Request By:
Mr. Raymond Barber
State Superintendent of Public Instruction
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
As the State Superintendent of Public Instruction you have asked the Office of the Attorney General to consider the legal ramifications, if any, associated with the 1982 General Assembly passed Senate Bill 8. This legislation, due to an emergency clause, became effective upon the signature of the Governor on February 26, 1982. As you noted, this legislation was passed by the General Assembly to allow local school districts to charge student fees in light of rising costs and reduced appropriations, while ensuring that no child is excluded from participation due to the child's financial status. The legislation repealed in its entirety KRS 158.107 and in its place created the following provision, newly codified as KRS 158.108:
"No child shall be denied full participation in any educational program due to an inability to pay for necessary school supplies."
The question you have presented for our consideration was prompted by inquiries from school districts regarding this new state fee law and the legality of the charging of fees to handicapped children in view of various provisions of the federal handicapped children laws.
Before getting into the federal handicapped children laws, we feel a few additional comments are warranted about several state statutes. In OAG 78-835, this office carefully considered KRS 158.107 (now repealed) and concluded this statute was a ". . . [p]rohibition against the charging of fees, rental payments, or making of a requirement that a student purchase instructional materials in order that the student enroll, fully participate, or complete any regular school program." KRS 158.107 became law in the 1978 Regular Session of the General Assembly. Since KRS 158.107 has now been repealed, we believe Senate Bill 8 [KRS 158.108] has put the public common schools in Kentucky back in essentially the same position as they were before 1978. In OAG 75-619, copy attached, this office concluded that a local board of education had the authority to charge a reasonable fee for general school supplies. We noted two sections of our Kentucky school laws we believe, in light of the language in Senate Bill B, need to be reviewed again. The first of these two statutes is KRS 159.140 which commands the Director of Pupil Personnel, in subsection (7), to:
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"(7) Ascertain and report to the superintendent of schools in the district in which the child resides the number and cost of books and school supplies needed by any child whose parent, guardian or custodian does not have sufficient income to furnish the child with the necessary books and school supplies;"
The other statute is KRS 160.330 which provides as follows:
"Each board of education may furnish necessary school supplies free of charge to indigent children in its school district, or to such other children as it deems advisable, under such rules and regulations as it may adopt."
We believe these latter two school law provisions may be read in complete harmony with new KRS 158.108.
With the above Kentucky school laws in mind, we turn to the problem you have brought to our attention which focuses the Kentucky school laws against the federal laws for handicapped school children. The primary federal laws to be considered are the "Education of the Handicapped Act [P.L. 94-142]", 20 USC § 1401 et seq. and the "Rehabilitation Act of 1973 [§ 504]", 29 USC § 794.
The prime mandate of the Education of the Handicapped Act [P.L. 94-142], is that each participating state, in order to receive federal funds, must meet the following condition:
"The State [must have] . . . . in effect a policy that assures all handicapped children the right to a free appropriate public education. " 20 USC § 1412 (1). (Emphasis supplied) .
P.L. 94-142 defines the term "free appropriate public education" , sometimes referred to by the acronym "FAPE," to mean:
". . . [s]pecial education and related services which . . . have been provided at public expense, under public supervision and direction, and without charge . . ." 20 USC § 1401(18).
The implementing regulations for P.L. 94-142 go on to address "free appropriate public education" with the phrase "at no cost" which is defined as follows:
"'At no cost' means that all specially designed instruction is provided without charge, but does not preclude incidental fees which are normally charged to nonhandicapped students or their parents as a part of the regular education programs." 34 C.F.R. 300.14(b)(1). (Emphasis supplied) .
Considering the above referenced provisions, and the substantially similar language and purposes set out in the Rehabilitation Act of 1973, we believe there is no prohibition in charging a fee to the parents of a handicapped child that will be charged to the parents of a nonhandicapped student as a part of the regular education program. Put another way, we are of the opinion that if the object or reason for a fee will solely relate to the fulfillment of a handicapped child's individual educational program (i.e.p.), a charge may not be made to the parents of the handicapped child. Although it is observed that the "at no cost" definition above excepts from the general "without charge" provision only "incidental fees", we are of the opinion this term is sufficiently broad to encompass the type of fee that will most likely be charged under Senate Bill 8 (KRS 158.108) to nonhandicapped students or their parents as a part of the regular education program and associated activities as well as such charges as locker rental. Nevertheless, a very close scrutiny of the charges to be made by a school district will be required regarding each handicapped child.