Could a Maryland local school board let a private day care company build its own new building on public school land?

Plain-English summary

Maryland's State Superintendent of Schools asked the Attorney General whether a local board of education could let a private corporation, specifically a day care provider, construct and use its own building on public school property. The question arose because a day care provider in Baltimore County had proposed building a modular structure on a public school site for its own exclusive use, and the county school board tabled the proposal pending guidance on its legal authority to allow it. Local boards already routinely let day care providers use surplus space inside existing school buildings, and nobody doubted that was authorized; the harder question was new construction of a separate building on otherwise undeveloped school land.

The opinion concluded that a local board's authority to allow this kind of arrangement was doubtful. It reviewed the general statutes letting local boards acquire, build, improve, and convey school property, and found they were framed entirely around school purposes, giving no express authority to allow non-school uses. It then reviewed the more specific statutes that do authorize non-school use of "public school facilities," including a requirement that boards encourage community use of school facilities for civic, educational, and recreational purposes, and a provision giving nonprofit day care programs priority to use school facilities before and after school hours. But tracing the history of those provisions back to an 1872 law restricting use of the "school house" to school purposes absent local board consent, the opinion found that the General Assembly's focus, even after later rewrites broadened the language to "public school facilities," had always been the non-school use of existing buildings, not construction of a brand-new building by and for a private corporation's exclusive use. The opinion also flagged a practical problem: allowing a private company to build on school land would typically require a long-term commitment from the board, in tension with a statutory requirement that any non-school use not interfere with the board's ability to use its own land for school purposes when needed.

Because current law was not written with this situation in mind and did not comfortably cover it, the opinion recommended that the General Assembly step in with an express authorization if it wanted to allow these arrangements, rather than leaving local boards to guess at their authority.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. An editor's note attached to the opinion in the bound volume records that later in 1991, the General Assembly enacted Chapter 26 (House Bill 1188) of the Laws of Maryland 1991, authorizing the lease of public school property for day care centers, which addressed the gap this opinion identified; verify the current text of the Education Article's school-property and day-care provisions before relying on any specific rule described here.

Common questions

Could a Maryland school district let a day care company build its own building on empty school land in 1991?
The opinion concluded that authority was doubtful under the law as it then stood, because the statutes only clearly authorized non-school use of existing school buildings and facilities, not new construction of a separate building by a private company for its own exclusive use.

Why didn't the law that let day care programs use school facilities cover new construction?
The opinion traced the statute back to an 1872 law restricting use of the "school house" to school purposes, and found that even after later rewrites broadened the wording to "public school facilities," the General Assembly's evident focus remained on non-school use of buildings that already existed, not brand-new construction on undeveloped land.

Was this issue eventually fixed?
Yes. An editor's note attached to the opinion records that the General Assembly passed Chapter 26 (House Bill 1188) of the Laws of Maryland 1991 later that year, authorizing the lease of public school property for day care centers.

Background and statutory framework

Local boards of education in Maryland already had well-established authority to let day care providers use surplus space inside existing school buildings, but the Baltimore County proposal involved something new: a day care provider wanted to construct its own modular building on a public school site for its own exclusive use. Under §4-101(a) of the Education Article, each local board controls educational matters affecting its district, and under ED §4-113 property granted for a school's use is held in trust for that school's benefit. The general property-management statutes, including ED §4-114(b) (acquiring, renting, repairing, and building school buildings with State Superintendent approval), ED §4-114(c) (declaring land no longer needed for school purposes and transferring it to the county), ED §4-115 (site selection and hearings), ED §4-116 (employing architects), ED §4-117 (accepting donated school land), and ED §4-118 (condemnation for school purposes), all frame a local board's authority around acquiring and using property for school purposes, without expressly authorizing non-school uses.

