Request By:
Honorable William E. Sloan
Wylie and Sloan
Security Trust Building
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the attorney for the Board of Education of Fayette County Schools you have asked the Office of the Attorney General for consideration of a matter affecting the Fayette County public schools. As background to your questions you informed us that in April of 1978 the school board appointed a "Task Force on Educational Responsibility 'to consider means and methods of increasing the sense of personal responsibility throughout our school system. '" The charge to the Task Force was to consider matters for recommendation to the board relating to respective responsibilities of students, parents and teachers.
The makeup of this educational responsibility Task Force appointed by the board was stated by you to be as follows:
"Twelve (12) members from the community (six (6) to be appointed by the Board and six (6) to be appointed by the Fayette County PTA); two (2) principals to be appointed by the Superintendent, two (2) teachers to be appointed by FCEA and two (2) teachers to be appointed by PEFCO; two (2) students to be appointed by ISSC under Mr. Hall's direction; and One (1) Forum member appointed by the Board."
Individuals were appointed to the Task Force and they have met and have already made several interim recommendations to the board in a number of areas, viz.:
"(1) That the rights and responsibilities of each person engaged in the educational process be defined, employing input from each of these groups: Student, Parent, Teacher, Principal/Administrator.
(2) That the office of omsbudsman be established in central office.
(3) That a Student-Parent Handbook be developed and made available.
(4) That the Board examine ways and means of developing a Sense of Partnership whereby each participant in the school system believes its viewpoint is wanted and heard.
(5) That the extent of current substance abuse be examined and system-wide recommendations made by the school board, for the guidance of principals, counselors, teachers, parents, and students themselves.
(6) That the field of values education, under various titles: character education, citizenship education, values clarification, moral education, law-related education, etc., receive additional curriculum emphasis, teacher training, administrative and financial support.
(7) That the Fayette County Code of Conduct adopted by the Board of Education on March 15, 1971 be revised and updated.
(8) That the Communication processes and management practices within the entire system need to be examined."
The problem that has arisen from all of this stems from the interim recommendation of the Task Force that the Fayette County Code of Conduct (Item 7 above) be revised and updated. At a January of this year meeting of the school board, unanimous votes were cast to have the Task Force undertake to prepare a revised code of conduct, rights and responsibilities for secondary schools for submission to the board of education. A question has been presented as to whether the Task Force may prepare this code in that they were not constituted pursuant to KRS 160.295. This section of our school law was enacted in 1974 and reads in full as follows:
"(1) The board of education of each public school district in the Commonwealth may adopt and promulgate a code of student rights and responsibilities for secondary schools from recommendations of a committee composed of students, faculty, parents, and school district administrative personnel.
(2) Such committee shall consist of two (2) students, two (2) parents of students, two (2) faculty members, two (2) representatives from administrative personnel of the district, and one (1) member of the local school board.
(3) The student, and faculty members of such committee shall be elected by their peers in the local school district, the administrative personnel shall be appointed by the school district superintendent, and the parents selected by the faculty and student body. Members of such committee shall serve for a term of one (1) year and may be re-elected or re-appointed in following years. Initial composition of the elected members of such committee shall be by the following:
(a) The district superintendent shall notify each school within the district, each school principal or head teacher, the students of the district, and the parents of students within the district as to the method for receiving nominations for membership on the committee and of the methods by which the election of members shall take place. Such notification shall take place on or before the first day of school for each school term.
(b) Nominations for the student, faculty, and parent members of the committee shall be received in writing by the district superintendent within thirty (30) days following the commencement of each school term.
(c) The election of student, faculty, and parent members of the committee shall be held within fourteen (14) days following the closing of nominations under the supervision of the district superintendent.
(d) The initial meeting of the elected and appointed members shall be no later than fourteen (14) days following the election.
(4) Each committee member shall be entitled to a single vote and any code of student rights and responsibilities adopted by a majority of the committee membership shall be submitted to the district board of education which may cause such code, in whole or in part, to be implemented in the public schools of the district.
(5) All meetings of the committee shall be open to the public and the committee shall hold at least one (1) public hearing on the proposed code before it is adopted and submitted to the district board of education for implementation.
(6) The code of student rights and responsibilities adopted by the committee may define rights and responsibilities regarding, but not limited to, the following:
(a) Right of expression, including, but not limited to, appearance, assembly, association, and circulation of petitions and literature;
(b) Right to participate in decision-making procedures directly affecting students;
(c) Right to procedural due process concerning major disciplinary action, as defined by the code;
(d) Right to receive academic grades based only upon academic performance;
(e) Right to freedom from abuse and threat of abuse by members of school faculties and administration personnel; and
(f) Right of access by a student to his or her own records and guarantee of the confidentiality of a student's academic records outside of the school system, except upon written authorization of the student or his or her parents or guardians.
