Does a Kentucky school board have to approve a released-time moral instruction program, and what rules apply?
Plain-English summary
Kentucky has long had a "released time" law that lets students leave school briefly to receive moral instruction. The 2025 General Assembly rewrote it (2025 Ky. Acts ch. 111), repealing the old statutes (KRS 158.220 to 158.260) and folding everything into a revised KRS 158.200. Now a provider, religious or secular, must apply to the local school board, and the board decides whether to approve the program. As applications came in, a senator and the Oldham County Board of Education sent the Attorney General ten questions about how the new law works. This opinion answers all ten.
The headline answers: a board is not required to approve a program (the statute says a board "may" provide the opportunity), but a board cannot deny an application arbitrarily or because it is hostile to religion. Once a program is approved, the board "shall" let a parent excuse a student for up to one hour, one day a week, to attend it. The statute sets no firm deadline for the board to decide, but the board cannot stall indefinitely, because a refusal to decide would itself become arbitrary under Section 2 of the Kentucky Constitution. When a board denies a request, it must give the applicant the "substantial evidence" behind the denial and must report all of its reasons to the Kentucky Department of Education.
On logistics: the board has broad discretion to set the terms of an approved program by agreement, including its duration, termination conditions, and ongoing documentation. The board may run the required criminal and child-abuse-and-neglect (CA/N) background checks itself and make the provider pay or reimburse the cost. Individuals must submit to the criminal background check after approval, though the board may accept a pre-existing clear CA/N check. Finally, because a moral-instruction program is not "connected with" the school and cannot even meet on school grounds, its staff are not "school district employees or volunteers," so the new traceable-communication requirement in 2025 Senate Bill 181 does not apply to them.
What this means for you
School board members: Based on this opinion, you have discretion to approve or deny a moral-instruction application, but the denial must rest on substantial evidence and cannot be arbitrary (Ky. Const. § 2) or driven by animosity toward religion. There is no statutory deadline to decide, but you cannot refuse to decide. You can shape an approved program through an "agreement" under KRS 158.200(4) covering duration, termination, and documentation.
School administrators: The opinion reads KRS 158.200(4)(b) to let the district obtain the required criminal and CA/N checks itself and require the provider to pay or prepay. Criminal background checks must be submitted to after approval; a prior clear CA/N check may be accepted.
Parents: If your board has approved a program, the opinion says the board "shall" allow your student to be excused up to one hour on one day a week to attend, with your consent. If no program has been approved, the statute does not give a right to be released to an unapproved provider. The opinion expressly does not reach the First Amendment questions that situation could raise.
Moral-instruction providers: The opinion treats your program as not "connected with" the school (it cannot meet on school grounds and cannot cost the district anything), so your staff are not subject to the SB 181 traceable-communication rule. It also notes that under the rewritten law a provider need not be a religious organization, so constitutional religion-clause protections may not automatically apply to a given program.
Common questions
Q: Does a Kentucky school board have to approve a released-time moral instruction program?
A: No. The Attorney General concluded the statute is permissive: a board "may" provide the opportunity, so it can approve or deny an application. But a denial cannot be arbitrary or motivated by animosity to religion.
Q: If a program is approved, can the board refuse to release a student to attend?
A: No. Once a program is district-approved, KRS 158.200(2)(a) says the board "shall allow" a student to be excused for up to one hour on one day each week, with parental consent.
Q: Is there a deadline for the board to decide on an application?
A: The statute fixes no deadline. The opinion notes the board must file quarterly reports to the Kentucky Department of Education, but that is not a decision deadline. Still, the board cannot stall indefinitely, because refusing to decide would eventually be arbitrary under Section 2 of the Kentucky Constitution.
Q: What does the board have to tell an applicant if it denies the request?
A: The opinion concluded the board must disclose to the applicant the "substantial evidence" it relied on, and must report all of its reasons for the denial to the Kentucky Department of Education.
Q: Do moral-instruction program staff have to use the school's traceable communication system under SB 181?
A: No. The opinion concluded such individuals are not "school district employees or volunteers" and a moral-instruction program is not an "extracurricular program or activity," so the SB 181 requirement (KRS 160.145) does not apply to them.
Q: Who pays for the background checks?
A: The provider. The opinion says the board may conduct the criminal and CA/N checks itself and require the provider to reimburse or prepay the cost, because the statute makes the provider responsible for all costs.
