B-152573, NOV. 4, 1963

B-152573, NOV. 4, 1963

TO THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 25, 1963, FROM YOUR ASSISTANT SECRETARY, GEORGE L. MEHREN, REQUESTING OUR OPINION AS TO WHETHER NONPROFIT PRIVATE NURSERY SCHOOLS AND CHILD-CARE CENTERS OPERATING KINDERGARTEN CLASSES CAN BE MADE ELIGIBLE FOR PARTICIPATION IN THE NATIONAL SCHOOL LUNCH PROGRAM.

THE NATIONAL SCHOOL LUNCH PROGRAM IS ADMINISTERED PURSUANT TO THE NATIONAL SCHOOL LUNCH ACT, APPROVED JUNE 4, 1964, 60 STAT. 230, AS AMENDED, 42 U.S.C. 1751. THE SCHOOLS AUTHORIZED TO PARTICIPATE IN THE PROGRAM ARE DEFINED IN SECTION 12 (D) (7) OF THE ACT, 42 U.S.C. 1760 (D) (7), AS BEING THOSE PUBLIC SCHOOLS AND NONPROFIT PRIVATE SCHOOLS OF HIGH SCHOOL GRADE OR UNDER AND INCLUDING, WITH RESPECT TO PUERTO RICO, NONPROFIT CHILD-CARE CENTERS CERTIFIED AS SUCH BY THE GOVERNOR OF PUERTO RICO.

IT IS EXPLAINED THAT UNDER THE INTERPRETATION BY YOUR DEPARTMENT OF THE ELIGIBILITY CRITERIA SET FORTH IN THE ACT, KINDERGARTENS OPERATED BY THE PUBLIC SCHOOL SYSTEMS OR BY NONPROFIT PRIVATE SCHOOL SYSTEMS ARE ELIGIBLE TO PARTICIPATE IN THE PROGRAM. HOWEVER, THE ASSISTANT SECRETARY NOW STATES THAT THE ACT REASONABLY COULD BE CONSTRUED TO PERMIT NONPROFIT PRIVATE KINDERGARTENS, OPERATING APART FROM A GRADED SCHOOL SYSTEM, AND NONPROFIT NURSERY SCHOOLS AND CHILD-CARE CENTERS OPERATING KINDERGARTEN CLASSES, TO PARTICIPATE IN THE PROGRAM IF THE KINDERGARTENS ARE COMPARABLE TO THOSE OPERATED BY THE PUBLIC SCHOOL SYSTEM WITHIN THE STATE. ALSO, HE STATES THAT SUCH A REQUIREMENT OF COMPARABILITY WOULD PROVIDE A BASIS FOR DISTINGUISHING BETWEEN THE PRIVATE INSTITUTION'S ACTIVITIES WHICH CONSTITUTE A "SCHOOL" AND THOSE WHICH CONSTITUTE "CHILD CARE" AND PERMIT ELIGIBILITY TO BE EXTENDED TO THE CHILDREN IN THE KINDERGARTEN CLASSES, EVEN THOUGH THE CLASSES ARE OPERATED IN CONNECTION WITH A NURSERY SCHOOL OR CHILD-CARE CENTER.

FOR SEVERAL YEARS PRIOR TO ENACTMENT OF THE NATIONAL SCHOOL LUNCH ACT, SIMILAR SCHOOL LUNCH PROGRAMS WERE CARRIED ON PURSUANT TO AUTHORITY CONTAINED IN ANNUAL APPROPRIATION ACTS FOR THE DEPARTMENT OF AGRICULTURE. THOSE ACTS SPECIFICALLY MENTIONED CHILD-CARE CENTERS AS BEING ELIGIBLE FOR THE BENEFITS OF THOSE PROGRAMS. SEE, FOR EXAMPLE, THE PROVISIONS OF THE PARAGRAPH UNDER THE HEADING "SCHOOL LUNCH PROGRAM" CONTAINED IN THE DEPARTMENT OF AGRICULTURE APPROPRIATION ACT, 1946, APPROVED MAY 5, 1945, 59 STAT. 157.

