Request By:
Dr. Billy H. Stout
Superintendent
Trimble County Schools
P.O. Box 67
Bedford, Kentucky 40006
Opinion
Opinion By: Robert F. Stephens, Attorney General; Robert L. Chenoweth, Acting Deputy Attorney General
You have asked the Office of the Attorney General to consider a matter involving attendance policies in public common schools. Your concern centers on the manner in which certain teachers, on their own or as would be more appropriate through school board policy, (KRS 160.290), handle excused absences from school. You point to the situation where a maximum number of points for participation is given to students on a daily basis in some classes. You further explained as follows:
"At the end of the grading period a student can accummulate a certain number of points (including the participation points) for a grade of A. The student would need to be in attendance every day in order to be eligible for the maximum number of points. If a student is absent, either excused or unexcused, he/she cannot make-up the points for participation. It is possible for a student to make one hundred (100) points on all exams and other work but not make an A for the grading period if he/she was absent and did not receive the points for participation. This practice appears to be a form of punishment for being absent from school and closely related to the OAG 79-68 opinion."
Before getting into the heart of your question, we wish first to point out and reiterate our firm belief that within reason, students need not be afforded the opportunity to do make-up work missed during unexcused absences from school, including those caused by suspension or expulsion. See OAG 77-547, copy attached.
Your question principally involves absences for reasons determined to be for excusable reasons. See OAG 76-566, copy attached. In considering excusable reasons for absence by pupils from school, it must be recognized that at least two statutes and a section of the State Board for Elementary and Secondary Education regulations are applicable. KRS 158.240 reads as follows:
"Pupils attending the classes for moral instruction at the time specified and for the period fixed shall be credited with the time spent as if they had been in actual attendance in school."
Also, KRS 159.035 is pertinent here and reads:
"Anything in the statutes of the Commonwealth to the contrary notwithstanding, all pupils in the schools of the state who are enrolled in a properly organized 4-H club shall be considered present at school for all purposes when participating in regularly scheduled 4-H club educational activities, provided, the student is accompanied by or under the supervision of a county extension agent or the designated 4-H club leader for the 4-H club educational activity participated in."
Lastly, Section 2 of 703 KAR 2:050 states:
"The daily attendance of pupils shall be determined by recording their attendance immediately following the opening of school in the morning and immediately following the lunch period in the afternoon. Pupils not present at these sessions shall not be counted in attendance in determining average daily attendance unless:
(1) The pupils are absent as participants in school activities which have been authorized by the local board of education and which are a definite part of the instructional program of the school, or
(2) The pupils are absent as participants in activities which are provided in KRS 158.240 and 159.035. Pupils shall not be counted in attendance when they are absent as spectators at school activities. "
Thus, the legal provisions dealing with school attendance recognize specifically that some absences are to be excusable. The student is to be counted in attendance even though not in the classroom. As we understand the school attendance policy presented by you for our consideration, even the children attending a 4-H activity envisioned by KRS 159.035 would be penalized in the sense of not getting "points for (class) participation." We do not believe such a policy can stand, in that it is arbitrary and quite unreasonable.
We understand that it is impossible to give class participation points to someone who is not in class. We also wish it to be understood we are not suggesting a student should be offered a make-up session of a class. In our opinion, it is for the school board to develop policy guidelines as to the treatment of excused absences, whether those absences are pursuant to the above referenced statutes or by board regulations defining what absences are to be excusable. For those teachers desiring to incorporate class participation as a part of the overall academic grade, some exemptions are going to have to be made. Possibly a policy providing that in any grading period points for class participation will only be permitted to be taken into consideration for one-half of the days of the grading period. Such a policy would theoretically permit a student to be excusably absent from class one-half of the grading period and still not be penalized for lack of an opportunity to earn participation points due to the absences. This suggestion may not be practical or set well with the educational philosophy of a school system. Our reason for even suggesting it is to simply indicate and support our belief that an answer to this situation does exist. We reiterate that we do not believe a policy penalizing students who are excusably absent from school can be legally tolerated.