Could a Kentucky school board review school council policies before they took effect?

Plain-English summary

In 1994, Kentucky's Attorney General said a local school board could require a school council's proposed policies to be reviewed by legal counsel and a central office administrator before implementation. The permitted review was for compliance with law, health and safety, district liability, insurance coverage, available funds, and contractual obligations. The AG said that timely review mattered so the board did not frustrate school-based decision making.

The opinion also drew a line between reviewing a policy and controlling it. It said policies in the eight council areas identified in KRS 160.345(2)(j)1-8 generally were not subject to board approval or rejection. The board could reject one if it violated law or exposed the district to liability. The AG expressly limited this letter to that review issue while the larger oversight question was under appeal.

Currency note

This opinion was issued in 1994. 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.

Historical summary

District boards and counsel

The AG said a board could require counsel and a central office administrator to assess proposed council policies for compliance with legal and practical district obligations before implementation. It described possible review subjects as law, health and safety, liability, adequate insurance coverage, financial resources, and contracts. The opinion did not treat the review as general permission to approve or reject council policy choices.

School councils

For eight policy areas assigned to councils, the AG said board approval or rejection generally was unavailable. Where the board rejected a policy for inconsistency, the opinion said it must return the policy to the council with a specific written explanation. Review had to be timely so council decision making could proceed.

Review timing

The AG suggested thirty days as a reasonable review period. It did not say that was a statutory deadline. The opinion cited an already expired regulation, 704 KAR 7:110, as guidance for the types of concerns a board could review.

Common questions

Could a school board have its lawyer review council policies before implementation?

The AG answered yes for a timely review confined to compliance and district concerns such as law, safety, liability, finances, and contracts.

Could the board reject any council policy it disliked?

No. The AG said policies in the eight areas it identified were generally not subject to board approval or rejection. It allowed rejection where a policy violated law or exposed the district to liability.

What happened if the board rejected a policy?

The opinion said the board had to return it to the council with a specific written explanation of the inconsistency.

Was the AG's suggested thirty-day review period mandatory?

The AG called thirty days a reasonable length of time and emphasized timely review. It presented that number as a suggestion, not a statutory deadline.

Background and statutory framework

Fayette County Public Schools asked whether its board could require proposed school-based decision-making policies to pass through legal and central-office review before taking effect. The AG referred to KRS 160.345(2)(j)1-9, which assigned policy subjects to school councils, and distinguished the eight areas in which board approval or rejection generally was unavailable. The office said a former regulation, 704 KAR 7:110, still offered sound guidance on compliance checks despite its expiration. It expressly confined the letter to legal and liability review while broader school-board oversight was on appeal.

Citations and references

• KRS 160.345(2)(j)1-9: council policy areas identified by the AG.
• KRS 160.345(2)(j)1-8: the eight areas generally free from board approval or rejection.
• KRS 160.345: authority discussed for timely review before implementation.
• 704 KAR 7:110: expired regulation cited as guidance, not as then-current law.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG94-029.htm

Original opinion text

OAG 94-29

April 21, 1994

Hon. Teresa T. Combs

General Counsel, Fayette County Public Schools

701 East Main Street

Lexington, KY 40502-1699

Dear Ms. Combs:

As General Counsel to the Board of Education of Fayette County, you have asked our office a question relating to the local school board's authority to review school council policies for law and safety concerns before the policies are implemented. Your specific question inquires:

Does the Board have the legal authority to require that proposed SBDM [School-Based Decision Making] policies be reviewed by legal counsel and a Central Office Administrator for the purposes of determining compliance with law, health and safety matters, liability concerns, adequate insurance coverage, financial resource concerns, contractual obligation concerns, Board policy, where applicable, etc.? An example of this is corporal punishment which Board policy prohibits and for which we have no insurance coverage. We feel review is necessary to protect students, council members, Board members and staff, as it serves no purpose to review policy after someone has taken action that is unlawful, etc.

The issue of a local school board's oversight over school council policy is extremely controversial and currently under appeal. This letter solely addresses the issue of the board's review and subsequent approval or rejection of school council policies for compliance with laws and so as not to expose the school district to liability. For example, a policy stating that all new employees must be male would be unlawful and would expose the school district to financial liability.

The General Assembly has empowered school councils to adopt policies in at least nine separate areas delineated in KRS 160.345(2)(j)1-9. As a general rule, the school council policies in the areas set out in KRS 160.345(2)(j)1-8 are not subject to approval or rejection by a Board of Education. However, the district board of education may reject a school council policy in one of the eight areas set forth in KRS 160.345(2)(j)1-8 if the policy violates the law or exposes the district to liability.

We believe your local board may require that proposed school council policies be reviewed by legal counsel and a Central Office Administrator before implementation solely for the purposes of determining compliance with law, health and safety matters, liability concerns, adequate insurance coverage, financial resource concerns, and contractual obligation concerns.

Until the regulation recently expired, 704 KAR 7:110 provided that a board could review school council policies for compliance with the following matters:

(1) State or federal statutes or regulation (if a waiver is not applicable);

(2) Concerns for health and safety;

(3) Concerns for liability;

(4) Available financial resources; or

(5) Contractual obligations to personnel and other providers of goods and services.

704 KAR 7:110.

We think that the regulation provided sound guidance since a school council generally does not have access to legal counsel to review its policies for lawful compliance with the quagmire of federal and state laws.

If the policy is rejected then the policy must be returned to the school council with a specific written explanation of the inconsistency. While the board has legal authority to review school council policies as stated above, we strongly believe that the review of school council policies must be done in a timely manner so as not to frustrate the implementation of school-based decision making. We suggest thirty days as a reasonable length of time to review the school council policies.

In conclusion, we believe that KRS 160.345 authorizes a local school board to require that proposed SBDM policies be timely reviewed by legal counsel and a Central Office Administrator prior to implementation for consistency with state or federal law, concerns for health and safety, concerns for liability, available financial resources or contractual obligations.

Sincerely yours,

CHRIS GORMAN

ATTORNEY GENERAL

Lynne Schroering

Assistant Attorney General