Kentucky

State constitutional guarantees regarding right to education

Sections 183-189 of Kentucky’s Constitution contain several provisions related to the common schools, which have been interpreted to mean that children have a fundamental right to a public education.  The pertinent sections are listed below:

Section 183 provides that the General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state.

Section 184 provides in pertinent part:  The bond of the Commonwealth issued in favor of the Board of Education … and its proceeds, shall be held inviolate for the purpose of sustaining the system of common schools. The interest and dividends of said fund, together with any sum which may be produced by taxation or otherwise for purposes of common school education, shall be appropriated to the common schools, and to no other purpose. No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation ….

Section 186 provides:  All funds accruing to the school fund shall be used for the maintenance of the public schools of the Commonwealth, and for no other purpose, and the General Assembly shall by general law prescribe the manner of the distribution of the public school fund among the school districts and its use for public school purposes.

Section 189 provides:  No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.

Case law and legislative history defining and interpreting the right to education

Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 206 (Ky. 1989) is the leading case regarding the right to education.  In Kentucky “[t]he framers of Section 183 emphasized that education is essential to the welfare of citizens of the commonwealth.  By this animus to Section 183, we recognize that education is a fundamental right in Kentucky.” Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 206 (Ky. 1989). 

“In obedience to that requirement of Section 183, the General Assembly has provided a system of public schools, open to all the children of proper school age residing in the locality, and affording equal opportunity for all to acquire the learning taught in the various common school branches.” Id. at 207, quoting City of Louisville v. Commonwealth, 134 Ky. 488, 121 S.W. 411, 412 (1909). 

“The fundamental mandate of the Constitution and Statutes of Kentucky is that there shall be equality and that all public schools shall be nonpartisan and nonsectarian.  Uniformity does not require equal classification but it does demand that there shall be a substantially uniform system and equal school facilities without discrimination as between different sections of a district or a county.” Rose. at 207.

Several conclusions readily appear from a reading of [Section 183]. First, it is the obligation, the sole obligation, of the General Assembly to provide for a system of common schools in Kentucky. The obligation to so provide is clear and unequivocal and is, in effect, a constitutional mandate. Next, the school system must be provided throughout the entire state, with no area (or its children) being omitted. The creation, implementation and maintenance of the school system must be achieved by appropriate legislation. Finally, the system must be an efficient one. Rose v. Council for Better Educ.,790 S.W.2d 186, 1989 Ky. LEXIS 55 (Ky. 1989). 

Section 183 makes it mandatory upon the General Assembly to provide an efficient common school system. Board of Education v. McChesney, 235 Ky. 692, 32S.W.2d 26, 1930 Ky. LEXIS 441(Ky.1930). 

The Kentucky Constitution contemplates that public funds shall be expended for public education and the Commonwealth is obliged to furnish every child in this state an education in the public schools, but it is constitutionally proscribed from providing aid to furnish a private education. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky .LEXIS 290 (Ky. 1983). 

A fair reading of Const. §§ 183-189 compels the conclusion that money spent on education is to be spent exclusively in the public school system, except where the question of taxation for an educational purpose has been submitted to the voters and the majority of the votes cast at the election on the question shall be in favor of such taxation. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 (Ky.1983). 

State constitutional protections regarding non-discrimination and equity

Section 1: All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: First: The right of enjoying and defending their lives and liberties. Second: The right of worshipping Almighty God according to the dictates of their consciences. Third: The right of seeking and pursuing their safety and happiness. Fourth: The right of freely communicating their thoughts and opinions. Fifth: The right of acquiring and protecting property. Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance. Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.  

Section 2 : “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”

Section 3: “All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services; but no property shall be exempt from taxation except as provided in this Constitution, and every grant of a franchise, privilege, or exemption, shall remain subject to revocation, alteration or amendment.” 

Section 187: In distributing the school fund no distinction shall be made on account of race or color.

Other relevant state constitutional civil rights protections

Section 5. Right of religious freedom.No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion; nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; and the civil rights, privileges or capacities of no person shall be taken away, or in any wise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.

State law equivalents to Title VI, Title IX, Section 504, and the Educational Opportunities Act (EEOA) 

