Did a Kentucky school that exceeded its performance threshold have a right to a state regulation waiver?

Plain-English summary

In 1995, Kentucky's Attorney General read KRS 156.160(2) to let a school or district that exceeded its performance threshold request a waiver from certain state education regulations. Meeting that threshold did not compel the Kentucky Board of Education to grant the request. The board had to decide whether the particular regulation was eligible for waiver and then whether granting the waiver fit the student and school goals in KRS 158.6451.

For requests after the start of the 1994-95 school year, the AG said exceeding the threshold was the only statutory condition for petitioning. The earlier requirement to meet administrative standards no longer appeared in that part of the waiver process, though the board could consider those standards when deciding whether to grant a waiver.

Currency note

This opinion was issued in 1995. 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

Schools and districts seeking waivers

The opinion distinguished permission to petition from entitlement to a waiver. Exceeding the statutory threshold made a school or district eligible to request one under the post-1994 rule. It did not require the board to approve the request, and the board could weigh whether the school met its administrative standards.

Kentucky Board of Education

The board first had to identify whether the requested regulation was waivable. KRS 156.160(2) excluded regulations concerning health and safety, civil rights, federal law requirements, and specified performance measurement and school success provisions. For a waivable rule, the AG said the board should assess consistency with the goals in KRS 158.6451, including student achievement, attendance, dropout rates, and barriers to learning. The opinion described this as a basis for consistent review rather than automatic approval.

Local boards and school councils

The statute quoted in the opinion directed the local superintendent to make the waiver request to the state board at the request of a local board of education or school council. The opinion's answer addressed eligibility and the state board's discretion; it did not decide an individual school's application.

Common questions

Did a Kentucky school automatically get a regulation waiver after exceeding its threshold in 1995?

No. The AG said the threshold made the school eligible to petition, but the Kentucky Board of Education retained discretion to deny a waiver.

Could a school ask to waive health and safety or civil rights regulations?

Not under the provision the AG examined. KRS 156.160(2) expressly placed those categories, along with federal law requirements and specified performance regulations, outside the waiver authority.

Did a school also have to meet every state administrative standard before petitioning?

For requests after the 1994-95 school year began, the AG said exceeding the threshold was the only statutory requirement for petitioning. The board could still consider administrative standards when deciding the request.

What did the board consider after finding a regulation was eligible for waiver?

The AG said the board should determine whether a waiver was consistent with the student and school goals listed in KRS 158.6451. It identified those goals as a way to guide nonarbitrary decisions.

Background and statutory framework

KRS 156.160(1) authorized state education regulations consistent with the outcomes in KRS 158.6451. KRS 156.160(2) provided the waiver process, the threshold condition after the 1994-95 school year began, and categories that could not be waived. The opinion read "shall exceed its threshold" as defining which schools could seek a waiver, while leaving the board to decide whether to grant one. Its last paragraph prints "KRS 165.160(2)," but the heading, quoted provision, and analysis repeatedly identify KRS 156.160(2); the original text below preserves the printed wording.

Citations and references

• KRS 156.160(2): waiver requests, threshold, and excluded categories.
• KRS 158.6451: student and school goals used in the AG's analysis.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG95-025.htm

Original opinion text

OAG 95-25

June 19, 1995

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

Written by: Lynne Schroering Slone

Requested by: Kevin M. Noland, Department of Education

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

Statutes construed: KRS 156.160

OAGs cited: None

OPINION OF THE ATTORNEY GENERAL

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

This opinion addresses the following two issues:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Become a self-sufficient individual;

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

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

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

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

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

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

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

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

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

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

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

CHRIS GORMAN

ATTORNEY GENERAL

Lynne Schroering Slone

Assistant Attorney General