*1 Trzop’s of fact as whether question Next D.F., Natural Parent was in the National Guard
membership Minor, Behalf of M.F., a of Friend Acting Dean taken into account Similarly all Others Themselves on the during the confrontation Students Situated, Appellants, Dean later day he was dismissed. The Trzop that that he did not know testified Trzop organization while belonged Secretary CODELL, III, James C. only knew of his testified that Centre Cabinet, Transportation Common- specifically had membership but also Kentucky; Boyson Thomas wealth training. to attend granted permission him (Now Secretary Cody), Wilmer C. Further, that he had no the Dean testified Education, Department Com- the truth of the sorting interest out Kentucky; monwealth rath- complaints Trzop; about party third Elementary and Sec- State Board er, interest was to ensure primary his (Now ondary Education campus. the student be removed Calloway Education); Board of an penalty ultimate of dismissal from County Board, Appellees. School surely institution is one educational careful imposed after the most should be No. 2001-SC-0718-DG. possible and after all other of reflection Kentucky. Supreme Court It ap- sanctions have been considered. record, when viewed pears from this Dec. 2003. light plaintiff, most favorable to the March 2004. Rehearing Denied there was no consideration of other there seems to have sanction. Indeed little consideration of the entire situa-
been Preparing
tion. a letter of dismissal be- or the stu-
fore the search was conducted questioned process
dent can count as due definition, only con-
by no one’s it can be arbitrary act.
sidered
I affirm would the Court of Boyle
remand this case to the Circuit for a trial on the merits.
KELLER, J., joins this dissent. *3 Hutchens, Parker,
Randall Max W. Alan Murray, Appellants. for Counsel Harville, Earl, Mary R. Trevor L. Reed PLLC, Louisville, Weitkamp & Schell Vice Codell, III, C. Appellee, Counsel James Cabinet, Secretary Transportation of the Kentucky. Commonwealth Bullock, Attorney Robert Assistant V. General, Irvin, D. Brent Assistant Attor- General, ney Civil & Environmental Law Division, General, Attorney of the Office Frankfort, Appellees, Thomas Counsel (Now Boyson Cody), Secretary C. Wilmer Education, Common- Kentucky, wealth of State Elementary Board for Ed- Secondary (Now ucation Board of Edu- cation). Jones, Jones,
Richard Hurt & Mur- W. Lucas, ray, Owsley, English, Michael A. Green, or are declared Owsley, Bowling they drop out of school Priest & Counsel County academically Appellee, Calloway School deficient. Board. minor, M.F., original was a plaintiff Calloway County High who attended JOHNSTONE, Justice. (“CCHS”) Kentucky. in Western School challenges This action the constitu- class pro- has an alternative education CCHS 159.051, tionality Kentucky’s “no of KRS M.F., however, gram. who has trial court struck pass-no drive” law. The disability, was enrolled CCHS’s grounds, variety down on a the statute program, rather than the alter- academic including that the statute the conclusion M.F., despite program. native education *4 unlawfully against students discriminates efforts, academically best was declared her and because with educational disabilities and, result, her driver’s deficient as a lost constitutional the statute violates students’ During litigation, the course of license. under the law rights equal protection a trial court certified the case as class The Court process. and substantive due of all students action. The class consists trial court and Appeals of reversed the affected KRS 159.051 currently who are constitutional. held that the statute was may will or be affect- and all students who review, re- granted discretionary and We by the statute in the future. ed on our Appeals verse the Court of based suit, filing M.F. Simultaneously with equal statute violates conclusion complaint with the United States filed a protection under the law. (“DOE”) alleg- Department of Education History I. and Facts Procedural law violates ing pass-no that the “no drive” a 16 or provides that when KRS 159.051 Family Rights Education the federal