OAG 93-31

April 13, 1993

Hon. Kevin Noland

General Counsel

Department of Education

Capital Plaza Tower

Frankfort, KY 40601

Dear Mr. Noland:

You have asked our office for our opinion regarding several issues relating to school based decision making councils.

1. Is it the local school board or the high school (grades 9-12) council that has authority to determine whether high school credit will be granted for an 8th grade algebra course which is offered in the district's school?

As a general rule the local school board is authorized to make policies regarding graduation requirements as long as such policies are consistent with the state requirements. OAG 80-118. However, the State Board of Elementary and Secondary Education has preempted the issue of granting high school credit for 8th grade algebra courses and thus removed this decision from the local district.

The State Board of Elementary and Secondary Education is required pursuant to KRS 156.160(1)(c) to set minimum requirements for graduation from high school. In 704 KAR 3:305 the State Board has adopted by reference the Program of Studies for Kentucky Schools. The Program of Studies for Kentucky Schools specifies that Algebra I may be offered for high school credit in the 8th grade if the students have reached a particular level of math proficiency and if the instructor has an appropriate certificate level. Program of Studies for Kentucky Schools, Mathematics, p. 13, March 1990.

Therefore, we believe that the State Board has already determined the specifications necessary for an 8th grade Algebra I course to receive high school credit.

2. Is it the staff at a school or the local school board which has authority to determine the frequency with which and the time of year in which a staff may vote to enter SBDM and to determine the beginning operation date for the school council?

KERA mandates that after July 13, 1990, any school in which two-thirds (2/3) of the faculty vote to implement school-based decision making shall do so. KRS 160.345(5). Many of the issues relating to formation of school councils are answered in KRS 160.345 although matters relating to the formation of school councils not provided for in that section shall be addressed by local board policy. KRS 160.345(2)(e).

You ask whether the school faculty or local school board determines the frequency with which and the time of year in which a staff may vote to implement SBDM and the operation date for the school council.

While KRS 160.345 provides that a school staff must be allowed to vote to enter SBDM the statute does not indicate how many times or the dates that a faculty may vote to implement SBDM. A Board when enacting school council formation policies should be cognizant of the requirement that all schools must implement SBDM by July 1, 1996. KRS 160.345(5). Any board policy relating to the initial vote to enter SBDM must offer the faculty a reasonable opportunity to vote. For example it is reasonable and consistent with KERA to allow a school two opportunities to vote during a school year, once in the fall and once in the spring. However, it would be unreasonable and in direct violation of KERA to allow the faculty to vote only once a year, or during Christmas or spring break or other date when faculty are likely to be out of town.

A. If a school's staff votes to enter SBDM in October, but the board policy states that the school council terms run from July to June, does the staff have to wait nine months to begin operation of SBDM?

No, the school does not need to wait nine months to implement SBDM. Rather, the school should be given a brief time to permit elections and training before allowing the school council to begin its tenure. This delay should not exceed a couple of months. Since the school board policy determined that the school council terms run from July to June, the first school council elected in the fall would hold office until July when the next school council would take office. Thus, this first school council would only serve a partial term of a few months from November or December until July.

B. If a staff votes in the spring to enter SBDM, but local board policy states that council terms begin in July, will the council-elect have authority to select the principal for its school in the event there is a vacancy in the spring before the council members' terms officially begin?

KERA does not give the council-elect the power to select the principal before the council members are sworn into office. In OAG 92-78 we explained that two separate statutes govern selection of a principal. If a school has a school council in place then the council chooses a principal from among those names submitted by the superintendent. KRS 160.345(2)(i). If the school does not have a school council then the superintendent chooses the principal. KRS 160.380(2)(a).

However, we believe it is consistent with the goals of KERA for a superintendent to receive input from a council-elect prior to selecting a principal for the school described in your question. The final decision will remain with the superintendent. KRS 160.380(2)(a).

3. If a district board policy prohibits the use of corporal punishment, may a school council in that district have a discipline policy which allows for the use of corporal punishment?

KERA provides that the school council shall adopt a policy to be implemented by the principal in several areas including:

Selection and implementation of discipline and classroom management techniques, including responsibilities of the student, parent, teacher, counselor, and principal.

KRS 160.345(2)(j)7.

Notwithstanding this grant of power, the school district may attempt to reverse a school council's policy on appeal if it violates any of six criteria identified in 704 KAR 7:110 Section 2 which provides:

The school council shall make decisions in the areas set out in KRS 160.345(2)(j)(1-8). The district board of education may reject a school council policy in one (1) of these areas only to the extent it is inconsistent with:

(1) State or federal statutes or regulations (if a waiver is not applicable);

(2) Concerns for health and safety;

(3) Concerns for liability;

(4) Available financial resources; or

(5) Contractual obligations to personnel and other providers of goods and services.

The local board may reject a school council's policy on corporal punishment if the local school board has a policy banning corporal punishment based on concerns for liability or concerns for health and safety. 704 KAR 7:110.

Your last series of questions deal with the exemption from school based decision making for single-school districts. KRS 160.345(5) provides in part:

Notwithstanding the provisions of this section, a local school district shall not be required to implement school based decision making if the local school district contains only one (1) school.

Your questions are:

4(A) Is this exemption forever, or is it just a one year exemption?

There is no indication in KRS 160.345(5) that this is a temporary one year exemption. Thus, the exemption for single-school districts from SBDM would continue to apply until the statute were amended or repealed.

4(B) If the local board of education in a "single-school" district does not want to enter SBDM but the staff of the school votes to enter SBDM, who prevails?

The local board of education has general control and management of schools in its area. KRS 160.290. The decision of the local board of education in a single-school district not to implement SBDM controls over the school's desires to enter SBDM.

4(C) If the local board of education in a "single-school" district wants to enter SBDM, but the staff of the school does not want to who prevails?

We answered this in the preceding question when we cited the local board's general control and management of the schools in its area. If a local board in a single-school district elects to implement SBDM this decision controls over the vote of the school staff.

Sincerely yours,



Lynne Schroering

Assistant Attorney General

(502) 564-7600