Background and statutory framework
For decades Kentucky's released-time law (most recently amended as part of the 1990 Kentucky Education Reform Act) required boards to excuse students for moral instruction at their "places of worship or some other suitable place." The 2025 Act (2025 Ky. Acts ch. 111) repealed that scheme and rewrote KRS 158.200 to require providers to apply to the board for approval, replacing the old statutory right to attend a place of worship with a right to attend a "district-approved" program.
The opinion resolves an apparent tension between KRS 158.200(1) ("may provide an opportunity") and KRS 158.200(2)(a) ("shall allow" students to be excused) by reading the statute as a whole: the board has discretion whether to approve a program at all, but once it approves one, it must accommodate excusal requests. Throughout, the opinion grounds its limits on board discretion in Section 2 of the Kentucky Constitution's bar on arbitrary action, defined through cases like American Beauty Homes and Crouch as action unsupported by substantial evidence. On the religion questions, the opinion notes the rewritten statute no longer requires a provider to be religious and so declines to resolve First Amendment or state-constitution religion-clause issues, while citing federal cases (Espinoza, Trinity Lutheran, Masterpiece Cakeshop, Mahmoud) for the principle that a board may not discriminate against an applicant because it is religious.
Source
- Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
- Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2025-12.pdf
Original opinion text
September 24, 2025
OAG 25-12
Subject:
1. Is a local board of education required to approve a request to provide a moral instruction program submitted by a provider that meets the requirements of KRS 158.200?
2. Under KRS 158.200, may a local board of education deny a parent's request to release a student to attend a moral instruction program?
3. Is there a deadline for a local board of education to approve or deny a request to offer a moral instruction program under KRS 158.200?
4. To what extent is a local board of education required to explain its rationale for denying a request to provide moral instruction?
5. May a local board of education terminate a moral instruction program during the pendency of the program, and if so, to what extent must the board explain its rationale for doing so?
6. After submitting the information required for initial approval by a local board of education under KRS 158.200(3), what ongoing documentation must the provider of moral instruction provide to the local board of education, and for how long?
7. If a local board of education permits other non-school sponsored activities and programs to promote their offerings or distribute literature or parental consent forms to students, may the board deny moral instruction programs the same access to their students and facilities?
8. May a local board of education obtain for itself the required background checks on an individual involved in a moral instruction program, and then require the third-party provider of the moral instruction program to reimburse the board for the cost to do so?
9. May a privately-operated moral instruction program provide an annual affidavit certifying that all staff and volunteers have passed a criminal and CA/N background check as a condition of their employment or volunteer status, in lieu of submitting to another background check?
10. Are individuals who are involved in a moral instruction program required to communicate with students only through traceable communications under 2025 Senate Bill 181?
Requested by: Senator Lindsey Tichenor, Kentucky Senate, District 6; and Rudy J. Ellis III, Esq., Counsel for Oldham County Board of Education
Written by: Aaron J. Silletto, Executive Director, Office of Civil and Environmental Law
Syllabus:
1. A local board of education is not required to approve a request submitted by a qualified provider to provide moral instruction to students, provided that a board's decision to deny a request is not arbitrary or motivated by "animosity to religion."
2. Under KRS 158.200, a local board of education is required to accommodate a parent's request to release a student to attend a district-approved moral instruction program, if any.
3. KRS 158.200 does not impose a deadline for a local board of education to approve or deny a request to offer a moral instruction program.
4. A local board of education must disclose to the applicant the "substantial evidence" it relied on when denying a request to provide moral instruction, but the board must disclose to KDE all its reasons for denying the request.
5. A local board of education has wide discretion to prescribe conditions for its approval of a request to provide a moral instruction program, including the duration of the program and the circumstances under which the board may terminate the program.
6. A local board of education may condition its approval of a request to provide moral instruction on the provider's agreement to provide ongoing documentation to the board.
7. KRS 158.200 prohibits discrimination against students who distribute literature or promote a moral instruction program at school, if the board of education permits students to distribute literature or promote other non-school sponsored activities and programs. But a board's limitations on such activities by moral instruction programs themselves must be evaluated on a case-by-case basis.
8. A local board of education may obtain the necessary background and CA/N checks itself, and it may either require the provider of a moral instruction program to reimburse it for its costs to do so or require the provider to prepay those costs to the board.
