Can a child whose family moves to Idaho mid-year enroll in an Idaho public kindergarten or first grade if the child started school in another state but doesn't meet Idaho's August 16 cutoff?
Plain-English summary
The State Superintendent of Public Instruction asked three questions about how Idaho's school-age cutoff (turn five before August 16 to enter kindergarten; turn six before August 16 to enter first grade if the child has not been to kindergarten) interacts with families moving in from out of state.
Question one: a child moves into Idaho during the school year having started kindergarten in another state, but does not meet Idaho's August 16 cutoff. Can the child enroll in Idaho kindergarten? No. The AG concluded the August 16 cutoff is mandatory. The legislature used "shall," and the legislative history of the 1988 amendment shows the cutoff was tightened deliberately, with no provision for case-by-case evaluations of children below school age. School trustees actually have a duty under § 33-512(5) to "exclude from school, children not of school age." So the kindergarten door is closed until the child meets the school-age requirement.
Question two: a child has completed kindergarten in another state or in a private kindergarten and is now five (and meets Idaho's age-five cutoff) but is not yet six. Can the child enter first grade? The child may, but is not entitled to. § 33-201's six-by-August-16 rule for first grade applies only to children who have not attended a kindergarten. A child who has completed kindergarten somewhere is "of school age" and can be enrolled, but the appropriate placement (kindergarten or first grade) is for the school district to decide using its judgment about the child's readiness.
Question three: clarifying that the six-by-August-16 first-grade requirement is only for children who never attended any kindergarten. Yes, that's correct. For those children, school age is six (under the August 16 cutoff that took effect with the 1988 amendments), and they should be placed in kindergarten if six has not been reached, with placement adjustments later at the school's discretion if it is in the child's best interest.
Currency note
This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Idaho's school-age cutoff statutes have likely been amended since 1993.
Background and statutory framework
Idaho's school-age statute, Idaho Code § 33-201, defines "school age" as five (or six, for children who have not attended kindergarten). The cutoff date for reaching that age has moved over the years. Before July 1, 1988, the cutoff was October 16. The 1988 amendments (Idaho Code § 33-210) phased the cutoff back: October 16 for the 1990 school year and August 16 thereafter.
The 1988 legislative record shows the change was driven by readiness research. The House Education Committee heard testimony that older children entering kindergarten have more successful schooling experiences, and that some children whose birthdays fell between August 15 and October 15 were at risk of academic difficulty. The committee considered (and did not adopt) a provision allowing school districts to test underage children for readiness; legislators were concerned that case-by-case decisions would put district staff in an awkward position.
The opinion's two illustrative scenarios came from real Weiser School District situations. In the first, a parent whose child's fifth birthday fell after August 15 sent the child to kindergarten in Ontario, Oregon for ten days, then tried to enroll the child as a transfer student in Weiser. In the second, a family moved from Bend to Weiser in November with a child who had completed a quarter-year of Oregon kindergarten but missed Idaho's school-age cutoff.
The cross-jurisdictional cases confirm that age cutoffs are uniformly enforced. Morrison v. Chicago Board of Education (Ill. App. 1989) held that the Illinois cutoff was strictly applied to a child who turned five three days after the date. O'Leary v. Wisecup (Pa. Cmwlth. 1976) held that mid-year transfer of an under-age student between districts with different age requirements did not give rise to a constitutional right to continued enrollment, because public education is not a fundamental right and age classifications are not suspect. Goldsmith v. Lower Moreland School District (Pa. Cmwlth. 1983) held that a child under six does not have a constitutionally protected property interest in kindergarten admission. The Idaho Supreme Court reached a similar conclusion about the right to education in Thompson v. Engelking (1975).
Common questions
Can my child be tested for kindergarten readiness if she misses the cutoff by a few days?
Not under § 33-201 as it stood in 1993. The legislature considered this option and rejected it. School districts are required by § 33-512(5) to exclude children not of school age, full stop.
My child started kindergarten in California, which has a later cutoff. We move to Idaho mid-year. Why can't she keep going to kindergarten?
Because Idaho's school-age requirement applies to children when they enroll in Idaho schools, not to whether they were in school somewhere else. If the family moves and the child is not yet age-five-by-August-16, the child is not of Idaho school age and cannot enroll in Idaho public kindergarten until the next eligible school year.
My child finished kindergarten in California, but turns six in September. Can she go directly into first grade in Idaho?
The opinion says she may, but is not entitled to. Idaho's six-by-August-16 first-grade requirement is for children who have not attended a kindergarten. A child who has completed kindergarten is of "school age" and can be enrolled. Whether kindergarten (again) or first grade is the right placement is for school officials to decide based on the child's readiness.
Can the parents sue if the school decides to put the child in kindergarten rather than first grade?
