Request By:
Ms. Martha Dittmeier, Chairperson
Regional Advocates for the Mentally Retarded
2665 Helm Street
Louisville, Kentucky 40213
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have asked for an opinion from the Office of the Attorney General on behalf of the Regional Advocates for the Mentally Retarded regarding a special education issue. In your letter you noted that for several years some local boards of education in the Commonwealth have not provided a special education program for educable mentally retarded students at the high school level. It was your stated feeling that as a result of this practice students leaving the middle school are withdrawn from school or are sent on to the high school with no special education support, with the result being a high drop-out rate. You stated the believed justification for this practice is that the local school systems feel no obligation to provide the special education needed for these exceptional children because they are beyond the mandatory school age. You asked specifically whether a school system can refuse to provide and/or contract for special education programs for exceptional children at the high school level and whether the mandatory school age requirement has any influence on this decision.
We believe we have to some extent answered the question you have raised in a prior opinion of this office, OAG 76-678, copy attached. The basic starting point must be referenced to KRS 158.100(1), which states:
"Each county school district shall provide at least an approved twelve (12) grade school service. An approved eight (8) grade service for all pupils residing in the district shall be provided by maintaining the schools or by contract with another district. An approved high school service for all children of high school grade under twenty-one (21) years of age residing in the district shall be provided either by maintaining the schools within the county or or by contract with an independent district within the county."
Thus, as stated in OAG 76-678, at page 6, this law requires the local school districts to afford all pupils an opportunity to obtain a twelve (12) grade education and so requires this at least until an individual reaches twenty-one years of age. The obligation of a local school district to provide an education to those children residing in the school district is not affected by the compulsory attendance laws, KRS 159.010, et seq. The compulsory attendance laws affect those children wanting to get away from education in the schools, not those desiring to stay in school.
Furthermore, and consistent with the above, note the definition of "exceptional children" found in KRS 157.200(1), which reads in pertinent part as follows:
"'Exceptional children' means persons under twenty-one (21) years of age who differ in one or more respects from average or normal children in physical, mental, learning, emotional or social characteristics and abilities to such a degree that they need special educational programs or services for them to benefit maximally from the regular or usual facilities or educational programs of the public schools in the districts in which they reside; or, those children who, because of their intellectual or creative abilities or potentialities, require special educational programs or services."
It is recognized that part of the language in KRS 157.280 refers to children of compulsory school age. This section of our school law reads in pertinent part as follows:
"If the number of children of compulsory school age in one (1) classification of exceptionality in a district is not sufficient to justify a special education program for that exceptionality in that district, or if a school district does not provide a special education program for that exceptionality, the board shall provide a program by contract with another county or independent district or private organization that maintains a special education program approved by the state board of education for that exceptionality, the amount not to exceed the amount designated by the state department of education for a child of that particular exceptionality. " (Emphasis added.)
It is our opinion that a local public school may not interpret this statutory section as authorization to provide special educational programs for only compulsory school age children. Special education children are entitled to a "twelve (12) grade school service" or until a child reaches twenty-one years of age just as much as the "average or normal" children. We believe the requirements of P.L. 94-142 adequately bolster and mandate this position. Again see OAG 76-678, supra.
Therefore, in view of the above, it is our opinion that a local school system must continue to provide an appropriate educational program for an exceptional child even though beyond the age of compulsory attendance. If a school does not have a special educational program for a child past compulsory attendance age in any one classification of exceptionality, the school must provide a program by contract with another county or independent school district or private organization that maintains a special education program approved by the State Department of Education for that exceptionality. KRS 157.280.