Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron
Attorney General
Capitol Building, Suite 118
700 Capital Avenue
Frankfort, Kentucky 40601
(502) 696-5300
Fax: (502) 564-2894
March 13, 2023
OAG 23-02
Subject:
Whether KRS 158.150 or the Kentucky Constitution limits the
maximum duration of a student’s expulsion from school to one
year.
Requested by:
Representative Kim Banta
Kentucky House of Representatives, District 63
Representative Steve Rawlings
Kentucky House of Representatives, District 66
Written by:
Aaron J. Silletto
Assistant Attorney General
Syllabus:
Neither KRS 158.150 nor the Kentucky Constitution limits the
maximum duration of a student’s expulsion from school to one
year, so long as it is not arbitrary.
Opinion of the Attorney General
You have requested an Opinion from this Office concerning the scope of
authority local boards of education have regarding school discipline. Specifically, you
have asked whether a local board of education may, consistent with Kentucky law,
expel a student for more than one year. For the reasons below, it is the Opinion of
this Office that a local board of education may expel a student for more than one year.Opinion of the Attorney General 23-02
March 13, 2023
Page 2
2
Your request cites several statistics to show the exigencies supporting it: “The
U.S. has had 2,032 school shootings since 1970, and these numbers are increasing.
Alarmingly, 948 school shootings have taken place since the tragedy at Sandy Hook
Elementary School in December 2012.” You also state that local school districts in
Kentucky recently “have faced serious threats or acts of violence” in their schools, and
you indicate in your request that the General Assembly intends to “do [its] part . . .
to keep our children safe.” It is against this backdrop of threats and violence that this
Office addresses your request.
Answering the question posed by your request starts with KRS 158.150, the
current statute governing the suspension or expulsion of students in Kentucky
schools. It provides that the “[w]illful disobedience or defiance of the authority of the
teachers or administrators, . . . assault or battery or abuse of other students, the
threat of force or violence, . . . the carrying or use of weapons or dangerous
instruments,” and “other incorrigible bad conduct,” among others, may be grounds for
suspending or expelling a student from school. KRS 158.150(1). Each local board of
education is required to adopt a policy “requiring disciplinary actions, up to and
including expulsion from school,” for students who engage in certain conduct,
including possessing controlled substances on school grounds with the intent to sell,
or committing a physical assault or battery against school personnel or other
students. KRS 158.150(2)(b).
The statute allows school administrators, teachers, “or other school personnel”
to “immediately remove or cause to be removed threatening or violent students from
a classroom setting or from the district transportation system pending any further
disciplinary action that may occur.” KRS 158.150(4). Each local board of education is
required to adopt a policy “to assure the implementation of” KRS 158.150 “and to
assure the safety of the students and staff.” Id.
The authority to suspend a student is conferred on each school district
superintendent, principal, assistant principal, or head teacher of any school. KRS
158.150(6). Generally, before a student may be suspended from school, the student
must be given notice of the charges against him or her, an explanation of the evidence,
and an opportunity to present his or her own version of the facts relating to the
charges. KRS 158.150(5).1 But the authority to expel a student rests solely with the
local board of education. KRS 158.150(6). The board may not expel a student “until
the parent, guardian, or other person having legal custody or control of the pupil has
1
The statute does allow a student to be suspended prior to a hearing if “immediate suspension is
essential to protect persons or property or to avoid disruption of the ongoing academic process.” KRS
158.150(5). But in such a case, the student must be given a hearing no later than three school days
after the suspension. Id.Opinion of the Attorney General 23-02
March 13, 2023
Page 3
3
had an opportunity to have a hearing before the board.” Id. The decision of the board
with respect to an expulsion “shall be final.” Id.
In reviewing the text of KRS 158.150, it is clear that the General Assembly has
described the conduct that may subject a student to suspension or expulsion from
school; conferred the authority to make decisions regarding suspensions and
expulsions to school administrators and the local boards of education, respectively;
and required due process protections for students, including notice and an
opportunity to be heard, before they can be suspended or expelled. However, nothing
in KRS 158.150 prescribes the maximum duration of any such expulsion from school.
