Opinion No. 179-74
Topics:
SCHOOLS.
SPECIAL EDUCATION.
RULES & REGULATIONS.
PART-TIME ATTENDANCE.
STATE BOARD OF EDUCATION.
Summary conclusion
Children may not be excused from the compulsory school attendance requirements of Section 167.031 unless they are "mentally or physically incapacitated," and Section 162.685(5), RSMo Supp. 1973, does not authorize the State Board of Education to adopt regulations permitting handicapped children to attend a public school special education program for less than a full school day and attend a nonpublic school for the remainder of the day, when the children in question are between the ages of seven and sixteen. However, handicapped children between the ages of seven and sixteen who have been excused from full-time attendance at public school because they are "mentally or physically incapacitated " may attend a nonpublic school for the remainder of the day if they wish. Children who are not between the ages of seven and sixteen may attend a public school special education program for less than a full school day because those children are not subject to the compulsory attendance law. Such children may attend a nonpublic school for the remainder of the day if they wish. State aid shall be paid on a pro rata basis for all special education students attending special education classes part-time regardless of age.
Contents of opinion
September 18, 1974
Dr. Arthur L. Mallory, Commissioner
State Board of Education
Jefferson State Office Building
Jefferson City, Missouri 65101
Dear Dr. Mallory:
This official opinion is in response to your request for rulings on two questions dealing with special education. Your first question asks whether Section 162.685(5), RSMo Supp. 1973, authorizes the State Board of Education to adopt regulations permitting handicapped children to attend a public school education program for less than a full school day and attend a nonpublic school for the remainder of the day. Before analyzing subsection 5, we believe that some general observations are in order.
Section 162.685(5) is part of House Bill No. 474, approved by the 77th General Assembly in 1973. Sections 162.670 et seq., RSMo Supp. 1973. This new law is designed to guarantee handicapped children the same right to a "free and gratuitous education that is afforded to nonhandicapped children." Section 162.670. In order to implement this equality of treatment, the legislature has expressed its belief that:
"To the maximum extent practicable, handicapped and severely handicapped children shall be educated along with children who do not have handicaps and shall attend regular classes. Impediments to learning and to the normal functioning of such children in the regular school environment shall be overcome whenever practicable by the provision of special aids and services rather than by separate schooling for the handicapped." Section 162.680(2).
Thus, we begin with the intent of the legislature to afford the handicapped child the same rights as a normal child, modified only by the recognition that this child has special needs requiringspe cial services.
House Bill No. 474 contained seventy-two sections establishing a new framework for the education of handicapped children. The legislature recognized, however, that even a statute of this length could not specify all the operational details which will be required to make this program work; the duty to set out those details has been given to the State Board of Education in Section 162.685, which reads in full as follows:
"The state board of education shall adopt after at least one public hearing has been held by the commissioner of education on each subsection of this section and upon his recommendation and, after consulting with recognized authorities in the field:
(1) Standards to be used throughout the state of Missouri in determining whether children shall be defined under sections 162.670 to 162.995 as 'handicapped children' or 'severely handicapped children', together with regulations implementing these standards;
(2) Regulations governing evaluation and reevaluation of handicapped and severely handicapped children prior to and during assignment in a special educational program provided, however, each child assigned to a special educational program shall be fully reevaluated on a regular basis;
(3) Standards for approval of all special education programs established under the provisions of sections 162.670 to 162. 995 including, but not limited to, the qualifications of professional personnel employed in such programs and the standards to be used in determining the assignment of each child requiring special educational services to the program which best suits the needs of the child;
(4) Regulations determining the number of enrolled children which constitutes an approved special program including provision for approval by the state board of education of a program of less than the established number if, upon investigation by the state department of education and upon the recommendation of the commissioner of education, it is found a special need exists;
(5) Regulations to be used in determining the eligibility of children in special education programs to attend less than a school day pursuant to section 167.031, RSMo 1969, and in determining the amount of state aid to be paid on a pro rata basis for part-time attendance or programs. "
As can be seen by a reading of this section, the State Board is authorized to make regulations concerning nearly every facet of the special education program. Subsection 1 provides for definitional standards so that school administrators will know what type of person is eligible for services under the act. Subsection 2 provides for the establishment of a methodology of evaluation for children who may be eligible for special education programs. Subsection 3 deals with standards for the establishment of programs, including personnel standards. Subsection 4 deals with appropriate class sizes in special education. Subsection 5 deals with the child who may not be able to benefit from a full day's educational program.
The regulations authorized in subsection 5 must be construed in the context of the section to which it refers, Section 167.031, RSMo 1969. This section reads in full as follows:
Every parent, guardian or other person in this state having charge, control or custody of a child between the ages of seven and sixteen years shall cause the child to attend regularly some day school, public, private, parochial or parish, not less than the entire school term of the school which the child attends or shall provide the child at home with regular daily instructions during the usual school hours which shall, in the judgment of a court of competent jurisdiction, be at least substantially equivalent to the instruction given children of like age in the day schools in the locality in which the child resides; except that (1) A child who, to the satisfaction of the superintendent of schools. of the district in which he resides, or if there is no superintendent then the chief school officer, is determined to be mentally or physically incapacitated may be excused from attendance at school for the full time required, or any part thereof; or (2) A child between fourteen and sixteen years of age may be excused from attendance at school for the full time required, or any part thereof, by the superintendent of schools of the district, or if there is none then by the county superintendent of the county in which the child resides, or by a court of competent jurisdiction, when legal employment has been obtained by the child or found to be desirable, and after the parents or guardian of the child have " been advised of the pending action.