9. Under KRS 158.200(4)(b), an individual who will be involved in a moral instruction program must submit to a criminal history background check after the request to provide moral instruction is approved by the board of education, but the board may accept a prior clear CA/N check should it deem it necessary to do so.
10. An individual involved in a moral instruction program is not a school district employee or volunteer required to use the board's designated traceable communication system to communicate with students.
Opinion of the Attorney General
A number of questions have arisen regarding the implementation and effect of KRS 158.200, Kentucky's "released time" law, as recently amended by the General Assembly during its 2025 Regular Session. See 2025 Ky. Acts ch. 111 §§ 2–3 (amending KRS 158.200; repealing KRS 158.210 to 158.260) ("the Act"). For decades, Kentucky has had some form of released time law, which permits students, under certain conditions, to be released from school to attend a program of "moral instruction." Until this year, the last significant amendments to Kentucky's released time law were enacted as part of the Kentucky Education Reform Act of 1990 (KERA). See 1990 Ky. Acts ch. 476 §§ 206–212 (amending KRS 158.200 to 158.260). Under the 1990 law, a local board of education "shall allow" students requesting moral instruction "to be excused for at least one (1) hour, one (1) day each week to attend their respective places of worship or some other suitable place to receive moral instruction in accordance with the religious faith or preference of the pupils." KRS 158.220 (repealed by 2025 Ky. Acts ch. 111 § 3). There was no provision in the 1990 law allowing a local board of education to review applications for providers seeking to offer a program of moral instruction, or to deny a "place[ ] of worship" the ability to offer such a program to students.
But under the release time law, as amended by the Act in 2025, local boards of education now "may provide an opportunity for pupils to attend moral instruction in their jurisdiction, in the manner provided in [KRS 158.200]." KRS 158.200(1) (emphasis added). Any individual, organization, entity, or combination thereof who seeks to provide a moral instruction program to students "shall submit" an application to the local board of education. KRS 158.200(3). Upon the parent's request, the local board of education "shall allow" the student "to be excused for up to one (1) hour on no more than one (1) day each week . . . to attend a district-approved" moral instruction program. KRS 158.200(2)(a) (emphasis added).
The Office is aware that one or more applicants currently are applying to local boards of education throughout the Commonwealth to offer moral instruction programs to students. As the local boards of education are considering those applications, questions have arisen regarding the boards' responsibilities under the Act. Both Sen. Lindsey Tichenor and counsel for the Oldham County Board of Education have submitted overlapping sets of questions about the Act, which this Opinion consolidates and answers below.
- A local board of education is not required to approve a request submitted by a qualified provider to provide moral instruction to students, provided that a board's decision to deny a request is not arbitrary or motivated by "animosity to religion."
The first question that has arisen is whether a local board of education is required to approve a request to offer a moral education program submitted by a qualified provider.
The source of the confusion may be that KRS 158.200(1) states that local boards of education "may provide an opportunity for pupils to attend moral instruction . . . in the manner provided in this section" (emphasis added), but the very next subsection states that local boards of education "shall allow pupils to be excused . . . to attend a district-approved" moral instruction program, KRS 158.200(2)(a) (emphasis added). As used in Kentucky's statutes, "may" is permissive, KRS 446.010(26), whereas "shall" is mandatory, KRS 446.010(39). Thus, the use of both "may" and "shall" in the statutes creates a seeming contradiction between subsections (1) and (2) of KRS 158.200 regarding whether a local board of education is required to provide opportunities for moral instruction to students.
As Kentucky courts do, this Office must "construe the Act as a whole because '[c]ourts have a duty to construe statutes, not isolated provisions.'" Brown-Forman Corp. v. Miller, 528 S.W.3d 886, 894–95 (Ky. 2017) (citation omitted). No single word or sentence is determinative; all parts of the statute are to have meaning. Travelers Indem. Co. v. Armstrong, 565 S.W.3d 550, 563 (Ky. 2018); Williams v. Public Prot. Cabinet, 679 S.W.3d 458, 461 (Ky. App. 2023).
After passage of the Act, the current version of KRS 158.200(1) states that a local board of education "may provide an opportunity" for moral instruction. The statutory text is permissive. And so, a board of education is not required to provide its students with an opportunity for moral instruction.
