Request By:
Mr. Mike Murphy
Director of Pupil Personnel
Newport City Schools
Newport, Kentucky 41071
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
You have asked the Office of Attorney General for an advisory opinion relative to the subject of compulsory education. Your question is simply whether married girls under age 16 and pregnant girls under 16 but not married may be held to the requirements of the Kentucky compulsory education statutes.
It is important to carefully consider KRS 159.030. This school law was amended by the 1980 General Assembly and now 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:
(a) Who is a graduate from an accredited or an approved four (4) year high school; or
(b) Who is enrolled and in regular attendance in a private or parochial regular day school approved by the state board for elementary and secondary education; or
(c) Who is less than seven (7) years old and is enrolled and in regular attendance in a private kindergarten-nursery school with a permit issued pursuant to KRS 158.310; or
(d) Whose physical or mental condition prevents or renders inadvisable attendance at school or application to study; or
(e) Who is enrolled and in regular attendance in state approved private or parochial school programs for exceptional children; or
(f) Who is enrolled and in regular attendance in a state supported program for exceptional children.
(2) Before granting an exemption under paragraph (d) of subsection (1) of this section the state board for elementary and secondary education shall require satisfactory evidence, in the form of a signed statement of a licensed physician, psychologist or psychiatrist, or public health officer, that the condition of the child prevents or renders inadvisasble attendance at school or application to study. On the basis of such evidence the board may exempt any such child from compulsory attendance. Any child who is excused from school attendance more than six (6) months must have two (2) signed statements from a combination of the following professional persons: a licensed physician, psychologist, psychiatrist, and health officer. Exemptions of all children under the provisions of subsection (1)(d) of this section must be reviewed annually with the evidence required being updated.
(3) For any such child who is excluded under the provisions of subsection (1)(d), home, hospital, institutional or other regularly scheduled and suitable instruction meeting standards, rules and regulations of the state board for elementary and secondary education shall be provided."
The portions of this statute pertinent to the issues under consideration in this opinion are subsection (1)(d), subsection (2) and subsection (3). The last sentence in subsection (2) was added in 1980 in Senate Bill 341. The language in subsection (3) was added in 1974, House Bill 40. It is evident in reading this statute as amended that there is no delineated exemption covering your question.
Your question is a most difficult one. We have previously addressed part of your question in OAG 61-953, copy attached. In that advisory opinion this office concluded:
"[T]hat the marriage of a child under the age of sixteen years emancipates such child from the provisions of KRS 159.010 for the reason that the marriage gives rise to a new relation inconsistent with the concept of subjection to the control and care of the parent. When such a marriage takes place, the mancipated child is the head of a new family and as such is subject to obligations and duties to his wife and children which require him to be master of himself, his labor, earnings, and conduct. The same reasoning applies to a married minor daughter."
The flip side of this particular issue, that is, whether a school board may require a student who marries to withdraw from school, was decided in the negative in Board of Education of Harrodsburg v. Bentley, Ky., 383 S.W.2d 677 (1964). In that case, the Kentucky Court of Appeals found a school board policy requiring a married student to withdraw from school as an arbitrary and unreasonable one. Since the decision of Bentley, courts of other states have also concluded a school district cannot exclude married students from extracurricular activities. See for example Besson v. Kiowa Co. School Dist., R.E.-1. 567 P.2d 801 (1977). The Office of the Attorney General took this position in OAG 77-361, copy attached, although there is no court case in Kentucky along these lines as far as we know. The effect of Title IX bears greatly on this issue now also. 20 U.S.C. § 1681 et seq. The regulations to Title IX provide that:
"A recipient shall not apply any rule concerning a student's actual or potential marital, family, or marital status which treats students differently on the basis of sex." 34 CFR, § 106.40(a).
Thus, we believe a married student, even though under the age of 16 years, may not be required to attend school. To conclude that the married student under 16 must continue in school would be to ignore the hard facts of reality and in conflict with the concept that marriage is a domestic relation highly favored by law. However, a married student who desires to continue his or her education may do so.
As noted earlier, it is very evident that the language of KRS 159.030 is of no real assistance in looking at the unmarried pregnant girl under 16 issue. Again, there can be no real doubt as to whether the unmarried pregnant girl under 16 must be permitted to continue to go to school so long as she is physically and mentally able, both before the delivery of the child and afterwards. For example, the regulations to Title IX, supra, state in part that:
"A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student's pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient. " 34 CFR, § 106.40(b)(1).
Also, Section 106.40(b)(5) provides:
"In the case of a recipient which does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for the leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom as a justification for a leave of absence for so long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began."
In fact, before childbirth we believe the under 16-year-old unmarried girl is required to continue to go to school unless one of the exemptions set forth in KRS 159.030 is met.
These just cited statutory and regulatory provisions do not, however, answer the question of whether the unmarried pregnant girl under 16 must continue to go to school after childbirth due to the compulsory attendance statutes. For reasons very similar to those expressed above relative to simply the married student under 16, we do not believe a girl under 16 who has given birth to a child and who is mothering that child is required to attend school.
The unmarried young mother under 16 is not emancipated from parental authority. Still, the responsibilities attendant to motherhood are so great that it is unreasonable to construe the law so as to require a girl in such a situation to go to school. After the baby is born, if the baby is kept by the girl, caring for the infanct is a full-time job, even though that time may require being shared with the need to work in order to support the newborn. These facts, we believe, require a conclusion that the girl in this situation may not also be compelled to attend school until she reaches the age of 16; and it is to be remembered that this girl is entitled to immediately continue her education if she can work things out. Also, if she finds it necessary to remain out of school for several years, she is still entitled to go to school later on. Pupils residing in Kentucky are entitled to twelve years of school service or entitled to attend school until they reach the age of 21. KRS 158.100.