of Education?
"3. Is the board of education of a school district required to grant credits for instruction which may be applied toward credits for graduation to any child who is not regularly enrolled in the public schools of the district if,
A. tutoring is by a person holding a valid Oklahoma teaching certificate, or if
B. tutoring is by a person who does not hold a valid Oklahoma teaching certificate?
"4. Is the board of education of a school district required to furnish state or school district-purchased textbooks, other books, supplies, materials and/or equipment, to a child who is a resident of the district, but is not enrolled in or attending a district-operated school?
Article XIII , Section 4 of the Oklahoma Constitution provides as follows:
"The Legislature shall provide for the compulsory attendance at some public or other school, unless other means of education are provided, of all children in the state who are sound in mind and body, between the ages of eight and sixteen years, for at least three months in each year."
The Oklahoma Legislature has vitalized the above-quoted constitutional provision. The present statute, 70 O.S. 10-105 (1971), provides in pertinent part:
"It shall be unlawful for a parent, guardian, custodian or other person having control of a child who is over the age of seven (7) years and under the age of eighteen (18) years, and who has not finished four (4) years of high school work, to neglect or refuse to cause or compel such child to attend and comply with the rules of some public, private or other school, unless other means of education are provided for the full term the schools of the district are in session."
The Compulsory School Attendance Statute was construed in Wright v. State, Okl., 209 P. 179 (1922):
"The statute makes no provisions fixing the qualifications of private teachers, or teachers in private schools or academies, or to prescribe definite courses of study in such cases. Of course, if such schools or instruction were manifestly inadequate or such instruction was furnished for the sole purpose of evading the proper education of a child, the statute could then be properly invoked. Whether such independent facilities for education, outside of the public schools, are supplied in good faith and whether they are equivalent to those afforded by the state, is a question of fact for the jury, and not a question of law for the court."
In Pierce v. Society of Sisters of Holy Names of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1924), the United States Supreme Court held that a state may not limit compulsory school attendance to public schools only:
"The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standarize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high density to recognize and prepare him for additional obligations."
The Pierce case recognized, however, "the power of the state reasonably to regulate all schools, to inspect, supervise, and examine them, their teachers and pupils."
The statutory provision directing the State Board of Education to make rules and regulations for accrediting schools is limited to "public" schools. Provision is ma