This interpretation is consistent with the overall structure of KRS 158.200, as amended by the Act. The statute first requires a provider of a moral instruction program to submit a "request" to the board of education. See KRS 158.200(3). No provision of the statute expressly requires the board of education to approve the request; rather, it recognizes that the board may either approve or deny the request. See KRS 158.200(8)(a)3. Upon receipt of a request to offer a moral instruction program, the board "may make arrangements with the person seeking to provide the moral instruction offering as the local board deems necessary." KRS 158.200(4)(a) (emphasis added). Thus, the local board has the discretion to either approve or deny the request. And, while subsection (2) of the statute provides that the board "shall" allow students to attend a moral instruction program, that provision only applies to "a district-approved request for a moral instruction offering." KRS 158.200(2)(a) (emphasis added). This reading of the statute therefore gives effect to both the "may" in subsection (1) and the "shall" in subsection (2).
Therefore, a local board of education is not required to approve a request to offer a moral instruction program to students, even if the provider is qualified under KRS 158.200(3).
It is worth noting here, however, that the board of education's decision to either approve or deny a request to offer a moral instruction program to students cannot be made arbitrarily. Ky. Const. § 2. Further, neither requester has asked this Office to opine on the Free Exercise or Establishment Clause implications of the Act. But suffice it to say that a local board of education, in deciding whether to approve or deny a request to offer a moral instruction program to students, may not discriminate against applicants of any particular religious group, denomination, or sect on the grounds that it is religious in character. See, e.g., Espinoza v. Mont. Dep't of Revenue, 591 U.S. 464, 487 (2020) ("A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious."); Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 458 (2017) ("[D]enying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest 'of the highest order.'" (citations and internal quotation omitted)).
Moreover, denying a request simply because the program or its sponsoring entity is religious in character would also be impermissible. See Masterpiece Cakeshop v. Colo. Civil Rights Comm'n, 584 U.S. 617, 638–39 (2018) ("The Constitution commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures." (cleaned up)).
- Under KRS 158.200, a local board of education is required to accommodate a parent's request to release a student to attend a district-approved moral instruction program, if any.
The second question presented is whether a local board of education is required to accommodate a parent's request to release a student to attend a moral instruction program, which may include religious instruction. Whereas the previous question focused on the meaning of "may" in subsection (1) of KRS 158.200, this question focuses on the meaning of "shall" in subsection (2) of the statute.
A prior version of KRS 158.220 provided that students "may be excused" by local boards of education "to receive moral instruction." This Office opined that the word "may" in the statute meant that "whether students will actually be excused to receive such moral instruction is discretionary with the board of education." OAG 66-116, at 2. Then, KERA amended the statute to provide that local boards of education "shall allow pupils who have expressed a desire for moral instruction . . . to receive moral instruction." KRS 158.220 (repealed by 2025 Ky. Acts ch. 111 § 3). KERA's amendment of "may" to "shall" in KRS 158.220 meant that local boards of education no longer had the discretion not to excuse students who wished to receive moral instruction outside of school.
But the Act repealed KRS 158.220. See 2025 Ky. Acts ch. 111 § 3. In its place, the Act amended KRS 158.200 to add a provision stating:
Local boards of education shall allow pupils to be excused for up to one (1) hour on no more than one (1) day each week, which shall include time attributed to travel to and from, to attend a district-approved request for a moral instruction offering upon receiving the consent of the pupil's parent or guardian.
KRS 158.200(2)(a) (emphasis added). Thus, the Act carried forward the "shall" from the former KRS 158.220 to the new provision. However, instead of providing that students shall have a statutory right to attend "their respective places of worship or some other suitable place to receive moral instruction in accordance with [their] religious faith or preference," as was the case in the former KRS 158.220, the Act now provides a statutory right to attend a "district-approved" moral instruction program.
As a result, if a local board of education has not approved a provider's request to offer a moral instruction program to students, students no longer have a statutory right to be released from school to receive moral instruction from that provider. It is only when there is a program of moral instruction in place, which has already been approved by the board of education, that KRS 158.200 requires the board to accommodate a parent's request to excuse a student from school to receive moral instruction.
- KRS 158.200 does not impose a deadline for a local board of education to approve or deny a request to offer a moral instruction program.
As amended by the Act, KRS 158.200 requires a person seeking to offer a moral instruction program to students to first make a written request to the local board of education. KRS 158.200(3). The statute is clear that the board of education must decide to either approve or deny the request. KRS 158.200(8)(a)3. The Oldham County Board of Education seeks clarification on its deadline to make that decision.
