Request By:
Mr. J. Stephen Kirby
Kentucky School Boards Association
Route 3, Box 96A
Frankfort, KY 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; By: Particia Todd Thomas, Assistant Attorney General
As staff attorney for the Kentucky School Boards Association, you have asked the Attorney General to reconsider OAG 74-165. In keeping with your request, to the extent this opinion is in conflict with any conclusions of OAG 74-165, that opinion is overruled.
OAG 74-165 held that a student expelled by a school board is expelled only until the beginning of the next school year. Therefore, no carry-over expulsions would be available for behavior warranting discipline which occurred in the last few days of the school year.
There are no cases in Kentucky or any other jurisdiction which directly discuss the legality of a carry-over expulsion. Several cases exist in other states as to expulsion for a "school year" and in that instance where "school year" is defined as a particular number of days, then that time may be carried over to the fall semester. However, our legislature has not provided disciplinary actions for a time period not to exceed one school year. Therefore, in our opinion, based upon review of the Kentucky statutes and the few Kentucky cases discussing expulsion and suspension, carry-over discipline is not prohibited in our state. However, the utmost caution should be exercised in any carry-over discipline, be it expulsion or suspension.
School administrators are authorized to suspend students and local school boards may expel students under KRS 158.150(1) which states:
All pupils admitted to the common schools shall comply with the lawful regulations for the government of schools:
(a) Willful disobedience or defiance of the authority of the teachers or administrators, use of profanity or vulgarity, assault or battery or abuse of other students, the threat of force or violence, the use or possession of alcohol or durgs, stealing or destruction or defacing of school property or personal property of students, the carrying or use of weapons or dangerous instruments, or other incorrigible bad conduct on school property as well as off school property at school sponsored activities constitutes cause for suspension or expulsion from school; and
(b) Assault or battery or abuse of school personnel; stealing or willfully or wantonly defacing, destroying or damaging the personal property of school personnel on school property, off school property, or at school sponsored activities constitutes cause for suspension or expulsion from school.
Prior to any suspension, the student must be provided due process as required by KRS 158.150(2). Oral or written notice of the charges must be provided the student; if the pupil denies them, an explanation of the evidence of the charge or charges is to be given the pupil. Finally, the student must receive an opportunity to present his own version of the facts relating to the charge or charges against him. Prior to an expulsion, KRS 158.150(3) provides that "the parent, guardian or other person having legal custody or control of the pupil (is to have) an opportunity to have a hearing before the board."
Public schools are empowered to create rules governing the behavior of students. Included in the terms of any student discipline should be the punishment which will result for any violation of the rules of student conduct. Judge Bertelsman discussed public school discipline of students in the memorandum opinion of
Petry v. Flaugher, 505 F.Supp. 1090, (E.D. Ky. 1981). He stated that nothing is unconstitutional about having discipline in a high school -- even strict discipline:
(t)here is no constitutional right to be free from an appropriate degree of discipline, if one is affiliated with an organization, such as a team, a military unit, a police force or a high school. Even enumerated rights, such as those guaranteed by the First Amendment, are limited by a need for discipline, commensurate with the nature of the organization to which one belongs.
At 1091.
The consideration to be made is whether enforcement of the disciplinary rules is a reasonable exercise of the authority of the school. The test to be applied, as discussed in Petry v. Flaugher, is:
(i)f a penalty is so grossly disproportionate to the offense as to be arbitrary in the sense that it has no rational relation to any legitimate end, it may be a violation of equal protection or substantive due process.
At 1091-92.
The requirement that schools not act arbitrarily nor maliciously in enforcement of discipline was discussed by the
Court of Appeals in Board of Education of Harrodsburg v. Bentley, Ky., 383 S.W.2d 677 (1964). Recognizing that the government and conduct of schools is in the hands of the school board, the court held that there should be no judicial interference unless the board has acted arbitrarily or maliciously.
As recently as 1983, the Court of Appeals has applied this same test of arbitrary and malicious action to search of a student for drugs. In
Rone v. Daviess County Board of Education, Ky.App., 655 S.W.2d 28 (1983), the court said:
. . . the school officials stood in loco parentis to the students within the school system, including the appellant. As such, the school had the authority and discretion to formulate any necessary rules which, in their judgment, promoted the public good, provided that such rules were neither arbitrary nor maliciously promulgated.
Therefore, the board or the administrator in the position of disciplining a student must be keenly aware of the constitutional restrictions limiting the power to impose penalties. Any disciplinary act in which there is the slightest hint of arbitrariness or maliciousness will surely be reviewed by a court.
The board, in deciding whether a carry-over expulsion is appropriate, should examine whether the student's behavior was so egregious as to endanger the health and safety of students and staff. Secondly, it should determine whether continued attendance by the student would be in the best interest of the district in light of the denial of future education for the student. Each board of education is required to provide public educational facilities for all children under the age of 21 residing in its district. KRS 158.100. The board must balance the heavy burden of the local school district to provide an education to all children under the age of 21 against making and enforcing reasonable regulations for the government of schools. Therefore, the power of expulsion, including carry-over expulsion, of a student must be exercised with the utmost care. Without diligent concern for the child's future education, a board may infringe on the constitutional rights of the student. A carry-over expulsion, although a legally available means of discipline, should be used only in the rarest of circumstances.
As to a carry-over suspension, the power of suspension granted to the superintendent, principal, assistant principal or head teacher of a school by KRS 158.150(3) may be carried over to the next school year if the student's misconduct fell within the prohibited behavior described in KRS 158.150(1)(a) and (b). In the instance that a hearing cannot be held immediately following willful disobedience of the student, the hearing must be held during the summer vacation in accordance with the appropriate due process procedures.
I hope this has been of assistance to you.