Request By:
Mr. Milburn T. Maupin
Deputy Superintendent for Pupil Services
Jefferson County Public Schools
3332 Newburg Road
Louisville, Kentucky 40218
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As Deputy Superintendent for Pupil Services in the Jefferson County Public Schools you have requested an opinion of the Office of the Attorney General relative to the correct procedures for handling situations involving school compulsory attendance. You have specifically asked the following three questions:
1. If a parent enrolls a child in a private or parochial day school that is not approved by the State Board of Education, is the parent meeting his responsibilities required by law?
2. If a child is between the ages of 7 and 16 and is enrolled in a day school not approved by the State Board of Education, what is the responsibility of the board of education?
3. If a parent is fully aware that a day school is not approved by the State Board of Education and enrolls his child between the ages of 7 and 16 in such a school, would this parent be inducing, assisting, or causing a minor to become a habitual truant? If so, would this parent be subject to legal action under Section 530.070, Subsection 1C, of the Kentucky Penal Code? In the event this question is answered in the affirmative, what is the responsibility of the board of education in this connection?
Our responses to your questions require parading through KRS, Chapter 159, entitled "Compulsory Attendance. " A detailed consideration of the various applicable sections of Chapter 159 follows.
Kentucky's basic school compulsory attendance provision is set forth in KRS 159.010, which reads in full:
"Except as provided in KRS 159.030, each parent, guardian or other person residing in the state and having in custody or charge any child between the ages of seven (7) and sixteen (16) shall send the child to a regular public day school for the full term that the public school of the district in which the child resides is in session, or to the public school that the board of education of the district makes provision for the child to attend. A child's age is between seven (7) and sixteen (16) when the child has reached his seventh birthday and has not passed his sixteenth birthday. Any parent or guardian who elects to send a child six (6) years of age to school shall keep the child in regular attendance. Every child actually resident in this state is subject to the laws relating to compulsory attendance, and neither he nor the person in charge of him shall be excused from the operation of those laws or the penalties under them on the ground that the child's residence is seasonable or that his parent is a resident of another state."
This school law plainly provides for compulsory attendance of children between the ages of seven and sixteen, meaning when the child has reached his seventh birthday but has not passed his sixteenth, who are residing in the Commonwealth. Also, any parent or guardian who elects to send a child six years of age to school shall keep the child in regular attendance. OAG 65-841.
The children of compulsory school age are to attend the public school in the school district in which they reside. For a discussion of residency for school purposes, see OAG 76-116. It is to be noted that the obligation for seeing that each compulsory school age child is attending school rests mandatorily on "each parent, guardian or other person residing in the state and having in custody or charge" of the child. KRS 159.010.
KRS 159.030 provides for the authority of the board of education of the district in which the child resides to exempt from the requirements of compulsory attendance certain children. This statute, in parts pertinent to the questions you have raised, reads as follows:
"(1) The board of education of the district in which the child resides shall exempt from the requirement of attendance upon a regular public day school every child of compulsory school age:
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(b) Who is enrolled and in regular attendance in a private or parochial regular day school approved by the state board of education; or
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(d) Who is enrolled and in regular attendance in state approved private or parochial school programs for exceptional children;"
The Kentucky Court of Appeals, in commenting on this section, said that it does not have the effect of exempting from compulsory attendance those pupils who are enrolled in private, sectarian, and parochial schools but that it merely exempts them from attending the common (public) schools. See
Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930, 935 (1945).
Of importance to your questions it must be pointed out that for the exemption to be authorized by the local board of education under the attendance in a private or parochial regular day school, the school must be approved by the state board of (elementary and secondary) education. KRS 159.030(1)(b), (d). Without such approval of the private or parochial school, exemption from a child attending the public common school may not be given by the local board.
Thus, in answer to your first question, after reviewing only the two above referred to sections of the compulsory attendance laws, it is readily discernable that if a parent or legal guardian of a child enrolls that child in a private or parochial day school that has not been approved by the state board of education, the parent or legal guardian is not fulfilling his obligations mandated by KRS 159.010.
To respond to your second question requires us to consider additional sections of KRS, Chapter 159. We will consider not only the responsibility of the school board but also the responsibility of certain key school personnel.
