Request By:
Walt Green
Superintendent, Taylor County Schools
1209 East Broadway
Campbellsville, Kentucky 42718
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General
As Superintendent of the Taylor County Schools, you have asked the Office of the Attorney General to consider two situations which have developed in your school system. The brief factual background to one of the situations is a student transferred into your school system from another state. You informed us this student had been legally enrolled in a public school program in that state. The child's birthdate is November 30, 1976, so as you stated, consequently, in accordance with kindergarten age requirements would have been ineligible to enroll in a public school in the Commonwealth. You asked how this type of situation is supposed to be legally handled. You noted the child was permitted to be enrolled in your kindergarten program.
We will respond to this situation before setting out the second situation developed in your letter. It is our opinion you acted legally proper in enrolling the child in issue. KRS 158.030 does provide, in relevant part, that "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. " Also, to be referenced is KRS 157.315, subsection (1) which states:
"Upon the recommendation of the superintendent of public instruction, the state board for elementary and secondary education [now state board of education] shall adopt regulations defining and prescribing the criteria for kindergartens in the common schools."
The State Board of Education has fulfilled this responsibility by promulgating and adopting 704 KAR 5:050. Additionally, we will simply mention KRS 158.090 regarding boards of education maintaining kindergartens for children, but will reserve discussion of this school law provision for below.
It is clear from considering the facts given against KRS 158.030 and the state board regulations that for a child resident in Kentucky at the start of the current school year to have been eligible for enrollment in a Kentucky public school kindergarten program funded in part by Minimum Foundation dollars, a child was required to have been five years of age by October 1, 1981. The child in issue did not become five years old until November 30, 1981. However, the child in issue, as we understand it, was also not a resident in Kentucky at the start of the current school year. You stated, as noted above, that this child "transferred into our school system from another state. This student was legally enrolled in a public school kindergarten program in the state from which he came. . . ." In view of these facts, we believe a prior opinion of this Office is persuasively supportive of our conclusion that you were legally justified in enrolling the child in question. In OAG 74-626, copy attached, the factual situation involved was very similar to the one you have presented. The child had been enrolled in first grade in Florida, but she did not meet the age requirements for first grade in Kentucky. We advised that in our opinion if the child had been lawfully enrolled in the first grade in the State of Florida at the beginning of the then current school year and subsequently moved her residence with her family to Kentucky, then the child should be admitted to the public school in Kentucky as a transferee rather than as a beginning student. We relied upon Article 4, Section 1, of the United States Constitution which provides:
"Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings in every other state. . . ."
We went on to say in OAG 74-626 that,
"If a properly accredited school of the State of Florida certifies the enrollment of your daughter as a first grade pupil, we believe that the public school in the district to which she removes in Kentucky should accept her as a first grade pupil. "
It is our view the same considerations are applicable to the situation you have asked us about.
Before going on to the second situation you presented, we believe a closer look at KRS 158.090 is appropriate. This very old section of our school laws reads in pertinent part:
"The board of education of any school district may establish and maintain kindergartens for children from four (4) to six (6) years of age. . . ."
At first blush, this section of law and KRS 158.030, referenced above, appear to be in conflict. However, it is our responsibility to attempt to reconcile statutory provisions, if possible, and we believe such can be reasonably accomplished. It is our belief KRS 158.090 authorizes a local school district to establish a kindergarten program to include children under five but at least four years of age. However, we believe the cost of educating those four-year-old students would have to be totally borne by the local school district. Only those children meeting the kindergarten requirements set out in KRS 158.030 and the state board regulations can be counted for Minimum Foundation money purposes. In support of this position, we point out that KRS 157.315, mentioned above, which directs the state board to adopt regulations defining and prescribing criteria for kindergartens in the Commonwealth schools, is a part of the foundation program statutory provisions. The state board regulations, 704 KAR 5:050, referenced earlier, provide the requirements for state funding for a kindergarten unit and for the calculations to be made involving average daily attendance.
The second situation you have asked this Office to consider involves a student in your kindergarten program whose birthdate is October 5, 1975, which is five days short of being legally eligible for first grade enrollment. Again, see KRS 158.030. You stated this child scores exceptionally high on both the academic and maturity level testing. You further stated that it was the consensus of the teachers involved, guidance counselor, principal, and yourself that something should be done to provide a challenge to this child above and beyond your normal kindergarten program. You informed us that, after consultation with the Bureau of Instruction in the Department of Education, this student was permitted "to assume the status of a first grade student only in the context of instructional importance." You asked for our legal reaction to this situation.
We are of the opinion you have acted in a properly legal manner. We believe KRS 158.030 precludes you from "promoting" the child in issue into the first grade due to the statutably prescribed age for first grade entrance. We do not feel, however, that a school district is prevented from developing a program of instruction in the kindergarten class that will challenge a child's academic skills and abilities even if this program is equivalent to a first grade program. We point out for your consideration again 704 KAR 5:050, and particularly section (5), which provides:
"The program shall include appropriate developmental experiences in social living, physical development, emotional growth and stability, creative expression and in academic areas including math, language, science, and social studies. The program shall provide opportunities and experiences in accordance with each child's level of comprehension and maturation."
It is our belief your school personnel's handling of this kindergarten child's educational needs is in complete harmony with the applicable school laws and regulations.