# T~EATTORNEYGICNERAL OF'**-XAS AVIITIN.**  **‘ l-RXAE**  18711
September 11,1974
The Honorable Dan Kubiak, Chairman Committee on Education House ofRepresentatives Aumtin, Texas 78767 Opinion No. H- W-398) Re: Validity ofattendance regulations adopted by Bchool district. Dear Representative Kubiak:

You have aaked our opinion as to the validity ofattendance regulationa adopted byan 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 tomake upthe academic work he missed during .anexcured 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 toan unexcused abrence. 2. Two pointr rhall be deducted from the final six weeka

‘average for each day ofunexcured absence inwhich no teat or written work was miared. Teachers do not have a choice butare required bythe adminirtration to give azero for a miarred test orwritten work, or todeduct two g&&a from the aix weeks final average for an unexcucred absence ifnoteat 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)

InArticle 7. $I. the Texas Constitution providea:

A general diffusion ofknowledge being essential to the preservation ofthe liberties and rights of the people, it shall be the duty ofthe Legislature ofthe Stat& to establish and make suitable provision for the support and maintenance ofan efficient system ofpublic free schools. Incompliance with this constitutional mandate, the Legislature has eetabliahed a state system ofpublic schools composed ofvarious types ofcommon and independent districts with boards of truetees to administer them. Each 1 district ao established has been granted broad authority toadopt 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 ofthe dirtrict.

. . . (d) The truateee may adopt such rules, regulations, and by-lawn ae they deem proper. The legirlative delegation ofpower 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., 190S.W. 2d406 (Tex. Civ. App. --Eaatland 1945, writ ref. w.o.m.) the court in upholding a school board regulation prohibiting students from being member6 offraternities and aororitier, said: Itwill be seen that the grant ofpower and authority to school boards is in general ~terms. The Legislature p0 1860The Honorable Dan Kubiak page 3 (H-398)

could not possibly foresee allproblems and situations that would arise in the administration ofthe schools.
... But, neceeaarily, school boards are given awide 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 noabuse ofdiscretion, and that such regulations be not arbitrary, unreasonable or inviolation oflaw. 190S.W. 2dat 412. Under this rationale the courts have refused to interfere with awide variety ofschool district rulea and regulations. Bishop v. Houston Independent School District, 29S.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, 17S.W. 2d36 (Tex. Comm. App. 1929) (permitting school district’to operate health department in schoola); Passe1 v. Ft. Worth Independent School District, 453 S.W. 2d888 (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, 333S.W. 2d886 (Tex. Civ. App. --Amarillo 1960, nowrit) (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 beheld valid unless there haa been a clear abulre ofdiscretion or aviolation oflaw. The question presented byyour request is whether a school district rule which impoeee academic penalties for unexcused absences passer this te6t.

With the exception of certain classes ofchildren expreaely exempted, the Education Code requires every child in the state who is from seven to seventeen yeara ofage inclusive to attend apublic school in the district of his residence. Sections 21.032 and 21.033, Texas Education Code. In §21.035 ofthe 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* 1861The Honorable Dan Kubiak page 4 (H-398)

acceptable to the teacher, principal, or superintendent ofthe 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 toobtain 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 byfailing to require the child to attend school. Compare $51.03 of the Texas Family Code; and 54.25, 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 ofboth 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 ofenforcement provided. Under state law compliance with attendance requirements is obtained by resort to thejudicial 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 ofdilrciplinary 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. that school district regulations and state Birhoe makes it clear laws can complement each other. We cannot say that the attendance regulation inquertion here, bcthinpurpose 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 alower 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 oflaw. Not every statutory measure intended to enforce school discipline is meant to exclude-different disciplinary actions bylocal authoriti’er. Bishop v. Houston Independent School District, supra.

The amount ofdiscretion vested in school principals under the regulations, together with’certain “automatic” features; could ofcourse, lead to abuses sufficient to give rise to serious constitutional questions. See Bell v. Lone Oak Independent School District, 507S.W. 2d636 (Tex. Civ. App. --Texarkana 1974, nowrit). But without considering the factual circumstances that might surround a~particular implementation ofthe regulations, we cannot say that the regulations ontheir face are unreasonable, arbitrary or destructive ofthe 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

### axiindependent 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. 1863The Honorable Dan Kubiak page 6 (H-398)

DAVID M. KENDALL, Chairman Opinion Committee lg

p. 1864