Did Louisiana law require BESE to distribute Education Excellence Fund money directly?

Plain-English summary

The state superintendent asked what role the State Board of Elementary and Secondary Education (BESE) had in distributing Education Excellence Fund (EEF) money. In Opinion 03-0225, the AG concluded that BESE "does not have a direct role that is constitutionally or statutorily mandated in the distribution of EEF money." The board instead worked alongside and in support of the superintendent and legislative education committees.

The opinion identified three places where the EEF provisions mentioned BESE: board approval of private schools whose students were covered by a superintendent appropriation, approval of independent public schools, and approval of the Minimum Foundation Program budget letter used to calculate public school shares. Those references did not, in the AG's reading, give BESE direct distribution authority.

Currency note

The full issue date is not legible in the available official extract. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant at issuance

State education board

BESE retained the approval and budget-letter functions the opinion identified. The AG did not read those functions as a mandate for the board to distribute EEF money itself.

Superintendent and legislative education committees

The AG described BESE's role as working "in conjunction with and in support of" the roles assigned to the superintendent and the Louisiana Legislative Committees on Education.

Common questions

Q: Did BESE decide how to distribute Education Excellence Fund money directly? A: The AG concluded that the Constitution and statutes did not mandate a direct distribution role for BESE.

Q: Why did the EEF provisions mention BESE at all? A: The opinion identified board approval of certain schools and of the budget letter used to determine each public school's share of a program appropriation.

Q: Did the opinion give BESE no part in the EEF process? A: No. It said BESE had specified supporting functions, even though the law did not mandate a direct distribution role.

Background and statutory framework

The opinion traced BESE's general authority to Louisiana Constitution Article VIII, §3(A) and the EEF distribution provisions to Article VII, §10.8 and La. R.S. 39:98.3. It explained that the 1999 tobacco settlement measures created the relevant trust and distribution framework. The AG read the EEF language alongside the allocation of school administration responsibilities between BESE and the superintendent.

Citations and references

Statutes quoted or cited: La. R.S. 39:98.3; La. R.S. 17:10; La. R.S. 17:22.

Case cited: Aguillard v. Treen, 440 So.2d 704.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0225

Original opinion text

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One American Place
301 Main Street, Suite 600
DEPARTMENT OF JUSTICE
P.O. Box 94005
CIVIL DIVISION
TEL.: (225) 342-7013
BATON ROUGE
FAX: (225) 342-2090

RICHARD P. IEYOUB
70804-9005
ATTORNEY GENERAL

96 - SCHOOLS & SCHOOL DISTRICTS - Fiscal Management, Department Securities & Taxation

La. Constitution Article VII, §10.8 La. R.S. 39:98.3 La. Constitution Article VIII, §3(A) La. R.S. 39:98(C)(1) Mr. Cecil J. Picard
La. R.S. 17:10
La. R.S. 39:98.3(C)(3)
State Superintendent of Education La. R.S. 17:22 La. R.S. 39:98.3(C)(4)(b)
Louisiana Department of Education
It is the opinion of this office that BESE does not have a direct role that P. O. Box 94064 is constitutionally or statutorily mandated in the distribution of EEF
Baton Rouge, LA 70804-9064
money. BESE’s role, as mandated by the constitution and statutory law,
requires that it work in conjunction with and in support of the roles
Dear Superintendent Picard: mandated to the state superintendent of the Department of Education
and the Louisiana Legislative Committees on Education.

This office is in receipt of your opinion request in which you seek clarification regarding the Louisiana State Board of Elementary and Secondary Education’s role under the Louisiana Constitution and companion statutes, in the distribution of Educational Excellence Fund ("EFF") money. Specifically you stated:

Under the above provisions if the Louisiana Constitution, the Department of Education reviewed the plans of recipient schools and school systems, and submitted the results of its review to BESE of its information. The State Board is requesting that an Attorney General Opinion address its role in the distribution of EEF money.

The State Board of Elementary and Secondary Education ("BESE") was created by and its powers emanate from Louisiana Constitution Article 8, § 3. Part A states:

(A) Creation; Functions. The State Board of Elementary and Secondary Education is created as a body corporate. It shall supervise and control the public elementary and secondary schools and special schools under its jurisdiction and shall have budgetary responsibility for all funds appropriated or allocated by the state for those schools, all as provided by law. The board shall have other powers, duties, and responsibilities as provided by this constitution or by law, but shall have no control over the business affairs of a parish or city school board or the selection or removal of its officers and employees (Emphasis supplied).

