Request By:
Honorable Charles H. Gill, Jr.
Attorney at Law
Elkton, Kentucky 42220
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the attorney for the Todd County Board of Education you have asked the Office of the Attorney General for an opinion as to whether suspension of a pupil for misconduct under KRS 158.150, assuming he has received appropriate due process under Goss v. Lopez, 419 U.S. 565 (1975), which suspension caused the pupil to miss examinations given in the subjects he is taking, imposes a duty on the school personnel to permit the pupil to take the examinations missed at a later time. You expressed considerable concern over the case of Dorsey v. Bale, Ky., 521 S.W.2d 76 (1975), as it relates to this matter. You queried whether a student who deliberately misbehaved immediately prior to examinations and this conduct resulted in suspension could then demand a right to take any examinations missed.
Without question, a suspension or an expulsion from school under the provisions of KRS 158.150 serves as a deprivation of the right to an education. We will assume, in accordance with your letter, that through a suspension from school, this valuable right to a public education by all children of this state, will not be invaded or denied without proper safeguards of procedural due process fairness. See Goss v. Lopez, supra.
The position of suspension or expulsion from school as a method of discipline in Kentucky is clearly spoken of in the Kentucky Court of Appeals case of Dorsey v. Bale, Ky., 521 S.W.2d 77, 78 (1975). Justice Stephenson, writing for the Court, stated:
"However, the General Assembly has by statute (KRS 158.150) enunciated legislative intent regarding discipline of students in public schools for serious breaches of school regulations. "
Before considering the holding in Dorsey, it is important, in consideration of your question, to review the facts involved in the above referred to case.
The Caverna Board of Education has adopted regulations, one of which pertained to "unexcused absences." The regulation for an unexcused absence called for work not being allowed to be made up and in addition that five points would be deducted from the total nine-weeks grade for each unexcused absence. Suspension was an unexcused absence.
The Court of Appeals, after considering this unexcused absence regulation as it related to a suspension from school, concluded that KRS 158.150 "clearly preempts the right of school officials to promulgate disciplinary regulations that impose additional punishment for the conduct that results in suspension. " 521 S.W.2d at page 78. The Court went on to say:
"If the conduct of the student in the judgment of the school authorities warrants invoking the statutory authority to suspend, and school authorities do suspend, they have the right to determine the duration of suspension so that such action constitutes a complete punishment for the offense."
Looking at the Court's opinion in Dorsey as it relates to your question we believe it is important to note that the regulation in question called for two things in relation to an unexcused absence caused by a suspension from school by appropriate school personnel: (1) no work would be allowed to be made up; and (2) five points deducted from total grade for the grading period in which the suspension (unexcused absence) occurred. The first of these two relates to a natural incident evolving from a suspension -- the missing out on school work. The educational process goes on while the student who has been suspended is away. Class discussions and lectures are held, assignments made, and quizzes or examinations may be given during the time the student is suspended from school. The denial of this on-going educational process is the very heart of the suspension or expulsion from school. This is the "property interest" of the student which the United States Supreme Court said in Goss v. Lopez, supra, was protected by the Due Process Clause of our Federal Constitution. We do not believe the Court of Appeals in Dorsey concluded that missing out on school work and not being permitted to make up the work missed was "additional punishment for the conduct that results in suspension. " Missing out on school work is the very essence of punishment by suspension.
In comparison, however, deducting five points from a student's semester grades for each day of a suspension is not a natural incident growing out of the suspension. The reduction in the grades is additional punishment. Such a reduction could very well take away grading points from the student earned prior to the conduct which resulted in suspension. We believe it was this part of the regulation in Dorsey that the Court was referring to as impermissible additional punishment to the act of suspension.
Therefore, it is our opinion that school personnel are not required to permit the student who has been suspended to do make-up work for class activities and assignments missed during the period of a suspension from school. However, as with most things, we believe in this regard some degree of common sense must be utilized. For example, if a student is suspended from school for three days, which are the last days in the grading period, during which the one and only examination is to be given, we believe it would be unfair to deny that student the opportunity upon returning to school following a suspension to be tested as to what he or she has learned prior to the suspension and to be given a grade on that basis.