Probably not on constitutional grounds. The Idaho Supreme Court (Thompson v. Engelking) and Pennsylvania cases (O'Leary, Goldsmith) hold that there is no fundamental right to a particular grade placement, and the school's discretion is reviewed only for arbitrary or capricious action.
What about home-schooled children moving in from another state?
The opinion does not address this scenario directly. It speaks of children who attended "a kindergarten" of at least 450 instructional hours. Whether a particular home-schooling program qualifies would be a fact question for the school district to decide.
Citations
Idaho statutes: § 33-201 (school-age definition); § 33-210 (1988 amendment moving the cutoff); § 33-512(5) (board duty to exclude children not of school age); § 33-1401 (residency definitions).
Idaho cases: Anstine v. Hawkins, 92 Idaho 561, 447 P.2d 677 (1968) (Idaho Supreme Court; courts must follow unambiguous statutes); Thompson v. Engelking, 96 Idaho 793, 537 P.2d 635 (1975) (Idaho Supreme Court; education not a fundamental right under the state constitution).
Other cases: O'Leary v. Wisecup, 364 A.2d 770 (Pa. Cmwlth. 1976); Goldsmith v. Lower Moreland School District, 461 A.2d 1341 (Pa. Cmwlth. 1983); Morrison v. Chicago Board of Education, 544 N.E.2d 1099 (Ill. App. 1 Dist. 1989).
Other authorities: Sutherland, Statutory Construction § 57.01 (5th ed.); House Education Committee testimony, February 8, 1988 (Mr. Yankey); House Education Committee testimony, February 1, 1988 (J.B. Johnston); Senate Education Committee testimony, February 17, 1988 (Senator Twiggs).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP93-04.pdf
Original opinion text
ATTORNEY GENERAL OPINION NO. 93-4
To:
Honorable Jerry L. Evans
State Superintendent of Public Instruction
STATEHOUSE MAIL
Per Request for Attorney General's Opinion
QUESTIONS PRESENTED
1.
Is a child entitled to attend an Idaho public school kindergarten when the child
does not meet the Idaho school entry age but has completed a portion of
kindergarten in another state and moves to Idaho?
2.
If a child has completed kindergarten in another state or in a private kindergarten
but is not six years old prior to August 16, may he or she be admitted into the first
grade?
3.
Is the first grade age requirement set forth in Idaho Code § 33-201 only applicable
to those children who have not completed a kindergarten?
CONCLUSION
1.
A child who has attended part of the school year in a private or out-of-state
kindergarten but is not five years of age prior to August 16, and who therefore
does not meet the Idaho school entry age, may not attend kindergarten in Idaho
public schools until "school age" is met.
2.
If a child has completed a kindergarten program but is not six years old prior to
August 16 that child may, but is not entitled to, enter the first grade. The school
personnel will determine what is an appropriate placement of that child.
3.
The first grade age requirement of six prior to August 16 applies only to those
students who have not completed a kindergarten.
ANALYSIS
Question No. 1:
Your first question asks whether a child is entitled to attend an Idaho public school
kindergarten if the child has completed a portion of kindergarten in another state but is
not five years old prior to August 16, and thus does not meet Idaho's "school age"
entrance requirement.
It is not uncommon for families with children to move into Idaho from other states
during the school year. Many states have a later entry date for school age. Recent
experiences of the Weiser School District illustrate typical age-related situations faced by
school districts in Idaho.
In the first situation, a parent residing in the Weiser School District has a child
whose fifth birthday falls only days after the August 15 cut-off date for entry into
kindergarten in Idaho. Since Oregon has a later starting date for school age, the parent
sends the child to school in Ontario, Oregon, for ten days. The parent then seeks to enroll
the child in kindergarten in Weiser as a transfer student.
In the second situation, a family moving from Bend, Oregon, to Weiser in
November has a child who completed a quarter of a year of kindergarten in Oregon but
misses the Idaho school age date by a few days. The parents seek to enroll their child in
kindergarten in Weiser as a transfer student.
Historically, the practice around the state has been not to allow the child in the
first situation to enroll in an Idaho public school kindergarten since the child is not of
school age and was sent to Oregon specifically to attempt to circumvent the Idaho statute.
In the second situation, however, the practice has been to allow the student to transfer
into an Idaho public kindergarten since the child did meet the school age requirements of
the state where he or she was a resident even though the child, having moved to Idaho,
did not meet Idaho's school age.
Prior to July 1, 1988, "school age" was defined as turning five prior to October 16.