KRS 344.550-344.575 Sex Equity in Education 

KRS 344.555. Prohibition against sex discrimination under any education program receiving state financial assistance. Exceptions. (1)  No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or a activity receiving state financial assistance, except that: (a) In regard to admissions to educational institutions, this section shall apply only to institutions of vocational education,  professional education, and graduate higher education, and to public institutions of undergraduate higher education; (b)  This section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of the organization; (c) This section shall not apply to an  educational  institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marines; (d) In regard to admissions, this section shall not apply to any public institution of undergraduate higher education which is an institution that traditionally and  continually from its establishment has had a policy of admitting only students of one (1) sex; (e) This section shall not apply to  membership practices of a social fraternity or social sorority which is exempt under Section 501(a) of the Federal Internal Revenue Code of 1954, the active membership of which consists primarily of students in attendance at an institution of  higher education, or of the Young Men’s Christian Association, Young Women’s Christian Association, Girl Scouts, Boy Scouts, Camp Fire Girls, and voluntary youth service organizations which are exempt under Section 501(a) of the Federal Internal Revenue Code, the membership of which has traditionally been limited to  persons of one (1) sex and principally to persons of less than nineteen (19) years of age; (f) This section shall not apply to any program or activity of the American  Legion undertaken in connection with the organization or operation of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or any program or activity of any secondary school or educational institution specifically for the promotion of any Boys State conference, Boys Nation  conference, Girls State  conference, or Girls Nation conference; or the selection of students to attend any such conference; (g)  This section shall not preclude father-son or mother-daughter activities at an educational institution, but if such activities are provided for students of one (1) sex, opportunities for reasonably comparable  activities shall be provided for students of the other sex and; (h) This section shall not apply to any scholarship or other financial assistance awarded by an institution of higher education to any individual because such individual has received the award in any pageant in which the attainment of the award is based upon a combination of factors related to the personal appearance, poise, and talent of the individual and in which participation is limited to individuals of one (1) sex only, so long as the pageant is in compliance with other nondiscrimination provisions of state and federal law. (2)  Nothing contained in subsection (1) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one (1) sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any state supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, state, section, or other  area. However, nothing in this subsection shall be construed to prevent the consideration in any hearing or proceeding under KRS 344.550 to 344.575 of statistical evidence tending to show that an imbalance exists with respect to the participation in, or receipt of the benefits of, any program or activity by the members of one (1) sex. 

KRS 344.560.  Agencies and departments required to effectuate KRS 344.555. Each state department and agency which is empowered to extend state financial assistance to any education program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, shall effectuate the provisions of KRS 344.555 with respect to such program or activity by promulgating administrative regulations of general  applicability which shall be consistent with achievement of  the objectives of the statute authorizing the financial assistance in connection with which the action is taken. This section shall not apply to a state department or agency which extends state financial assistance to an education institution if  the amount of  state financial assistance extended by the state department or agency represents less than two percent (2%) of the total state financial assistance received by the education institution. Compliance with any requirement adopted pursuant to this section shall be effected: (1) By the termination of or refusal to grant or to continue assistance under such program or activity to  any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made, and shall be limited in its effect to the particular program, or part thereof, in which the noncompliance has been found; or (2) By any other means authorized by law. However, no action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to  this section, the chief officer of the state department or agency shall file with the committees of the House of Representatives and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty (30) days have elapsed after the filing of such report.

KRS 344.565. Judicial review. Any final action taken by a department or agency pursuant to KRS 344.560 shall be subject  to such judicial review as may otherwise be provided by law for similar action taken by the department or agency on other grounds. In the case of action, not otherwise subject to judicial  review, terminating or refusing to grant or to continue financial assistance upon a finding of failure to comply with any requirement imposed pursuant to KRS 344.560, any funding recipient aggrieved may obtain judicial review of the action in the Franklin Circuit Court.

KRS 344.570. Effect of KRS 344.550 to 344.575 on existing contractual rights. Nothing in this chapter shall add to or detract from any existing authority with respect to any program or activity under which state financial assistance is extended by way of a contract of insurance or guarantee.

KRS 344.575. Separate living facilities for the two sexes are not prohibited. Nothing contained in KRS 344.550  to 344.575 shall be construed to prohibit any educational institution receiving  funds under KRS  344.550 to 344.575 from maintaining separate  living facilities for the different sexes.

The following provisions are most similar to the IDEA and Section 504:  

KRS 157.195. Legislative findings on students’ right to quality education. The General Assembly declares that all students of the Commonwealth have a right to an appropriate and quality education in the public schools and the right to achieve the capacities under KRS 158.645. The General Assembly  challenges all school personnel to take the necessary action to help each individual student complete elementary and secondary school with the capacities to transition successfully to adult life.

KRS 157.196  Individual education plan for exceptional children -- Administrative regulations. (1) The General Assembly declares that parents play a critical role in the education of their students. Parents have a major responsibility to assist in the education of their students and deserve respect and meaningful involvement in the decision-making process related to the students' education. (2) Each exceptional student as defined in KRS 157.200 shall have an individual education plan that shall serve as the centerpiece of the student's educational career and the communication vehicle between the parents and school personnel. The plan shall enable the parents and school personnel to decide the student's educational needs, the services needed to achieve those needs, and the anticipated results. The plan shall be used as a document to monitor the student's progress. School personnel shall provide the parents with reports of the progress toward the student's annual goals at least as often as report cards go to nondisabled students. (3) The Kentucky Board of Education shall promulgate administrative regulations establishing procedures for the development and monitoring of individual education plans that are in compliance with the Federal Individuals with Disabilities Education Act, as amended. These administrative regulations shall be written in clear, easily understood language that is free of education jargon.

