Untitled Texas Attorney General Opinion ( 1974 )

T~EATTORNEYGICNERAL
OF' -XAS
AVIITIN. ‘l-RXAE 18711
September 11, 1974
The Honorable Dan Kubiak, Chairman Opinion No. H- W-398)
Committee on Education
House of Representatives Re: Validity of attendance
Aumtin, Texas 78767 regulations adopted by Bchool
district.
Dear Representative Kubiak:
You have aaked our opinion as to the validity of attendance regula-
tiona adopted by an independent school district which after declaring atten-
dance at school to be essential to the accomplishment of the mchool’rr
educational goals, and therefore mandatory, provide for excused absences
in certain cases. A student is permitted to make up the academic work
he missed during .an excured absence. Where an absence is unexcused,
however, penalties are aonerred and the work cannot be made up.
1. A zero shall be given for any written leaignment,
oral teat, written tent, six weeka teat, or examination
missed due to an unexcused abrence.
2. Two pointr rhall be deducted from the final six weeka
‘average for each day of unexcured absence in which no
teat or written work was miared.
Teachers do not have a choice but are required by the
adminirtration to give a zero for a miarred test or written
work, or to deduct two g&&a from the aix weeks final
average for an unexcucred absence if no teat or written
work was .missed.
You are primarily interested in the requirement that academic
penaltier be imposed for unexcused absences.
p: 1859
. -
The Honorable Dan Kubiak page 2 (H-398)
In Article 7. $ I. the Texas Constitution providea:
A general diffusion of knowledge being essential
to the preservation of the liberties and rights of
the people, it shall be the duty of the Legislature
of the Stat& to establish and make suitable provi-
sion for the support and maintenance of an efficient
system of public free schools.
In compliance with this constitutional mandate, the Legislature has eetabliahed
a state system of public schools composed of various types of common and
independent districts with boards of truetees to administer them. Each 1
district ao established has been granted broad authority to adopt whatever
ruler and regulations it deems proper in order to effectively manage and
govern itr schoolr. Section 23.26 of the Texan Education Code, in pertinent
part provider:
. . .
(b) The trucltees rhall have the exclusive power
to manage and govern the public free schoola of the
dirtrict.
. . .
(d) The truateee may adopt such rules, regulations,
and by-lawn ae they deem proper.
The legirlative delegation of power and authority to school district6
and their trurteee has traditionally been liberally construed by .Texae
courts. For instance, in Wilron v. Abilene Indppendent School District.,
190 S.W.2d 406 (Tex. Civ. App. --Eaatland 1945, writ ref. w. o. m.)
the court in upholding a school board regulation prohibiting students from
being member6 of fraternities and aororitier, said:
It will be seen that the grant of power and authority
to school boards is in general ~terms. The Legislature
p0 1860
The Honorable Dan Kubiak page 3 (H-398)
could not possibly foresee allproblems and situations
that would arise in the administration of the schools. . ..
But, neceeaarily, school boards are given a wide dis-
cretion in such mattera. They may make all such
rules and regulations as in their judgment are necearary
to maintain an ‘efficient’ system of schools, subject to
the limitation that there be no abuse of discretion, and
that such regulations be not arbitrary, unreasonable
or in violation of law. 190 S.W.2d at 412.
Under this rationale the courts have refused to interfere with a wide variety
of school district rulea and regulations. Bishop v. Houston Independent School
District, 29 S.W.2d 312 (Tex. 1930) (approving rule that required lunch
either to be eaten at school cafeteria or tombe brought from home); Moeeley
v. City of Dallas, 17 S.W.2d 36 (Tex. Comm. App. 1929) (permitting school
district’to operate health department in schoola); Passe1 v. Ft. Worth Inde-
pendent School District, 453 S.W.2d 888 (Tex. Civ. App. --Ft. Worth
1970, writ ref. n. r. e.) (approving rule which prohibited membership in
fraternities and sororities); McLean Independent School District v. Andrewa,
333 S.W.2d 886 (Tex. Civ. App. --Amarillo 1960, no writ) (approving rule
which required atudenta to park cara in rchool parking lot and leave them
there until school ended).
