Request By:
Honorable R. Neil Lewis
Plummer and Lewis
Attorneys at Law
Suite 305, Campbell Towers
401 York Street
Newport, Kentucky 41071
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
You have asked the Office of the Attorney General for an advisory opinion as to whether KRS 160.210, concerning changes in boundary lines of the divisions of a county school district, would have any significance in the physical transfer of children from one school building within the county to another. As brief background to your question you stated that the Campbell County Board of Education has decided to transfer some children from the Alexandria Elementary School facilities to the A.J. Jolly school building. You further stated that to your knowledge no divisional lines are being changed, that is, unless the school attendance and the divisional lines are one and the same thing.
It is our opinion that the provisions of KRS 160.210 are not in issue nor applicable to the issue you have presented for our consideration. Your question relates to attendance areas, not the five divisions in which each county school district must be divided as provided for and directed in KRS 160.210. See OAG 78-366 and OAG 77-736, copies of each attached. As we concluded in OAG 78-366, a local board of education has the authority to adopt a policy which will establish school attendance districts. The attendance districts or areas need not be and, in all likelihood, will not be conterminous with the five school district divisions. For example, a county school district could have only two attendance areas, although it must have five formal divisions.
The only other school law provision we must point out to you is KRS 159.070. This statute was amended in 1976 by House Bill 193 such as to add the last sentence which reads:
"Within the appropriate school district attendance area, parents or legal guardians shall be permitted to enroll for attendance their children in the public school nearest their home."
This provision was litigated in federal court as a part of the Jefferson County Schools' desegregation problem. The federal district court ruled that House Bill 193 was unconstitutional "insofar as it permits the parents of children in Jefferson County, Kentucky, to enroll their children in the public school nearest their home." The Sixth Circuit Court of Appeals affirmed this decision in
Newburg Area Council v. Board of Ed., Etc., 583 F.2d 827 (6th Cir.1978). The Sixth Circuit concluded at page 829 as follows:
"With respect to the constitutionality of House Bill 193, we agree with the holding of the district court that the provision is unconstitutional as applied to Jefferson County, Kentucky, in that it would operate to frustrate this court's mandates to eradicate state imposed segregation in the Jefferson County school system."
The Sixth Circuit explicitly went on to say:
"Since the question is not presently before the court, we express no opinion as to the constitutionality of House Bill 193 as it applies elsewhere in Kentucky."
Thus, this office is of the opinion the House Bill 193 provision of KRS 159.070 is still viable as to all other school systems in the state except Jefferson County. We are not in a position to assess how this statutory provision would affect, if at all, the transfer of children as contemplated by the Campbell County Board of Education. We do note for your reference, however, the case of