Request By:
Ms. Carol Larkin
403 Caple Avenue
Fairdale, KY 40118
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General; Patricia Todd Thomas, Assistant Attorney General
In your letter to the Attorney General you state that for the year 1987-1988, the General Assembly funded 4360 classroom units for special education students. This was approximately 683 units less than the number requested or anticipated by the local school district. You ask, first, whether this level of funding by the General Assembly violates certain state or federal laws. Specifically, KRS 157.224, KRS 157.310, 20 U.S.C. 1400 or 29 U.S.C. 701.
KRS 157.224 states:
(1) The Commonwealth of Kentucky is committed to providing a comprehensive educational program for its exceptional school age children. The office of education for exceptional children, through KRS 157.221, coordinates, directs and monitors that program. State direction and implementation of a statewide exceptional education program is manifested in the biennial appropriation of funds to finance a particular number of such classroom units. The rate at which new exceptional units are funded indicates the state's ability to assure a quality educational opportunity for appropriate students in existing, locally operated, exceptional class units.
(2) All county and independent boards of education shall operate special education programs to the extent required by, and pursuant to, a plan which has been approved by the state board of education. If any county or independent board of education fails to operate and implement special education programs in accordance with an aforesaid plan, the application of said county or independent board of education for minimum foundation payments may be considered insufficient.
KRS 157.310 states:
In KRS 157.310 to 157.440 and subsection (2) of KRS 157.990, it is the intention of the general assembly to assure substantially equal public school educational opportunities, through a foundation program, for those in attendance in the public schools of the Commonwealth, but not to limit nor to prevent any school district from providing educational services and facilities beyond those assured by the foundation program; and to provide, as additional state funds are made available for the public schools, for the use of such funds for the further equalization of educational opportunities. KRS 157.310 to 157.440 and subsection (2) of KRS 157.990, shall be interpreted as a measure to provide for an efficient system of public schools throughout the Commonwealth, as prescribed by section 183 of the Constitution of Kentucky, and for the manner of distribution of the public school fund among the districts and its use for public school purposes, as prescribed by section 186 of the Constitution.
Pursuant to KRS 157.224, the State has committed to funding a particular number of classroom units. However, no number is specified. A strict interpretation of the statute would mandate the conclusion that any level of funding by the General Assembly would satisfy the statutory language.
The purpose of the Foundation Program (KRS 157.310-440) is to provide supplemental funds for school districts based on attendance. This includes special education program pupils. OAG 74-742. We can discern no violation of KRS 157.310 based on the legislature's level of funding of special education programs.
The Foundation Program is a means to assure that Kentucky provides for an efficient system of public schools as dictated by Section 183 of the Kentucky Constitution. However, what constitutes "an efficient system" has never been definitively answered by the courts. As a matter of fact, it is presently the subject of a lawsuit in the Franklin Circuit Court ( Council for Better Education v. Martha Layne Collins, Action No. 85-CI-1759). However, the courts have held that Section 183 is a broad grant of authority to the legislature to deal with the public school system in any way it should desire.
Louisville v. Board of Education, 302 Ky. 647, 195 S.W.2d 291 (1946).
We would also point out that besides direct state funding of education, the General Assembly has provided for funding through local, permissive taxes in addition to the local property tax. See KRS 160.593 (levy of occupational license tax, utility gross receipts license tax or excise tax for schools).
We find no violation of KRS 157.310 or 157.224.
20 U.S.C. § 1400 et seq. is the Education of the Handicapped Act. This Act grants federal funds to any state that complies with the provisions of the Act. The eligibility requirements are set out in 20 U.S.C. § 1412, but they are generally that the state have "a policy that assures all handicapped children the right to a free appropriate public education" and a plan to implement that policy. Whether a state plan complies or not with the federal requirements is administratively a decision which is made by the Secretary of Education. Our Office could not determine whether the legislature's level of funding would violate the Act. However, the federal courts have held that the level of public funds made available to handicapped children may not, in and of itself, be a violation of the Act. There must be other shortcomings and the child's needs must be weighed against the reality of limited public resources.
Dept. of Education v. Katherine D., 727 F.2d 809 (9th Cir., 1983). However, lack of funds available to the state or local agency may not impact handicapped children more than it does nonhandicapped children.
Crawford v. Pittman, 708 F.2d 1028 (5th Cir., 1983).
Your letter does not seem to imply that the state does not have a policy as required under the Act nor an appropriate plan to implement that policy. Rather, it appears to us that you are concerned that the plan does not reach all affected children. We have not found any cases that have held a state to be in noncompliance with the Act because the level of state funding is insufficient to reach all handicapped children. In fact, the discussion of the court in
Pinkerton v. Moye, 509 F.Supp. 107 (W.D. Va., 1981) acknowledged the dilemma facing a state in the distribution of funding:
While the All Handicapped Children Act intrudes somewhat into the state's traditional decision-making role in the education of the handicapped, it was not intended to totally supplant the state's prerogative in allocating its financial resources. It hardly needs to be stated that educational funding is not unlimited. It follows, therefore, that competing interests must be balanced to reach a reasonable accommodation. On the one hand are the undeniably important personal needs of the individual handicapped child, on the other, the realities of limited funding and the necessity of assisting in the education of all handicapped children. These competing interests must be considered. Indeed, failure to consider them would ultimately work to circumvent congressional intention to educate all handicapped children as best as practicable.
Consequently, we cannot say that Kentucky has violated the Act.
Likewise, Kentucky's assurances in its state plan for fiscal years 1988-1990 do not commit the state to a particular level of funding. Rather, the assurances relate to the use of funds received.
29 U.S.C. § 701 is the Rehabilitation Act of 1973. 29 U.S.C. § 794 (Section 504 of the Act) states, in part:
No otherwise qualified individual with handicaps in the United States, as defined in section 7(8) [29 U.S.C. § 706(8)], shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .
The courts have held that a cause of action which arises under the Education of the Handicapped Act may not be brought nor attorneys' fees recovered under the Rehabilitation Act.
Dept. of Education v. Katherine D., supra;
Hurry v. Jones, 734 F.2d 879 (1st Cir., 1984);
Austin v. Brown Local School District, 746 F.2d 1161 (6th Cir., 1984). Thus, this Act would appear to have no application to the situation you describe.
You mention a consent decree filed in the case Ky. Association for Retarded Children v. Ky. State Board of Education, Civil Action No. 435 (E.D.Ky., 1974) and ask whether the state is in violation of that decree. We have reviewed the decree and can find no violation of it by the legislature's level of funding.
Your second question concerns the ability of parents to get attorneys' fees in cases brought to obtain special education services for their children. Presumably, this would be pursuant to the applicable provision of the Education of the Handicapped Act, 20 U.S.C. § 1415. Since we cannot determine whether the state has violated this Act in general, nor can we determine whether a particular child's rights have been violated by the level of funding, it would be entirely hypothetical as to whether attorneys' fees may be awarded. We can state that should a parent prevail, the statute allows the court to award attorneys' fees.
There is one final point which should be addressed. We have identified a pertinent consideration affecting funding of handicapped education in the local districts. Presently, each district must make a determination based upon the statutory formula of the proper number of handicapped units necessary to appropriately serve the identified children. The intent of the federal legislation and the state statutes, as well as the clear mandate of the consent decree previously referenced, requires that the funds appropriated by the General Assembly be distributed equally among the units identified pursuant to KRS 157.224. An arbitrary reduction in the number of units would raise serious constitutional questions and could very well lead to litigation in which the Department of Education could not prevail.