Request By:
Mr. James B. Yates
House of Representatives
2305 Thurman Drive
Louisville, Kentucky 40216
Opinion
Opinion By: David L. Armstrong, Attorney General
You have requested clarification from the Office of the Attorney General regarding the net legal effect of various amendments to school law provisions concerning kindergarten programs. As you related, the 1984 General Assembly amended KRS 158.030(2) to require that ". . . effective July 1, 1986, and any year thereafter, successful completion of kindergarten shall be a prerequisite for a child's entrance into first grade. " You question "would a child enrolled in the first grade of a private, parochial or church school after July 1, 1986, be required to have kindergarten as a prerequisite? " As explained below, we believe the answer to the question you have posed is in the negative.
In order to adequately consider this kindergarten matter, several school law statutes in addition to KRS 158.030 must be reviewed. Another provision in KRS Chapter 158 is that of KRS 158.100(2), as also amended in 1984, which reads in relevant part:
"(2) Notwithstanding any statute to the contrary, effective July 1, 1985, and every year thereafter, each school district shall provide at least an approved kindergarten through twelve (12) grade school service."
Before going on, it should probably be pointed out that both KRS 158.030 and 158.100 must be considered as addressing and affecting only public common school districts. For a discussion of what constitutes a public common school district, see OAG 84-374, copy attached. These two KRS Chapter 158 school law provisions contextually relate only to a "common school" , "a public school kindergarten" , and a "local school district."
Other school law statutes having a bearing on this matter are KRS 159.010, which establishes that compulsory attendance in Kentucky remains applicable to children "between the ages of six (6) and sixteen (16)", and KRS 159.030(1)(b) which creates an exemption from compulsory attendance in a regular public school for a child of compulsory school age "who is enrolled and in regular attendance in a private, parochial or church regular day school."
In large measure, we believe your question is whether the state, through legislation, has required private, parochial or church schools (nonpublic elementary and secondary schools) to have a kindergarten program. As stated above, it is our position that the existing legislation does not require nonpublic schools in Kentucky to have kindergarten. Certainly nonpublic schools may have a pre-first grade educational program, but such is not presently mandated.
There are several ancillary questions or at least situations that we perceive arise from our response to the principal question addressed above. The first of these situations will be where a child does attend a nonpublic school kindergarten. While we do not believe KRS 158.030(2) applies to nonpublic schools, it must be noted that this subsection states, in part as added in 1984, that:
"The state board of education shall establish, by regulation, methods of varifying successful completion of kindergarten and extenuating circumstances for which waiver of the above prerequisite may be granted."
Even if the state board were to attempt to apply its regulations, yet to be promulgated, for the verification of successful completion of kindergarten to nonpublic schools, the application will have to be quite circumspect in view of the Supreme Court of Kentucky's decision in
Kentucky State Board v. Rudasill, Ky., 589 S.W.2d 877 (1979), that severely limited the state board of education's legal ability to regulate nonpublic schools. It is believed that at most "regular attendance" in the nonpublic school program could be a factor in view of KRS 159.030(1)(b), along with the requirements, approved by the Supreme Court in Rudasill, supra, 589 S.W.2d at 883, of KRS 158.080 as to private and parochial schools being taught in the English language and offering instruction in the several branches of study as well as having a school term that is not for a shorter period than that provided for public schools. Thus, where a child does attend a nonpublic school kindergarten, so long as the child will be six (6) by October 1, the child would be eligible and entitled to enroll in the first grade in a public common school district. If the child would not be six years old until after October 1, the child would be eligible to enroll only in a public school's kindergarten program rather than first grade even though having already been in kindergarten in a nonpublic school. See KRS 158.030(1) and OAG 82-408, copy attached.
The second situation to be dealt with that comes to mind is where the child is six (6) by October 1, but who has not attended any kindergarten program, either public or nonpublic, before July 1, 1986. Because the compulsory attendance age is still six (6) to sixteen (16) (KRS 159.010), this situation will be legally possible. We do not believe the lead-in phrase of KRS 158.030 which reads "Notwithstanding any statute to the contrary" can be construed to, by implication, have lowered the compulsory attendance age range to five. For the child who is six (6) before October 1, but who has not attended any kindergarten, we take the position this child would have to be enrolled, as far as the public common schools are concerned, in a kindergarten program rather than a public school first grade.
The third concern is a spin-off of sorts from that just discussed above. The situation would be where a child attends no kindergarten program, either public or nonpublic, before July 1, 1986, but who is six (6) years of age and enrolls in a nonpublic school first grade. If a child in this situation is then presented for enrollment in a public common school for the second grade or subsequent grade, the child would be entitled to so enroll subject to the usual application of the provisions of KRS 158.140 as noted in OAG 82-408, supra.
We trust the above will be of assistance to you and others regarding decisions to be made for children who may need to attend kindergarten in the fall of 1985. If you have further questions concerning this matter, please contact us.