April 21, 1994
Hon. Teresa T. Combs
General Counsel, Fayette County Public Schools
701 East Main Street
Lexington, KY 40502-1699
Dear Ms. Combs:
As General Counsel to the Board of Education of Fayette County, you have asked our office a question relating to the local school board's authority to review school council policies for law and safety concerns before the policies are implemented. Your specific question inquires:
Does the Board have the legal authority to require that proposed SBDM [School-Based Decision Making] policies be reviewed by legal counsel and a Central Office Administrator for the purposes of determining compliance with law, health and safety matters, liability concerns, adequate insurance coverage, financial resource concerns, contractual obligation concerns, Board policy, where applicable, etc.? An example of this is corporal punishment which Board policy prohibits and for which we have no insurance coverage. We feel review is necessary to protect students, council members, Board members and staff, as it serves no purpose to review policy after someone has taken action that is unlawful, etc.
The issue of a local school board's oversight over school council policy is extremely controversial and currently under appeal. This letter solely addresses the issue of the board's review and subsequent approval or rejection of school council policies for compliance with laws and so as not to expose the school district to liability. For example, a policy stating that all new employees must be male would be unlawful and would expose the school district to financial liability.
The General Assembly has empowered school councils to adopt policies in at least nine separate areas delineated in KRS 160.345(2)(j)1-9. As a general rule, the school council policies in the areas set out in KRS 160.345(2)(j)1-8 are not subject to approval or rejection by a Board of Education. However, the district board of education may reject a school council policy in one of the eight areas set forth in KRS 160.345(2)(j)1-8 if the policy violates the law or exposes the district to liability.
We believe your local board may require that proposed school council policies be reviewed by legal counsel and a Central Office Administrator before implementation solely for the purposes of determining compliance with law, health and safety matters, liability concerns, adequate insurance coverage, financial resource concerns, and contractual obligation concerns.
Until the regulation recently expired, 704 KAR 7:110 provided that a board could review school council policies for compliance with the following matters:
(1) State or federal statutes or regulation (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.
704 KAR 7:110.
We think that the regulation provided sound guidance since a school council generally does not have access to legal counsel to review its policies for lawful compliance with the quagmire of federal and state laws.
If the policy is rejected then the policy must be returned to the school council with a specific written explanation of the inconsistency. While the board has legal authority to review school council policies as stated above, we strongly believe that the review of school council policies must be done in a timely manner so as not to frustrate the implementation of school-based decision making. We suggest thirty days as a reasonable length of time to review the school council policies.
In conclusion, we believe that KRS 160.345 authorizes a local school board to require that proposed SBDM policies be timely reviewed by legal counsel and a Central Office Administrator prior to implementation for consistency with state or federal law, concerns for health and safety, concerns for liability, available financial resources or contractual obligations.
Assistant Attorney General