The more specific non-school-use statutes begin with ED §7-108(a), requiring boards to encourage community use of public school facilities, and ED §7-108(b), requiring boards to provide facilities on request for civic, educational, social, recreational, or church-affiliated purposes (subject to refusal if the use risks a public riot, breach of the peace, or a clear and present danger under that same subsection, and subject to a noninterference-with-school-activities limit in ED §7-108(e)), with ED §7-108(c) and (d) extending similar access to certain partisan political and religious or other lawful uses. ED §7-109 gives nonprofit day care programs priority to use public school facilities before and after school hours, and ED §7-109(a)(2) lets boards make space available during school hours too, while ED §7-110(a)(1) and (2) let boards charge for utilities, janitorial services, rent, and capital-cost recovery, and ED §7-110(b) and (c) place damage liability and a clean-up obligation on the user.

Tracing this framework's statutory history, the opinion found its earliest predecessor, Chapter 377, Laws of Maryland 1872, barred using a "school house" for anything but school purposes absent local board consent; Chapter 461, Laws of Maryland 1914 eased those restrictions but still spoke only of "school structures," "school building," and "school houses"; and Chapter 405, Laws of Maryland 1969 introduced the broader "public school facilities" language in essentially the statute's current form, with the day-care priority provision (now ED §7-109) added later by Chapter 413, Laws of Maryland 1973. Despite the broader wording, the opinion concluded nothing in this history showed the General Assembly ever considered new construction by, and for the exclusive use of, a private corporation, as opposed to non-school use of buildings that already existed. The opinion also noted that responsibility for regulating child care centers themselves had shifted to the Department of Human Resources under Title 5, Subtitle 5, Part VII of the Family Law Article, a separate licensing question from the property-use authority at issue here.

Citations and references

Statutes:

• §4-101(a) of the Education Article, a local board's general control over educational matters in its district
• ED §4-113, school property held in trust for the benefit of a particular school or school system
• ED §4-114(b), authority to acquire, build, rent, and improve school property with State Superintendent approval
• ED §4-114(c), authority to declare land no longer needed for school purposes and transfer it to the county
• ED §4-115, school site selection and public hearings
• ED §4-116, authority to employ architects for construction or remodeling
• ED §4-117, authority to accept donated school land or buildings
• ED §4-118, authority to condemn land needed for school purposes
• ED §7-108(a), requiring boards to encourage community use of public school facilities
• ED §7-108(b), requiring facility access for civic, educational, social, and recreational purposes, subject to a peace-and-safety exception
• ED §7-108(c) and (d), extending access to certain partisan political and religious or other lawful uses
• ED §7-108(e), limiting non-school use to times that do not interfere with school activities
• ED §7-109, priority for nonprofit day care program use of school facilities before and after school hours
• ED §7-109(a)(2), permitting board discretion to allow day care use during school hours
• ED §7-110(a)(1), allowing charges for utilities and janitorial services
• ED §7-110(a)(2), allowing rent and capital-cost recovery charges for commercial users
• ED §7-110(b) and (c), assigning damage liability and a clean-up obligation to the user
• Title 5, Subtitle 5, Part VII of the Family Law Article, vesting child care center regulation in the Department of Human Resources
• Chapter 377, Laws of Maryland 1872, the earliest predecessor statute restricting non-school use of a "school house"
• Chapter 461, Laws of Maryland 1914, easing restrictions while retaining "school building" language
• Chapter 405, Laws of Maryland 1969, introducing the "public school facilities" language in its modern form
• Chapter 413, Laws of Maryland 1973, adding the day-care use priority provision
• Chapter 26 (House Bill 1188) of the Laws of Maryland 1991, the later legislation authorizing leases of school property for day care centers (noted in the editor's note)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1991/Volume76_1991.pdf (this opinion appears at printed pages 147-152 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

EDUCATION

Public Schools - Authority of Local Board to Permit
Construction of Privately Owned Day Care Center On
School Land

                        February 1, 1991

Dr. Joseph L. Shilling
State Superintendent of Schools

 You have requested our opinion whether a local board of education

has the authority to permit the construction and use of a building by a
private corporation, in this case a day care provider, on public school
property.

 For the reasons stated below, we conclude that a local board's

authority to permit such use of public school property is doubtful. We
certainly recognize the ever-growing demand for day care, and this
proposed use of school property may well be of significant public
benefit. Our conclusion is simply that the General Assembly has not
previously addressed the question of private construction on school
property and should be asked to provide an appropriate grant of
authority.