THE BILL H.R. 3370, 79TH CONGRESS, WHICH SUBSEQUENTLY WAS ENACTED AS THE NATIONAL SCHOOL LUNCH ACT, CONTAINED, WHEN IT PASSED THE HOUSE, SPECIFIC AUTHORITY FOR CHILD-CARE CENTER TO PARTICIPATE IN THE PROGRAM. AND RELATIVE THERETO, HOUSE REPORT NO. 684, WHICH ACCOMPANIED THE BILL, CONTAINS A STATEMENT ON PAGE 7 THEREOF WHICH READS AS FOLLOWS:

"* * * THE AGENCIES, ORGANIZATIONS, OR INSTITUTIONS WHICH MAY QUALIFY AS NONPROFIT CHILD CARE CENTERS UNDER THIS SECTION, AND THEREBY RECEIVE FUNDS FOR A LUNCH PROGRAM OPERATED NOT FOR PROFIT, ARE NONPROFIT COMMUNITY CENTERS, SETTLEMENT HOUSES, CHILDREN'S HOMES, CHILD AND CENTERS CHILD DAY- CARE CENTERS, PLAYGROUNDS, BOYS' OR GIRLS' CLUBS, SUMMER CAMPS, OR SIMILAR CENTERS, INSTITUTIONS, OR ORGANIZATIONS DEVOTED TO THE CARE AND TRAINING OF CHILDREN * * *.'

THE RELATED SENATE BILL S.962 MADE NO PROVISION FOR THE INCLUSION OF CHILD-CARE CENTERS UNDER ITS PROGRAM EXCEPT THAT IT INCLUDED ONLY THOSE CHILD-CARE CENTERS LOCATED IN PUERTO RICO AS MIGHT BE CERTIFIED BY THE GOVERNOR.

THE COMMITTEE ON CONFERENCE ADOPTED THE SENATE VERSION OF THE BILL IN THIS RESPECT AND IN ITS REPORT, HOUSE REPORT NO. 2080, THERE APPEARS AT PAGE 6 THE FOLLOWING STATEMENT:

"THE HOUSE BILL AUTHORIZED, IN SECTIONS 102 AND 108 (E), THE EXPENDITURE OF NOT IN EXCESS OF 2 PERCENT OF THE FUNDS APPROPRIATED FOR USE DIRECTLY IN NONPROFIT CHILD-CARE CENTERS. THERE HAS BEEN DELETED FROM THE CONFERENCE SUBSTITUTE ALL REFERENCE TO NONPROFIT CHILD-CARE CENTERS EXCEPT WITH RESPECT TO PUERTO RICO. * * *"

THE CONFERENCE REPORT WAS AGREED TO BY BOTH THE HOUSE AND THE SENATE WITHOUT DISCUSSION OF ITS PROVISIONS.

IN VIEW OF THIS ACTION, IT SEEMS APPARENT THAT THE CONGRESS INTENDED TO EXCLUDE ALL CHILD-CARE CENTERS FROM PARTICIPATION IN THE PROGRAM EXCEPT THOSE CHILD-CARE CENTERS IN PUERTO RICO AS TO WHICH SPECIFIC PROVISION IS MADE IN THE ACT.

ACCORDINGLY, EVEN THOUGH KINDERGARTENS COMPARABLE TO THOSE IN PUBLIC AND PRIVATE GRADED SCHOOLS ARE CONDUCTED BY NONPROFIT CHILD-CARE CENTERS AND NURSERY SCHOOLS WE SEE NO LEGAL BASIS ON WHICH THEY CAN BE CONSIDERED AS BEING ELIGIBLE TO PARTICIPATE IN THE PROGRAM. FURTHERMORE, THIS CONCLUSION APPEARS SUPPORTED BY THE FACT THAT THE CONGRESS ONLY RECENTLY AMENDED THE NATIONAL SCHOOL LUNCH ACT IN MANY RESPECTS BUT MADE NO CHANGE IN THE DEFINITION OF THE TERM "SCHOOL.' SEE PUB.L. 87-823, APPROVED OCTOBER 15, 1962.