[1995/oagheade.htm]

OAG 95-25

June 19, 1995

Subject: Waiver of Kentucky Board of Education administrative regulations. KRS 156.160

Written by: Lynne Schroering Slone

Requested by: Kevin M. Noland, Department of Education

Syllabus: If a school district or school applies for a waiver from certain regulations, then the Kentucky Board of Education has discretion to grant the waiver request.

Statutes construed: KRS 156.160

OAGs cited: None

OPINION OF THE ATTORNEY GENERAL

In this opinion we provide an interpretation of KRS 156.160(2) which allows schools and school districts to petition the Kentucky Board of Education for a waiver from certain state regulations.

This opinion addresses the following two issues:

1. If a school district or a school exceeds its threshold and applies for a waiver from regulations that are subject to waiver, is the Kentucky Board of Education required to grant the waiver, or does the Kentucky Board of Education have the discretion to deny the waiver request?

2. Is exceeding its threshold the only requirement the school or school district must meet in order to be eligible to receive a waiver?

Our response to both of these issues requires an analysis of KRS 156.160(1) and (2):

(1) With the advice of the Local Superintendents Advisory Council, the State Board for Elementary and Secondary Education shall promulgate administrative regulations establishing standards which school districts shall meet in student, program, service, and operational performance. These regulations shall comply with the expected outcomes for students and schools set forth in KRS 158.6451.

* * *

(2) At the request of a local board of education or a school council, a local school district superintendent shall request that the State Board for Elementary and Secondary Education waive any administrative regulation promulgated by that board. Prior to the 1994-95 school year, the requested waiver shall be granted to any school district or school meeting the standards adopted pursuant to subsection (1) of this section. After the 1994-95 school year begins, a school district or school shall exceed its threshold to be granted a waiver from regulations. Regulations relating to health and safety, civil rights, any state regulation required by a federal law, and regulations promulgated pursuant to KRS 158.6451, 158.6453, 158.6455, 158.685, and this section, relating to measurement of performance outcomes and determination of successful school districts or schools shall not be subject to waiver. Any waiver granted under this subsection shall be subject to revocation upon a determination

by the State Board for Elementary and Secondary Education that the school district or school holding the waiver has subsequently failed to reach its threshold level as provided for in KRS 158.6455.

It is the opinion of the Attorney General that if a school district or school which exceeds its threshold applies for a waiver from certain regulations, then the Kentucky Board of Education has discretion to grant or deny the waiver request. KRS 156.160(2). KRS 156.160(2) provides that a school district or school "shall exceed its threshold to be granted a waiver from regulations." (Emphasis added.) This language indicates the types of school districts or schools which may apply for a waiver, i.e., they must exceed this threshold. This statute is not a mandate that all requests for an administrative waiver must be blindly granted by the Kentucky Board of Education.

KRS 156.160 is an extremely involved statute which grants the State Board authority to promulgate regulations in a vast number of school areas ranging from the development of programs to the transportation of children. The Kentucky Board of Education must first determine if the regulation is subject to waiver or decide that the regulation may not be waived under any circumstance since it relates to health and safety, civil rights, required by federal law, etc.

Next, the Kentucky Board of Education must decide if a school or school district which exceeds its threshold shall be granted a waiver from a particular regulation. The Kentucky Board of Education does not merely rubber-stamp a school's or school district's request pursuant to KRS 156.160 to be exempt from an administrative regulation. Rather, KRS 156.160(1) states that the Board's regulations shall comply with the expected outcomes for students and schools set forth in KRS 158.6451.

When a school which exceeds its threshold applies to be exempt from a specific regulation, the Kentucky Board of Education must determine that the waiver is consistent with the following goals listed in KRS 158.6451:

(1) The General Assembly finds, declares, and establishes that:

(a) Schools shall expect a high level of achievement of all students.

(b) Schools shall develop their students' ability to:

1. Use basic communication and mathematics skills for purposes and situations they will encounter throughout their lives;

2. Apply core concepts and principles from mathematics, the sciences, the arts, the humanities, social studies, and practical living studies to situations they will encounter throughout their lives;

3. Become a self-sufficient individual;

4. Become responsible members of a family, work group, or community, including demonstrating effectiveness in community service;

5. Think and solve problems in school situations and in a variety of situations they will encounter in life; and

6. Connect and integrate experiences and new knowledge from all subject matter fields with what they have previously learned and build on past learning experiences to acquire new information through various media sources.

(c) Schools shall increase their students' rate of school attendance.

(d) Schools shall reduce their students' dropout and retention rates.

(e) Schools shall reduce physical and mental health barriers to learning.

(f) Schools shall be measured on the proportion of students who make a successful transition to work, post- secondary education, and the military.

We believe that using these enumerated goals as the determining factors will help to ensure a continued successful school or school district. Additionally, this formula will lead to consistent and non-arbitrary waiver reviews by the Kentucky Board of Education.

The second question presented to our office is whether exceeding its threshold is the only requirement which must be reached before a school or school district is eligible to receive a waiver. We assume this question has arisen since KRS

156.160(2) provides that prior to the 1994-95 school year the schools requesting waivers must meet the administrative standards set forth by the Board. This specific statutory language is not included in the process for petitioning for a waiver after the beginning of the 1994-95 school year.

We believe that exceeding its threshold is the only statutory requirement that a school or school district must meet in order to petition the State Board for a waiver under KRS 165.160(2). In setting forth the criteria for regulation waiver after the 1994 school year begins, the General Assembly did not mandate that the school meet the administrative standards adopted by the Board. Of course, we believe that the State Board could consider whether the school district or school met the administrative standards set forth by the State Board when it considers a request for an administrative waiver.

CHRIS GORMAN

ATTORNEY GENERAL

Lynne Schroering Slone

Assistant Attorney General