                  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.


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    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


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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


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    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


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