Can a Bentonville School District donate nine acres of land for affordable teacher housing and a community center, and what triggers a charter school's right of first refusal?
Apply this to your situation
This page answers the general question as of 2024. Ask about yours and see what current Arkansas law means for your facts, with citations you can check.
Plain-English summary
Senator Joshua Bryant asked seven follow-up questions about a proposed Bentonville School District donation of nine acres for affordable housing and a community center. The Attorney General had previously said the proposal would likely survive constitutional and statutory scrutiny. In this opinion, he explains the limits of that conclusion: he accepted the facts in the request and did not decide whether the land was actually unneeded or whether the completed project would benefit students.
Under A.C.A. § 6-21-108, a district may address a need by donating property if that particular property is not itself required to meet the need. The school board decides whether the property is required for present or future district needs. A challenge to that decision would have to allege abuse of discretion, arbitrary or capricious action, or action contrary to law; the AG does not decide whether anyone has a cause of action here.
The statute specifies no percentage of educational use and no period for which donated property must provide a beneficial educational service. It requires the donation itself to serve such a service for district citizens, while the Arkansas Constitution requires a benefit to district students. The AG says the statute allows donation without reservations or restrictions, except that the donating district retains a right of first refusal if the donee decides to sell or dispose of the property. The opinion does not decide whether a proposed deed restriction is valid or whether that statutory right can be waived.
On charter-school access, the undeveloped land adjacent to a high school probably is not an "academic facility" under A.C.A. § 6-21-816(b)(1), although classification of a specific tract is factual. A different provision covers unused or underutilized public school facilities. Three of its four criteria appear met on the facts given; the Arkansas Department of Education's Division of Public School Academic Facilities and Transportation must decide whether nonuse threatens the property's integrity or purpose as a public education facility. The AG understood that the Division had not identified this land as an unused or underutilized facility.
What this means for you
School board members
When considering a donation under § 6-21-108, determine whether the particular property is required for present or future district needs and whether the proposed donation serves the statutory educational service and constitutional student benefit. The AG took the earlier request's description of the land as true; that was not a finding about the tract. The opinion gives no numerical minimum for educational use or set duration for the service.
Charter schools
The right of first refusal in § 6-21-816(b)(1) turns on whether the property is an academic facility. The AG says the described undeveloped tract probably is not one, but cannot decide that fact for a specific parcel. For the separate unused-or-underutilized provision, footnote 15 says a charter school that suspects a facility qualifies may notify the Division, which makes and publishes the designation.
Donees and their counsel
The opinion says the statute permits a donation without reservations or restrictions and preserves a district right of first refusal if the donee decides to sell or otherwise dispose of the property. It does not evaluate proposed deed conditions, a waiver of the right, or what happens if educational use later changes without a transfer.
Common questions
Did the AG decide that the nine acres were not needed by Bentonville School District? No. He accepted the prior request's factual statement that the district had no specific use for the property in its ten-year facilities plan. The school board makes the actual determination under the statute.
Must a fixed share of the donated land serve an educational purpose? The opinion identifies no acreage or percentage threshold. The donation itself must serve a beneficial educational service for district citizens and benefit district students under the Constitution. Whether a particular proposal does so is factual.
Must educational use continue forever?
The statute sets no duration. The AG says it allows an unrestricted donation, subject to the district's right of first refusal if the donee decides to sell or dispose of the property. He does not decide the validity of any proposed restriction.
Does adjacency to a high school make vacant land an academic facility? Probably not on the facts presented. The AG says "related areas" does not mean the entire campus, but cannot definitively classify a particular piece of property without factual findings.
Who decides whether the land is unused or underutilized for the separate charter provision? The Division of Public School Academic Facilities and Transportation determines whether nonuse threatens its integrity or purpose as a public education facility. The opinion says the other three criteria appeared met on the information supplied.
Background and statutory framework
A.C.A. § 6-21-108(b)(1) addresses donation of real property not required for present or future district needs and requires a beneficial educational service. Subsection (b)(2) permits donation "without any reservations or restrictions to the real property"; subsection (d)(1) preserves the district's right of first refusal on a later sale or other disposition. The opinion does not turn that permission into a ban on restrictions.