drops of school or year 17 old student out (“FERPA”). Act of 1974 20 Purposes deficient, academically is declared to be provides § FERPA 1232g. U.S.C. notify super- principal the school “shall privi- records are students’ educational the student’s report intendent” who “shall par- and confidential unless students’ leged Security name and Social number waive those specifically or guardians ents Transpor- Cabinet.” The Transportation investigating complaint, After rights. deny or tation shall then revoke Cabinet finding that KRS DOE wrote a letter license, operator’s permit, or the student’s (1) violated FERPA because 159.051 operate a motor vehicle. privilege requires impermissible disclosure 159.051 information from personally of identifiable driving privi- or Revocation denial (2) record, disclosure attend an educational only applies to students who leges 159.051oc- records under KRS districts which educational school or reside written consent of prior curs without education “operate an alternative In re- parents guardians. or students’ approved by Department Director of the finding, sponse learning needs designed to meet Kentucky’s Licensing at Division of Driver are unable to succeed students who (“DOT”) Transportation In oth- 159.051. regular program.” KRS all circuit court a only law sent memorandum words, drive” pass-no er the “no “destroy” all exist- ordering them to clerks districts affects students in school consent-to-liability ing parent/guardian education alternative implemented have forms, place, In their TC-30 Rev. districts programs. Students 09/95. circuit court the DOT Director ordered pro- that do not have alternative 94-30, form, a new DOT TC if clerks to use their driver’s licenses grams will lose challenges reviewed parent equal protection a required guardian which judicial scrutiny ap- child’s equally. consent to the release of level of his/her part as challenges depends educational records on the plied to such procedure minors. driver’s license made in the statute and classification by it. See Memorial interests affected uncon- The trial court held 159.051 County, Hospital Maricopa v. 415 U.S. stitutional and sub- 253, 1076, 1079, 39 L.Ed.2d S.Ct. process grounds stantive perma- due (1974). 306, 312 nently enjoined using the DOT from form TC The Court re- Appeals 94-80. there are levels Currently, three versed, that KRS consti- holding 159.051is basis, scrutiny, of review: rational strict tutional of a and that DOT’s creation scrutiny, the seldom intermediate used appropri- new form waiver constituted falls between the other which somewhere regulatory Chapter ate action under KRS See, e.g., Enteiprises two. Steven Lee 13A. Varney, Ky., 36 394-95 granted discretionary We and re- review scrutiny applies whenever a statute Strict verse the because KRS makes a classification on the 159.051 the basic violates and fundamental *5 class,” race, “suspect such as v. Grutter right protection the law. equal under 306, 2325, 123 Bollinger, 539 U.S. S.Ct.
II. Discussion
304,
2337,
(2003),
156
331
or when
L.Ed.2d
significantly
a statute
interferes with
Kentucky
entitled
Citizens
are
right.
of a
Zablocki
exercise
fundamental
of the law under the
Redhail,
387,
673,
374,
434
v.
U.S.
98 S.Ct.
14th
of the
States
Amendment
United
(1978).
618,
681, 54 L.Ed.2d
631
Under
1, 2,
Constitution
Sections
and 3 of the
review,
highest
the chal
standard
v.
Constitution. Commonwealth
if it
is
lenged
only
statute can survive
Howard,
(1998).
700,
Ky., 969 S.W.2d
702
a
suitably
“compelling
to serve
tailored
Equal
The
Protection
to all
applies
Clause
Varney,
interest.”
36
at 394.
state
S.W.3d
governmental activity,
legislative,
whether
hand,
merely
other
“if the statute
On the
executive,
judicial
only
protects
policy,
affects social or economic
it is sub
groups of
but
to indi
persons,
applies
also
ject only
analysis.”
to a
basis’
Id.
‘rational
membership
viduals who have not alleged
“[l]egisla-
of review
Under this standard
particular
in a
class.
v.
Willowbrook
persons ... must
tive distinctions between
Olech,
562,
1073,
U.S.
120
145
528
S.Ct.
to a
relationship
legitimate
bear a rational
(2000).