Specifically, nothing in KRS 158.150 limits the maximum duration of an expulsion
from school to one year.2 Neither has the Kentucky Board of Education promulgated
an administrative regulation on the maximum duration of expulsions from school.
See KRS 156.070(4) (authorizing the state board to promulgate such administrative
regulations as are “necessary for the efficient management, control, and operation of
the schools and programs under its jurisdiction”).
The current “one year rule” to which your request refers therefore is not
prescribed by statute or regulation, but is the product of two prior Opinions of this
Office. First, in OAG 74-165, the Office was asked whether a local board of education
could expel a student from school “permanently.” Noting that Kentucky had a
compulsory attendance law, KRS Chapter 159, the Office observed that “[i]t is clearly
the public policy of the Commonwealth that all children of school age be in school.”
OAG 74-165 (Mar. 1, 1974), at 3. The Office then cited several federal court cases that
describe education as “important” and “of value to the student.” Id. at 3–4 (citations
omitted). After this very brief discussion, and noting no Kentucky cases specifically
addressed the issue, id. at 3, the Office then concluded:
The gist of all the recent Federal court cases on this subject is that school
children should not be separated from the public schools except in the
most extreme cases; that suspension should be of short duration; that
expulsions not be ordered without a due process hearing and that they
be for no longer than the current school year. . . . It is therefore the
opinion of this office that KRS 158.150 should be interpreted as
authorizing the expulsion of a child from the public schools for no longer
than the current school year.
2
In fact, in one circumstance—a student bringing a weapon onto school property—KRS 158.150 sets
a minimum duration of the expulsion. KRS 158.150(2)(a) (“Each local board of education shall adopt a
policy requiring the expulsion from school for a period of not less than one (1) year for a student who is
determined by the board to have brought a weapon to a school under its jurisdiction.” (emphasis
added)). This provision was added by a 1996 amendment to the statute. See 1996 Ky. Acts ch. 51 § 1.Opinion of the Attorney General 23-02
March 13, 2023
Page 4
4
Id. at 5 (emphasis added). No attempt was made in OAG 74-165 to tether the “no
longer than the current school year” limitation to the actual text of KRS 158.150.
This Office was asked to reconsider OAG 74-165 in 1988. The specific question
answered in OAG 88-65 concerned whether “carry-over expulsions,” i.e., expulsions
extending beyond “the beginning of the next school year,” were permissible in
Kentucky public schools. OAG 88-65 (Sept. 29, 1988), 1988 WL 409933, at *1. This
Office said that they were.
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.
Id. at *1 (emphasis added). Thus, “to the extent [OAG 88-65] is in conflict with any
conclusions of OAG 74–165, that opinion [was] overruled.” Id. Your request notes
that, based on the emphasized language from OAG 88-65 quoted above, “the
Kentucky
Department
of
Education
and
other
authorities
advise
the
Commonwealth’s boards of education to adhere to a ‘one year rule’ for expulsions.”
OAG 88-65 did not actually state that a local board of education is prohibited
by Kentucky law from expelling a student for more than one school year. Rather, the
opposite is the case. The Opinion referred to “[s]everal cases . . . in other states” that
limit student expulsions from school to a “school year.” Because, in those unidentified
out-of-state cases, “‘school year’ is defined as a particular number of days,” those
states allowed a school-year suspension to extend into the following school year. But,
as the Opinion noted, the General Assembly “has not provided disciplinary actions
for a time period not to exceed one school year” (emphasis added).
This double-negative appears to have caused some confusion. The point of this
passage from OAG 88-65 was to the effect that the General Assembly in KRS 158.150
has not limited the maximum durations of expulsions to one “school year,” as some
other states apparently had done. Yet this passage has been construed to place a
hard, one-year cap on the maximum term of any expulsion from the public schools.