Theae cases indicate that rules and regulations adopted by school
districts will be held valid unless there haa been a clear abulre of discretion
or a violation of law. The question presented by your request is whether a
school district rule which impoeee academic penalties for unexcused
absences passer this te6t.
With the exception of certain classes of children expreaely exempted,
the Education Code requires every child in the state who is from seven to
seventeen yeara of age inclusive to attend a public school in the district of
his residence. Sections 21.032 and 21.033, Texas Education Code. In
§ 21.035 of the Code, provision is made for excused absence6 in case of
“personal sickness, aickneaa or death in the family, quarantine, weather
or road conditions making travel dangerous, or any other unusual cause
p* 1861
The Honorable Dan Kubiak page 4 (H-398)
acceptable to the teacher, principal, or superintendent of the school in
which the child is enrolled. ” Section 21.039 assigns the power of
enforcing the compulsory attendance laws to the school attendance
officer and provides remedies for him to pursue in order to obtain
compliance. He can, in limited circumstances, bring juvenile court
proceedings against the child who has violated attendance requirements;
or, he can initiate criminal proceedings against the child’s parent for
thwarting the compulsory attendance law by failing to require the child to
attend school. Compare $51.03 of the Texas Family Code; and 5 4.25,
Texas Education Code; and see Attorney General Opinion H-347 (1974).
The rchool dirtrict’r attendance regulation8 which you have questioned
do not, however, conflict with the legislative acheme. The purpore of both
the statutes and the regulations is to compel attendance at school. Under
both, excused absences are permitted for basically the 8ame reacton. The
only difference between the two is in the method of enforcement provided.
Under state law compliance with attendance requirements is obtained by
resort to the judicial process, whereas, tmder the school district’s regula-
tionr compliance ir obtained by the imposition of sanctions related to the
btudent’r academic performance without rerort to the courts.
In Bishop v. Houston Independent School District, supra, the court
rejected the argument that the remedies set out in the compulsory education
laws were the only oneo available to school authorities for the enforcement
of dilrciplinary rules. It concluded that the Legislature in enacting there
laws did not intend to shift primary responsibility for enforcing school
discipline from school authorities to the courts. The court held that the
compulsory education laws merely furnished an additional remedy to that
already possessed by school boards in enforcing reasonable rules designed
to bring about proper discipline in the echools of the atate.
Birhoe makes it clear that school district regulations and state
laws can complement each other. We cannot say that the attendance
regulation in quertion here, bcth in purpose and in method of enforcement
chosen, .ia unreasonable on its face. These regulations serve to enable
the school district to enforce its attendance requirements, within the
p. 1862
. .
The Honorable Dan Kubiak page 5 (H-?98)
educational context, without having to resort to the courts. We are not
prepared to say that a school’ district may not adopt attendance regula-
tions which impose academic penalties for unexcused absences from school.
However, we recognize that penaltiea which can mean the difference
between passing to the next school grade or being retained in a lower one
are serious penalties. Yet, we,cannot say in the abstract, that the regula-
tions so conflict, with the statutory provisions and are so arbitrary and
unreasonable as to be invalid as a matter of law. Not every statutory
measure intended to enforce school discipline is meant to exclude-different
disciplinary actions by local authoriti’er. Bishop v. Houston Independent
School District, supra.
The amount of discretion vested in school principals under the
regulations, together with’certain “automatic” features; could of course,
lead to abuses sufficient to give rise to serious constitutional questions.
See Bell v. Lone Oak Independent School District, 507 S.W.2d 636
(Tex. Civ. App. --Texarkana 1974, no writ). But without considering
the factual circumstances that might surround a~particular implementa-
tion of the regulations, we cannot say that the regulations on their face
are unreasonable, arbitrary or destructive of the statuto,ry scheme for
management of the public schools. Dunn v. Tyler Independent School
District, 460~. F. 2d 137 (5th Cir. 1972).
SUMMARY
Regulations of axi independent school.diatrict
which penalize students for’unexcused absences
by lowering their grades are not invalid on~ their
face,.
Very truly yo,ura,
Attor~ney General of Texas
‘p. 1863
The Honorable Dan Kubiak page 6 (H-398)
DAVID M. KENDALL, Chairman
Opinion Committee
lg
p. 1864