A.C.A. § 6-21-816(b)(1) concerns a charter school's right of first refusal when a district sells, leases, or transfers an academic facility. A.C.A. § 6-21-803(1)(A) ties that category to a building or space, with related areas, where students receive instruction integral to an adequate education. A.C.A. § 6-21-803(17) separately defines an unused or underutilized public school facility; the Division resolves the factual criterion the AG could not decide here.
Citations
- A.C.A. § 6-21-108(b)(1)
- A.C.A. § 6-21-108(b)(2)
- A.C.A. § 6-21-108(d)(1)
- A.C.A. § 6-21-803(1)(A)
- A.C.A. § 6-21-803(17)
- A.C.A. § 6-21-816(b)(1)
- Ark. Att’y Gen. Op. 2023-065
Source
Original opinion text
TIM GRIFFIN
ATTORNEY GENERAL
Opinion No. 2023-106
April 29, 2024
The Honorable Joshua Bryant
State Senator
Post Office Box 718
Rogers, Arkansas 72757
Dear Senator Bryant:
I am writing in response to your request for a follow-up opinion relating to Attorney General Opinion 2023-065. In that opinion, I was asked whether the Bentonville School District could lawfully donate real property to a not-for-profit corporation for the development of affordable housing—some of which would be designated for school employees—and a community center that would provide classes to the school district’s students and citizens. I opined that the described proposal would likely survive constitutional and statutory scrutiny. You have asked the following follow-up questions, which I have paraphrased below:
1. I would like to know how you determined that the nine-acre tract of land is not
required “for the future or present needs of the school district” when the express
reason for donating the land is because the school district needs affordable housing
to staff its schools. If the school district needs the housing and the only means of
obtaining the housing is with the land, doesn’t that then mean that the land is
required for the future or present needs of the school district?
Brief answer: I did not “determine” that the land is not required for the present or
future needs of the school district because, as explained in Opinion
No. 2023-065, I am not a factfinder when issuing opinions. Rather,
I accepted as true the facts presented in the opinion request. Those
facts indicate that the property is not required for the school district’s
present or future needs. Finally, to the extent the question suggests
that any donation of real property that meets a school district’s
“needs” makes the property itself “required” to meet that need, I
believe this is an improper construction of the A.C.A. § 6-21-108.
2. If the Bentonville School District’s Board of Directors determines that the land is
not required for the school district’s present or future need and, in turn, donates the
323 CENTER STREET, SU ITE 200
LITTLE ROCK, ARKANSAS 72201
The Honorable Joshua Bryant
State Senator
Opinion No. 2023-106
Page 2
land for the purpose of serving an express need of the school district, would that
conduct be subject to legal challenge?
Brief answer: I cannot offer legal advice on whether you or any other interested
party may have a cause of action against the Bentonville School
District’s Board of Directors. I can state the relevant legal standard:
any party challenging the board’s decision would need to show that
the board abused its discretion or acted arbitrarily, capriciously, or
otherwise contrary to law.
3. Given that the stated objectives of the development clearly involve both educational
and non-educational goals, how much educational benefit must be derived from the
land before the donation is deemed to satisfy the statutory requirement. If the land
is predominantly developed for non-educational reasons, may the land still be
donated? For example, if no more than two acres will be dedicated to teacher
housing and student learning, may the district still donate the other seven acres
despite their lack of educational ties?
Brief answer: The statute authorizing school district to donate real property does
not specify “how much educational benefit must be derived from the
land.” It only requires that the donation itself “serve a beneficial
educational service for the citizens of the school district,” while the
Arkansas Constitution requires that the donation benefit the
district’s students.
4. Generally speaking, how long must property donated under A.C.A. § 6-21-108
serve an educational benefit? More specifically, must the land serve a “beneficial
educational service for the citizens of the [Bentonville School District]” in
perpetuity?
a. If yes, what happens to the land and the validity of the donation if the land
ceases to serve a beneficial educational service?
b. If no, how long must the land serve a beneficial educational service before
it may be converted entirely to a different use?
Brief answer: The statute does not set a period of time for which the donated
property must serve a “beneficial educational service,” but it allows
the property to be donated without any restrictions, except the
donating school district retains a right of first refusal to reacquire
donated real property if the donee decides to sell or otherwise
dispose of the real property.