As Idaho Code § 33-201 reveals, the legislature, over the period of several years, changed
the date by which a child must attain the age of five in order to be considered of "school
age." The statute now requires children wishing to enroll in kindergarten to turn five
prior to August 16:
The services of the public schools of this state are extended to any
acceptable person of school age. "School age" is defined as including all
persons resident of the state, between the ages of five (5) and twenty-one
(21) years. For the purposes of this section, the age of five (5) years shall
be attained when the fifth anniversary of birth occurs: before the beginning
of the sixteenth day of September for the school year beginning in 1990;
and before the beginning of the sixteenth day of August for any school year
thereafter. For a resident child who does not attend a kindergarten, "school
age" shall be the age of six (6) if this age has been reached: before the
beginning of the sixteenth day of October for the school year beginning in
1990; before the sixteenth day of September for the school year beginning
in 1991; and before the sixteenth day of August for each school year
thereafter.
(Emphasis added.)
The residency of a student is defined as the residence of the child's parent or
guardian. Idaho Code § 33-1401(2). A nonresident student is defined as a student
attending a school in a district other than the home district, or attending school in another
state. Idaho Code § 33-1401(5). A student who moves with his or her family to Idaho
becomes a resident student.
The Idaho Legislature used the word "shall" in setting forth the "school age"
required for admission to kindergarten and first grade. Usually "shall" is mandatory, not
directory. Mandatory statutes are usually imperative, and directory statutes are
permissive. Sutherland Stat. Const. § 57.01 (5th Ed.). When a statute is not ambiguous,
"it is the duty of the court to follow the law as written, and if it is socially or otherwise
unsound, the power to correct is legislative, not judicial." Anstine v. Hawkins, 92 Idaho
561, 563, 447 P.2d 677, 679 (1968). As stated in Morrison v. Chicago Board of
Education, 544 N.E.2d 1099 (Ill. App. 1 Dist. 1989):
Statutes must be construed so as to ascertain and give effect to the intention
of the legislature as expressed in the statute, and absent some clear
legislative intent to the contrary, terms are to be given their ordinary and
commonly understood meaning. The language used in a statute is the
primary source for determining legislative intent, and where that language
is certain and unambiguous, the proper function of the courts is to enforce
the statute as enacted.
Id. at 1102.
The legislative history in amending Idaho Code § 33-210 reveals that the House
and Senate Education Committees listened to testimony both for and against the moving
of the entrance school age to August. The legislature heard testimony regarding the
percent of children at-risk with birthdays between August 15 and October 15. House
Education Committee, February 8, 1988, Mr. Yankey. One person did testify to the
House Education Committee that he felt transfer students from out of state would have
more access to the schools than Idaho students. House Education Committee, February
1, 1988, J.B. Johnston. There is, however, no record of any discussion of allowing outof-state kindergarten students, who do not meet Idaho's school age for kindergarten, to
transfer into Idaho's schools.
While the legislature also heard testimony suggesting that school districts might be
able to test children who fall below the school age to determine their readiness for school,
it did not make any provisions for such testing. In fact, there was concern for the school
districts if they were made responsible for determining who was to be excepted from the
age requirements and thus accepted into school. Senate Education Committee, February
17, 1988, Senator Twiggs.
Thus, the legislative history indicates that the Idaho Legislature, in amending
Idaho Code § 33-210, made no provision for case-by-case evaluations of children who
have completed a portion of kindergarten at the time they move into Idaho but who do
not otherwise meet Idaho's "school age" entry requirements.
Other states have also wrestled with this issue. In Morrison, supra, an Illinois
appellate court reviewed the Illinois statute regarding school age. The statute provides
that children must be five by "September 1 of the year of the 1988-1989 school term . . . ."
Daniel Morrison turned five on September 4, 1988. In reviewing the issue of school age,
the court stated:
The general purpose of the statute is to impose an age limit on
students eligible to attend public schools. The legislature, in the debates
involving this provision, stated that the imposition of an earlier cut-off date
was due to studies that have shown that the older a child is upon entering
kindergarten, the more successful the schooling experience.
In evaluating the statute in light of its general purpose, it is clear that
the legislature intended to impose a strict age limitation on students eligible
for kindergarten . . . .
544 N.E.2d at 1102-03 (citation omitted). As a result, Daniel Morrison was not admitted
to school in 1988-89.
The state of Pennsylvania, in O'Leary v. Wisecup, 364 A.2d 770 (1976), reviewed
a case in which a five-year-old child began kindergarten in one school district and then,
mid-year, moved to another school district with a different age requirement. The child
was not allowed to enroll in kindergarten in the second district since he did not meet the
age requirement for that district. The child's parents brought an action for preliminary
injunction, claiming he should be allowed to transfer to the second kindergarten from the
first kindergarten, even though he did not meet the age requirements of the second
kindergarten. The Commonwealth Court of Pennsylvania found that when a statutory
entitlement exists, "that eligibility is also subject to the protection of the Fourteenth
Amendment and may 'not be limited in any way that works an invidious discrimination or
constitutes a denial of due process.'" 364 A.2d at 773 (citation omitted). The court
concluded that the student had not acquired a property right to continue his education in
the second school district and that his constitutional rights were not violated. The court
also held that a public education is not a fundamental right and that classification by age
does not constitute a suspect classification. See also Goldsmith v. Lower Moreland
School District, 461 A.2d 1341 (Pa. Cmwlth. 1983) (child under the age of six does not
have a constitutionally protected property interest in admission into kindergarten);
Thompson v. Engelking, 96 Idaho 793, 537 P.2d 635 (1975) (Idaho Supreme Court
refused to classify the right to education as a fundamental right).