The statute itself does not expressly provide a deadline by which a local board of education must decide whether to approve or deny a request under KRS 158.200(3). The law does require a local board of education to provide quarterly reports to the Kentucky Department of Education (KDE). See KRS 158.200(8). The quarterly reports must include information regarding each applicant who has sent a request to the board of education, the date of each application received, whether each application was approved or denied, and if the application was denied, the board's reasons for its decision. Id. But while the statute requires the board of education to submit quarterly reports, it does not state that the board of education must make a decision on each application within three months or within the quarter in which the application was submitted. In short, the statute itself does not fix a deadline for the board to act on a request to offer moral instruction.
Having said that, a local board of education may not simply refuse to make a decision on an application. An outright refusal to decide would itself, at some point, become arbitrary and exceed the board's lawful authority under Section 2 of the Kentucky Constitution. See Sebastian-Voor Props., LLC v. Lexington–Fayette Urb. Cnty. Gov't, 265 S.W.3d 190, 195 (Ky. 2008) ("[I]ndeed [the agency] would have likely acted arbitrarily if it had chosen to refuse to follow applicable . . . laws."); see also Teen Challenge of Ky., Inc. v. Kentucky Comm'n on Human Rights, 577 S.W.3d 472, 480 (Ky. App. 2019) ("Mandamus is an appropriate remedy to compel an . . . administrative body to adjudicate on a subject within its jurisdiction where it neglects or refuses to do so. . ."). So, while the Act imposes no firm time limit for the board to decide whether to grant an application to provide moral instruction, it may not take an unreasonably long time to do so.
- A local board of education must disclose to the applicant the "substantial evidence" it relied on when denying a request to provide moral instruction, but the board must disclose to KDE all its reasons for denying the application.
The Oldham County Board of Education notes that KRS 158.200(8) requires each local board of education to submit a monthly report to KDE, and so asks "[t]o what extent" it must "describe its rationale for approval/denial to (1) the applicant, (2) the general public, and (3) in the quarterly report."
On its face, KRS 158.200 does not require a local board of education to provide an applicant with any particular information to explain why the application was approved or denied. But the absence of a statutory requirement to explain itself to the applicant does not mean that such a requirement does not exist.
Section 2 of the Kentucky Constitution prohibits a local board of education from acting arbitrarily. See Bd. of Educ. of Ashland v. Jayne, 812 S.W.2d 129, 131 (Ky. 1991) (holding that Section 2's "prohibition against arbitrary action applies to all public bodies and all public officials, e.g., school boards and school superintendents"). "Basically, judicial review of administrative action is concerned with the question of arbitrariness. On this ground the courts will assume jurisdiction even in the absence of statutory authorization of an appeal. There is an inherent right of appeal from orders of administrative agencies where constitutional rights are involved, and section (2) of the Constitution prohibits the exercise of arbitrary power." Am. Beauty Homes Corp. v. Louisville & Jefferson Cnty. Plan. & Zoning Comm'n, 379 S.W.2d 450, 456 (Ky. 1964) (emphasis in original; citations and footnotes omitted). Arbitrariness means "clearly erroneous, and by 'clearly erroneous' we mean unsupported by substantial evidence." Crouch v. Jefferson Cnty. Police Merit Bd., 773 S.W.2d 461, 464 (Ky. 1988). Substantial evidence is "evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men." Ky. State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972).
While KRS 158.200 does not state what information an applicant must be told by the local board of education, if the board acts adversely to the applicant by denying its application, the board must provide the applicant with sufficient information to demonstrate that the board's decision was not unconstitutionally arbitrary. There is no bright-line rule for deciding what is arbitrary in all cases. Rather, what is or is not arbitrary would have to be determined in a specific case under all the circumstances.
The Act itself also does not expressly require the local board of education to provide to the public any information about a particular application to provide a moral instruction program. For example, KRS 158.200 does not require any information about moral instruction program applications to be posted on the board's website. But any documents related to an application that are in the possession of the board of education, or which may be provided to KDE under KRS 158.200(8), may have to be disclosed under other provisions of other laws, such as the Open Records Act, KRS 61.870 to 61.884.