According to KRS 159.080, each board of education is to appoint, after nomination and recommendation of the superintendent of schools, a director of pupil personnel and assistants, if necessary. The director of pupil personnel, sometimes referred to as "dpp," serves in the capacity of the old truant or attendance officer. The powers of the director of pupil personnel are spelled out in KRS 159.130 while the duties of this school officer are provided for in KRS 159.140.
KRS 159.130 reads:
"The director of pupil personnel and his assistants shall be vested with the powers of peace officers, provided, however, that they shall not have the authority to serve warrants. They may investigate in their district any case of nonattendance at school of any child of compulsory school age or suspected of being of that age. They may take such action in accordance with law as the superintendent directs. They may under the direction of the superintendent of schools and the board of education or the state board of education institute proceedings against any person violating any provisions of the laws relating to compulsory attendance and the employment of children. They may enter all places where children are employed and do whatever is necessary to enforce the laws relating to compulsory attendance and employment of children of compulsory school age. No person shall refuse to permit or in any way interfere with the entrance therein of a director of pupil personnel or in any way interfere with any investigation therein."
KRS 159.140 reads in pertinent part:
"The director of pupil personnel shall:
(1) Devote his entire time to the duties of his office;
(2) Enforce the compulsory attendance and census laws in the attendance district which he serves;
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(4) Ascertain the causes of irregular attendance and truancy, and seek the elimination of these causes;
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(6) Visit the homes of children who are absent from school or who are reported to be in need of books, clothing or parental care;"
From these two sections of our school laws it may be seen that the director of pupil personnel for each public school system has the mandated duties to enforce compulsory attendance, ascertain what are the causes of irregular attendance and truancy, and to visit the homes of children who are absent from school. To carry out these mandated duties the director of pupil personnel and his assistants have been statutorily clothed with the power to "investigate in their district any case of nonattendance at school of any child of compulsory school age or suspected of being of that age." In OAG 65-649, we concluded that it was a sound school practice to require the attendance officer (director of pupil personnel) to make a personal visit to the child's home to investigate in order to determine the reason for a child's nonattendance in the public school. For failure of the director of pupil personnel to visit the home he may be fined or otherwise penalized as authorized under KRS 159.990(2).
KRS 159.130 also importantly provides that the director of pupil personnel, under the direction of (1) the superintendent of schools, (2) the local board of education, or (3) the state board of education, is authorized to "institute proceedings against any person violating any provisions of the laws relating to compulsory attendance. "
Thus, in response to your second question, the responsibility of a local board of education concerning the compulsory attendance laws centers first on the responsibilities of one of its employes -- the director of pupil personnel. The director of pupil personnel is to investigate every situation where a child residing within the school district of compulsory school age is not attending a public school. To aid the director of pupil personnel in determining through his investigation why a child of compulsory school age is not attending a public school, he is to visit the home of the child and may look at the attendance reports of private and parochial schools which are required to be kept, KRS 159.040, and further will have access to reports required under KRS 159.160. This latter section states:
"The principal or teacher in charge of any public, private or parochial school shall report to the superintendent of schools of the district in which the school is situated the names, ages and places of residence of all pupils in attendance at his school together with any other facts that the superintendent may require to facilitate carrying out the laws relating to compulsory attendance and employment of children. The reports shall be made within the first two (2) weeks of the beginning of school in each school year."
From the home visit and review of appropriate records, the director of pupil personnel should be successful in ascertaining why a child of compulsory attendance age is not attending the public schools.
As it relates to your request, let us suppose that the director of pupil personnel ascertains that a child of compulsory school age residing with his parent or legal guardian in Jefferson County who is not attending a school in the Jefferson County Public Schools but instead is attending an unapproved private or parochial school. This child is not, under these assumed facts, exempted from attending the public schools. Upon the conclusion of the director of pupil personnel that the child attending the unapproved private or parochial school is at odds with the compulsory attendance laws, it is the responsibility of the director of pupil personnel to report the facts concerning such a child to the superintendent of schools. The local superintendent may direct the director of pupil personnel to institute proceedings against any person violating the provisions of the compulsory attendance laws. The superintendent is the executive officer of the local board of education and KRS 160.370 requires him to "see that the laws relating to the schools, the bylaws, rules and regulations of the state board of education, and the regulations and policies of the district board of education are carried into effect." It may be, however, that the superintendent will desire that the information gathered by the director of pupil personnel relative to a violation of the compulsory attendance laws be brought to the attention of the local board at a regular or duly called meeting. The local board could then direct the director of pupil personnel to institute appropriate proceedings in this regard. The law further permits the state board of education to direct the director of pupil personnel to institute the proceedings. KRS 159.130. The director of pupil personnel, upon direction from either the superintendent of schools, the local board of education, or the state board of education, should take those steps necessary to institute the appropriate legal proceedings against any one violating the compulsory attendance laws.
