Request By:
Mrs. Nita Weissinger
309 Akin Avenue
Franklin, Kentucky 42134
Opinion
Opinion By: Robert F. Stephens, Attorney General; Robert L. Chenoweth, Assistant Attorney General
On behalf of your daughter you have asked the Office of the Attorney General to consider a matter involving your daughter's participation in certain extracurricular activities at the high school she attends. You stated your daughter was field commander of the high school band during the 1976-77 school year and that she had been originally elected for a two-year term. You further informed us that your daughter has become engaged and plans to marry this summer. You stated that when the high school officials learned of your daughter's plans, it was announced by the school officials that your daughter could no longer be field commander of the band.
You have asked us to consider whether a child is being denied his or her civil rights upon marriage while in high school through action of school officials as explained in your letter. You stated you had been told that to appear before the local school board concerning this matter involving your daughter you would have to have legal counsel which you cannot afford.
Before getting to a consideration of the merits of your request, we want to assure you that the local board of education may not condition your appearance before them on whether you have obtained legal counsel to represent you. Such a requirement would serve to impinge upon one's federal First Amendment constitutional right "to petition the government for a redress of grievances." Irrespective of this, however, we are of the opinion that a board of education policy denying automatically a married student the right to participate in extracurricular activities associated with the school interferes with the married student's civil liberties.
From your letter you state that "school officials" informed your daughter she could no longer serve as field commander of the band if she married. We do not know who these "school officials" are, but we are quite certain that only a local board of education has the power and authority to adopt rules, regulations and policies affecting the management and control of the schools in the district and also the governing of the conduct of the pupils attending those schools. KRS 160.290. While administrative personnel in a school system may be given the responsibility to implement the board's policies and regulations, it is clear the ultimate power to govern rests with the local board. However, even if the "ruling" by the "school officials" concerning your daughter in this matter is based upon a policy or regulation of the local board of education, as we indicated above, it is our opinion such a policy or regulation contravenes the constitutional rights of the married student.
The issue under consideration has been presented to this office in varying forms before. In the most recent opinion, OAG 75-163, copy attached, the situation discussed was where a school administrator had forbidden a student to go on a senior class trip because the student had recently married. We concluded "that being married is not a legal reason for forbidding a student to go on a class trip. " In this opinion reference for support of the conclusion was made to the one case in which the Kentucky Court of Appeals principally considered this problem,
Board of Education of Harrodsburg v. Bentley, Ky., 383 S.W.2d 677 (1964). The Court held in that case that a school board regulation that provided that any student who married must withdraw immediately from school and could not reenter school for one full year was arbitrary and unreasonable.
It must be understood that there are at least two issues to be confronted with a student marriage: (1) exclusion or expulsion from school; (2) restriction of participation in activities at the school. The Bentley case, supra, is dispositive of the first issue but not of the second. OAG 75-163, we believe, broadly read, is dispositive of the second issue, but we wish to elaborate upon this opinion somewhat.
After a survey of decisionary law in other states and a review of works of writers in the field of education law, it is quickly apparent that the issue of restriction of activities in school for married students has been met by varied opinions and diverse points of view. See, for example, 68 Am.Jur.2d § 245, 11 ALR 3d 996, 999 § 4, and for generic reference to cases, Schools and School Districts 172; William P. Giessellman, Jr., "A Legal Guide for Development and Administration of Pupil Personnel Policy," and Ewald B. Nyquist, et al. "Guidelines for Student Rights and Responsibilities," 2n ed. One aspect of the issue seemingly uniformly agreed upon is the importance of extracurricular activities as an integral part of the total education process. Also basic is that the touchstone for upholding school regulations in this area is a demonstration by the school that the regulations are necessary to alleviate interference with the educational process.
It would appear, although we are not categorically so stating, that the cases upholding the validity of school rules restricting activities in which married students in school could participate were decided prior to the case of
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). For example, see
State ex rel. Baker v. Stevenson, 189 N.E.2d 181 (Ohio 1962);
Kissick v. Garland Independent School District, 330 S.W.2d 708 (Tex. 1959);
Starkey v. Board of Education, 381 P.2d 718 (Utah 1963). It was in the Tinker case, supra, in which the Court made the now oft-quoted or paraphrased statement that students do not shed their constitutional rights at the schoolhouse gate.
In support of our conclusion in this matter we cite the persuasive federal district court decisions in
Davis v. Meek, 344 F.Supp. 298 (N.D. Ohio 1972) and Moran v. School District # 7, Yellowstone County, 350 F.Supp. 1180 (D.Mont. 1972). These decisions found that a regulation depriving a married high school student from participating in extracurricular activities invaded the student's right to marital privacy which is protected by the Federal Constitution.
Therefore, in view of the above, it is our opinion that local school boards may not establish policies or regulations which serve to discriminate against married students. The State right to attend school should include the right to participate in extracurricular activities.