5. A.C.A. § 6-21-816(b)(1) states, “If a school district decides to sell, lease, or
otherwise transfer ownership of an academic facility, an open enrollment public
charter school located within the school district’s boundaries shall have a right of
first refusal to purchase or lease the facility for fair market value.” An “academic
The Honorable Joshua Bryant
State Senator
Opinion No. 2023-106
Page 3
facility” is defined as a “building or space, including related areas such as the
physical plant and grounds, where public school students receive instruction….”
A.C.A. § 6-21-803(1)(A). Is the land, which is “adjacent to the high school,”
sufficiently part of the school’s grounds such that it constitutes space where
students receive instruction?
a. If no, how much curtilage is included in the definition of an “academic
facility”?
b. If yes, can the Bentonville School District otherwise transfer the land—by
way of a donation—without first offering open-enrollment charter schools
within its district a right of first refusal lasting at least two (2) years after
the date that the “real property was last used as an academic facility?”
A.C.A. § 6-21-816(b)(1)(B).
Brief answer: Although the relevant law does not define the phrase “related areas
such as physical plant and grounds,” I do not believe, for reasons
explained below, that these “related areas” are meant to encompass
a large area around the building or space at issue. And they are
certainly not meant to encompass an entire school campus.
Therefore, the answer to your question is likely “no.” While I cannot
definitively opine on whether any specific piece of property
qualifies as an “academic facility” because that is a question of fact,
the facts presented suggest that the undeveloped land is probably not
an “academic facility” under A.C.A. § 6-21-816(b)(1).
6. Similarly, A.C.A. § 6-21-815(c)(1) states that a “school district shall make unused
or underutilized public school facilities available for lease or purchase for no more
than the fair market value to any public charter school located within the geographic
boundaries of the school district.” The code defines an “unused or underutilized
public school facility” as inclusive of “real property that, [a]s a whole or in
significant portion, is not being used for public educational, academic,
extracurricular, or administrative purpose and the nonuse or underutilization
threatens the integrity or purpose of the public school facility or other real property
as a public education facility….” A.C.A. § 6-21-803(17). Is the land unused or
underutilized “real property” such that the Bentonville School District must identify
it as an “unused or underutilized public school facility”?
a. If yes, must the Bentonville School District provide charter schools in the
area an opportunity to lease or purchase the real property before otherwise
transferring the land to a third party? See A.C.A. § 6-21-815(c)(2).
b. If no, when and how does the nonuse of real property become threatening
to the integrity or purpose of a public school facility or public education
facility?
The Honorable Joshua Bryant
State Senator
Opinion No. 2023-106
Page 4
Brief answer: While the land at issue meets three of the four criteria necessary to
be an “unused or underutilized public school facility,” I cannot
determine whether the fourth criterion has been met. This is a
question of fact that must be determined by the Arkansas
Department of Education’s Division of Public School Academic
Facilities and Transportation. It is my understanding, however, that
the Division has not identified the land as an “unused or
underutilized public school facility.”
7. The opinion reasons that the proposed use for the land would not violate the
constitutional prohibition against using “money or property belonging to the public
school fund, or to this State,” for a purpose other than benefiting public schools.
Ark. Const. Art. 14 § 2. I would like to know how much public-school benefit is
enough to survive constitutional scrutiny. The opinion appears to conclude that
school money or property may be repurposed for predominantly non-educational
uses as long as there remains a perfunctory educational nexus.
Brief answer: Whether any particular donation will or will not benefit a school
district’s students is a question of fact to be determined on a case-
by-case basis.
DISCUSSION
Question 1: I would like to know how you determined that the nine-acre tract of land is not required “for the future or present needs of the school district” when the express reason for donating the land is because the school district needs affordable housing to staff its schools. If the school district needs the housing and the only means of obtaining the housing is with the land, doesn’t that then mean that the land is required for the future or present needs of the school district?
