[1996/oagheade.htm]

OAG 96-28

June 27, 1996

Subject: School attendance policies.

Written By: Diane Schuler Fleming

Requested By: J. Keith Cartwright, attorney, Hopkins County Board of Education; and Marsha Durham

Syllabus: Local school boards may adopt reasonable attendance policies.

Statutes Construed: KRS 158.070; KRS 158.150; KRS 158.240; KRS 159.010; KRS 159.035; and KRS 160.290.

OAGs Cited: OAG 61-315; OAG 72-753; OAG 77-547; OAG 79-539; OAG 74-312; OAG 75-124; OAG 79-68; and OAG 76-566.

OPINION OF THE ATTORNEY GENERAL

The Kentucky General Assembly passed the 1990 Kentucky Education Reform Act (KERA) in an effort to improve academic standards throughout the Commonwealth. The ensuing reforms have been implemented on a number of levels throughout the educational system. Presently, our office has been asked to review school attendance policies from Hopkins County and Jessamine County, both of which contain provisions requiring students to attend “make-up” sessions.

I.

The School Attendance Policies

A. The Hopkins County Board of Education's Proposals

Hopkins County submits two proposals for our consideration. In the first proposal, five points would be deducted from a student's final grade for any unexcused absences which occur in each of the nine-week sessions. Students would have the option of attending a “make-up” session during Saturday school to avoid losing the five points.

The second proposal submitted would require students to be in attendance 93% of the school year. Every absence in excess of twelve days, whether excused or unexcused, would require the student to “make up” the days and hours missed. This could be accomplished by attending either extended classes, Saturday school, after hours school or two weeks of extended school which would be offered at the end of the regular school year. If a student does not make up the missed time, it is our understanding that he will not be promoted to the next level.

B. The Jessamine County School Attendance Policy

The Jessamine County Board of Education has enacted a school attendance policy which seeks to have students make up the “contact time” which they have missed with their teachers. Thus, middle school students will be allowed to miss no more than ten days per year. High school students may miss no more than six days in a half-year course or three days in a quarter-year course. “Any contact time missed beyond these limits must be made up by the student before credit or promotion is granted.” Jessamine County Student Code of Conduct, p. 9. A number of options are provided to the students to make up the missed “contact time” with their teachers, such as classes on Monday and Wednesday afternoons, Saturdays, and special summer weekdays.

II.

Analysis

Over the years our office has issued a number of opinions relating to school attendance policies. While many of these opinions were concerned with student absences resulting from student misconduct, we believe that the rationale supporting these conclusions is more than merely meritorious, it is controlling. We begin our analysis with an in-depth examination of Hopkins County's first proposal.

A. A School Board May Not Adopt a Plan to Deduct Points From a Student's Final Grade for Each Unexcused Absence

In OAG 61-315, we were presented with the question of whether a student's records could be withheld at the end of the school year if the student had not made restitution for damage he had caused to school property. We reviewed a number of permissible measures which a teacher may take when a pupil is disruptive or misbehaves. However, we found no support for withholding a student's grades as punishment for misconduct. Our conclusion was based upon our interpretation of KRS 158.150 which sets the parameters for student discipline. We stated:

[I]t is clear that you cannot deny the student a school record as the statute defines the method of enforcing disciplinary rules and regulations and does not mention withholding records.

Id. at pp. 2-3. Thus, grades cannot be withheld to discipline a student.

We addressed this issue in a similar context in OAG 72-753. There we were asked whether a teacher could lower a student's academic grade because of misconduct. Again, we found no legal authority which supported this form of discipline. We opined that:

Such an action would [not] be commensurate with an offense of misconduct because a pupil's grades are a permanent record and will continue to reflect on him long after his misdeeds are forgotten. The pupil's grades should represent an objective evaluation of the pupil's proficiency in his academic subjects. [Emphasis added.]

Id. at p. 3.

The policy proposed by Hopkins County is not new. A similar policy was scrutinized by the Kentucky Court of Appeals in Dorsey v. Bale, Ky., 521 S.W.2d 76 (1975). The question before the Court was whether a board of education could enact a regulation which reduced a student's grade for an unexcused absence as an additional punishment for conduct which resulted in a suspension from the classroom. The court held that KRS 158.150 preempts “the right of school officials to promulgate disciplinary regulations that impose additional punishment for the conduct that results in suspension.” Id. at p. 78. Thus, a new standard had been set. This is the standard against which the Hopkins County policy must be judged.

Following the Dorsey decision, we were presented with the question of whether suspension of a pupil for misconduct under KRS 158.150, which results in the pupil missing examinations, imposes a duty upon school personnel to permit the pupil to make up missed examinations. Specifically, the Caverna Board of Education had adopted a regulation which did not allow a student to make up work missed as a result of an unexcused absence, such as a suspension. In addition, five points were deducted from the student's final grade for each unexcused absence. OAG 77-547, pp. 1 and 2.