L.Ed.2d 1060
consistent
This is
Gorman, Ky.,
v.
839
Chapman
state end.”
simple goal
with the
Protec
Equal
(1992).
232,
ra
239
Between the
S.W.2d
“keep[ governmental
tion
deci
]
Clause to
scrutiny tiers
tional basis and strict
treating differently per
from
sion makers
review,
scrutiny
“fash
intermediate
respects
sons
in all
who are
relevant
protections”
constitutional
Hahn,
1,
ion[s]
Nordlinger
alike.”
v.
505 U.S.
women,
“suspect
like
who are not
groups,
10,
2326, 2331,
1
112
L.Ed.2d
S.Ct.
120
(1992).
historically
but
“have been
classes”
who
But,
matter, nearly
practical
as a
by
and irrational dis
victimized
intense
legislation
man
all
differentiates
some
Carr,
v.
Montgomery
101
crimination.”
persons,
ner
different
between
classes
(6th
1117,
Cir.1996); Craig v.
1121
and the
not F.3d
Equal Protection
does
Clause
Boren,
190,
451, 50
429
97 S.Ct.
forbid
classifications
Romer
U.S.
per
such
se.
(1976).
Evans,
620, 631, 116
higher
L.Ed.2d 397
“Under this
517 U.S.
S.Ct.
standard, usually
heightened
all
to as
scrutiny, discriminatory equal 183 of the Consti- laws survive Section analysis only they tution, protection provides to the extent which General “[t]he shall, are a substantially legitimate Assembly by appropriate legislation, related to Varney, state interest.” at 394 system S.W.3d for an efficient of common provide (emphasis original quo- and internal throughout the Rose con- schools State.” omitted). tation marks constitutionality challenge cerned a of the Commonwealth’s common school bar, In the at trial court case system, required which us to determine test, applied though rational even basis phrase sys- “efficient meaning “infringes it concluded that KRS 159.051 of common did tem schools.” This we rights on the fundamental education analysis existing a conducting thorough in this Of Commonwealth.” legal precedent and the relevant discussion course, if a statute fails the rational basis contained the 1890 Constitutional De- it, certainly pass it fail to strict test would Rose, bates. at 205-12. At Thus, scrutiny. pragmati the trial court analysis, held that the conclusion of this we cally decided this issue under rational “essential, minimal, characteristics analysis applying rather than strict schools” system of an ‘efficient’ of common scrutiny, which would otherwise flow from right the fundamental to an ade- included its the statute burdened conclusion turn, In quate education. Id. at 213. we right. the exercise of a fundamental adequate concluded that an education must Appeals rejected Court of out of hand the provide every each and student within the trial court’s conclusion that the statute in opportunity to learn Commonwealth fringed upon the of a fundamental exercise intellectual, develop seven different right, though quarrel it no with the had *6 Id. at 212. physical, capacities. and social right that an position trial court’s the to adequate right education a fundamental is way 159.051 in no interferes KRS Kentucky under the Constitution. See right pur to with a student’s fundamental Education, Inc., Rose Council Better important education sue and achieve these (1989) 186, Ky., (interpret 790 212 S.W.2d Rather, “capacities.” simply al the statute ing Section 183 of the Constitu consequences to academic attaches adverse tion); Independent see also San Antonio Rose, failure. As made clear in one of the 1, Rodriguez, School Dist. v. 411 U.S. 33- important components most efficient 1278, 1297, 93 36 L.Ed.2d 43 S.Ct. every that system of common schools is (“Fundamental rights” are those Commonwealth, regardless student the rights “explicitly implicitly guaranteed location, guaran is geographic of wealth or Constitution.”) the by agree the We with to educational right teed the the same that 159.051 does Rose, at 790 207. opportunities. infringe not student’s fundamental Thus, right to an edu the fundamental provided right adequate to an education as right equal op includes the to the cation Constitution, though the portunity to achieve academic success. disagree we with its conclusion guarantee it no of success But includes right not Appellants’ statute does violate of excellence pursuit itself. With the law. equal protection to under the If failure or comes the risk of failure. .Education, advantage oppor the refusal to take Rose v. Council Better Inc., Kentucky Consti tunity guaranteed by the supra, is the seminal case on the consequences, tution carried no adverse right fundamental to an education within have to an education would right right This derives then the Commonwealth.
