Request By:
Mr. Frank Bickel
Jefferson County Education Consortium
675 River City Mall
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By Robert L. Chenoweth Assistant Attorney General
You have asked the Office of the Attorney General to consider a school policy concerning student absences from school. You informed us of a school system which has a policy that any student who accumulates ten absences in a given class during a twelve-week period automatically receives a failing grade. You further stated that to your knowledge the policy in issue applies whether the absence is excused or unexcused and that the policy does not permit credit for the quality of work completed during times that class was attended. You noted it was conceivable that a student could accumulate five unexcused absences and then experience an additional five days of absence through illness.
The subject of your opinion request is not a new one to this office. In fact, one prior opinion of this office in particular appears to have addressed your concerns very closely. In OAG 75-124, copy attached, this office concluded that a regulation providing that a student who missed nine class sessions during a semester would flunk the course was arbitrary and an unconstitutional effort to encourage school attendance. See also OAG 75-694 and OAG 74-312, copies of each attached. Thus, we are of the opinion the policy you have described to us is also arbitrary and would be an unconstitutional effort to encourage school attendance.
While we could end this opinion with the information noted above, we believe it necessary to make a couple of further notes. First, in previous opinions of this office where attendance policies and the receiving of credit for course work have been discussed, there has been a tendancy to equate a student's failure to abide by a reasonable attendance policy to an "expulsion." We believe that there is a difference between the failure of a student to meet academic standards and the violation by a student of valid rules of conduct. See OAG 78-638, copy attached. Our belief is buttressed upon the decision of the
United States Supreme Court in Board of Curators of the University of Missouri v. Horowitz, U.S. 55 L. Ed. 2d 124, 98 S. Ct. (March 1, 1978). In Kentucky, for violation of certain rules and standards of conduct, a public school student may be suspended or expelled. KRS 158.150. The due process to be applied in regard to such disciplinary determinations is either spelled out in that statute or has been gleaned from persuasive case law. See OAG 78-673, copy attached. However, as we noted above, for the failure of a student to attend class subject to a reasonable attendance policy, the result may be an academic dismissal. Such a dismissal need not be subject to a hearing before a local board of education. We believe due process will have been provided so long as the student and the student's parents have been apprised of the attendance policy, consideration is given to the cause of the absences, and timely notices are given to the student and the student's parents that further unexcused absences will result in the student's failure to receive credit in his or her course work.
Secondly, we want to point out a new school law provision enacted in the regular session of the 1978 General Assembly. In KRS 158.295, copy attached, the General Assembly authorized special consideration and effort be expended to help local school districts deal with such onerous problems as absenteeism and truancy. A new division in the State Department of Education called the Division for Alternative Education has been created to assist in this task. We encourage you and your group to contact the staff members of this division and discuss with them ways to deal with absenteeism.