Request By:
Mr. Robert W. Lumsden
Superintendent
Henry County Public Schools
Post Office Box 299
120 S. Main Street
New Castle, Kentucky 40050
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter, you requested an opinion from this office concerning disciplinary authority for non-school related offenses. In particular, you have asked:
1. May a school district take disciplinary action (I.e., expulsion) against a student where that student has been convicted of a felony or other lessor crime where the act or activities constituting the crime are completely non-school related?
2. May a school district choose not to enroll a student who has established legal residency in its district but has been expelled from another school district for activities which seriously threatened the safety and welfare of students and/or harm actually occurred?
In answer to your first question, under certain conditions, courts have upheld suspension or expulsion from school for non-school-related behavior. Kirby, Kentucky Student Discipline Desk Reference Section 17, pp.2-7, provides guidance on this matter. KRS 158.150 authorizes disciplinary action for misconduct occurring on school property, as well as off school property at school-sponsored activities, or involving school personnel, or the property of the school or of school personnel. The statute provides a nexus between the misconduct of the pupil and the school system, but that link can only be defined on a case by case basis. In that regard, this office has opined that "pupils may be disciplined for misconduct committed during extracurricular activities, off school premises and after school hours." OAG 77-427.
In Kentucky, there continues to be no definitive judicial decision delineating the boundaries of disciplinary action that a school may take for behavior occurring off school grounds. Nevertheless, other jurisdictions have upheld the imposition of suspensions or expulsions for non-school-related behavior. Pollnow v. Glennon, 594 F. Supp. 220 (S.D. N.Y., 1984); Smith v. Little Rock School Dist., 582 F. Supp. 159 (E.D. Ark., 1984); Brands v. Sheldon Community School, 571 F. Supp. 627 (N.E. Iowa, 1987); Shanley v. Northeast Independent School Dist., 462 F.2d 960 (5th Cir., 1972), discussed in Kirby, Kentucky Student Discipline Desk Reference, Section 17, pp. 3-5. Based on these cases, Kirby suggests:
The general rule may be that behavior which occurs after a student arrives at home and outside school sponsored activities will not be a basis for school discipline unless the behavior is of a serious violent nature or would directly affect the school's discipline or welfare of its students and employees.
This office is in full agreement with that position.
In answer to your second question on whether a school district may refuse to enroll a student who is a legal resident of the district, but has been expelled from another district for activities placing the safety and welfare of other students at risk, we are of the opinion that a decision of that nature may only be made on a case by case basis.
The Kentucky Supreme Court recently emphasized that "education is a fundamental right in Kentucky." Rose v. Council for Better Education, Inc., Ky. 790 S.W.2d 186 (1989). In fact, attendance is mandatory for children of a certain age who reside in a district. KRS 159.010. Parents or other persons having custody of children of school age shall enroll the children in public school in the district where the child lives. KRS 159.020. If a child does not attend school, sanctions may follow. KRS 159.990. When a child withdraws from school, the fact and reason shall be reported to the superintendent of the district where the child resides. KRS 159.170.
The exemptions from compulsory attendance are set forth in KRS 159.030 which states in part:
(1) The board of education of the district in which the child resides shall exempt from the requirement of attendance upon a regular public day school every child of compulsory school age:
(d) Whose physical or mental condition prevents or renders inadvisable attendance at school or application to study.
(2) Before granting an exemption under subsection (1)(d) of this section the State Board for elementary and Secondary Education shall require satisfactory evidence, in the form of a signed statement of a licensed physician, psychologist or psychiatrist, or public health officer, that the condition of the child prevents or renders inadvisable attendance at school or application to study. On the basis of such evidence the board may exempt the child from compulsory attendance. Any child who is excused from school attendance more than six (6) months shall have two (2) signed statements from a combination of the following professional persons: a licensed physician, psychologist, psychiatrist, and health officer. Exemptions of all children under the provisions of subsection (1)(d) of this section shall be reviewed annually with the evidence required being updated.
(3) For any child who is excluded under the provisions of subsection (1)(d) of this section, home, hospital, institutional, or other regularly scheduled and suitable instruction meeting standards, rules and regulations of the State Board for Elementary and Secondary Education shall be provided.
This statute authorizes the board of education to exempt from attendance any student who, based on satisfactory evidence that is submitted by a physician, psychologist, psychiatrist, or public health officer that the child may not safely attend public school. The board, nonetheless, has a duty to provide alternative educational instruction. KRS 159.030(3). Administrative regulation 707 KAR 1:055, on programs for home and hospital instruction, sets forth the eligibility criteria for instruction outside of the school setting. See attachment.
The question remains whether the second school district may initiate an evaluation of a child found by the first school district to be unable to attend school based on the criteria of KRS 159.030(1)(d) and documented as set forth in KRS 159.030(2). While this process normally pertains to situations in which parents or guardians apply for an exemption, this office finds nothing to prevent a second school district from initiating an exemption based on evidence supplied from another district that attendance is unadvisable. In the event that no evidence is already available from the first district, we do not find support for the second school district to require the evaluation described under KRS 159.030(3) prior to enrollment. Nevertheless, the child may qualify for evaluation for special education services under KRS 157.200-290.