KRS 157.220   Functions of Department of Education in special education programs. (1) The Department of Education is hereby designated as the agency for cooperation with the state and federal government agencies, the nonpublic school programs and local schools of Kentucky in carrying out the provisions of KRS 157.200 to 157.280. The Kentucky Board of Education shall make necessary rules and regulations in keeping with the provisions of KRS 157.200 to 157.280 for their proper administration, including but not limited to establishment of classes, eligibility and admission of pupils, the curriculum, class size limitations, housing, special equipment, and instructional supplies. (2) The Department of Education is authorized to receive contributions and donations that may be made to carry out the provisions and requirements of KRS 157.200 to 157.280. (3) Local supervision of special educational facilities for exceptional children shall be approved by the Department of Education according to rules and regulations approved by the Kentucky Board of Education.

KRS 157.224   Statewide plan for exceptional education programs -- Annual applications and reports -- Improvement plan -- Special education trust fund -- Administrative hearings. (1) The Commonwealth of Kentucky is committed to providing a comprehensive educational program for its exceptional children and youth. The Department of Education coordinates, directs, and monitors that program. State direction and implementation of a statewide special education program is manifested in the biennial appropriation of funds to assure a quality educational opportunity for exceptional children and youth in existing, locally operated, classrooms. (2) 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 insufficient 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. The add-on funds shall not be withheld until the district has had the benefit of intense assistance from the Department of Education, a Kentucky Special Education Mentor under the provisions of KRS 157.197 or other assistance approved by the department for at least two (2) years. The superintendent of each local school district shall certify its enrollment of exceptional children and youth to the Department of Education. The department shall audit student enrollment and monitor local district compliance in accordance with Kentucky Board of Education administrative regulations. (3) The Kentucky Board of Education administrative regulations shall set forth the data local school districts shall submit in their annual applications and reports. The data shall be reported in the same format as data submitted to the Department of Education for all other students and shall include, but not be limited to: (a) The number of students who are suspended, expelled, and quit school annually; (b) The success of students placed in various classroom settings including, but not limited to, regular classrooms, resource rooms, self-contained classrooms, and vocational programs as measured by the state assessment program; and (c) Information about students' successful transition to adult life. (4) Local school districts and schools found to be noncompliant with state board administrative regulations shall develop an improvement plan that shall be submitted to the Department of Education for approval. Local school districts shall use specialized resources in the development of the plan which may include universities, regional resource centers, professional organizations, and constituent advocacy groups. (5) There is hereby created a special education trust fund to receive the funds withheld under subsection (2) of this section and interest accrued from the funds invested. The funds and interest shall not lapse, but shall be returned to the district when it 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. (6) All administrative hearings conducted under authority of this section shall be conducted in accordance with KRS Chapter 13B. The provisions of KRS Chapter 13B notwithstanding, the decision of the hearing officer in hearings under this section shall be the final order and shall be rendered pursuant to 34 C.F.R. 300.511. A parent, public agency, or eligible student may only request the administrative hearing within three (3) years of the date the parent, public agency, or eligible student knew about the alleged action that forms the basis for the complaint, unless a longer period is reasonable because the violation is continuing. This three (3) year limit shall not limit the introduction of evidence older than three (3) years if the evidence is relevant to the complaint and shall not apply to the parent or the eligible student if the parent or eligible student was prevented from requesting the hearing due to: (a) Failure of the local educational agency to provide prior written or procedural safeguards notices; (b) False representations that the local educational agency was attempting to resolve the problem forming the basis of the complaint; or (c) The local educational agency's withholding of information relevant to the hearing issues from the parent.

