Request By:
O. Leonard Press
Executive Director
Kentucky Educational Television
600 Cooper Drive
Lexington, Ky.
40502-2296
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your letter dated April 18, 1990, you requested an opinion from this office on whether KET is required to charge non-state schools for service that is delivered to public schools in Kentucky. Effective July 1, 1990, KET was granted an appropriation from the state legislature to produce and distribute to schools in the Commonwealth courses of instruction by television. You explained that all of the costs, except for one, are front-end costs that are incurred in preparation and transmission of telecourses. The one incremental cost, related to the number of students and schools participating in the program, results from use of telephone lines to return student responses from participating schools to the KET master computer. For every school participating in the telephone system, there is a cost to the state of approximately $ 1,000 per course. The state has appropriated the funds to cover this cost, and has indicated that additional funding may be found if the demand exceeds the current appropriation. Your question, in particular, is whether KET could cover the cost of telephone response from private and parochial schools, assuming that the appropriation would not be exceeded by the demand from public and private schools. You also ask whether the answer would be different for private nonsectarian schools than for parochial schools.
It is the opinion of this office that constitutional and statutory authority prohibit KET from covering the cost of telephone response for private and parochial schools with public appropriations. Section 171 of the Constitution of Kentucky states, in pertinent part:
Taxes shall be levied and collected for public purposes only . . . .
[Emphasis added.]
Section 184 of the Kentucky Constitution states, in pertinent part:
No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation . . . .
[Emphasis added.]
Section 186 of the Kentucky Constitution states, in pertinent part:
All funds accruing to the school fund shall be used for the maintenance of the public schools of the Commonwealth and for no other purpose . . . .
[Emphasis added.]
Finally, Section 189 of the Kentucky Constitution states:
No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school .
[Emphasis added.]
KRS 168.010 states in pertinent part:
It is declared to be the legislative purpose of KRS 168.010 to 168.100 . . . that there be established, developed, and utilized in the public interest a network of educational television production . . . such as will ultimately make available to students in public schools and state-supported institutions of higher education in the Commonwealth, and to any others who may choose to utilize the same, television programs and related services in aid of education . . . .
KRS 168.020(11) defines "related functions" or "related services" to mean and include
the use of facilities operated or leased by the authority, or which may be added or connected to such facilities as permitted by applicable statutes, and to prepare, transmit, or enable the exchange of nontelevision programs, services, or functions for and among the public schools, state-supported institutions of higher education, and other state agencies: (a) In aid of education; and (b) For use in other proper public functions . . . [such as] computer-assisted instruction . . . .
[Bracketed language added.]
Finally, KRS 168.100(1) gives KET the authority:
To recieve and use in the furtherance of its lawful objectives state funds as may be appropriated . . . , any funds received for services rendered under contract or from the sale of property . . . and contributions, matching funds, gifts, bequests, and devises from any source, whether state or federal, and whether public or private; unless the same be tendered subject to one (1) or more conditions which are inconsistent with KRS 168.010 to 168.100, or otherwise unlawful.
Subsection (2) authorizes KET
[t]o make contracts and agreements . . . to provide educational television facilities and related functions and facilities to or for any public body of the state or federal government in furtherance of educational television or in aid of any other public function. However, it shall be an express provision of every such contract that the authority will not . . . be used by, or in aid of, any church, sectarian or denominational school; but this proviso is not intended and shall not be construed to be a limitation upon dissemination by the authority of legitimate objective instructional material which is properly related to the study of history or of current events, or which is no more than factually informative, of current issues of government, or of various political ideologies.
This office has previously issued three opinions on expenditures by KET. The first question concerned whether Pikeville College might mount an FM antenna on the KET TV tower that served the Pikeville area. This office opined that KRS 168.100(2) and KRS 156.070 restricted the furnishing of educational television facilities and related functions and facilities to and for public bodies of state and federal government. In addition, KRS 168.100(2) expressly prohibited such facilities from being used in any way by or in aid of any church, sectarian or denominational school. Pikeville College, which was a private school, was found to be legally prohibited from using the TV tower in question for an FM antenna. OAG 71-354. This conclusion regarding the restriction of furnishing educational television facilities and related functions to and for public bodies of the state and federal government was reiterated in OAG 76-394.
More recently this office advised that the purchase of satellite receiving equipment for nonpublic schools through an appropriation by the General Assembly would appear to be educational purpose, which might raise the same constitutional questions under the Kentucky Constitution as have been presented in Sherrard v. Jefferson County Board of Education, 171 S.W.2d 963 (Ky. 1942) and Fannin v. Williams, 655 S.W.2d 480 (Ky. 1983). Fannin, supra, dealt with an issue similar to the question presented in your letter. There, the General Assembly had actually funded and authorized the Department of Libraries to purchase and distribute books for grades 1-12, upon requisition from nonpublic schools. When the Act was challenged, the Court concluded, based on Sections 171, 183 - 189, that the statute was unconstitutional. OAG 89-41.
Based on sections 171, 184, 186, and 189 of the Kentucky Constitution, it is the opinion of this office that the funds provided by the General Assembly to KET for development of educational programs must be expended for educational purposes for the benefit of public or common schools. See page 157 of 1990 General Assembly statutory Final Enacted Budget Memorandum FB 1990-92 Commonwealth Budget, Vol. I, Legislative Research Commission, April 13, 1990, and page ED&H-71, 1990-1992 Budget of the Commonwealth, Vol. I, attached. Taxes must be levied for public purposes only. Section 171 of the Kentucky Constitution. Funds accruing to the school fund may be used for public schools only. Section 186 of the Kentucky Constitution. No funds or taxes for educational purposes may be appropriated or used for church, sectarian, or denominational schools. Section 189 of the Kentucky Constitution. Nor may any sum be raised for education other than in common schools until the question of taxation is presented to the voters. Section 184 of the Kentucky Constitution.
Therefore, under KRS 168.100, the use of state funds appropriated for educational purpose may be applied by KET only for the benefit of public or common schools in order to avoid violation of sections 171, 184, 186, and 189 of the Kentucky Constitution. Accordingly, KET is required to charge nonstate schools, whether private and nonsectarian or parochial; for services delivered in the process of returning student responses to the KET master computer.