                                I

                          Background

 In response to an increasing need for day care, certain local boards

of education have entered into a variety of agreements to allow day care
providers the use of surplus space in county public school buildings.
There is no question about this expressly authorized use of existing
structures, pursuant to the statutes discussed in Part III below.

As available space in public schools grows increasingly scarce,

however, day care providers are being forced to seek alternatives. Your
inquiry arises out of a proposal by a day care provider to construct a
modular building for its own use on a public school site in Baltimore
County. The county board is concerned about the legality of such an
arrangement and has tabled the proposal pending our opinion on its
authority to permit such a use of school property.

                                   II

              General Authority of Local Board
              of Education Over School Property

 Under State law, a local board of education enjoys considerable, but

not unlimited, discretionary authority over public school property. In
general, each local board controls the "educational matters that affect"
its district. §4-101(a) of the Education Article ("ED" Article). More
specifically, "[a]ll property granted, conveyed, devised, or bequeathed
for the use of a particular public school or school system" is to be "held
in trust" by the local board "for the benefit of [that] school or school
system ...." ED §4-113.

 Each local board is authorized to acquire land, school sites, or

buildings and to rent, repair, improve, and build school buildings or
approve contracts to do so, with the approval of the State Superintendent
and in conformance with the bylaws, rules, and regulations of the State
Board of Education. ED §4-114(b).1 A local board, again with the
approval of the State Superintendent, is authorized to find that any land,
school site, or building "no longer is needed for school purposes,"
causing the transfer of such school by the board to the county
government. ED §4-114(c).2 The local board selects school sites and
holds public hearings on its selection, ED §4-115, and may employ
architects for the construction or remodeling of buildings, ED §4-116.
It may receive donations of school land, sites, or houses adapted to
school purposes, ED §4-117, and may bring condemnation proceedings
to acquire land required for any school purpose, ED §4-118.

    1
       For various reasons, certain exceptions for Baltimore City or particular

counties are made in the statutes cited here. These exceptions have no substantive
impact on the issue at hand and will not be mentioned in this discussion.
2
Thus, land not needed for school purposes could be transferred to the
county government and, in turn, leased by the county for construction of a day care
facility.

 None of these general provisions expressly gives local boards

authority to allow school property to be used for non-school purposes.
To the contrary, they appear to limit a local board's discretion to the
acquisition, construction, improvement, and conveyance of land and
buildings for school purposes only.

 That these general provisions do not authorize non-school uses of

school property is confirmed by the fact that other, more specific
statutes do. In 1969, the General Assembly enacted legislation not only
authorizing but requiring local boards to permit the use of public schools
for non-school purposes. The difficulty, however, is that the type of
arrangement under consideration in Baltimore County was apparently not
contemplated by the Legislature.

                                 III

              Authority to Permit Use of School
              Property For Non-School Purposes

 ED §7-108(a) requires each local board to "encourage the use of

public school facilities for community purposes." Upon application to
the local superintendent, the board "shall provide for the use of a public
school facility" for the presentation and discussion of public questions,
public speaking, lectures, or other "civic, educational, social, or
recreational purposes or church affiliated civic purposes." ED §7-
108(b). In addition, the board may permit use for certain purposes by
certain partisan political organizations and for religious or "other lawful
purposes." ED §7-108(c) and (d).

  This general authority is subject to two restrictions. First, the board

may refuse use for the above-named purposes "if it appears that the use
is likely to (i) [p]rovoke or add to a public riot or breach of the peace;
or (ii) [c]reate a clear and present danger to the peace and welfare of the
county or State." ED §7-108(b). Second, school facilities may be so
used "only at times that will not interfere with regular school sessions or
other bona fide school activities." ED §7-108(e).

In addition, ED §7-109 establishes a priority for use of public

school facilities by nonprofit day care programs before and after school
hours, provided that both the program and the facility comply with rules
and regulations of the Department of Health and Mental Hygiene
governing such programs.3 ED §7-109(a)(2) also permits local boards
to make space available to day care programs during school hours.
These provisions unquestionably give a local board the authority to enter
the agreements with day care providers for use of space in public school
buildings.