The BESE is given the constitutional authority to determine educational policy for the public schools in the state. Board of Elementary and Secondary Education v. Nix, 347 So.2d 147, 150 (1997). They are also given budgetary responsibility, "all as provided by law," for all funds appropriated or allocated by the state for those schools under BESE’s authority. "All as provided by law" means as "provided by legislation;" a law is the

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Mr. Cecil J. Picard
State Superintendent of Education
Louisiana Department of Education
OPINION No. 03.0225
Page 2

solemn expression of legislative will. Id. at 151. The board is given the constitutional power to determine educational policy for the public schools of the state. In this regard, the superintendent’s responsibility is to implement the policies adopted by the board. The superintendent is the administrative head of the department of education. The legislature, however, is given power to provide for the allocation, as between the Board and the superintendent, of administration duties with regard to budgetary responsibility for, and supervision and control of, the public schools of the state. /d. at 150.

This grant of authority to BESE is not unfettered and is subject to laws passed by the Legislature. Aguillard v. Treen, 440 So.2d 704 (La. 1983) and Rankins v. Louisiana State Board of Elementary and Secondary Educ., App. 1 Cir. 1994, 637 So.2d 548, 1993-1987 (La. App. 1 Cir. 3/17/94), wdt denied 1994-0783 (La. 4/12/94) 635 So.2d 250, certiorari denied 115 S.Ct. 195, 513 U.S. 871,130 L.Ed.2d 127. For example, the Louisiana Supreme Court has ruled that there was no unconstitutional invasion of the board’s policy making functions by the delegation of certain administrative functions to the department. The Court ruled that this was "merely a legislative determination of an appropriate manner by which to administer the application of the board’s standards to the educational units governed thereby." Board of Elementary and Secondary Bd. v. Nix, at 154.

In 1999, the Louisiana Legislature enacted legislation which approved the Tobacco Settlement and made provision for the distribution of funds received by the settlement. Act No. 1392 of the 1999 Regular Session, created the Millennium Trust and the Louisiana Fund by adding Sections 10.8, 10.9 and 10.10 in Article VII of the Constitution of Louisiana of 1974. Act No. 1295 of the 1999 Regular Session, provided for the distribution of the tobacco settlement proceeds by enacting La. R.S. 39:98.1-98.6. These statutes compdse the totality of legislation regarding the tobacco settlement proceeds, its distribution to the EEF, and eventually, to the individual school districts who receive money from the EEF.

Your question specifically relates to BESE’s responsibility and/or authority under the legislation enacted in 1999. Section 10.8 of Article VII of the Constitution of Louisiana and La. R.S. 39.98.3, specifically mention BESE and defines its role in the distribution of EEF. Louisiana Constitution Article VII, §10.8 specifically provides for the procedure that is to be used for distribution from the EEF. BESE is mentioned three times in this section of the Constitution. First, at 10.8(C)(3)(a) where the law provides that fifteen percent of the monies available from the EEF shall be appropriated to the state superintendent "on behalf of all children attending private elementary and secondary schools that have been approved by the State Board of Elementary and Secondary Education" (Emphasis supplied; also found at La. R.S. 39:98.3(C)(1)). Secondly, at 10.8(C)(3)(c) where the law provides that an appropriation shall be made for independent public schools ’~Nhich have been approved by the State Board of Elementary and Secondary Education" (Emphasis supplied; also found at La. R.S.

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Mr. Cecil J. Picard
State Superintendent of Education
Louisiana Department of Education
OPINION No. 03-0225
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Elementary and Secondary Education" (Emphasis supplied; also found at La. R.S. 39:98.3(C)(3)). Lastly, BESE is mentioned at 10.8(C)(3)(d)(ii) where the law provides that the amount appropriated to the public schools shall be "proportionate to each school’s share of the Minimum Foundation Program appropriation as contained in the most recent Minimum Foundation Program budget letter approved by the State Board of Elementary and Secondary Education" (Emphasis supplied; also found at La. R.S. 39:98.3(C)(4)(b)). In all these instances, BESE’s role is to work in conjunction with and in support of the roles mandated to the state superintendent of the Department of Education and the Louisiana Legislative Committees on Education.

After thoroughly reviewing all EEF legislation enacted in 1999, it is the opinion of this office that BESE does not have a direct role that is constitutionally or statutorily mandated in the distribution of EEF money. BESE’s role, as mandated by the constitution and statutory law, requires that it work in conjunction with and in support of the roles mandated to the state superintendent of the Department of Education and the Louisiana Legislative Committees on Education.

Very truly yours,

RICHARD P. IEYOUB
ATTORI GENERAL

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Assistant Attorney General

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