Applying the standard set forth by the court in Dorsey, we held that a school is not required to allow a suspended student to make up the missed work. We noted that:

The educational process goes on while the student who has been suspended is away. Class discussions and lectures are held, assignments made, and quizzes or examinations may be given during the time the student is suspended from school. The denial of this on-going educational process is the very heart of the suspension or expulsion from school. . . . We do not believe the Court of Appeals in Dorsey concluded that missing out on school work and not being permitted to make up the work missed was “additional punishment for the conduct that results in suspension.” Missing out on school work is the very essence of punishment by suspension.

Id. at p. 2.

Thus, we opined that the portion of the board's regulation which forbade a suspended student to make up work missed as a result of the suspension was proper.

As to the issue of deducting points, however, we opined that it is not a “natural incident growing out of the suspension.” Furthermore, we feared that such a reduction “could very well take away grading points from the student earned prior to the conduct which resulted in suspension.” Id. In summary, it was found to be an impermissible additional punishment pursuant to the court's ruling in Dorsey.

The final opinion of note in this area is OAG 79-539. There, the Trimble County School system presented a school attendance policy for our consideration which required students to be in attendance every day in order to be eligible for the maximum number of participation points. If a student were absent, he would not be permitted to make up the missed participation points, regardless of whether the absence was excused or unexcused.

We began our analysis by noting that provisions for excused absences can be found in KRS 158.240 and KRS 159.035. In light of the fact that the Trimble County plan did not distinguish between excused and unexcused absences, we found it to be arbitrary and unreasonable. We concluded that “a policy penalizing students who are excusably absent from school can[not] be legally tolerated.” Id. at p. 3. We continue to so believe.

The aforementioned opinions and case law lead us to conclude that a school board may not adopt a plan to deduct points from a student's final grade for each unexcused absence. As we stated in OAG 72-753 at p. 3, “The pupil's grades should represent an objective evaluation of the pupil's proficiency in his academic subjects.” Despite the board's stated intent to act in the best interest of the students, the deduction of five points from a pupil's final grade is a penalty. Such a penalty, in the guise of an incentive to get children to attend school, is not permissible under Dorsey. Providing an opportunity for a student to make up the points does not change our conclusion - it is still an impermissible penalty.

B. A School Board May Not Enact a Policy Whereby a Student Is Not Promoted to the Next Level for Failure to Make Up Missed Instructional Time As a Result of Excused Absences

The proposal submitted by Hopkins County and the attendance policy enacted by Jessamine County each seek to increase the amount of “contact” time students spend with the teachers. To more thoroughly understand this issue, it is best to start by reading the actual text of such a policy. The attendance policy adopted by the Jessamine County School Board reads in relevant part:

G. Class Participation

1. Time in contact with the School is Important. Performance on tests and the completion of homework/course projects are two important elements of a student's education. A third element, contact time with the class and teacher, is also very important. Our goal is to have every student at school everyday. However, circumstances such as illness may necessitate occasional absences. Because of the important element of contact time, students will be allowed to miss no more than 10 days per year at the middle school level. On the high school level students may miss no more than 6 days (or 6 periods per class) during a half-year course and no more than 3 days (or 3 periods per class) during a quarter-year course.

Any contact time missed beyond these limits must be made up by the student before credit or promotion is granted. Students on school sponsored field trips are counted present. Students approved for homebound will be counted present provided they meet regularly with the homebound teacher.

Please note that parent excuses, doctor days (other than homebound), funerals and other emergency days all fit within these time frames. Any contact time missed beyond the limits stated above will have to be made up.

Jessamine County Schools' Student Code of Conduct, pp. 8-9. Thus, according to this policy, all student absences are to be treated alike and no distinction will be made between excused and unexcused absences.

1. Local School Boards Have the Statutory Authority to Institute School Attendance Policies

As authority for their position, the Jessamine County School Board cites the following statutes: KRS 159.010; KRS 158.070; and KRS 160.290. KRS 159.010(1) requires in relevant part that parents send their children to a “regular public day school for the full term that the public school . . . is in session. . . .” Pursuant to KRS 158.070(1), “[t]he minimum school term shall be one hundred eighty-five (185) days, including at least one hundred seventy-five (175) instructional days.” Under KRS 160.290(2), local school boards are granted the authority to make, adopt, amend or repeal rules and regulations. Therefore, according to the Jessamine County School Board:

It seems reasonable that if the state of Kentucky has set minimum academic standards that a school system must provide in terms of student instructional time (1050 hours), then the system ought to be able to follow suit and require a minimum standard of instruction contact time spent by students.

Letter of Peter W. Beaty to the Office of the Attorney General, May 10, 1996.

In further support of their position, the Jessamine Board cites a letter from the Kentucky Department of Education, dated April 29, 1996. In that letter, DOE stated their belief that a local board has the authority to enact such an attendance policy based upon the aforementioned statutes, as long as the policy is reasonable. However, the letter cautioned that:

[t]o ensure that the policy would be considered reasonable if challenged, the school system might wish to ensure that the time spent will be quality time.