I did not “determine” that the land is not required for the present or future needs of the school district because, as explained in Opinion No. 2023-065, I am not a factfinder when issuing opinions. Consequently, the opinions I issue are based on the facts as they are presented to me. The request I received for Opinion No. 2023-065 stated, “At this time, the district does not have any specific usage for this property as identified on its ten-year facilities plan.” For purposes of the opinion, I assumed this statement to be true. And, if true, the school district board of directors, which is the entity tasked with determining whether the property is “required for the present or future needs of the school district,” could find that the first condition required by A.C.A. § 6-21-108 had been met.
Moreover, your question is premised on an unlikely interpretation of A.C.A. § 6-21-108. The question indicates that because donating the land to develop affordable housing would benefit the school district, the land would be fulfilling a school district “need,” consequently making the land ineligible for donation. This interpretation is incorrect for two reasons. The Honorable Joshua Bryant State Senator Opinion No. 2023-106 Page 5
First, § 6-21-108(b)(1) prohibits donations of real property if that property is “required” to meet the school district’s “need.” Although adequate staffing is a “need,” there is nothing in either opinion request that indicates that the relevant property is “required” to maintain adequate staffing, which might be addressable by other means. The question thus appears to conflate a school district’s “needs” with the real property being “required” to meet those needs.
Second, the question presupposes a statutory interpretation that renders the statute totally ineffective, which is contrary to the rules of statutory interpretation. Specifically, the question assumes that any donation of real property that meets a school district’s “need” makes the property itself “required” to meet that need. If that were the proper reading of the statute, then no school district would ever be able to donate any property. But the statute is clearly designed to allow donations under certain circumstances. Therefore, such an interpretation would leave the statute without any effect, which is contrary to the rules that govern statutory interpretation.1 Thus, I opine that a school district can address its “needs” by donating property, so long as the property is not “required” to meet those needs. But, as explained above, the school district board of directors is responsible for determining whether all the statutory conditions have been met.
Question 2: If the Bentonville School District’s Board of Directors determines that the land is not required for the school district’s present or future need and, in turn, donates the land for the purpose of serving an express need of the school district, would that conduct be subject to legal challenge?
I cannot offer legal advice on whether one might have a cause of action against the Bentonville School District’s Board of Directors. But I note two things.
First, as explained above, the question’s interpretation of § 6-21-108 is likely incorrect. Second, I can set forth the legal standard that a court would use in reviewing a school board’s decision. The Arkansas Supreme Court has long held that school boards have wide latitude in governing their districts, stating that “[c]ourts will not interfere in matters of detail and government of schools, unless the officers refuse to perform a clear, plain duty, or unless they unreasonably and arbitrarily exercise the discretionary authority conferred upon them.”2 Thus, any party bringing an action to challenge to the school board’s decision would need to allege that the board abused its discretion or acted arbitrarily, capriciously, or otherwise contrary to law.3
1
See generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 63–65 (2012) (“A textually permissible interpretation [of a statute] that furthers rather than obstructs the document’s purpose should be favored.”); see also Weiss v. Cent. Flying Serv., Inc., 326 Ark. 685, 690, 934 S.W.2d 211, 214 (1996) (“[T]his court is duty bound to reject any interpretation of a statute that results in absurdity or injustice….”); see also Reading Law 234–39 (2012) (explaining the limited scope of the absurdity doctrine). 2 Safferstone v. Tucker, 235 Ark. 70, 73, 357 S.W.2d 3, 4 (1962) (quoting Pugsley v. Sellmeyer, 158 Ark. 247, 251–52, 250 S.W. 538, 539 (1923)). 3 See Springdale Bd. of Educ. v. Bowman ex rel. Luker, 294 Ark. 66, 72, 740 S.W.2d 909, 912 (1987).
The Honorable Joshua Bryant
State Senator
Opinion No. 2023-106
Page 6
Question 3: Given that the stated objectives of the development clearly involve both educational and non-educational goals, how much educational benefit must be derived from the land before the donation is deemed to satisfy the statutory requirement? If the land is predominantly developed for non-educational reasons, may the land still be donated? For example, if no more than two acres will be dedicated to teacher housing and student learning, may the district still donate the other seven acres despite their lack of educational ties? The statute authorizing school districts to donate real property that is not required for their present or future needs to certain limited entities for certain limited purposes does not specify “how much educational benefit must be derived from the land.” Instead, it only requires that the donation itself “serve a beneficial educational service for the citizens of the school district,”4 while the Arkansas Constitution requires that the donation benefit the district’s students.5 This makes sense, in my opinion, given the difficulty that would attend quantifying educational benefits.
