Supreme Court Strikes Cyber Kindergarten Funding for 4 Year-Old Students

On November 23, 2011, in Slippery Rock Area School District v. Pennsylvania Cyber Charter School, the Pennsylvania Supreme Court held a school district that offers kindergarten to its residents starting at age five need not pay a charter school for providing kindergarten to four year-old students. 

This litigation commenced when the state Department of Education (“PDE”) notified Slippery Rock Area School District that funds had been deducted from its state subsidy because the District failed to pay Pennsylvania Cyber Charter School for (among other things) a four year-old student enrolled in the cyber school’s kindergarten program.  

The District challenged PDE’s withholding, arguing it was unlawful because its own kindergarten program was for five year-old students.  In response, the Secretary of Education ruled in the Cyber School’s favor, and maintained the withholding from the District’s state subsidy.  PDE observed that School Code § 503 and the Charter School Law authorized both school districts and cyber charter schools to establish kindergarten programs.  Additionally, PDE noted the Charter School Law subjected cyber charter schools to Chapter 11 of the State Board of Education regulations, which includes a regulation on the admission age for kindergarten programs.  Because cyber charter schools are required to comply with the Chapter 11 regulations, PDE interpreted that regulation as allowing a cyber school’s board of trustees to establish kindergarten admission policies in the same manner as the District’s board of school directors.  PDE ultimately concluded the District cannot deny payment to a cyber school simply because it does not offer a kindergarten program for four year-old students. 

The Commonwealth Court unanimous affirmed PDE’s decision that the District was obligated to pay for the four year-old kindergarten student.  The Commonwealth Court observed the intent of the Charter School Law would be undermined if school districts could dictate student admission policies at cyber charter schools.  Finding PDE’s reasoning persuasive and entitled to deference, the Commonwealth Court ruled against the District.  The Supreme Court granted the District’s petition for allowance of appeal to decide whether a school district was required to fund a cyber charter school kindergarten program for four year-old students, when it has elected not to provide a similar kindergarten program within the District. 

The Supreme Court, applying the rules of statutory construction, concluded that the School Code, Charter School Law and Chapter 11 regulations all granted the District and the Cyber School the ability to establish enrollment ages for kindergarten programs.  However, School Code § 503 and State Board of Education regulation § 11.4 granted “board of school directors” the exclusive discretion to establish the minimum entry age for kindergarten programs throughout their respective districts.  The Supreme Court observed the legislature created “a gap when it failed to articulate whether it is cyber school’s or a school district’s policy that prevails in the event of a conflict regarding funding.”  In the face of conflicting provisions, the Supreme Court ultimately held that a cyber charter school is bound by the kindergarten admission policy of the school district where the student resides.  Accordingly, the Supreme Court held “while a cyber school may set its own entrance age for kindergarten, the school district does not have the commensurate obligation to pay where the cyber charter school’s policy does not align with that of the school district.” 

The Slippery Rock decision only addressed conflicting kindergarten admission ages stated in policies; the decision did not address other similar issues, such as whether school districts are required to fund full-day cyber charter school kindergarten programs when they only offer half-day kindergarten programs in their own public schools.  

In light of the Slippery Rock decision, school districts should take these immediate steps to determine if they have a continuing obligation under the Charter School Law to pay for kindergarten students attending charter schools or cyber charter schools: 

  • School districts should review their charter school and cyber charter school invoices to determine if they are paying for any kindergarten students who are ineligible to enroll in their own kindergarten programs due to their age.
  • If school districts identify charter school/cyber charter school kindergarten students ineligible to enroll in their own districts’ kindergarten programs, they should advise those charter schools or cyber charter schools in writing that they will stop paying for those students based upon the Slippery Rock decision.
  • School districts may also want to consider potential challenges regarding payments for kindergarten students attending full-day charter school/cyber charter school kindergarten programs when they only offer half-day kindergarten programs.  PDE’s logic that requires school districts to pay the entire charter school rate for full-day kindergarten students is the same previously given for charter schools/cyber charter schools to establish their own admission ages for kindergarten programs.  Slippery Rock provides a basis to argue that School Code § 503 grants a school board the exclusive authority to decide between a full-day or half-day kindergarten program; and school district should not be required to fund full-day charter school/cyber charter school kindergarten programs when they do not offer them.

If you have questions regarding the Slippery Rock decision, or wish to have further dialogue regarding its impact on your school district, please feel free to contact Clarence Kegel, Howard Kelin, Rhonda Lord, Jason Confair or Jeff Litts at (717) 392-1100.

We hope you find this issue of KKAG’s Education Law Watch helpful and informative.  Please understand that the Law Watch is designed to provide information about current developments and required actions.  It does not constitute legal advice, and school districts should consult a lawyer knowledgeable in this area of the law prior to taking specific actions on the issues addressed. 

If you have any questions regarding any education law matter, including the issues discussed in this newsletter, please do not hesitate to contact us at 717/392-1100, or email us at the following addresses:


Education Law Group

(717) 392-1100


Clarence C. Kegel, Jr.                  

Howard L. Kelin                          

Jeffrey D. Litts                              

Rhonda F. Lord                             

Amy G. Macinanti                

Denise E. Elliott                         

Jason T. Confair                        

Kegel Kelin Almy & Grimm LLP is a regional law firm with offices in Lancaster, Pennsylvania.  KKAG is solicitor and general counsel to 17 school districts and joint school systems – and bond counsel, finance counsel, or special joint counsel to many others in Central and Eastern Pennsylvania.  In addition, KKAG frequently serves Pennsylvania school districts for unusual and challenging problems, projects, or litigation.