On the other hand, the Act is quite specific about the information that a local board of education must provide in its quarterly reports to KDE. See KRS 158.200(8)(a). As relevant here, the Act specifically requires the local board of education to report to KDE, "[i]f the request was denied, the reason for the denial." KRS 158.200(8)(a)4. Thus, the board must disclose "the reason" it has denied a request. Of course, there may be more than one reason why the board may decide to deny an application. In that case, even though "the reason" in KRS 158.200(8)(a)4. is singular, the board must disclose to KDE all its reasons for denying the application. See KRS 446.020(1) ("A word importing the singular number only may extend and be applied to several persons or things, as well as to one (1) person or thing. . . ."); see also Krieger v. Garvin, 584 S.W.3d 727, 730 (Ky. 2019) ("Since the Legislature knew of KRS 446.020(1) at the time it enacted [the statute at issue] and used no language indicating it meant its singular language not to extend to more than one person, we hold that the language utilized does not limit [the statute's reach] to one person.").
This Office anticipates that, in general, the constitutional requirement that the local board of education disclose to the applicant the "substantial evidence" upon which it relies when denying a request to provide moral instruction, will merge with the statutory requirement that the board provide KDE with all the reasons on which it relies for that decision. However, that may not necessarily be the case under a particular set of facts and circumstances. And so, absent additional clarity from the General Assembly, the Office does not construe KRS 158.200 to require identical statements by the board to the applicant and KDE.
- A local board of education has wide discretion to prescribe conditions for its approval of a request to provide a moral instruction program, including the duration of the program and the circumstances under which the board may terminate the program.
The next question the Oldham County Board of Education asks is whether, after a local board approves a request to provide moral instruction, the board may thereafter terminate the program, and if so, under what circumstances.
KRS 158.200 does not speak directly to the issue of termination of a moral instruction program once it starts. However, the statute does refer to an "agreement between the local board and a provider" of a moral instruction program. KRS 158.200(4)(c). Further, "the local board of education may make arrangements with the person seeking to provide the moral instruction offering as the local board deems necessary." KRS 158.200(4)(a). It thus appears that the board and the provider are to reach an "agreement," which may be in writing, to govern the terms of the moral instruction program. And the General Assembly has not defined or limited what terms may appear in the parties' agreement, other than that the board deems them to be necessary.
Thus, the board may condition its approval of the provider's request on the provider's acceptance of any terms the board "deems necessary." For example, the board might include provisions in its agreement with the provider that set out the duration of the agreement, or which outline the circumstances under which the board may terminate the agreement before it expires. The statute appears to grant wide discretion to the board in prescribing such terms in its agreement with a moral instruction provider.
- A local board of education may condition its approval of a request to provide moral instruction on the provider's agreement to provide ongoing documentation to the board.
Senator Tichenor also asks what ongoing documentation a provider of moral instruction must provide to the board, and for how long after the request to provide moral instruction is approved. As with the previous question regarding the termination of a moral instruction program, KRS 158.200 is silent on this issue. Subsection (3) of the statute prescribes the information the provider must give to the board during the application process. But nowhere does the statute specifically mention or refer to ongoing documentation requirements.
And so, as with the previous question, and without additional guidance from the General Assembly, the answer is to be found in the board's wide discretion under the statute to make such arrangements with the provider as it deems necessary and to reach an agreement with the provider governing the program. A local board of education therefore may include ongoing documentation requirements in its agreement with the provider, but absent such provisions in the agreement, the statute itself does not include such a requirement.
- KRS 158.200 prohibits discrimination against students who distribute literature or promote a moral instruction program at school, if the board of education permits students to distribute literature or promote other non-school sponsored activities and programs. But a board's limitations on such activities by moral instruction programs themselves must be evaluated on a case-by-case basis.
Senator Tichenor next asks whether, if a local board of education permits other non-school sponsored activities and programs—such as the YMCA or Scouting America (f/k/a Boy Scouts of America)—to promote their offerings or distribute literature or parental consent forms to students, the board also must provide equal access for moral instruction program providers. As with several of the other questions answered in this Opinion, there is no direct answer to this question to be found in the text of KRS 158.200.
The statute does expressly prohibit discrimination against students based on their participation or nonparticipation in a moral instruction program. KRS 158.200(7). On its face, the prohibition against such discrimination is not limited to attendance violations (e.g., counting a student as absent from school due to participation in a moral instruction program), but would reach any sort of adverse treatment for actions such as distributing literature advertising the program. It seems reasonably clear that a local board of education may not single out a student for engaging in such activities if it allows other students to do so in support of other non-school sponsored programs and activities.
