Opinion No. 75-303 (1975) Ag ( 1975 )

KINDERGARTEN ATTENDANCE School authorities may not adopt a policy requiring all pupils to enroll in kindergarten who meet the minimum age requirement for first grade attendance, but who enter school without having attended kindergarten the previous year. The classification of such a pupil in kindergarten would only be authorized where an individual evaluation shows that the placing of the child in the first grade would constitute an improper classification. The Attorney General has considered your request for an opinion on the following question "Can a student who is enrolling in the public schools for the first time, regardless of age, be required to enroll in a kindergarten program as the first year of the curriculum of the district? In other words, should a parent who refuses to enroll her child in a kindergarten program and then desires to enroll the child in the first grade when he reaches the required age, be required to enroll her child in kindergarten?" Your letter, in effect, asks for a reconsideration of Opinion of the Attorney General, 71-260, which concluded: "The public school district is not authorized by law to establish kindergarten attendance as a prerequisite to enrollment in elementary schools." Opinion No. 71-260 based its conclusion on the fact that under the existing statute "kindergarten is not a mandatory element of the public school system," and that the compulsory school attendance requirement applied only to a child "over the age of seven (7)." The present language of 70 O.S. 1-114 [70-1-114] (1975) reads in part, as follows: "All children between the ages of five (5) years on or before November 1, and twenty-one (21) years on or before September 1, shall be entitled to attend school free of charge in the district in which they reside. Provided that children who have reached the age of five (5) years on or before November 1 of the school year may be admitted to kindergarten classes approved by the State Board of Education. Except as otherwise provided by law, no child shall be enrolled in the first grade unless he or she will have reached the age of six (6) years on or before November 1 of the school year. Children who have not reached the age of five (5) years on or before November 1 may be admitted to nursery classes approved by the State Board of Education and conducted by the school district in which the child resides. . . ." Opinion No. 71-260 relied upon prior language of the above-quoted statute which set the minimum age for free school attendance at six (6) years rather than five (5) years as is presently provided. In this regard, it should be pointed out that a 1974 amendment to Section 1-114, which is presently the third sentence of the Section quoted above, generally sets a minimum age for free first grade attendance at six (6) years. Another statute which was not applicable at the time of issuance of Opinion No. 71-260 was 70 O.S. 18-108 [70-18-108] (1975), which guarantees free kindergarten for children at least five (5) years of age and provides in part, as follows: "It is the intention of the Legislature to provide a free public kindergarten for every five-year-old child in this state by the school year 1974-1975- . . . "5. From and after September 1, 1974, it shall be the duty of every school district in this state to provide and offer kindergarten free of tuition for every child residing in such district who attains the age of five (5) years by the second day of November during the school year such kindergarten is offered, provided that this duty may be satisfied by transferring kindergarten children to other school districts which accept them and provide kindergarten for such children, with the district in which the child resides paying seventy five percent (75%) of the average daily attendance per capita cost of the receiving district. . . ." Title 70 O.S. 10-105 [70-10-105] (1971) is the compulsory school attendance statute and requires school attendance of a child "over the age of seven (7) years." Under the present language of the above statutes, it is mandatory that kindergarten be offered in the public school system. However, a child who has attained the age of six years prior to November 1 meets the minimum age requirement for the first grade and we find no requirement that such child attend kindergarten as a prerequisite for first grade attendance. The Opinion of the Attorney General, 73-129, discussed the discretion of school authorities to classify pupils coming to the public schools after having received private instruction in prior years. As recognized in Opinion No. 73-129 the discretion to classify pupils into particular grades must be exercised reasonably, and it is apparent that a policy would not be reasonable which requires all pupils to attend kindergarten who enter public school for the first time who meet the six (6) year minimum age requirement for first grade but who did not attend kindergarten the previous year. The placing of a six (6) year old child in kindergarten would only be authorized where an individual evaluation shows that the placing of the child in the first grade would constitute an improper classification. It is, therefore, the opinion of the Attorney General that your question be answered as follows: School authorities may not adopt a policy requiring all pupils to enroll in kindergarten who meet the minimum age requirement for first grade attendance, but who enter school without having attended kindergarten the previous year. The classification of such a pupil in kindergarten would only be authorized where an individual evaluation shows that the placing of the child in the first grade would constitute an improper classification. (Joe C. Lockhart)