To the extent OAG 88-65 has been construed to limit a local board of education’s
authority to expel a student to one year, it is overruled.Opinion of the Attorney General 23-02
March 13, 2023
Page 5
5
Rather, because KRS 158.150 itself does not limit the maximum term of a
student’s expulsion to a certain amount of time, OAG 88-65 correctly states only that
the penalty imposed on a student may not be “so grossly disproportionate to the
offense as to be arbitrary,” and school discipline may not be arbitrarily or maliciously
enforced. 1988 WL 409933, at *2 (citing Petrey v. Flaugher, 505 F. Supp. 1087, 1091
(E.D. Ky. 1981); Bd. of Educ. of Harrodsburg v. Bentley, 383 S.W.2d 677, 679 (Ky.
1964); Rone ex rel. Payne v. Daviess Cnty. Bd. of Educ., 655 S.W.2d 28, 30 (Ky. App.
1983)); see also Ky. Const. § 2 (prohibiting the exercise of “[a]bsolute and arbitrary”
government power). Student misconduct that “endanger[s] the health and safety of
students and staff” may subject a student to carry-over discipline, id., and if
particularly egregious, could result in expulsion for more than one year. In imposing
such discipline, the local board of education must balance “whether continued
attendance by the student would be in the best interest of the district” with “the
denial of future education for the student.” Id.3
It must be noted that the Supreme Court of Kentucky decided Rose v. Council
for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989), after this Office issued OAG
88-65. In Rose, the Court interpreted Section 183 of the Kentucky Constitution4 to
protect a “fundamental” right of each child in Kentucky “to an adequate education.”
Rose, 790 S.W.2d at 212; see id. at 213 (“The premise for the existence of common
schools is that all children in Kentucky have a constitutional right to an adequate
education.”). Consistent with this interpretation of Section 183, KRS 158.150(2)(b)
generally requires that “[a] board that has expelled a student from the student’s
regular school setting shall provide or assure that educational services are provided
to the student in an appropriate alternative program or setting.”5 But neither Rose
nor Section 183 limit a local school board’s authority to determine the appropriate
3
Potentially relevant to the board’s decision regarding the length of any expulsion is the ability of
the board to provide an adequate education to the expelled student by means other than in-person
instruction. For example, the Kentucky Board of Education permits a local board of education to make
an involuntary placement of a student in an alternative education program “[t]o ensure the safety of
the individual student, the student body, or staff,” “[t]o meet the educational needs of the student,” or
“[f]or disciplinary purposes.” 704 KAR 19:002 § 1(8)(a); id. § 3(1)(a). Such an alternative education
program may be either an on-site program or an off-site program, i.e., provided via the internet. Id.
§ 2(3). This Office does not opine here as to the suitability of any particular board’s alternative
education program for any particular student. But to the extent educational services could be made
available to the student by remote means, it is certainly relevant to the board’s consideration of the
extent to which its disciplinary decision would result in a “denial of future education for the student.”
4
“The General Assembly shall, by appropriate legislation, provide for an efficient system of common
schools throughout the State.” Ky. Const. § 183.
5
The statute contains an exception to this requirement where “the expelled student posed a threat
to the safety of other students or school staff and could not be placed into a state-funded agency
program.” KRS 158.150(2)(b).Opinion of the Attorney General 23-02
March 13, 2023
Page 6
6
amount of discipline for threats of violence or conduct that endangers the health and
safety of students and staff. No Kentucky court has ever held to the contrary.
In sum, nothing in either KRS 158.150 or the Kentucky Constitution
categorically prohibits a local board of education from expelling a student from school
for more than one year, so long as the punishment is not arbitrarily disproportionate
to the offense. To the extent OAG 88-65 is construed to state otherwise, it is overruled.
Daniel Cameron
ATTORNEY GENERAL
Aaron J. Silletto
Assistant Attorney General