 The final statutory provision governing use for other than school

purposes covers charges and liability for damages. ED §7-110(a)(1)
allows a reasonable charge for heating, lighting, and janitorial services
for use of facilities under the preceding two sections. In addition,
commercial users may be charged for rent and recovery of capital costs.
ED §7-110(a)(2). This section also assigns liability for damage to
school property to the user, and requires that facilities be left "as clean
as they were before the use." ED §7-110(b) and (c).

    3
       Responsibility for regulating child care centers is now vested in the

Department of Human Resources. See Title 5, Subtitle 5, Part VII of the Family
Law Article.

 These provisions use the undefined term "public school facilities" to

describe the property covered. We recognize that this term is broad
enough to include unimproved school land as well as buildings and other
improvements. Based on this broad construction, one could reasonably
argue that these provisions would authorize the construction of buildings
by private corporations on raw land as long as all of the statutory
restrictions on non-school use are met. The statutory history suggests,
however, that the apparent focus of the General Assembly was on the
non-school use of existing school facilities; the General Assembly
apparently did not consider the use of school land for construction of a
new building for wholly non-school purposes, as is contemplated in
Baltimore County.

 The earliest predecessor of ED §§7-108 through 7-110 specifically

refers to existing school buildings, discouraging their use for non-school
purposes:

         No school house shall be used for any other
     purpose than public school purposes and school district
     meetings, unless by consent of the board of county
     school commissioners, or a majority of them.

Chapter 377, Laws of Maryland 1872 (emphasis added). Even when the
restrictions on non-school use were eased, references to the "school
house" or "school building" were retained. See Chapter 461, Laws of
Maryland 1914 (reenacting the earlier statute but also permitting upon
request the "free use of [a] school structures for other civic, social or
recreational activities," granting discretion to allow free use of "any
school building" by certain citizens' organizations, allowing "free and
gratuitous use of school houses" for other purposes, and setting out
obligations and liabilities of persons using a "school house" for public
meetings). The term "public school facilities" was introduced in 1969,
when the entire statute was rewritten, in more or less its present form,
to encourage use for community purposes and to require access for
specified non-school uses. Chapter 405, Laws of Maryland 1969.4

 This history indicates that, despite substitution of the general term

"public school facilities" for the earlier "school house" or "school
building," the intended scope of the current statute continues to be the
use of existing school buildings for non-school purposes. There is
nothing to indicate that the General Assembly, even in its 1969 re-
enactment, contemplated the construction of new buildings by, and for
the exclusive use of, private corporations.

    4
      The priority for use by day-care programs, currently ED §7-109, was

added in 1973. Chapter 413, Laws of Maryland 1973.

 Further, even if we concluded that the priority for use of facilities

by non-profit day care programs expressed in ED §7-109 was sufficient
to authorize the proposal, any such proposal would still have to meet the
restrictions expressed in ED §§7-108 through 7-110, including the
requirement that the use of school facilities for non-school purposes be
limited to use "only at times that will not interfere with regular school
sessions or other bona fide school activities." ED §7-108(e). As a
practical matter, the construction of a building on school property by
any private corporation, including a day care provider, for its own use
would ordinarily require a long-term commitment from the local board.
Yet it is not clear how the statutory "noninterference" requirement would
apply if, having allowed school land to be the site of a newly
constructed day care center, a local board later determined that it needed
the land for school expansion.

In short, current law was not fashioned with this use of unimproved

school land in mind and does not easily accommodate it. We
recommend that the General Assembly clarify the authority of local
boards in this respect.

                              IV

                          Conclusion

In summary, it is our opinion that the authority of a local board of

education to permit a day care provider or other private corporation to
construct a building for its own use on public school property is
doubtful. We recommend that the General Assembly consider an
express authorization for such agreements.

                                         J. Joseph Curran, Jr.
                                         Attorney General

                                         Laura A. Burton-Graham
                                         Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

Editor's Note:

 In Chapter 26 (House Bill 1188) of the Laws of Maryland 1991, the

General Assembly authorized the lease of public school property for day
care centers.