Request By:
Mr. David W. Mays
Principal
Boston Elementary School
Boston, Kentucky 40107
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion as to whether or not a local school board may by regulation require its certified employees to be residents of that district.
This is of special importance since the teaching profession involves a tight job market, and the flexibility afforded by not imposing such residential restriction has proved helpful throughout the nation in filling teacher positions. This is especially significant in terms of husbands and wives who are both teachers. They often have to get employment in different districts or counties.
Each county in Kentucky constitutes a county school district, except that in counties containing independent school districts the county school district consists of the remainder of the county outside of the boundaries of the independent school districts. KRS 160.010. Thomas v. Spragens, 308 Ky. 67, 213 S.W.2d 452 (1948).
To begin, a county board of education is a quasimunicipal corporation, governed by the rules applicable to strict municipalities. Board of Education of Kenton County v. Talbott, 286 Ky. 543, 151 S.W.2d 42 (1941). See KRS 160.160.
As relates to powers of such political subdivisions, the Supreme Court of Kentucky, in Fiscal Court, Etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977) came down hard on the principle that such powers of political subdivisions must be expressly delegated to it by statute. The court said that in granting governmental powers to counties it must do so with the precision of a rifle shot and not with the casualness of a shotgun blast. See also Knott County Board of Education v. Martin, 256 Ky. 515, 76 S.W.2d 601 (1934), holding that a county board of education is strictly a statutory creature and must closely follow the statute prescribing the manner and form of the performance of their duties.
Note the general corporate powers of a board of education under KRS 160.160. That deals with making contracts, purchasing and holding property, issuing bonds and constructing improvements.
The general powers of a school board are described in KRS 160.290:
"(1) Each board of education shall have general control and management of the public schools in its district and may establish such schools and provide for such courses and other services as it deems necessary for the promotion of education and the general health and welfare of pupils, consistent with the rules and regulations of the state board for elementary and secondary education. Each board shall have control and management of all school funds and all public school property of its district and may use such funds and property to promote public education in such ways as it deems necessary and proper. Each board shall exercise generally all powers in the administration of its public school system, appoint such officers, agents and employes as it deems necessary and proper, presribe their duties, and fix their compensation and terms of office.
(2) Each board shall make and adopt, and may amend or repeal, rules, regulations and bylaws for its meetings and proceedings for the government, regulation and management of the public schools and school property of the district, for the transaction of its business, and for the qualification and employment of teachers and the conduct of pupils. The rules, regulations, and bylaws heretofore made by any governing body of a school district, or hereafter made by a board of education, shall be consistent with the general school laws of the state and shall be binding on the board of education and parties dealing with it until amended or repealed by an affirmative vote of a majority of the members of the board. The rules, regulations and bylaws shall be spread on the minutes of the board and be open to the public."
Thus under KRS 160.290(2), each board may make regulations relating to "the qualification and employment of teachers. . ." However, the statute explicitly reminds the public that such regulations shall be consistent with general school laws of the state. In addition, such powers cannot be arbitrarily employed and cannot permit abuse of reasonable discretion. Ex parte County Board of Education of Montgomery County, 260 Ky. 246, 84 S.W.2d 59 (1935) 60.
Now we turn to the statutes dealing with school employees and their qualifications. See KRS 160.380 and KRS 161.010 through 161.126, relating to certification of school employees. See KRS 161.140 through 161.210, relating to regulations as to school employees.
A perusal of the above statutes relating to teacher certification and regulations indicates no provisions relating to residential requirements. Therefore any regulation of a school board attempting to establish a residential qualification as to school employees would be, in our opinion, inconsistent with the general school law. In practical effect, the statutes relating to school employee qualification preempt the field. There is thus no room for the interstitial regulations of this kind. KRS 160.290(2) simply does not permit this innovative attempt of a school board to establish residential restrictions for school employees. Additionally, our view is consistent with the necessity for finding express authority in the statutes as relate to the exercise of school board powers.
