Request By:
Bondurant Middle School (Franklin County) SBDM Council
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Scott White, Assistant Deputy Attorney General
Opinion of the Attorney
The School Based Decision Making Council of Bondurant Middle School, located in Franklin County, has requested our opinion as to whether a school board may require principals to be residents of the school district. It is our opinion that it may not.
On March 5, 2001, the Franklin County Board of Education adopted a resolution that required principals, as well as other central office positions, who were hired after the date of the resolution, to be residents of Franklin County. The Bondurant Middle School SBDM passed a resolution objecting to this policy.
Attempts to impose residency requirements upon school personnel is not a new phenomena. Nearly twenty years ago, we dealt with a similar policy restricting employment of teachers. In OAG 82-59, we reasoned that school districts could not impose residency requirements on teachers. First, we opined that the General Assembly through various statutes relating to school employees and their qualifications "preempted" the field, so that local school boards could not intrude and impose residency requirements on the hiring of teachers. Therefore, any attempt by a board to impose a residency requirement would be inconsistent with general school law, and therefore not allowed under KRS 160.290(2). Second, we believed that residency requirements offended our Constitution. Our analysis demonstrated that such requirements were unreasonable, arbitrary, and inefficient so as to violate Sections 2 and 183 of the Kentucky Constitution. There was no showing that the proposed residency requirements would advance any legitimate state purpose, and that the limitations on employment would not contribute to an efficient school system.
Having discussed our previous opinion on this subject, we next look at the applicable statutory provision.
The powers of a school board are set out in KRS 160.290, which states:
(2) Each board shall make and adopt, and may amend or repeal, rules, regulations, and bylaws for its meetings and proceedings for the management of the schools and school property of the district, for the transaction of its business, and for the qualification and duties of employees and the conduct of pupils. The rules, regulations, and bylaws 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.
Therefore, a board does retain some ability to set qualifications of employees within the system. However, KRS 160.250(2) expressly points out that any qualifications must be consistent with the "general school laws of the state." Let us look at these.
The General Assembly has passed several statutes relating to qualifications of school employees. See, KRS 160.380, KRS 161.010 through 161.126, and KRS 161.140 though 161.210 . In OAG 82-59, none of the statutes relating to the qualifications and certification of teachers or other employees set out residential requirements. It is well accepted that there must be statutory authority for any action of a subdivision of the state government to have effect. See, Fiscal Court, etc., v. City of Louisville, Ky., 550 S.W.2d 478, 481 (1977) (holding that there must be express authority for all powers exercised by fiscal courts). The above statutes dealing with teacher qualifications make no mention of a residency requirement. As we stated in OAG 82-59, since these statutes "preempt the field" as it relates to qualifications of key school employees, then such requirements cannot be added onto by school boards.
Likewise, we believe there is no ability to impose a residency requirement on the position of principal. This is underscored by KRS 161.030, which states:
The certification of all teachers and other school personnel, in public schools only, is vested in the Education Professional Standards Board. When so certified, teachers and other school personnel shall not be required to have licensure, certification, or other forms of approval from any other state agency for the performance of their respective assignments within the common schools, except as provided for by law.
Thus, the Education Professional Standards Board is vested with the power to decide what qualifications school personnel must have in order to function efficiently. As part of their power to certify principals, the Education Professional Standards Board clearly has the power to decide whether or not principals should be residents of the county in which they serve. The fact this Board has not made such a determination does not leave that power to the local boards.
Further, KRS 160.345 establishes a clear method by which the principal of a school is to be chosen. The fulcrum of power in this process is found not in the board or superintendent, but in the school council. While the superintendent does have a role, it is simply a non-discretionary ministerial role in providing qualified candidates to the council for its consideration. The hire decision is plainly vested with the school council. Indeed, the council has the power to reject all of the superintendent's options and request more.
In sum, the board's statutory ability to adjust the requirements of school personnel is limited by other school laws. As was similarly the case at the time of OAG 82-59, the general laws of the state make no mention of a residency requirement for principals. As mentioned earlier, we there opined that the general laws of the state pre-empted the field of teacher qualifications. Since that opinion, the power to determine the qualifications of principals has been expressly delegated to two other bodies, specifically the Education Professional Standards Board, and the school councils, and not to school boards or central office personnel such as superintendents. The rationale contained in OAG 82-59 is strengthened by these later, stronger delegations. As such, we see no reason to believe that analysis is now faulty.
Even if there were not a conflict with the residency policy with the applicable statutes, a residency requirement proposed by a school board, like here, is likely to be found constitutionally invalid. Section 2 of the Kentucky Constitution prohibits arbitrary action by state agencies. In Kentucky Milk Marketing and Antimonopoly Commission v. Kroger Company, Ky., 691 S.W.2d 893, 899 (1985), the Kentucky Supreme court re-affirmed that this Section 2 "is broad enough to embrace the traditional concepts of both due process of law and equal protection of the law."
To pass muster under Section 2, legislative classifications, such as residency requirements, must be rationally related to their stated purpose, so that all persons similarly situated are treated alike. See, Eisenstadt v. Baird, 405 U.S. 438, 447 (1972). Here, there is an insufficient showing that the residency requirement proffered by the Franklin County School Board will adequately advance any stated purpose, at least to a degree that may justify the exclusion of non-Franklin Countians otherwise qualified to be the Bondurant Middle School principal. In many cases, due to the location of the school, persons living in nearby counties may actually live closer to the school than some people who live within the county. The Board's claim that the residency requirement would guarantee candidates with "community involvement" fails to recognize the many teachers and principals living outside of their county of employment, who are intimately involved in those communities and schools--many to a higher degree than actual residents.
Further, Section 183 of the Kentucky Constitution guarantees an "efficient" school system to citizens of Kentucky. See, generally, Rose v. Council for Better Education, Inc., Ky., 790 S.W.2d 186 (1989 . It is our view that the arbitrary total exclusion of qualified candidates from the pool of available candidates fails to further an efficient school system, and may, in fact, cause inefficiency.
In conclusion, the general laws of Kentucky, including the express vestment of power to both the Education Professional Standards Board and the local School Based Decision-making Council, pre-empt a school board from setting qualifications for teachers and principals. The residency requirement here discussed illegally usurps power from both the Education Professional Standards Board and these local school councils. Even if that were not so, the residency requirement is irrational, inefficient, and arbitrary in violation of Sections 2 and 183 of the Kentucky Constitution.
We therefore believe the residency requirement imposed by the Franklin County School Board is illegal under Kentucky law.