On the other hand, with respect to how local boards of education must treat a moral instruction program provider, the answer is not so simple. The statute is silent as to discrimination against moral instruction programs themselves. To answer this question, the identity of the moral instruction program provider would need to be known. Under the 1990 law, a local board of education was required to permit students "to attend their respective places of worship or some other suitable place" to receive moral instruction. KRS 158.220 (repealed by 2025 Ky. Acts ch. 111 § 3). There was thus a general expectation that a student's "place[ ] of worship" would be the primary provider of moral instruction to that student. Therefore, the First Amendment's Establishment and Free Exercise Clauses and Sections 1(2) and 5 of the Kentucky Constitution most likely would have applied and afforded providers of moral instruction in Kentucky constitutional protections. But now that the Act has deleted any reference to places of worship and replaced it with a reference to any "district-approved" moral instruction program, KRS 158.200(2)(a), it cannot be said that the First Amendment and Sections 1 and 5 of the Kentucky Constitution will necessarily even apply to a given provider of a moral instruction program.
Further, because KRS 158.200 does not define the term "moral instruction," it cannot be said that the term necessarily equates to religious instruction. Under the 1990 law, a student had to be released to "receive moral instruction in accordance with the religious faith or preference" of the student. KRS 158.220 (repealed by 2025 Ky. Acts ch. 111 § 3). So, the moral instruction had to include expressly religious content. That is not the case after the passage of the Act, as KRS 158.200 now includes no reference to the strictly religious content of a moral instruction program. In the case of a secular moral instruction program, the religion clauses of the federal and state constitutions may not apply.
For these reasons, without knowing more about a specific provider of a moral instruction program or the program's curriculum, it is not possible to provide a blanket answer regarding the promotion of such a program or the program's access to students inside the schools. The evaluation of any moral instruction program and any limitations on its access to or communication with students and their parents would have to be analyzed on a case-by-case basis considering all relevant circumstances.
- A local board of education may obtain the necessary background and CA/N checks itself, and it may either require the provider of a moral instruction program to reimburse it for its costs to do so or require the provider to prepay those costs to the board.
KRS 158.200 requires:
Upon approval by the local board of a request [to provide a moral instruction program to students] under this section, the superintendent of the school district shall require each individual identified in the request to submit to a national and state criminal history background check by the Department of Kentucky State Police and the Federal Bureau of Investigation and have a clear CA/N check, provided by the individual, consistent with the provisions of KRS 160.380(6). The individuals, or the organization or entity through which the moral instruction offering will be provided, shall be responsible for all costs associated with obtaining the criminal history and CA/N checks under this paragraph.
KRS 158.200(4)(b) (emphasis added). (A "clear CA/N check" means "a letter from the Cabinet for Health and Family Services indicating that there are no administrative findings of child abuse or neglect relating to a specific individual." KRS 160.380(1)(c).) The Oldham County Board of Education states that "[t]he language is unclear on whether the individual(s) is/are required to pay and submit these reports themselves to the Superintendent, or whether it is the school district's duty to complete this requirement." It therefore asks whether it is "permissible for the school district to conduct the background checks itself and also require the third-party to reimburse it for the cost of such reports." The answer is yes.
"Upon receipt of a request under [KRS 158.200(3)], the local board of education may make arrangements with the person seeking to provide the moral instruction offering as the local board deems necessary." KRS 158.200(4)(a). If the board deems it to be necessary, one of the arrangements it may make with the provider of a moral instruction program is who obtains the criminal history background check and the CA/N check for each individual involved in the program. The board may therefore require that, "[u]pon [its] approval . . . of a request" to provide a moral instruction program to students in the district, it will itself obtain the required background check and CA/N check.
The board also may, under KRS 158.200(4)(b), require the provider either to agree to reimburse the board for the costs associated with obtaining the required background check and CA/N check, or it may require the provider to prepay those costs "[u]pon the approval . . . of [the] request." The statute requires that the provider "shall be responsible for all costs associated with obtaining the criminal history and CA/N checks," and the board thus may make the arrangements that it "deems necessary" to ensure the provider pays those costs. KRS 158.200(4)(a).
- Under KRS 158.200(4)(b), an individual who will be involved in a moral instruction program must submit to a criminal history background check after the request to provide moral instruction is approved by the board of education, but the board may accept a prior clear CA/N check should it deem it necessary to do so.