577 non-legal between classification age-based value. While meaning or very little stu- majority legal students majority ill to the effects marginally adds statute different, vastly is success, situation it not The does dents. achieving academic not clas- however, geographic-based itself. The under risk of failure increase the right to way limits a student’s sification. in no statute and better opportunity to learn seize the asserts The Commonwealth Therefore, because himself or herself. in order to deter was enacted KRS 159.051 fun- upon a infringes neither 159.051 dropping from year old students and 17 on the basis nor classifies right, damental to them encourage and to of school out class, rational basis apply a suspect we profi a minimum academic at least achieve stat- question of whether review to ie., these students to deter ciency, Appellants’ ute violates But deficient.” “academically becoming rights. avail is “encouragement” particular two different trial court examined The whose “local only to those able (1) statute: created classifications an alterna operate[s] ... district made between classification age-based by the approved tive education who were year and 17 old students designed licenses under the subject losing their who of students learning needs meet the statute, were year old students who and 18 pro in the to succeed are unable (2) licenses; losing subject to their 159.051(2). nothing There is gram.” KRS made distinction geographically-based that an alternative to indicate in counties who lived between students existing anything program adds (which plan an alternative education with obligate local statutory requirements their licenses subject losing made them learn unique districts meet statute) who lived under the and students students with ing needs of an alternative edu- in counties without 157.200 et See KRS other disabilities. (which them from plan precluded cation § In other seq. 1400 et seq.; 20 U.S.C. under subject losing their licenses being if, alterna words, argue, the Appellees as statute). trial concluded court designed to program is tive education *7 no rational basis for either that there was who academic needs of meet the disagree with its conclu- classification. We system’s in a school unable succeed are to classifi- regard age-based to the sion with ie., physi students with program, regular cation, agree with its conclusion but we disabilities, the then learning cal and/or classi- regard geographic-based with to the by required program alternative education fication. is, redundancy. That re a the statute is a school district local gardless ma whether age legal the Eighteen is place, plan education Commonwealth, ex has an alternative with the jority in the required pro to is still the school district purchase to alcoholic ception right of the with those students the needs of for and vide for right to care beverages and learning disabilities physical KRS with disabilities. treat children and/or succeeding aca them from might prevent in terms of consequences, both 2.015. The system’s demically in the school to obligations, that attach privileges and if, hand, Appel as On the other program. and wide are too vast occurrence alternate argue, purpose lants here. This substantial ranging to list an alter to establish itself, program is is, a suffi education by change legal status disciplinary with for students making the native school for cient and rational reason exception of an rational basis exists for the con- problems, then the establishment 159.051(2). exception That no tained KRS program alternative education creates reads as follows: made in nexus between the classification purpose the statute and asserted Revocation under this subsection shall provides law. a ra- permitted Neither scenario not be unless the local school using tional basis for the existence of an an alternative edu- operate district shall approved by Depart- as cation program program alternative education subject designed to meet the classifying for which students are ment are un- revoked or needs students who having their driver’s licenses regular program. able to succeed in the denied. added.) (Emphasis above, For the reasons set forth we hold Appellants’ obviously 159.051 violates emphasized language KRS This re- rights equal programs under the law de- protection special fers to the education and, therefore, we hold that the statute is scribed in 157.200 to KRS 157.280. KRS all holding requires unconstitutional. This renders KRS 157.230 the establishment moot, programs: such appeal other issues raised on includ- form, challenge made to the DOT ing boards of school district sub- School Transporta- because the ject provisions to the of