KRS 157.230   Special educational programs of school districts. School boards of any school district subject to the provisions of KRS 157.200 to 157.280, shall establish and maintain special educational 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   Special education program furnished by district other than that of child's residence, or privately -- Sharing costs -- Transportation -- Transportation to and from state schools for the deaf and blind. (1) If the number of children of school age in one (1) classification of exceptionality in a district is not sufficient to justify a special education program for that exceptionality in that district, or if a school district does not provide a special education program for that exceptionality, the board shall provide a program by contract with another county or independent district or private organization that maintains a special education program approved by the Kentucky Board of Education for that exceptionality. When a district or private organization undertakes, under operation of a tuition contract or of law, to provide in its classes for these pupils residing in another district, the district of residence of these pupils shall share the total cost of the special education program in proportion to the number of pupils or in accordance with contract agreement between the two (2) districts or district and private organization. (2) If a local school district's admissions and release committee determines that a child requires placement in a special education program operated by another county or independent district or private organization, the resident local school district shall assume responsibility for the payment of the costs incurred in educating the child. The school board of the school district in which any child resides shall pay for his transportation to and from the program in the other school district or to the private organization. However, if the school board of the other district or the private organization providing the program also provides transportation, the cost of transportation shall be included in the total cost. (3) If a local school district's admission and release committee determines that the local school district has an appropriate educational program for a child and a parent chooses to place the child in a program or facility in another county or independent district or private organization, the parent shall assume responsibility for payment of the costs incurred in educating the child. (4) If a child of school age is admitted for resident instruction at the Kentucky School for the Deaf or the Kentucky School for the Blind, under regulation of the Kentucky Board of Education and under provisions of KRS 167.015 to 167.170, the district in which the child resides shall provide transportation to and from the school on a regularly scheduled basis, at weekly intervals while the child is enrolled, either by individual district or in cooperation with other school districts on a regional basis, as approved by the Kentucky Board of Education upon recommendation of the chief state school officer. Students who live more than two hundred (200) miles from either school shall not be required to go home more than twice each month. The Kentucky Board of Education shall promulgate administrative regulations to set forth the transportation schedule and the weekend activities for students who remain at school. (5) If a child of school age is admitted as a day school pupil for instruction at the Kentucky School for the Deaf or the Kentucky School for the Blind, under regulation of the Kentucky Board of Education and under provisions of KRS 167.015 to 167.150, the district in which the child resides may provide transportation to and from the school on a daily basis, either by individual district or in cooperation with other school districts on a regional basis, as approved by the Kentucky Board of Education upon recommendation of the chief state school officer. School districts providing this transportation shall be reimbursed from the transportation fund of the foundation program at the same rate per trip as that which is calculated under subsection (4) of this section.

KRS 157.285   Related services provided by local boards of education. Local boards of education may contract to provide "related services" to exceptional children when the appropriate services are not available through a public or private agency.

KRS 157.290   Tentative preapproval of plans for special education programs. The local superintendent of schools shall present to the chief state school officer an application for tentative preapproval of a plan for special education programs for exceptional children.

Additional state civil rights protections that go beyond federal requirements (e.g., protections for LGBTQ+ students, multilingual learners, undocumented students)

N/A

State law protections regarding color of law or pattern/practice liability for law enforcement in schools

KRS 158.4415(4) (from the Kentucky Revised Statutes) provides the statutory definition of a “school resource officer” (SRO). It states:

(4) “School resource officer” or “SRO” means a sworn law enforcement officer who has specialized training to work with youth at a school site. An SRO is employed through a contract or memorandum of understanding (MOU) between the law enforcement agency and a school district, and the SRO's duties include:

• Preventing and responding to school-based crime and disorder,

• Working to promote a safe, secure, and orderly learning environment, and

• Establishing positive relationships with students and staff to promote safety and trust.

Anti-discrimination protections under state human rights statutes

The Kentucky Civil Rights Act does not directly provide for anti-discrimination protections in the education context except for the Sex Equity in Education Act, referenced above.

Private right of action provisions under state civil rights and human rights statutes

Under KRS 344.200, an individual has a private right of action for violations of the Sex Equity in Education Act.  KRS 344.200 provides:  (1) An individual claiming to be aggrieved by an unlawful practice other than a discriminatory housing practice, a member of the commission, or the Attorney General may file with the commission a written sworn complaint stating that an unlawful practice has been committed, setting forth the facts upon which the complaint is based, and setting forth facts sufficient to enable the commission to identify the persons charged (referred to as the respondent in this section, KRS 344.210, 344.230, and 344.240). The commission shall make reasonable accommodations to assist persons with disabilities in filing a written sworn complaint. The commission staff or a person designated pursuant to its administrative regulations shall promptly investigate the allegations of unlawful practice set forth in the complaint and shall within five (5) days furnish the respondent with a copy of the complaint. The complaint must be filed within one hundred eighty (180) days after the alleged unlawful practice occurs.

Identify whether state anti-discrimination laws also prohibit discrimination caused by disparate impact. If yes, does the state law allow a private right of action for disparate impact claims?

Unclear.  No statutes or case law explicitly address whether remedies exist for discrimination caused by disparate impact.

Is the right provided by state law conferred on the student, parent/guardian, or both? In other words, who can bring a claim under this law? 

Likely both if the student is a minor.  

Does the specified law or policy provide protections against retaliation? What are the elements of a retaliation claim? Are protections against retaliation clearly spelled out in the law or policy?

No.

Statute of limitations for filing education-related state civil rights complaints (or state civil rights complaints broadly) or state human rights complaints?

180 days to file a complaint with the Kentucky Commission on Human Rights.

Are there areas where the state laws provide more protections than federal law? What are those areas? 

No.