Even if the statutes permitted residential restriction regulation, which they do not, such restriction is arbitrary and unreasonable in view of the modern conditions surrounding population movement, concentration in urban areas and the husband and wife as teachers, as pertains to school employees throughout the nation, as well as in Kentucky. See Montenegro Riehm Music Co. v. Board of Education, 147 Ky. 720, 145 S.W. 740 (1912) 743; and 78 C.J.S., Schools and School Districts, § 121, pages 908-909.
By way of contrast, in Belcher v. Gish, Ky., 555 S.W.2d 264 (1977), a city board of education adopted a regulation providing that teachers in the system would be required to retire at the end of the school year in which they reach 65. Such an effect is provided for in the tenure statute, KRS 161.720(4), as relates to a "continuing service contract." The court upheld the regulation as being in conformity with the statute, KRS 161.720(4).
In view of the arbitrary nature of the district residential regulation, it violates § 2 of the Kentucky Constitution. In Pritchett v. Marshall, Ky, 375 S.W.2d 253 (1964), the court wrote that the prohibition against arbitrariness in § 2 is a "concept broad enough to embrace both due process and equal protection of the laws, both fundamental fairness and impartiality."
In connection with teacher qualifications established by a local board of education, the Supreme Court of the United States has reiterated the doctrine that to justify classifications of employment restriction, it must be shown that it is rationally related to the interests which are sought to be protected. See Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972). Here there is no showing as to how the state interest will be subserved by such residential restriction. In other words, the Equal Protection Clause of the Fourteenth Amendment of the Federal Constitution denies to states the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. Here the restrictive residential regulation of the school board could qualify a wife as teacher who teaches in the district, but would disqualify the husband who teaches outside of the district. There is simply no showing that the classification is germane to any reasonable statutory purpose. See Eisenstadt v. Baird, above.
Section 183 of the Kentucky Constitution requires the General Assembly to "provide for an efficient system of common schools throughout the state." (Emphasis added.)
There is no showing, even if the state law permitted the residential restriction, that such restriction is bottomed on any fundamental concept of efficiency or educational purpose. In fact, such restriction seems to work against efficiency in operating schools and procurement of teacher personnel. See Belcher v. Gish, Ky., 555 S.W.2d 264 (1977) 266.
A case very nearly in point is Johnson v. Dixon, Ky., 501 S.W.2d 256 (1973), in which Howard Johnson and his wife, both natives of Barren County, were employed by the Hart County Board of Education on one year contracts to teach at the secondary level in the Hart system. In March 1972 they were told by the superintendent that they would not be reemployed at the secondary level, because there were two Hart County natives who were available for the jobs; and the board's policy was to give preference to Hart County natives. They were offered jobs at the primary level, provided they went to summer school. They brought suit against the superintendent and board members, alleging that their denial of reemployment at the secondary level was arbitrary and discriminatory in violation of their rights under Sections 1 and 3 of the Kentucky Constitution and deprived them of the equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution. The Court of Appeals held that such a residential policy, although involving a limited contract under KRS 161.750, would be unconstitutionally discriminatory and preferential, in violation of Sections 1,2 and 3 of the Kentucky Constitution, although there was an issue of fact as to whether the board had such a policy. The Court said that classifications based upon duration of residence have been held inherently suspect and therefore unconstitutional unless the public body making the classification can demonstrate that the classification is necessary to promote a compelling governmental (here, state) interest. Thus Johnson v. Dixon appears to be dispositive of this issue, since a compelling state interest cannot be shown by the school board as relates to this residential restriction. See Dunn v. Blumstein, 405 U.S. 330, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972), in which the court pointed out that the right to travel is a constitutionally protected right, and any classification which serves to penalize the exercise of that right unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.
KRS 15.335 provides that no person shall be disqualified from holding a position as peace officer by reason of his residence or voting eligibility, except as provided in the Constitution. This is a symbol of the General Assembly's recognition that residential requirements must not be permitted to militate against the availability of competent non-constitutional officers for political subdivisions and for the state.