What are the appropriate legal proceedings goes to the essence of your third question. Again, as stated above, it would be the responsibility of the local board of education to see that the director of pupil personnel, upon the direction of either the superintendent, the state board of education, or itself, does institute legal proceedings for violation of the compulsory attendance laws. Before discussing the nature of the legal proceedings to be instituted, we turn to KRS 159.180 which states in full:
"Every parent, guardian or custodian of a child residing in any school district in this state is legally responsible for any violation of KRS 159.010 to 159.170 by the child. Before any proceedings are instituted against the parent, guardian or custodian for violation of KRS 159.010 to 159.170, a written notice of the violation shall be served on the person by the director of pupil personnel, and one (1) day shall be given for the termination of the violation. After such notice, if the violation is continued or if the provisions of KRS 159.010 to 159.170 are again violated during the school term by the child, no further notice shall be necessary and the parent or guardian shall be punishable as provided in KRS 159.990. A notice by registered mail, certified mail, return receipt requested or by personal service by the director of pupil personnel shall be a legal notice."
This section extends some protection to the parent, legal guardian or custodian from the institution of legal proceedings by the director of pupil personnel. If the person legally responsible for the child in question was unaware or whatever that the compulsory attendance laws were being violated as concerns the child, this statute gives one day for termination, permanently, we believe, of the violation. If termination of the violation is not forthcoming in the day after written notice is received of the compulsory attendance violation, this statute provides that the parent or guardian shall be punishable as provided in KRS 159.990.
KRS 159.990, in relevant part hereto, states as follows:
"(1) Any parent, guardian or custodian who wilfully fails to comply with the requirements of KRS 159.010 to 159.170 shall be fined not more than ten dollars ($10.00) for the first offense, and not more than twenty dollars ($20.00) for each subsequent offense. The court trying the case may suspend enforcement of the fine if the child is immediately placed in attendance at a school, and may finally remit the fine if the attendance continues regularly for the full school term. School attendance may be proved by an attested certificate of the principal or teacher in charge of the school.
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(5) All fines imposed and all sums required to be paid as penalties under this section shall, after payment of the costs of prosecution and recovery thereof, be paid into the treasury of the district board of education and become a part of the school fund of the district."
This penalty statute simply provides that willful failure to comply with the compulsory attendance laws is punishable by a fine. The court, as concerns Jefferson County Schools, the county court, must determine that a parent's or legal guardian's violation of the compulsory attendance laws has been willful before a fine may be assessed. KRS, Chapter 159 does not provide as a penalty any jail sentence for a parent, guardian or custodian of a child failing to comply with the compulsory attendance laws. OAG 73-769. To initiate the proceeding for consideration of the penalty provided by KRS 159.990(1), the director of pupil personnel should ask the court to issue a warrant against the parent or legal guardian for failure to comply with the compulsory attendance laws.
We do not believe, and apparently neither do you, that a proceeding under KRS 159.990(1) is the only legal proceeding which may be instituted by the director of pupil personnel. You mentioned KRS 530.070(1)(c), which provides as follows:
"(1) A person is guilty of unlawful transaction with a minor when:
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(c) He knowingly induces, assists or causes a minor to become a habitual truant; "
Conviction of unlawful transaction with a minor is a Class A misdemeanor, the punishment for which may include up to twelve months imprisonment or a fine up to but not to exceed $500, or both. KRS 500.080(10) and 534.040(1), (2)(a).
In considering the possible applicability of KRS 530.070 (1)(c) to the situation where a child is habitually truant from the public common schools but is regularly attending an unapproved by the state board of education private or parochial school, it is important first to note that the court with exclusive jurisdiction over persons charged with this misdemeanor is the juvenile session of the county court. KRS 208.020(3). The key elements of KRS 530.070(1)(c) are the accused (1) "knowingly" (2) "induces, assists or causes" a (3) "minor to become habitual truant. " An individual charged under this section is entitled to a trial by jury. KRS 208.020(6).
