Request By:
Mr. Roger A. Phelps, Principal
Shepherdsville Junior High School
P.O. Box 368
Shepherdsville, Kentucky 40165
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
In a recent letter to the Office of the Attorney General you asked this office to advise you regarding the matter of requests from parents and others that students be exempt from required courses for graduating due to religious beliets. You pointed out to us in your letter that the State Board for Elementary and Secondary Education requires all students in order to graduate from high school to have successfully completed one credit in Health and Physical Education. You noted that children may be excused from the Physical Education part of this requirement if a medical doctor states that a student is physically unable to participate in the physical education activities. The requirement of taking Physical Education has come under attack on the basis of religious belief that it is sinful to dance or to wear shorts or slacks. You have specifically asked us in this regard whether students with such a religious belief may be excused from the Physical Education requirement for graduation.
Two years ago this office had the occasion to consider nearly the identical issue you have presented for an opinion. In OAG 76-225, copy attached, we concluded that "the requirement that the child participate in Health and Physical Education does not violate the First or Fourteenth Amendment to the Constitution of the United States nor any constitutional or legislative provisions of the Commonwealth." We reiterate that advisory opinion and believe it to be dispositive of your question.
This office is not unmindful that the constitutional issue under consideration is a sensitive one. However, while the freedom to believe and adopt one's chosen form of religion is an absolute right, freedom of action, the exercise of these religious beliefs may be subject to regulation when related to a valid public interest. The requirement of a Health and Physical Education unit for graduation from our public common schools may be considered quite simply as a public health measure. Certainly the state, acting in this instance through the State Board for Elementary and Secondary Education, has a legitimate interest in the health of its children so as to support a requirement of Health and Physical Education in the development of the curriculum required for graduation.
It is to be recognized that the State Board for Elementary and Secondary Education would not have to require, in order to graduate, a unit of Health and Physical Education. The statutory law gives the state board discretion in this regard. KRS 156.160. Also, should the state board so desire, they could, by administrative regulation, spell out criteria for exemption from the requirement based upon genuine and sincere religious convictions. The state board has to date declined to take either of these possible actions. The state board has, however, embarked upon a dangerous course of case-by-case consideration of requests for exemption from unit requirements for graduation founded upon objections by way of religious principles. The state board must exercise its administrative control over the public common schools in the Commonwealth in a nonarbitrary, reasonable and uncapricious manner. It would seem that a case-by-case consideration of a matter relating to a transcendent, personal constitutional right lends itself to possible unreasonable, arbitrary and capricious actions. Nevertheless, we would be remiss if we did not inform you so that you could inform others that an appeal to the State Board for Elementary and Secondary Education for exemption from certain graduation requirements due to religious beliefs is not without precedent.