The minimum school age entry requirement of Idaho Code § 33-201 is mandatory
("shall"). In addition, school districts' boards of trustees also have the duty "to exclude
from school, children not of school age." Idaho Code § 33-512(5). It is, therefore, our
opinion that the legislature intended that all children, even those who have completed a
portion of kindergarten prior to moving into Idaho during the school year, must meet the
"school age" requirement of turning five prior to the sixteenth day of August in order to
be allowed to enroll in an Idaho public school kindergarten.
Question No. 2:
The next question to be addressed deals with those children who are five prior to
the sixteenth day of August, have not yet turned six, and have already attended a
kindergarten consisting of at least 450 hours of instruction in a school year.
The Weiser School District has also experienced this situation. A family with twin
daughters moved from California around the first of December and asked that their
daughters be admitted into the first grade. The girls had successfully completed
kindergarten and the first quarter of the first grade in California where the entrance date
for "school age" is later than that of Idaho. The girls were of "school age" as defined by
Idaho Code § 33-201, they turned five prior to the sixteenth day of August, but had they
started school in Idaho, they would have been placed in kindergarten.
Idaho Code § 33-201 provides both the date by which a child must attain the age
of five to enter into kindergarten and the date by which a child must attain the age of six
to enter into the first grade if that child has not attended a kindergarten. However, the
statute does not expressly address the situation where a child has attended a private or
out-of-state kindergarten for the required 450 hours, but has not reached the "school age"
requirement in Idaho to enter into the first grade.
It is well established that a child who meets the definition of "school age" is
entitled to attend the public schools in Idaho. Idaho Code § 33-201. However, a child
who has attended a private or out-of-state kindergarten for the required 450 hours is not
automatically entitled to enter into the first grade in an Idaho public school.
Once a child is of legal age to be admitted to school, it is up to school officials to
determine the appropriate placement of the child. The courts will not intervene in areas
where school personnel have discretion, and have the expertise to determine the
appropriate placement. As stated in Morrison, supra:
[I]t is well established that where the legislature has empowered a school
board to perform certain functions, the courts will not interfere with the
exercise of such powers nor substitute their discretion for that of the school
board unless the board's action is palpably arbitrary, unreasonable, or
capricious.
544 N.E.2d at 1101.
In this case, school officials would determine whether first grade or kindergarten
is the appropriate placement for the girls and would no doubt take into consideration the
fact that the girls had completed an entire year of kindergarten and part of the first grade
in California.
Question No. 3:
The final fact pattern to be discussed in this opinion deals with those children who
have not attended a kindergarten in Idaho, or elsewhere, for at least 450 instructional
hours in a school year.
Idaho Code § 33-201 specifically states: "For a resident child who does not attend
a kindergarten . . . 'school age' shall be the age of six . . . ." (Emphasis added.) Thus, if a
child does not attend a kindergarten, then he or she must turn six prior to the sixteenth
day of August to be enrolled in the first grade. If this requirement cannot be met, the
child should be placed in kindergarten. However, once the child is properly enrolled, it is
within the discretion of the school officials thereafter to change that placement if it is in
the child's best interest.
AUTHORITIES CONSIDERED
1.
Idaho Code:
§ 33-201.
§ 33-210.
§ 33-512(5).
§ 33-1401.
2.
Idaho Cases:
Anstine v. Hawkins, 92 Idaho 561, 447 P.2d 677 (1968).
Thompson v. Engelking, 96 Idaho 793, 537 P.2d 635 (1975).
3.
Other Cases:
O'Leary v. Wisecup, 364 A.2d 770 (1976).
Goldsmith v. Lower Moreland School District, 461 A. 2d 1341 (Pa. Cmwlth. 1983).
Morrison v. Chicago Board of Education, 544 N.E.2d 1099 (Ill. App. 1 Dist. 1989).
4.
Other Authorities:
Sutherland, Statutory Construction § 57.01 (5th Ed.).
DATED this 1st day of April, 1993.
LARRY ECHOHAWK
Attorney General
Analysis by:
ELAINE EBERHARTER-MAKI
Deputy Attorney General