COURT OF APPEALS MAJORITY REDEFINES JEFFERSON COUNTY SCHOOL LAW REGARDING ATTENDANCE AT NEIGHBORHOOD SCHOOL. JUDGE SARA COMBS DISSENTS

COURT OF APPEALS MAJORITY REDEFINES JEFFERSON COUNTY SCHOOL LAW REGARDING ATTENDANCE AT NEIGHBORHOOD SCHOOL.   JUDGE SARA COMBS DISSENTS

 This case defines the term “enroll” in KRS 159.070.  The decision is likely to make significant changes in school busing in Jefferson County.

 The Jefferson County School Board has indicated that they will appeal the ruling by Judges Thompson and Caperton.

“KRS  159.070 Attendance districts — Enrollment permitted in school nearest home.

Each school district shall constitute a separate attendance district unless two (2) or more contiguous school districts, with the approval of the Kentucky Board of Education, unite to form one (1) attendance district. Controversies arising in attendance districts relating to attendance matters shall be submitted to the Kentucky Board of Education for settlement. In case an agreement suitable to all parties cannot be reached, the Kentucky Board of Education may dissolve a united district. In case of dissolution, each school district involved may unite with other contiguous school districts in forming a united attendance district or may act as a separate attendance district. Within the appropriate school district attendance area, parents or legal guardians shall be permitted to ENROLL their children in the public school nearest their home.”

 

Judge Sara Combs in her dissent says:  The legislature had previously deleted the work “attendance” which modified the word enroll”.  “This  now undoubtedly connotes the mere act of registering at a neighborhood school without the mandate, assurance, or even the implication that attendance at that same school should be guaranteed.”

 

SYNOPSIS BY STAN BILLINGSLEY               Sept. 30, 2011

2010-CA-001830  Click to read full text of case

TO BE PUBLISHED

JEFFERSON

FELL, CHRIS, ET AL.

VS.

JEFFERSON COUNTY BOARD OF EDUCATION, ET AL.

OPINION REVERSING AND REMANDING

THOMPSON (PRESIDING JUDGE) CAPERTON (CONCURS

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: CAPERTON, COMBS AND THOMPSON, JUDGES.

THOMPSON, JUDGE: This is a challenge to the Jefferson County Public School’s (JCPS) student assignment plan filed by thirteen parents after their children received 2010-2011 school year assignments to schools other than schools nearest their homes.1

 The issue is narrowly framed: Does the involuntary assignment of a student to a school other than that nearest the student’s home violate Kentucky Revised Statutes (KRS) 159.070? Thus, the resolution of this appeal requires that we construe the language used in that statute…

Within the appropriate school district attendance area, parents or legal guardians shall be permitted to enroll their children in the public school nearest their home.

 

we comment that we do not believe Judge Heyburn nor the United States Supreme Court engaged in judicial tyranny when they ruled the quota system unconstitutional in violation of the equal protection clause.

When the application is submitted, elementary students can also

request assignment to an elementary magnet school or to a school other than the student’s resides school that offers a magnet program or an optional program. For attendance at the majority of the system’s magnet schools, the application process is open to any student at an elementary grade level and, unlike cluster schools, magnet schools are countywide.

JCPS filed a motion to dismiss, alleging that under Kentucky law, a parent or legal guardian has no right for his or her child to attend the school geographically nearest his or her residence.

Thus, eleven years after the Federal Court dissolved the desegregation decree, JCPS still maintained the unusual legal position that it had the authority to mandate busing.

However, presumably because the dispute is confined only to the construction of KRS 159.070, JCPS did not offer statistical data to support its view that student diversity has a positive effect on education.

The circuit court concluded that the term enroll means to “register” and not to attend the school. Our focus shifts to the issue presented.

The provision originally provided that “within the appropriate school district attendance area, parents or legal guardians shall be permitted to enroll their children for attendance in the public school nearest their home.” Immediately, the neighborhood school system mandated in KRS 159.070 was challenged as an unconstitutional exercise of state power as applied to JCPS.

In Newburg Area Council, Inc. v. Board of Education of Jefferson

County, 583 F.2d 827 (6th Cir. 1978), the Court affirmed the District Court’s holding that the amendment was unconstitutional insofar as it permitted the parents of children in Jefferson County to enroll their children in the public school nearest their home.

We stress that we are not asked to scrutinize whether JCPS’s 2010-2011 student assignment plan is constitutional, arbitrary or reasonable. We are only asked to construe the statute.

JCPS argues that the plain meaning of “enroll” is equivalent to “register” and is not interchangeable with the term “attendance.”

