Clark v. Jefferson County Bd. of Ed.

• Decision Date: 05 February 1982
• Citation: 410 So.2d 23
• Parties: 2 Ed. Law Rep. 1258 Clara V. CLARK v. JEFFERSON COUNTY BOARD OF EDUCATION. 80-579.
• Court: Alabama Supreme Court

Page 23

410 So.2d 23

2 Ed. Law Rep. 1258

Clara V. CLARK v. JEFFERSON COUNTY BOARD OF EDUCATION.

80-579.

Supreme Court of Alabama.

Feb. 5, 1982.

Thomas K. Jefferson, Huntsville, for appellant.

Carl E. Johnson, Jr. of Bishop, Colvin & Johnson, Birmingham, for appellee.

MADDOX, Justice.

Does a county board of education have legal authority to operate a child care center? That is the sole question presented by this appeal.

The Jefferson County Board of Education offers child care services as an adjunct to its regular academic program. These services are rendered in response to requests from community members in twelve "Human Resource Zones" in the county. The child care services are offered under the auspices of the Community Education Department of the Board, and while the scope and nature of the child care programs offered by the Board vary somewhat from zone to zone, in accordance with the needs and desires of the local community, the basic child care services include supervision of recreational activities, including physical activity, feeding of a snack, assistance with homework, and, when requested, special tutorial programs coordinated with regular school work.

Participation in these programs is voluntary and on a fee basis. The community education program of the Board and the child care program, in particular, are "self-sufficient" in that all expenses are met by fees generated from the programs. All programs are conducted within existing school facilities.

Appellant Clara Clark owns two day care centers in Jefferson County and one in Shelby County under the name of Happy House Day Care Center, Inc. The Jefferson County facilities owned and operated by Clark are in Irondale and Hoover. Clark identified several facilities which she contends are in competition with her Irondale facility, including at least one child care program operated by the Jefferson County Board of Education.

Clark filed suit against the Board of Education, and sought an injunction to prohibit the continued operation by the Board of Education of the child care programs. Clark, in her suit, claimed that the Board was not empowered to operate the child care centers. The trial judge, after hearing testimony and considering numerous exhibits, refused to grant Clark any relief.

The trial judge held that the operation of a child care center was an activity within the broad powers granted to county boards of education. Clark appealed. As previously noted, the sole issue is: Does a county board of education have authority to operate a child care center?

We first state, in summary form, Clark's argument that the Board has no authority to operate a child care program. She says that county boards of education, creatures of statute, can exercise only those powers which are expressly conferred upon them, that the powers granted to county boards by Code 1975, §§ 16-8-8, and 16-8-9, to administer and supervise is limited to public schools, and that a day care program is not a part of a public school because "public schools" are those established and maintained for persons between the ages of 7 and 21. Basically, Clark argues that if the legislature had intended for county boards of education to have authority to offer educational or other opportunities to pre-schoolers, it would have authorized such activities, by law, as it did with kindergartens (Code 1975, § 16-8-41), elementary, junior and senior high schools, grades 1 through 12 (Code 1975, § 16-8-36), adult education (Code 1975, § 16-34-1, et seq.), rehabilitation of handicapped children and adults (Code 1975, § 16-38-1, et seq.), vocational schools (Code 1975, § 16-37-1, et seq.), and special education (Code 1975, § 16-39-1, et seq.). Clark's position is aptly stated by this quote from her brief: "No statute authorizes the education of children between one day and 5 years old."

The County Board contends that "the curricular and extracurricular offerings of the public school systems within this state, as in all states, are established by local boards of education in the exercise of their broad discretionary authority conferred by statute" and that in Alabama, this grant of authority is manifested throughout Chapter 8 of Title 16 of the Alabama Code.

The Board specifically claims that the following Code sections grant to it the necessary power to operate a day care center:

"The general administration and supervision of the public schools of the educational interest of each county, with the exception of cities having a city board of education, shall be vested in the county board of education."

Code 1975, § 16-8-8.

"The county board of education shall exercise through its executive officer, the county superintendent of education(,) and his professional assistants, control and supervision of the public school system of the county. The board shall consult and advise through its executive officer and his professional assistants with school trustees, principals, teachers and interested citizens and shall seek in every way to promote the interest of the schools under its jurisdiction."

Code 1975, § 16-8-9.

"The county board of education shall determine and establish a written educational policy for the county and shall prescribe rules and regulations for the conduct and management of the schools."

Code 1975, § 16-8-10.

The Board argues that the establishment of a community education program, of which the child care specifically challenged by plaintiff is a part, constitutes a classic example of the exercise of administrative discretion, adopted in furtherance of what this lawfully constituted board of education deems to be in the best interest of the school system and its patrons.

The Board, therefore, says that where there is a broad grant of statutory authority, no specific grant of authority to operate a child care program is required. The Board, in its brief, argues:

"Apparently, appellant contends that a public school system is without authority to devote its facilities or resources to any use other than those specifically prescribed somewhere in the education code. Clearly, the Legislature did not see fit to enumerate or to limit the multifarious programs and activities, both academic and nonacademic, which are enjoying record levels of public participation and support in this County and throughout the State. For example, review of Chapter 8 of Title 16 reveals no specific statute which authorizes county boards of education to support and maintain varsity athletic programs, band programs, or even lunchroom facilities. However, no one would seriously argue that the maintenance of such activities is not within the discretionary prerogative of county boards of education. The program attacked in the instant case is no less an exercise of the Board's proper discretionary authority. Like a band or varsity athletic program, it offers an opportunity for an enriching though not strictly academic experience which is made possible only through the availability of school facilities and the continuing support of the local board of education."

Although the Board takes the position that its child care program is properly established and maintained under the Board's general discretionary authority, it cites other statutes which it says inferentially support its position. It says that the provisions of Code 1975, § 16-8-41, which grants county boards authority to establish and maintain kindergartens and playgrounds is an example. It also cites Code 1975, § 38-7-2(8), which defines a day care center, but which specifically excludes:

"a. Kindergartens or nursery schools or other daytime programs operated by public elementary systems or secondary level school units or institutions of higher learning." (Emphasis added.)

The Board contends that the foregoing statute constitutes express legislative...