T~EATTORNEYGICNERAL 

OF' -XAS 

AVIITIN. ‘l-RXAE 18711 

September 11, 1974 

The Honorable Dan Kubiak, Chairman 

Committee on Education 

House of Representatives 

Aumtin, Texas 78767 

Opinion No. H- W-398) 

Re: Validity of attendance 

regulations adopted by Bchool 

district. 

Dear Representative Kubiak: 

You have aaked our opinion as to the validity of attendance regulationa adopted by an independent school district which after declaring attendance 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 l eaignment, 

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 provision 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 discretion 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 tom be 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 Independent 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 regulationr 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 regulations 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 regulations 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 implementation 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