You have requested my unofficial opinion regarding whether the Georgia Lottery for Education Act, found at O.C.G.A. § 50-27-1 et seq., prohibits the use of lottery funds under the HOPE Scholarship Program for home school students admitted for postsecondary education. Further, you ask if the regulations which exclude home school students from participation in the HOPE Scholarship violate the Act. It is my opinion that while the Lottery for Education Act does not prohibit use of HOPE Scholarship funds for home school children, the rules and regulations implementing that program do prohibit this usage of funds and these regulations are constitutionally sound.

The Georgia Constitution provides that the General Assembly may provide for the regulation and operation of a lottery on behalf of the state and that the net proceeds of the lottery after payment of operating expenses must be used for educational programs. Ga. Const. 1983, Art. I, Sec. II, Para. VIII. The Georgia Lottery for Education Act, codified at O.C.G.A. § 50-27-1 et seq., established the "Lottery for Education Account." The Governor has the authority to make budgetary recommendations as to the educational programs and purposes for which the appropriations should be made from the account. O.C.G.A. § 50-27-13(c)(2).

The law does not specifically codify the HOPE Scholarship Program. However, funds used in administering the HOPE Scholarship Program are appropriated from the Lottery for

Education Account to the Georgia Student Finance Commission, the state agency which is responsible through use of the Student Finance Authority (the "Authority") for administering student loan and scholarship programs, including the HOPE scholarship.

The Authority has the general power and duty to adopt rules, regulations, and policies necessary for the administration of Georgia's loan and scholarship programs. O.C.G.A. § 20-3-316(1)(A). In the administration of the HOPE Scholarship Program, the Authority has adopted the regulations promulgated by the Student Finance Commission. These regulations provide that the student must be a graduate of an eligible high school which is defined as: "any private or public secondary educational institution in the State of Georgia that is authorized to grant high school diplomas and is fully accredited by the Southern Association of Colleges and Schools, of the Georgia Accrediting Commission." HOPE Scholarship Program Rules and Regulations; Definitions (emphasis added).

If the institution is not located in the State of Georgia then it must be accredited by another listed regional agency. Further, the student must graduate with a minimum of a "3.0 cumulative grade average on a 4.0 scale or an 80 numeric average meeting the college preparatory curriculum" and meet that curriculum's requirements.

Thus, while O.C.G.A. § 50-27-1 et seq. does not prohibit the use of lottery funds for home school students, such students would not qualify for HOPE funds under the regulations because home school programs are not currently accredited by any regional agencies. Further, home schools are not subject to either state or national curriculum requirements or grading scales. This regulation is consistent with the Lottery for Education Act and the powers granted to the Authority.

It is my opinion that these regulations are constitutional. When legislation or regulations involving neither a fundamental right nor a suspect class are challenged under the Equal Protection Clause, the legislation is presumed to be valid and will be sustained if the classifications are rationally related to a legitimate state interest. Price v. Tanner, 855 F.2d 820 (11th Cir. 1988). When applying the rational basis test, a

reviewing court will not overturn a statute unless the varying treatment is so completely unrelated to the achievement of a legitimate goal that the court can only conclude that the statute is "irrational." Price, 855 F.2d at 823 (citing Vance v. Bradley, 440 U.S. 93, 97 (1979)).

Scholarship programs do not involve a fundamental right. Home school students do not fall into a suspect class that requires strict scrutiny. Thus, the rational relation test applies. In applying this test, the courts would likely hold that home school is not similarly situated to an accredited high school because the latter is subject to regional and national standards which are not applicable to a home school situation. Further, public schools are required to comply with curriculum standard and grading scales which do not affect home schools. Thus, the regulation would likely be upheld since the classification "'rests upon some reasonable consideration of difference or policy.'" Allied Stores v. Bowers, 358 U.S. 522, 527 (1959).

It is my unofficial opinion that O.C.G.A. § 50-27-1 et seq. does not prohibit the use of Lottery funds for scholarships for home school students; however, the HOPE Scholarship rules and regulations effectively exclude such students from eligibility for lottery funds. Such students can only become eligible with a change in the rules and regulations or with specific legislation including home school students in the HOPE scholarship program.

Prepared by:

Assistant Attorney General