KRS 157.200 authority creating issuing 157.280, tion’s maintain shall establish and itself, form statute excep- derives special programs education unconstitutional. which we now hold be are residents of their tional children who district, programs or contract for Therefore, we reverse decision by 157.280. may as be authorized KRS case the Court of and remand this 157.280(1) permits school district entry judgment the trial court of a of children of with an insufficient number opinion. consistent with this justify a special with needs to age KELLER, STUMBO, GRAVES, to contract with special education JJ., concur. private organ- approved another district or required special edu- provide ization to COOPER, J., by separate dissents 157.224(2) Finally, cation classes. LAMBERT, C.J., opinion, with provides: WINTERSHEIMER, J., joining that county independent boards of All dissent. operate special shall education COOPER, Justice, dissenting. programs pursuant applica- to an annual approved been tion which has pertaining Numerous issues valid- *8 pur- implementation Department and its ity of KRS 159.051 set out in administra- in this class suant to standards have been raised and briefed by the regulations promulgated in- tive majority opinion has action. Since the If Kentucky Board of Education. solely equal pro- the validated statute of edu- county independent con- or board grounds, this dissent will be tection operate implement and with cation fails to quarrel fined to that issue. I have no programs in accor- majori- special in legal principles outlined standards, applica- However, with the disagree I with dance ty opinion. county independent board tion of the to this stat- application principles of those funding pursuant for that of education majority concludes KRS ute. The may insuffi- no 157.360 be considered because KRS 159.051 denies partici- who refuse complying districts generated add-on and the funds cient pro- in alternative education by pate available may be that statute withheld under their academic de- grams to cure designed until Kentucky Board Education districts fact that some ficiencies. The compliance in with all is requirement with the complied to have requirements designed substantive not amount to such does provide programs re- that students with disabilities ensure in against students unlawful discrimination education under the appropriate ceive complying Ed- districts. with Disabilities Federal Individuals Act, as amended. ucation 159.051 is The basis for KRS rational Assembly’s to encour Thus, the General desire statutory requires scheme ev- age under the age high school students ery independent school district county and The rational stay in school. pro- eighteen “an alternative education provide 159.051(2) in exception KRS gram of Edu- basis approved Assembly’s desire not to to meet the needs is the General designed cation in in penalize noncomplying are unable further of students who to succeed 159.051(2). is a rational regular program.” KRS school there districts. Since independent If every county excep statute and both the statutory man- complied tion, district with of either there no violation is date, no the ex- there would be need for of the Fourteenth Equal Protection Clause 159.051(2). However, ception in both KRS Amendment to the United States Constitu 157.224(2) 159.051(2)recog- KRS KRS tion or of the Constitution of section 3 in non- nize that some districts are Kentucky. Varney, Enter. v. Lee Steven 157.224(2) authorizes compliance. Ky., 36
monetary penalties noncompliance, I Accordingly, dissent. 159.051(2) in protects students those being additionally penalized districts from LAMBERT, C.J., and they to live happen because in a noncom- WINTERSHEIMER, J., join this plying district. dissenting opinion. exception
Absent the in KRS contained
159.051(2), learning-disabled students could
noncomplying argue districts against
the statute discriminates them be- districts have not al- provided
cause their programs ternative education which & RAM ENGINEERING thereby they participate could avoid CONSTRUCTION, INC., operator’s revocation of their motor vehicle al., Appellants, et of academic licenses because deficiencies. turns majority opinion argument LOUISVILLE, OF UNIVERSITY learning-dis- on its head and holds Appellee. complying are abled students districts No. 2001-SC-0264-DG. against their dis- discriminated because provided tricts have alternative education Kentucky. Supreme they programs participate in which can *9 18, 2003. Dec. thereby avoid revocation their mo- March 2004. Rehearing Denied tor operator’s vehicle licenses because fact, In deficiencies. the statuto- academic
ry only penalizes those students scheme