Local school boards clearly have the statutory authority to institute school attendance policies. Furthermore, it is common sense that students gain a real benefit from a policy which requires them to be in school so as to obtain as much instructional time as possible. However, the question remains whether the policy enacted by the Jessamine County Board of Education (and the proposed policy by the Hopkins County Board of Education) is reasonable.

2. Regulations Enacted By School Authorities Must Be Reasonable

Over the years both the courts and our office have given a great deal of deference to the actions of local school boards. As such, school officials are given wide discretion to formulate rules and regulations governing student conduct. The only caveat is that the regulations must be reasonable. In OAG 74-312 we were presented with the question of whether a board could set a maximum number of days that a student could be absent, and still receive credit for the courses he is taking. We found that:

under the general powers placed in boards of education by KRS 160.290 a school board may enact a regulation that a pupil may not be absent on more than a limited number of days and still receive credit for his courses. The only restrictions which the courts have put upon the power of the school board to make regulations is that the regulations must be reasonable.

Id. This broad pronouncement left open to question what constituted a “reasonable” policy. Specifically, of course, we are attempting to ascertain whether the attendance policies submitted for our review are in fact reasonable. We begin with an examination of the policy submitted by the Jessamine County Board of Education.

We have received extensive correspondence from Mr. Peter Beaty, Pupil Personnel Director for the Jessamine County Schools regarding Jessamine County's school attendance policy. According to Mr. Beaty, the fundamental change in policy is the abandonment of the distinction between excused and unexcused absences. Mr. Beaty states:

In our new Jessamine County policy we have chosen a better route to being reasonable. We are giving numerous opportunities for students to actually make up missed contact time with the school and a certified teacher. Thus we are not really focusing on excused or unexcused absences since both can be made up. . . .

Please note that the matter of excused or unexcused absences or truancy is independent of contact time and a student may be habitually truant and not have any contact time to make up or a student may have contact time to make up and not be habitually truant. The matter of missing contact time is really one of academic loss that can only be made up by attending the additional contact time opportunities which are provided for the student. A class missed is an educational opportunity missed. It is not a matter of punishing students for missing class. . . .

Letter of Peter W. Beaty to the Office of the Attorney General, May 10, 1996.

Despite the clearly well-intentioned basis for this policy, it is our opinion that it is not reasonable. Student advancement in the Commonwealth of Kentucky is based upon academic achievement. Lumping attendance in with standard objective measures of a student's performance, such as tests, quizzes, homework and projects, and calling it academic achievement, does not necessarily make it so. Application of this policy can lead to incongruous situations. For example, a student could be allowed to make up missed exams, etc., and maintain an “A” average, but because of his failure to make up the missed contact time for his excused absences, he is not promoted to the next level. Such a scenario can only be characterized as a punishment, and is an improper effort to encourage school attendance.

The school board's decision not to differentiate between excused and unexcused absences is fatal to the policy. The General Assembly has enacted a number of laws in this area clearly indicating the need to distinguish the two types of absences. For example, in KRS 158.070(6) the legislature provided for one day of excused absence for students attending the Kentucky State Fair. Another example can be found in KRS 159.150, which defines truancy, and reads in relevant part:

Any child who has been absent from school without valid excuse for three (3) or more days, or tardy on three (3) or more days, is a truant. . . .[Emphasis added.]

See also, KRS 600.020(24) which defines an habitual truant, referencing unexcused absences.

Thus, the legislature distinguishes between excused and unexcused absences - the former being lawful and the latter potentially not. In this matter, our office has deferred to the local school boards allowing them to institute their own policies determining what constitutes a valid excuse. See, OAG 76-566. This is not to say, however, that the local boards have the authority to do away with the distinction. Rather, they have the power to enact reasonable rules and regulations regarding a student's absences.

In OAG 75-124 and OAG 79-68 we were presented with the question of whether or not a student may automatically receive a failing grade for missing too many classes, without differentiating between excused and unexcused absences. Finding such regulations to be arbitrary, we stated:

Allowing a student to be absent up to eight (8) times and still pass the course where another student is absent nine (9) times and automatically fails, and without giving any consideration at all as to why either of the students were absent, seems to us to be an unconstitutional effort to encourage school attendance.

OAG 75-124 at pp. 3-4.

Applying this analysis to the attendance policies submitted by Hopkins and Jessamine counties leads us to opine that their policies are unreasonable. While students are provided with many and various opportunities to make up the missed contact time, the fact remains that students who are excusably absent from school are being penalized. This simply does not meet the reasonableness requirement, and, in our view, runs afoul of the legislative intent that excused absences cannot be punished. In conclusion, local school boards cannot ignore the issue of excused versus unexcused absences even when attempting to act in the best interest of students.

III.

Conclusion

The General Assembly has required local school boards to adopt attendance policies. However, these policies must be legally reasonable. A plan which deducts points from a student's final grade for each unexcused absence is impermissible. The failure to distinguish between excused and unexcused absences, renders the other policies impermissible as well. A pupil's grades should represent an objective evaluation of the pupil's proficiency in his academic subjects.

A. B. CHANDLER III

ATTORNEY GENERAL

DIANE SCHULER FLEMING

ASSISTANT ATTORNEY GENERAL