Request By:
Mr. Samuel A. Day
Assistant Principal
Lloyd Memorial High School
Box 99
Erlanger, Kentucky 41018
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
As the Assistant Principal of the Lloyd Memorial High School, you have asked the Office of the Attorney General to consider what you believe is a gap in the suspension and expulsion policy of your school board. The brief factual background to your concern arises from the fact that several students were caught on school property possessing pills the students thought were speed, a controlled substance. You stated that according to the local board policy any student caught using, selling, or having drugs in their possession is to be recommended to the Board of Education for an expulsion hearing. However, after you had the pills tested, they turned out to be caffeine. You informed us that since the students did not have a controlled substance, the board did not expell the students from school. Your question is whether a school board policy may be prepared and adopted that will legally forbid even look-alike drugs to be possessed at school. It is the formal opinion of this office such a school board policy as discussed below may be legally promulgated.
As this office has many times before noted, a school board has the authority and responsibility under KRS 160.290 and KRS 160.340 to adopt regulations and policies to govern the conduct of pupils. See also KRS 160.180. Your question relates to whether a school board policy could be effected to implement KRS 158.150 which is the suspension and expulsion of public school statute. Subsection (1) of this provision reads in full:
"(1) All pupils admitted to the common schools shall comply with the lawful regulations for the government of the schools. Wilful disobedience or defiance of the authority of the teachers or administrators, use of profanity or vulgarity, assault or battery or abuse of other students or school personnel, the threat of force or violence, the use or possession of alcohol or drugs, stealing or destruction or defacing of school property or personal property, the carrying or use of weapons or dangerous instruments, or other incorrigible bad conduct on school property as well as off school property at school sponsored activities constitutes cause for suspension or expulsion from school."
Clearly it is contemplated that regulations may be adopted by a local board of education, the violation of which will constitute cause for suspension or expulsion from school.
It is to be pointed out that KRS 158.150 lists "use or possession of alcohol or drugs" to be a cause for suspension or expulsion. The term "drugs" must be construed in accordance with the common and approved usage of that term in the entire context of the statute. See KRS 446.080(4). When so considered, it is obvious that the term "drugs" here means controlled substances or illegal drugs. See KRS 218A.010 et seq. Note Fisher v. Burkburnett Independent School Dist., 419 F.Supp. 1200 (N.D. Tex. (1976)) wherein the Federal District Court determined the term "dangerous drug" in a school drug regulation was not unconstitutionally vague.
KRS 158.150 also provides that "other incorrigible bad conduct" may be a cause for suspension or expulsion from school. "Incorrigible" as it appears in a discipline statute has also been litigated. See Fisher, supra, and also Pervis v. LaMarque Indp. Sch. Dist., 466 F.2d 1054 (5th Cir. 1972). In The Fisher case the Court accepted the plaintiff's definition of "incorrigible" as denoting more than a single instance of misbehavior.
We believe the situation you describe could possibly fall under the "other incorrigible bad conduct" cause indicated in KRS 158.150. Our reasoning behind this position rests upon the prohibited practices concerning substances that simulate controlled substances, enacted by the 1982 General Assembly and codified as KRS 218A.350. The penalty for violating this provision is a Class A misdemeanor for the first offense and a Class D felony for subsequent offenses. KRS 218A.990(11). KRS 218A.350 reads in full as follows:
"(1) No person shall sell or transfer any substance, other than a controlled substance, with the representation or upon creation of an impression that the substance which is sold or transferred is a controlled substance.
"(2) No person shall possess for sale or transfer any substance designed in any manner, including but not limited to design of the item or its container, markings, or color, to simulate a controlled substance.
"(3) No person shall possess for sale or transfer any substance, not covered by subsection (2) of this section which is not a controlled substance with the representation or upon the creation of an impression that the substance held for sale or transfer is a controlled substance.
"(4) No person shall manufacture, package, repackage, advertise, or mark any substance, which is not a controlled substance, in such a manner as to resemble a controlled substance, for the purpose of creating the impression that the substance is a controlled substance.
"(5) For the purpose of determining whether this section has been violated, the court or other authority shall include in its consideration the following:
(a) Whether the non-controlled substance was packaged in a manner normally used for the illegal sale of controlled substances;
(b) Whether the sale or attempted sale included an exchange or demand for money or other property as consideration, and whether the amount of the consideration was substantially greater than the reasonable value of the non-controlled substance.
(c) Whether the physical appearance of the non-controlled substance is substantially identical to that of a controlled substance.
"(6) In any prosecution brought under this section, it is not a defense to a violation of this section that the defendant believed the non-controlled substance to actually be a controlled dangerous substance."
However, rather than attempting to use the cause of "other incorrigible bad conduct" , it is the opinion of this office a school board may adopt a policy establishing as a separate legal cause for suspension or expulsion pursuant to KRS 158.150 those practices prohibited by KRS 218A.350 concerning substances that simulate controlled substances.