Jefferson County was exempted from compliance from the statute only because it operated under the federal desegregation decree. Newburg Area Council, Inc., 583 F.2d at 829. Logically, if KRS 159.070 still requires that parents and legal guardians have the right to choose for their children to attend their neighborhood school, JCPS, no longer being under federal supervision and direction to desegregate, must comply with the statute.

The contention that “enroll” as used in KRS 159.070 merely confers a right to register a child in the JCPS system defies logic.

Thus, “enroll in,” in the context now discussed, reasonably means to become a student at the school nearest the child’s home.

the legislature has declared the right of every parent or legal guardian to enroll his or her child in the school nearest his or her home.

Conclusion

JCPS is the largest school district in the Commonwealth and for the past thirty-five years has developed a complex system to rid itself of the vestiges of de jure segregation; it is to be commended.

 However, the history of segregation  by itself cannot justify a judicial exemption from the statutory mandate. The day when involuntary busing was justifiable and necessary, based on the federal court’s

mandate to desegregate, ended in 2000 when the desegregation decree was dissolved. JCPS is no longer supervised by the federal courts but is once again operated by state and local authorities.

our holding requires that JCPS develop a new student assignment plan for the 2012-2013 school year that is reasonably consistent with KRS 159.070 and this Court’s opinion.

JCPS and all school districts retain the discretion to establish attendance areas and implement transportation plans limited only by reasonable compliance with constitutional and statutory law.

However, until the legislature declares otherwise, JCPS and all school districts in this Commonwealth must comply with KRS 159.070.

Based on the foregoing, the order of the Jefferson Circuit Court is

reversed and the case remanded for proceedings consistent with this opinion.

CAPERTON, JUDGE, CONCURS AND FILES SEPARATE

OPINION.

COMBS, JUDGE, DISSENTS AND FILES SEPARATE OPINION

COMBS, JUDGE, DISSENTING: This case involves only one issue

on appeal: the proper construction of KRS 159.070. Although a bevy of issues erupted at oral argument, the case remains focused on that one issue alone. The significant sentence from KRS 159.070 is the last sentence:

Within the appropriate school district attendance area, parents or legal guardians shall be permitted to enroll their children in the public school nearest their home. (Emphasis added.)

Much discussion occurred in an attempt to construe the word “enroll.”

The circuit court had concluded that the term enroll means “to register” – not to attend school. The majority disagrees and essentially holds that enroll should – as a matter of public policy rather than definition – encompass attendance as well as

the act of registration. However, as aptly noted by the appellees’ brief, ample caselaw demonstrates otherwise.

It is significant that the version of the statute in effect prior to its

amendment in 1990 contained the phrase, “for attendance,” providing as follows:

Within the appropriate school district attendance area, parents or legal guardians shall be permitted to enroll their children for attendance in the public school nearest their home.

(Emphasis added). The General Assembly undertook a massive overhaul of all school statutes in Kentucky after they were declared unconstitutional by the Kentucky Supreme Court in Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989). Although the Rose case and Section 183 of the Kentucky Constitution (upon which Rose was premised) were discussed at some length during oral arguments, Rose has absolutely no bearing on the case before us as to public policy issues. To reiterate, this is solely a case of statutory construction.

Rose was merely the vehicle for causing the statutory amendments to be rewritten by the General Assembly.

we are left to construe the language of KRS 159.070 as amended, which now leaves the term enroll stripped of the modifying prepositional phrase for attendance. Without that modifying phrase, enroll now undoubtedly connotes the mere act of registering at a neighborhood school without the mandate, assurance, or even the implication that attendance at that same school should be guaranteed.

We have no choice but to construe this statute as it is presently written and in light of the guidance provided by the 1990 amendment deleting “for attendance.”

 

Accordingly, I file this dissent. I would affirm the well-reasoned

opinion of Judge Irv Maze of the Jefferson Circuit Court.

BRIEF FOR APPELLANTS:

Teddy B. Gordon

Louisville, Kentucky

J. Bruce Miller

Norma Miller

Louisville, Kentucky

Sheila P. Hiestand

Louisville, Kentucky

ORAL ARGUMENT FOR

APPELLANTS:

Teddy B. Gordon

Louisville, Kentucky

J. Bruce Miller

Louisville, Kentucky

Sheila P. Hiestand

Louisville, Kentucky

BRIEF FOR APPELLEES:

Lisa C. DeJaco

Byron E. Leet

Louisville, Kentucky

ORAL ARGUMENT FOR

APPELLEES:

Byron E. Leet

Louisville, Kentucky

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