Can the Eureka Springs School District donate a vacated school building to a community foundation, and have the rules changed since 2017?
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This page answers the general question as of 2021. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
The Eureka Springs School District was asked to donate vacated school property to the Eureka Springs Community Center Foundation. Senator Bob Ballinger asked the AG whether the framework laid out in earlier opinions (Op. 2017-105 and Op. 2015-105) was still controlling. Attorney General Leslie Rutledge answered yes: the law has not changed.
Two pillars govern any donation of school property in Arkansas:
- Statutory. Ark. Code Ann. § 6-21-108(b) restricts donations of "surplus" school real property to a limited list of recipients for limited purposes. The statute had not been amended since the 2015 and 2017 opinions issued.
- Constitutional. The Arkansas Supreme Court case law cited in Op. 2015-105 (n.4) requires that any donation of school property benefit the school district's students. That requirement comes out of Article 14's command that the State maintain a system of free public schools and the broader prohibition on diversion of school property for non-school purposes.
The opinion does not work through the Eureka Springs facts; it just confirms that nothing has changed and points back to the prior opinions for the analytical framework.
Currency note
This opinion was issued in 2021. The 2023 LEARNS Act and subsequent legislative sessions may have changed § 6-21-108 or related school-property statutes. Verify the current text of § 6-21-108 and review the AG's later opinions on school property donations before relying on this analysis.
What this means for you
If you are a school board considering donating vacated property
Based on this opinion (and the 2015-105 and 2017-105 opinions it incorporates by reference), you cannot donate just to anyone. Section 6-21-108(b) limits eligible recipients and purposes. The Arkansas Constitution adds an overlay: any donation must benefit the district's students. A community center used by the broader public can satisfy that test if the school district's students will be among the actual beneficiaries (for example, recreation access, scholarship programs, after-school use), but the record needs to show that benefit, not assume it.
If you are a community foundation seeking a school property donation
Be ready to articulate the student benefit. Vague community uplift is not enough. Concrete pledges, a memorandum of understanding, dedicated student access hours, or a reverter if the property stops serving students will all strengthen the case.
If you advise school districts
Pull up Ops. 2017-105 and 2015-105 (and any AG opinions issued after 2021 on § 6-21-108). Check whether § 6-21-108 has been amended since this opinion. Build the donation record around (1) statutory eligibility of the recipient and use, and (2) documented benefit to the district's students.
If you are a state legislator interested in expanding school-property options
Reform requires statute, not AG opinions. The framework is locked in until the General Assembly amends § 6-21-108 or the Arkansas Supreme Court revisits the constitutional benefit-to-students requirement.
Common questions
Q: What does § 6-21-108(b) actually allow?
A: Per AG Opinions 2017-105 and 2015-105 (which this opinion adopts by reference), § 6-21-108(b) lets a school district donate surplus real property to a limited pool of recipients (typically other government entities, certain non-profits) for purposes the statute spells out. The 2015 and 2017 opinions walk through the specifics; this 2021 opinion confirms that walk-through is still good law.
Q: Why is "benefit to students" a constitutional requirement?
A: Article 14 of the Arkansas Constitution requires the State to "maintain a general, suitable and efficient system of free public schools." Article 14, § 2, prohibits the diversion of school money or property to non-school purposes. The Arkansas Supreme Court has read those provisions together to require that any disposition of school property serve the district's students.
Q: Has anything changed since 2017?
A: As of this 2021 opinion, no. The relevant statute and case law had not been altered. After 2021, the 2023 LEARNS Act and other legislation may have changed surrounding rules; check current law.
Q: Can a school district sell, rather than donate, vacated property?
A: Sale is a separate path with its own rules. This opinion addressed donation specifically. Sales typically must be at adequate consideration and follow procedures in the Arkansas Code. The 2015 and 2017 opinions discuss the donation framework; sale procedures live elsewhere.
Background and statutory framework
When a school district consolidates, closes a building, or otherwise has property it no longer needs, the disposition is structured by statute and constitutional principle. Section 6-21-108(b) provides the statutory floor: it identifies who may receive a donation and for what purposes. Because the school district holds the property in trust for the public-education function, the constitutional principles in Article 14 add a separate test: the donation must serve the students, not just the broader community.
Op. 2015-105 introduced the benefit-to-students requirement (relying on Arkansas Supreme Court case law about diversion of school assets), and Op. 2017-105 reaffirmed it. This 2021 opinion is a check-in: still good, still controlling.
Citations and references
Statutes:
- Ark. Code Ann. § 6-21-108(b) (school district donation of surplus real property)
Prior AG opinions:
- Op. 2017-105 (school property donation framework)
- Op. 2015-105 (introduced benefit-to-students constitutional requirement)
Source
Original opinion text
Opinion No. 2021-051
December 20, 2021
The Honorable Bob Ballinger
State Senator
1047 CR 5099
Ozark, AR 72949
Dear Senator Ballinger:
This is in response to your request for an opinion concerning the Eureka Springs Public School District. You state that the District has been asked to donate vacated school property to the Eureka Springs Community Foundation, and you request the following:
Could your office please provide an update on the Attorney General's opinions released on this topic? They are Opinions No. 2017-105 and 2015-105. Those involved in this matter want to make sure our laws remain consistent with these opinions.
RESPONSE
As I understand your inquiry, you wish to know whether the relevant law has changed since the issuance of these opinions. According to my review, the state of the law at issue in these opinions has not changed. The legal principles discussed therein are still valid and controlling.
DISCUSSION
Attorney General Opinions 2017-105 and 2015-105 address the general framework under state law for evaluating a donation of school property. As explained in these opinions, the Arkansas Constitution and the Arkansas Code establish certain criteria for the donation of school property.
Arkansas Code Annotated § 6-21-108(b) (Repl. 2018) provides that a school district may donate its surplus real property to a limited pool of recipients for certain purposes. This statute has not been amended since the issuance of the above Attorney General opinions. Nor has my research yielded any other more recent, relevant statute. I will not restate the complete governing statutory framework, but instead refer you to Opinions 2017-105 and 2015-105 for a more detailed analysis.
The Arkansas Constitution adds the criterion that the donation must benefit the school district's students. This follows from the Arkansas Supreme Court case law cited in Opinion 2015-105. There appear to be no more recent Arkansas cases relevant to the analysis.
Sincerely,
LESLIE RUTLEDGE
Attorney General
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