The legislature, by enacting Section 167.033 as part of House Bill No. 474, reaffirmed that:
"Section 167.031 applies to handicapped children and severely handicapped children, provided that such children receive special educational services as required by sections 162.670 to 162.995. If instruction is provided at home, it must be substantially equivalent to instruction given the children of like development in special educational programs provided under sections 162.670 to 162.995."
Section 167.041, RSMo 1969, repealed effective July 1, 1974. Thus, all children, handicapped or not, between the ages of seven and sixteen must attend school unless they are exempted by one of the provisions of Section 167.031.
The Supreme Court of Missouri has held, in a case involving special education, that the requirement in Section 167.031 that a child must " attend regularly some day school " forbids a student subject to the compulsory school attendance law from enrolling in more than one school during the school day. Special District for Education and Training of Handicapped Children of St. Louis Count v _ ee er, 1: S.W. . .0 o. Banc en t e egi.s ature repeated that handicapped children are subject to the compulsory attendance law, therefore, we must conclude that they intended the Wheeler case to continue to be applicable to handicapped children. Had the legislature wanted to allow a new enrollment system such as that which you describe in your question, it would have done so in direct " language exempting handicapped children from the "single school rule of Wheeler. We do not believe that the indirect reference to Section 162.685(5) was such a statement of intent, especially when read in the context of the remainder of House Bill No. 474. With this introduction, the proper interpretation of Section 162.685(5) is clear.
Subsection 1 of Section 167.031 provides that the superintendent may determine certain children to be "mentally or physically incapacitated," or, in other words, unable to attend or benefit from a full day's attendance at school, and he may excuse those children from all or part of the required school day. In order to insure that this determination is not done in an arbitrary or uninformed manner, however, the legislature provided in Section 162. 685(5) that the State Board of Education promulgate standards for use by the superintendents. We believe this to be the sole purpose which can be read into this section.
Once a child has been excused from full-time attendance pursuant to this procedure, what he does with the remainder of his day is of no concern to the public school officials. He may even attend a nonpublic school. What is forbidden by Wheeler is the excusing from the public schools of a child who is not, in the judgment of the superintendent, "mentally or physically incapacitated.
It should be noted that the foregoing discussion of Section 167.031 applies only to children subject to the compulsory school attendance law, i.e., children "between the ages of seven and sixteen years." This office has previously ruled that a student not subject to the compulsory school attendance law has the right to enroll in a public school on a part-time basis. Opinion No. 73, James, March 14, 1973; Opinion No. 144, James, November 26, 1971; Opinion No. 133, Jasper, October 28, 1971; see also Rabinove, "Does Dual Enrollment Violate the First Amendment, " 3 Journal of Law and Education 129 (1974). A student desiring to enroll part-time in the public school would be subject to the same regulations concerning evaluation, diagnosis, and placement that are applicable to all other students receiving special educational services in the public schools.
II.
Your second question asks whether a public school district has the authority to count the attendance of part-time students in making application for state school aid pursuant to Chapter 163, RSMo. Section 162.685(5), quoted above, authorizes regulations "to be used . . . in determining the amount of state aid to be paid on a pro rata basis for part-time attendance." This section clearly contemplates that such part-time aid is authorized by law.
State aid to local school districts is apportioned according to the districts ' "average daily attendance, " , a phrase defined in Section 163.011, RSMo Supp. 1973, as follows:
"As used in this chapter unless the context requires otherwise:
(1) 'Average daily attendance ' means the quotient or the sum of the quotients obtained by dividing the total number of days attended of resident pupils in grades kindergarten through twelve, inclusive, and between the ages of five and twenty in a term, by the actual number of days in that term and not including legal school holidays and legally authorized teachers' meetings; " 'During the 1973 legislative session, the General ' Assembly enacted two versions of Section 163.011, each defining the same terms. The language quoted in this opinion appears in House Bill No. 158, which was the second of the two bills to be enacted and, therefore, the one with the force of law. State ex rel. Monier v. Crawford, 262 S.W. 341 (Mo. Banc 1924).
This formula is modified for kindergarten children by Section 163.017, RSMo Supp. 1973, which provides that state aid is paid for these students at one-half the normal rate:
"For the purpose of determining state aid payments under section 163.031 on kindergarten attendance, 'average daily attendance' shall be obtained by dividing one-half the total number of days attended by resident kindergarten pupils whose fifth birthday occurs before the first day of October after the first day of the school term, by the actual number of days that the school was in session not including legal school holidays and legally authorized teachers' meetings."
Section 162.685(5) requires the State Board of Education to approve regulations with regard to state aid for part-time attendance in special education programs paid pursuant to Sections 162. 975, 163.031, and any other section providing aid for special education students. By necessary implication, therefore, we must conclude that the payment of state aid for such part-time attendance is authorized. The school districts should report such attendance by whatever method and according to whatever formula is set out in the regulations of the State Board of Education.
CONCLUSION
Therefore, it is our opinion children may not be excused from the compulsory school attendance requirements of Section 167.031 unless they are "mentally or physically incapacitated, " and Section 162.685(5), RSMo Supp. 1973, does not authorize the State Board of Education to adopt regulations permitting handicapped children to attend a public school special education program for less than a full school day and attend a nonpublic school for the remainder of the day, when the children in question are between the ages of seven and sixteen. However, handicapped children between the ages of seven and sixteen who have been excused from full-time attendance at public school because they are "mentally or physically incapacitated" may attend a nonpublic school for the remainder of the day if they wish. Children who are not between the ages of seven and sixteen may attend a public school special education program for less than a full school day because those children are not subject to the compulsory attendance law. Such children may attend a nonpublic school for the remainder of the day if they wish. State aid shall be paid on a pro rata basis for all special education students attending special education classes part-time regardless of age.
The foregoing opinion, which I hereby approve, was prepared by my assistant, Richard E. Vodra.
Very truly yours,
John C. Danforth
Attorney General