As concerns KRS 530.070, in OAG 75-330, copy attached, we concluded that while the specific acts prohibited by the statute must be proven beyond a reasonable doubt, it is unnecessary for the child to have been proceeded against in juvenile court for, as relevant to the subject of the present opinion, being habitually truant from school. It is only necessary to prove beyond a reasonable doubt that the child in question has been habitually truant from school and the person charged under KRS 530.070 knowingly induced, assisted or caused the child to become habitually truant.
The need to show habitual truancy as required under KRS 530.070, requires a consideration of Kentucky's truancy law. KRS 159.150 provides for what is to constitute truancy as follows:
"Any child who has been absent from school without valid excuse for more than three (3) days, or tardy on more than three (3) days, is a truant. Any child who has been reported as a truant more than three (3) times is an habitual truant. Being absent for less than half of a school day shall be regarded as being tardy."
This office, in OAG 67-553, copy attached, very carefully analyzed this section of our school laws. A distinction was drawn between "simple truancy" and "habitual truancy. " We concluded that simple truancies may arise either through "more than three" unexcused absences or tardinesses as defined in KRS 159.150 and that the fourth instance of simple truancy produces habitual truancy. As an aside, note that it is the "status offense" of the charge of habitual truancy from school which the juvenile court has jurisdiction over a child for appropriate disposition. KRS 208.010(9), 208.020(1)(c).
In further consideration of KRS 530.070, as concerns a consideration of this charge against a parent or legal guardian, an issue arises as to whether a parent or legal guardian could be charged and punished under KRS 159.990(1) and also KRS 530.070. Would a conviction under KRS 159.990(1) be a bar to a subsequent prosecution under KRS 530.070? This issue is one of being placed in jeopardy twice and whether in this instance such is prohibited.
The Kentucky Court of Appeals recently had the occasion to consider a similar jeopardy issue in
Commonwealth v. Barnhill, Ky. App., 552 S.W.2d 241, 242 (1977). The Court discussed KRS 505.040 (1)(b) which provides that a later prosecution is barred by a former prosecution when the second prosecution is for "[a]n offense involving the same conduct as the first prosecution, unless each prosecution requires proof of a fact not required in the other prosecution. . . ."
For an individual to be fined under KRS 159.990(1), the court only has to determine that the individual has wilfully failed to comply with the compulsory attendance laws. We stated in OAG 67-553, supra, that "KRS 159.990 imposes penalties upon the person standing in loco parentis or upon others responsible for either simple or habitual truancy. " (Emphasis in original.) On the other hand, under KRS 530.070(1)(c), there must be a showing of habitual truancy. Thus, the facts of each case must be looked at carefully when a charge has been brought under KRS 159.990(1) against a parent or legal guardian and a subsequent charge is brought under KRS 530.070(1)(c). It is our opinion, however, that a charge under KRS 530.070(1)(c) requires proof of a fact, that is habitual truancy, that is not required to be proved to establish a charge under KRS 159.990(1). We believe there is no jeopardy problem.
To this point we have only discussed KRS 530.070(1)(c) as it might apply against a parent or legal guardian of a child who is shown to have been habitually truant from school. The Commentary to KRS 530.070 in the Kentucky Penal Code states that this section "applies to all persons but is designed primarily to apply to non-parents and non-guardians." This being so, it is our opinion that not only could the director of pupil personnel be directed to institute proceedings charging the parents of a child who has been habitually truant from public school but who has been attending an unapproved private or parochial school under KRS 530.070(1)(c), but could also be directed by the local superintendent, the local board of education, or the state board of education to institute proceedings under KRS 530.070(1)(c) against those individuals in charge of the private or parochial school the child is attending. The burden of proof would be to show beyond a reasonable doubt that the individual or individuals in charge of the unapproved by state board of education private or parochial school "knowingly induce(d), assist(ed) or cause(d)" the child attending the unapproved private or parochial school to become habitually truant from the public common schools.
Our apology is extended to you for the length of this opinion. However, we believed it necessary and we trust it will be beneficial to you in the consideration of compulsory attendance problems.