Senator Tichenor asks a related question, specifically whether it is "acceptable for private moral instruction organizations to provide evidence of background checks via an annual affidavit certifying that all staff and volunteers meet the criteria for having passed a criminal and CA/N background check which has been completed as a condition of their employment or volunteer status," rather than having to obtain a new background check upon the approval of its request to provide a moral instruction program to students. The answer is no.
Under KRS 158.200(4)(b), it is only "[u]pon the approval by the local board of a request" to provide a moral instruction program to students that an individual involved in the program is required to "submit to a national and state criminal history background check . . . and have a clear CA/N check." By requiring an individual to "submit" to a background check "[u]pon" the approval of a request, a plain reading of the statute requires the background check to be performed after the request is approved. It appears from the text that an affidavit stating that the individual submitted to a prior background check would not satisfy the statute.
The statute treats the CA/N check differently. It does not require that the individual to "submit" to a CA/N check after the request to provide moral instruction is approved. Rather, it requires that the individual "have a clear CA/N check" (emphasis added). The use of two different words in the same sentence of the same statute suggests that "have a clear CA/N check" does not mean the individual must "submit to a CA/N check" upon the approval of the request. See Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 727 (Ky. 2012) (noting that the legislature has used two different words, "often in the same sentence, to indicate two different concepts"); see also Scalia & Garner, Reading Law: The Interpretation of Legal Texts (West 2012), at 170 ("[W]here the document has used one term in one place, and a materially different term in another, the presumption is that the different term denotes a different idea."). Presumably, then, the clear CA/N check need not necessarily be obtained after the board approves the request to provide moral instruction, so long as the individual has a clear CA/N check when the request was approved. And so, the board could, consistent with its authority to make such arrangements with the provider as it deems necessary, see KRS 158.200(4)(a), accept evidence that the individual has received a clear CA/N check before the request was approved, but which is still effective "[u]pon the approval" of the request by the board.
The statute is silent regarding whether the provider of a moral instruction program must submit annual updates to the board on the status of its employees' and volunteers' background checks and CA/N checks. But, should the board deem it necessary, it can make those arrangements in its agreement with the provider. See id.
- An individual involved in a moral instruction program is not a school district employee or volunteer required to use the board's designated traceable communication system to communicate with students.
The final question the Office has been asked to answer is whether individuals who are involved in a moral instruction program are subject to the same traceable communication requirements as other school personnel under 2025 Senate Bill 181 ("SB 181"). They are not.
SB 181 enacted KRS 160.145, which generally governs the acceptable methods for school district employees to communicate with students. The operative provision states, "Each local board of education shall designate a traceable communication system to be the exclusive means for a school district employee or volunteer to communicate electronically with students." KRS 160.145(2). In turn, "school district employee or volunteer" is defined as "a school administrator, classified or certified employee of a school district, school volunteer, nonfaculty coach or assistant coach, student teacher, or sponsor of an extracurricular program or activity." KRS 160.145(1)(c). The question here asks whether an individual transporting students or providing moral instruction in an approved moral instruction program qualifies as a "school district employee or volunteer" under KRS 160.145. Such individuals would of necessity not be school administrators, school district employees, coaches or assistant coaches, or student teachers. Thus, the question may be further distilled to whether they would be included in the term "sponsor of an extracurricular program or activity."
An extracurricular program or activity is one that does not fall within the standard academic curriculum, specifically, those that relate to "officially or semiofficially approved and usually organized student activities (such as athletics) connected with school and usually carrying no academic credit." Neither KRS 158.200 nor KRS 160.145 specifies whether a moral instruction program qualifies as an "extracurricular program or activity," and no decision of a Kentucky appellate court has addressed this specific issue.
Examples of extracurricular programs and activities include, for example, a school's athletics teams, chess club, or science club. Although not offered for academic credit, these programs and activities generally are subsidized by and affiliated with the school, and participants in interscholastic competitions compete on behalf of their respective schools. On the other hand, an approved program of moral instruction is not permitted even to take place on school grounds. KRS 158.200(2)(b). A moral instruction program also is not subsidized by and cannot incur any expenses to the school or the local board of education. KRS 158.200(2)(d). It cannot be said that a moral instruction program is "connected with" any school. It therefore does not qualify as an extracurricular program or activity. For this reason, any person transporting students to a moral instruction program or providing moral instruction to students is not a "school district employee or volunteer" required to use the board's designated traceable communication system to communicate with students.
Russell Coleman
Attorney General
Aaron J. Silletto, Executive Director
Office of Civil and Environmental Law