Request By:
Mr. Roscoe Porter
Director
Department of Pupil Personnel
Hopkins County Schools
537 West Arch Street
Madisonville, Kentucky 42431
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
You have asked the Office of the Attorney General to consider two related questions regarding the enrollment of a child in a public common school system. Your questions are as follows:
"(1) Can a child who is six years old after October 1 enroll in a Kentucky public school system for first grade if he/she was enrolled in a private school for the kindergarten year?
"(2) Can a student be enrolled in the second grade who was not five by October 1 for kindergarten and was not six by October 1 and attended the first grade in a private school? "
It is the formal opinion of this office the answer to your first question must be in the negative while, due to the quirks in our school law, the answer to the second question is in the affirmative.
The key statutory provision in issue in considering your questions is KRS 158.030 which reads in full as follows:
"A 'common school' is an elementary or secondary school of the state supported in whole or in part by public taxation. No school shall be deemed a 'common school' or receive support from public taxation unless the school is taught by a qualified teacher for a term of eight or more months during the school year and every child residing in the district who satisfies the age requirements of this section has had the privilege of attending it. Provided, however, that any child who is six years of age or who may become six years of age by October 1, 1979, and any year thereafter, shall attend public school as provided by KRS 157.315 or qualify for an exemption as provided by KRS 159.030. Any child who is five years of age or who may become five years of age by October 1, 1979, and any year thereafter, may enter a public school kindergarten. Any child who has successfully completed kindergarten and shall be six years of age by December 31, 1980 shall be eligible for enrollment in the first grade notwithstanding any other age requirements of this section, and any child who has attended nursery school and will be five (5) years of age on or before December 31, 1980 shall be eligible for enrollment in a public kindergarten program in the 1980-81 school year and in the first grade during the 1981-82 school year. "
Under this statute, if a child is six years of age by October 1, the child must attend school or qualify for an exemption from compulsory attendance in a public school as set out in KRS 159.030. In OAG 81-287, an opinion also written to you, we concluded that the six year old child by October 1 is entitled to commence their school year in first grade and could not be required to attend kindergarten. KRS 158.030 further provides that if a child is five years old by October 1, the child may enter a public kindergarten program. See also the regulations of the State Board of Education at 704 KAR 5:050 at section 4.
Your first question sets up as the facts a child who will not be six years by October 1, but who has attended a private kindergarten program. We believe the child may not be permitted to enroll in the first grade in a public common school. The last sentence of KRS 158.030 is no longer subject to application. This sentence served only as a transition provision relative to what the law had been prior to 1980 amendment. That is, only for purposes of the 1980-81 school year could a child who was not yet six years old by October 1, but who would become six years of age by December 31, 1980, and who had successfully completed kindergarten, public or private, still be permitted to enroll in the first grade. Strict adherence to the age qualification provisions of KRS 158.030 is called for, absent a transfer from out of state situation such as discussed in OAG 82-44, copy attached.
In your second question the hole in KRS 158.030 is exposed. If a child who is not five years old by October 1 or six years old by October 1 attends first grade in a nonpublic school, the child may still be enrolled in a public school second grade in their seventh chronological year irrespective of birth date. The provisions of KRS 158.140 are supportive of this conclusion. KRS 158.140, in pertinent part, reads:
"When a pupil in any public elementary school or any approved private or parochial school completes the prescribed elementary course of study he is entitled to a certificate of completion signed by the teacher or teachers under whom the course was completed. The certificate shall entitle the pupil to admission into any public high school."
Although it is arguable that the officals in a public school could assign the child, above described, who has attended a nonpublic kindergarten and first grade school program, to repeat the first grade in the public school, such a determination would seem only justified when it had been demonstrated the child was not suited for work in the second grade public school classroom. The bottom line to our conclusion here is simply that there is no statute that regulates the entrance age for a child to attend a nonpublic school. And, it is not believed one could constitutionally be enacted due to the Kentucky Supreme Court's view of Section 5 of the Kentucky Constitution and the proscription against the state from regulating nonpublic schools. See Kentucky State Bd. etc, v. Rudasill, Ky., 389 S.W.2d 877 (1979). Therefore, a child who is not old enough to attend a public school as a first grader may nevertheless the following year enroll in a public school as a second grader if the child has completed first grade in a nonpublic school.