Question 4: Generally speaking, how long must property donated under A.C.A.
§ 6-21-108 serve an educational benefit? More specifically, must the land serve a “beneficial educational service for the citizens of the [Bentonville School District]” in perpetuity?
a. If yes, what happens to the land and the validity of the donation if the land ceases to serve a beneficial educational service?
b. If no, how long must the land serve a beneficial educational service before it may be converted entirely to a different use?
The statute does not set a period of time for which the donated property must serve a “beneficial educational service.” Instead, it allows the donation to be made “without any reservations or restrictions to the real property,”6 except the donating school district has a right of first refusal to reacquire donated real property if the donee decides to sell or otherwise dispose of it.7
Question 5: A.C.A. § 6-21-816(b)(1) states, “If a school district decides to sell, lease, or otherwise transfer ownership of an academic facility, an open enrollment public charter school located within the school district’s boundaries shall have a right of first refusal to purchase or lease the facility for fair market value.” An “academic facility” is defined
4
A.C.A. § 6-21-108(b)(1) (emphasis added).
5
See Ark. Const. art. 2, §§ 8, 21; Ark. Const. art. 14, §§ 1, 2; see also Ark. Att’y Gen. Ops. 2023-065, 2017- 105, 2015-105, 2013-116, 2012-060. 6 A.C.A. § 6-21-108(b)(2).
7
A.C.A. § 6-21-108(d)(1).
The Honorable Joshua Bryant
State Senator
Opinion No. 2023-106
Page 7
as a “building or space, including related areas such as the physical plant and grounds, where public school students receive instruction….” A.C.A. § 6-21-803(1)(A). Is the land, which is “adjacent to the high school,” sufficiently part of the school’s grounds such that it constitutes space where students receive instruction?
a. If no, how much curtilage is included in the definition of an “academic facility”?
b. If yes, can the Bentonville School District otherwise transfer the land—by way of a donation—without first offering open-enrollment charter schools within its district a right of first refusal lasting at least two (2) years after the date that the “real property was last used as an academic facility?” A.C.A.
§ 6-21-816(b)(1)(B).
The relevant land adjacent to the high school is likely not considered an “academic facility.” The relevant law distinguishes between an “academic facility” and a “public school facility”:8
• A “public school facility” is a broader term that refers to “any public school building or space, including related areas such as the physical plant and grounds, that is used for any purpose.”9 This can include buildings dedicated to students’ extracurricular activities, physical- education courses, prekindergarten education, district administration, or delivering educational instruction to students.10
• An “academic facility,” by contrast, is a narrower term that only includes “a building or space, including related areas such as the physical plant and grounds, where public school students receive instruction that is an integral part of an adequate education….”11 In other words, an “academic facility” falls under the “public school facility” umbrella, but it explicitly excludes the other types of buildings or spaces that make up “public school facilities,” including those dedicated to extracurricular activities, prekindergarten education, and district administration.12 Not only does an “academic facility” exclude these other types of buildings and spaces, but it explicitly excludes the
8
A.C.A. § 6-21-803(1), (13).
9
A.C.A. § 6-21-803(13).
10
Id.
11
A.C.A. § 6-21-803(1)(A) (emphasis added).
12
A.C.A. § 6-21-803(1)(B)–(D).
The Honorable Joshua Bryant
State Senator
Opinion No. 2023-106
Page 8
“related areas” of these other buildings and spaces, such as their “physical plant and grounds.”13
The code subdivision you have asked about, A.C.A. § 6-21-816(b)(1), only applies to the sell, lease, or ownership transfer of an “academic facility.” Although the phrase “related areas such as physical plant and grounds” is not defined in terms of curtilage, I do not believe that phrase is meant to encompass a large area around the building or space at issue. And it is certainly not meant to encompass the whole school campus. Otherwise, the statute would not explicitly exclude other types of public-school facilities found on campus and their “related areas” from the definition of an “academic facility.”
