D.F. Ex Rel. M.F. v. Codell

COOPER, Justice,

dissenting.

Numerous issues pertaining to the validity of KRS 159.051 and its implementation have been raised and briefed in this class action. Since the majority opinion has invalidated the statute solely on equal protection grounds, this dissent will be confined to that issue. I have no quarrel with the legal principles outlined in the majority opinion. However, I disagree with the application of those principles to this statute. The majority concludes that KRS 159.051 denies equal protection because no rational basis exists for the exception contained in KRS 159.051(2). That exception reads as follows:

Revocation under this subsection shall not be permitted unless the local school district shall operate an alternative education program approved by the Department of Education designed to meet the learning needs of students who are unable to succeed in the regular program.

(Emphasis added.)

This emphasized language obviously refers to the special education programs described in KRS 157.200 to KRS 157.280. KRS 157.230 requires the establishment of such programs:

School boards of any school district subject to the provisions of KRS 157.200 to 157.280, shall establish and maintain special education programs for exceptional children who are residents of their school district, or contract for programs as may be authorized by KRS 157.280.

KRS 157.280(1) permits a school district with an insufficient number of children of school age with special needs to justify a special education program to contract with another district or approved private organization to provide the required special education classes. Finally, KRS 157.224(2) provides:

All county and independent boards of education shall operate special education programs pursuant to an annual application which has been approved by the Kentucky Department of Education pursuant to standards set out in administrative regulations promulgated by the Kentucky Board of Education. If any county or independent board of education fails to operate and implement special education programs in accordance with the standards, the application of the county or independent board of education for funding pursuant to KRS 157.360 may be considered insuffi*579cient and the add-on funds generated under that statute may be withheld by the Kentucky Board of Education until the program is in compliance with all substantive requirements designed to ensure that students with disabilities receive an appropriate education under the Federal Individuals with Disabilities Education Act, as amended.

Thus, the statutory scheme requires every county and independent school district to provide “an alternative education program approved by the Department of Education designed to meet the learning needs of students who are unable to succeed in the regular program.” KRS 159.051(2). If every county and independent school district complied with this statutory mandate, there would be no need for the exception in KRS 159.051(2). However, both KRS 157.224(2) and KRS 159.051(2) recognize that some school districts are in noncompliance. KRS 157.224(2) authorizes monetary penalties for noncompliance, and KRS 159.051(2) protects students in those districts from being additionally penalized because they happen to live in a noncomplying district.

Absent the exception contained in KRS 159.051(2), learning-disabled students in noncomplying districts could argue that the statute discriminates against them because their districts have not provided alternative education programs in which they could participate and thereby avoid revocation of their motor vehicle operator’s licenses because of academic deficiencies. The majority opinion turns that argument on its head and holds that learning-disabled students in complying districts are discriminated against because their districts have provided alternative education programs in which they can participate and thereby avoid revocation of their motor vehicle operator’s licenses because of academic deficiencies. In fact, the statutory scheme only penalizes those students in complying districts who refuse to participate in available alternative education programs designed to cure their academic deficiencies. The fact that some districts have not complied with the requirement to provide such programs does not amount to unlawful discrimination against students in complying districts.

The rational basis for KRS 159.051 is the General Assembly’s desire to encourage high school students under the age of eighteen to stay in school. The rational basis for the exception in KRS 159.051(2) is the General Assembly’s desire not to further penalize students in noncomplying school districts. Since there is a rational basis for both the statute and the exception, there is no violation of either the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution or section 3 of the Constitution of Kentucky. Steven Lee Enter. v. Varney, Ky., 36 S.W.3d 391, 396 (2000).

Accordingly, I dissent.

LAMBERT, C.J., and WINTERSHEIMER, J., join this dissenting opinion.