(7) Students shall refrain from activity which materially or substantially disrupts the educational process or presents a clear and present danger to the health and safety of persons or property, or infringes on the rights of others."
Our opinion on the following two questions is desired:
"Can the Task Force Committee on Educational Responsibility which was not appointed and elected in the manner provided for by KRS 160.295 proceed to adopt a Code of Student Rights and Responsibilities for Secondary Schools and submit the same to the Board of Education for implementation?
Can the Board of Education proceed, without Committee assistance, to prepare a Code of Student Rights and Responsibilities for Secondary Schools under the general powers granted it by virtue of KRS 160.290 and without regard to the procedures set out in KRS 160.295?"
It is somewhat ironic that this office is being requested to construe whether the provisions of KRS 160.295 must be followed by a local board of education if a code of student rights and responsibilities or code of conduct is to be adopted when this office has so many times encouraged local boards of education to take advantage of this section of our school laws. We have consistently felt that the important thing was that each board of education should fulfill its statutorily mandated obligations. By this we mean that in KRS 160.290(2) each local board of education in the Commonwealth is to make and adopt rules and regulations, part of which is to address "conduct of pupils. " Under KRS 160.340 each local board of education is mandated to have on file in its office policies relating to personnel and discipline and conduct of pupils.
The emphasis of importance to be placed upon KRS 160.290 and KRS 160.340, and especially KRS 160.290, is to be ascertained from a couple of sections of school law applying to teachers. KRS 161.170 provides in pertinent part that teachers "shall enforce . . . the rules and regulations prescribed for the schools." KRS 161.180(1), very particularly tied in with KRS 160.290, reads in full:
"Each teacher and administrator in the public schools shall in accordance with the rules, regulations and bylaws of the board of education made and adopted pursuant to KRS 160.290 for the conduct of pupils, hold pupils to a strict account for their conduct on school premises, on the way to and from school, and on school sponsored trips and activities."
The language referring to KRS 160.290 was added by the 1978 General Assembly. Clearly, then, teachers, to fulfill their obligations, are directed to follow the rules and regulations of the local board of education and specifically those adopted pursuant to KRS 160.290 as concerns students' conduct.
Looking more closely at KRS 160.295, as you noted, a key word in the first subsection is "may." The provision reads that "the board of education of each public school district in the Commonwealth may adopt and promulgate a code of student rights and responsibilities for secondary schools from recommendations of a committee. . . ." The word "may" is usually interpreted to mean that the action is permissive rather than required and, we believe that is the meaning to be given the word in this statute. We believe all the General Assembly was attempting to do with this statute was to make a suggestion as to one method a board could exercise in an effort to put together a code of student conduct. It simply does not make any sense to read into the statute that the General Assembly meant the provisions of this section to be the exclusive manner to be followed prior to adopting a code of student conduct. KRS 160.295 goes only at best to a code of student rights and responsibilities for secondary schools. If a board of education is to fulfill its full statutory obligations, rules and regulations concerning these same matters need also to be developed for elementary students. We cannot believe the General Assembly meant that each board of education has to adopt two committees or task forces to help it with recommendations on basically one subject area. Furthermore, from a practical vantage point, it would appear that KRS 160.295 is best suited for the smaller school system in view of the "election process" spelled out in subsection (3). Quite honestly, it seems almost unthinkable that a school system any way near the size of Fayette County would attempt elections of student, faculty and especially parent members to a committee.
A couple of additional points we believe should be noted that are derived from the facts. First is that it seems clear that at the outset the Fayette County Board of Education did not create or envision the scope of the Task Force's work being limited to that covered in KRS 160.295. We do not think the fact that a committee which was properly created by the school board for a larger purpose desires to deal with or becomes involved in matters within the purview of KRS 160.295 makes those matters untouchable by that group simply because the committee was not put together precisely as outlined in KRS 160.295. Again, it would be a gross misuse of human resources to say that this Task Force could consider matters relating to parent and teacher responsibilities but that another group of people formed in a committee under KRS 160.295 would and could only consider proposals to the board regarding student responsibilities. Secondly, it must be noted that the Task Force's composition is basically that called for by KRS 160.295; certainly each interest group is present -- students, parents, administrators and teachers. The individuals on the Task Force were chosen in streamline processes consistent with those set forth in KRS 160.295 such as to accomplish the seemingly same purpose intended in that statute of a cross-representative group of concerned individuals.
Maybe we can rightfully be accused of engaging in legal gymnastics with this issue. However, it is to be remembered that in any event the final action must be taken by the board of education. We do not believe resulting rules, regulations or policies could be considered legally defective, depending solely on the manner through which and by whom the board had recommendations and advice presented to it upon which it acted.
Therefore, it is the opinion of this office that the Fayette County Board of Education is at liberty to lawfully use such information and recommendations of the existing Task Force as it deems prudent and necessary in the compilation of rules or policies regarding the rights, conduct, discipline and responsibilities of students attending the Fayette County Schools.