Therefore, the answer to your question is likely “no.” Whether or not any specific piece of property qualifies as an academic facility is a question of fact that I cannot definitively opine upon. But the facts presented to me suggest that the undeveloped land that is at issue probably would not qualify as an “academic facility” under A.C.A. § 6-21-816(b)(1).
Question 6: Similarly, A.C.A. § 6-21-815(c)(1) states that a “school district shall make unused or underutilized public school facilities available for lease or purchase for no more than the fair market value to any public charter school located within the geographic boundaries of the school district.” The code defines an “unused or underutilized public school facility” as inclusive of “real property that, [a]s a whole or in significant portion, is not being used for public educational, academic, extracurricular, or administrative purpose and the nonuse or underutilization threatens the integrity or purpose of the public school facility or other real property as a public education facility….” A.C.A. § 6-21-803(17). Is the land unused or underutilized “real property” such that the Bentonville School District must identify it as an “unused or underutilized public school facility”?
a. If yes, must the Bentonville School District provide charter schools in the area an opportunity to lease or purchase the real property before otherwise transferring the land to a third party? See A.C.A. § 6-21-815(c)(2).
b. If no, when and how does the nonuse of real property become threatening to the integrity or purpose of a public school facility or public education facility?
The relevant statute defines an “unused or underutilized public school facility” as meeting the following criteria:
1. It is a public-school facility or other real property;
2. The whole facility or a significant portion of it is not being used for a public educational, academic, extracurricular, or administrative purpose;
13
Id.
The Honorable Joshua Bryant
State Senator
Opinion No. 2023-106
Page 9
3. The nonuse or underutilization of the facility threatens its integrity or purpose as a public education facility; and
4. The facility is not, as of August 1, 2017, subject to a third-party lease or executed offer to purchase by a third party.14
According to information provided in the opinion request, the land at issue here meets the first, second, and fourth criteria: it constitutes real property; is not being used for a public educational, academic, extracurricular, or administrative purpose; and was not subject to a third-party lease or executed offer to purchase by a third party as of August 1, 2017. But I cannot determine whether the nonuse or underutilization of the land threatens its integrity or purpose as a public education facility. That is a question of fact that must be determined by the Arkansas Department of Education’s Division of Public School Academic Facilities and Transportation (the “Division”).15 It is my understanding, though, that the Division has not identified the real property in question as an “unused or underutilized public school facility.”
Question 7: The opinion reasons that the proposed use for the land would not violate the constitutional prohibition against using “money or property belonging to the public school fund, or to this State,” for a purpose other than benefiting public schools. Ark. Const. Art. 14, § 2. I would like to know how much public school benefit is enough to survive constitutional scrutiny. The opinion appears to conclude that school money or property may be repurposed for predominantly non-educational uses as long as there remains a perfunctory educational nexus.
Opinion No. 2023-065 did not “conclude that school money or property may be repurposed for predominantly non-educational uses as long as there remains a perfunctory educational nexus.” Rather, I stated that the proposed donation, which would include the development of a community center where students could attend classes and the development of affordable housing to recruit, hire, and retain quality teachers for the district, would likely fulfill the constitutional requirement that any donation of school district real property must benefit district students. Whether any particular donation will or will not benefit a school district’s students is a question of fact to be determined on a case-by-case basis.
14
A.C.A. § 6-21-803(17).
15
Each year, school districts must submit a report to the Division identifying (1) all unused or underutilized public-school facilities in the district and (2) any such facilities that are designated in the district’s facilities master plan to be reused, renovated, or demolished as part of a specific project. If a public charter school suspects that a particular public-school facility is unused or underutilized, the charter school may also notify the Division. The Division then publishes an online list of the facilities it has identified as “unused or underutilized” after notifying the affected districts. A school district that disagrees with the Division’s designation of a facility as “unused or underutilized” may appeal the designation to the Commission for Arkansas Public School Academic Facilities and Transportation. Commission for Arkansas Public School Academic Facilities and Transportation Rules Governing Right of Access to Unused or Underutilized Public School Facilities and the Sale or Lease of Public School Facilities, Rules 3.01–3.03. The Honorable Joshua Bryant State Senator Opinion No. 2023-106 Page 10
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General
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