D .F ., THE NATURAL PARENT AND NEXT FRIEND OF M .F ., A MINOR, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED V JAMES C . CODELL, III, SECRETARY OF THE TRANSPORTATION CABINET, COMMONWEALTH OF KENTUCKY ; THOMAS BOYSON (NOW WILMER C . CODY), SECRETARY OF THE DEPARTMENT OF EDUCATION, COMMONWEALTH OF KENTUCKY ; KENTUCKY STATE BOARD FOR ELEMENTARY AND SECONDARY EDUCATION AND CALLOWAY COUNTY SCHOOL BOARD
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RENDERED : DECEMBER 18, 2003
TO BE PUBLISHED
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2001-SC-0718-DG
D.F., THE NATURAL PARENT AND NEXT FRIEND
OF M .F., A MINOR, ON BEHALF OF THEMSELVES
AND ALL OTHERS SIMILARLY SITUATED
V
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1998-CA-2895-MR, 1998-CA-2897-MR, 1998-CA-3069-MR
1998-CA-3176-MR, 1998-CA-3177-MR, AND 1998-CA-3178-MR
CALLOWAY CIRCUIT COURT NO. 1995-CI-0056
JAMES C. CODELL, III, SECRETARY OF THE
TRANSPORTATION CABINET, COMMONWEALTH
OF KENTUCKY ; THOMAS BOYSON (NOW
WILMER C . CODY), SECRETARY OF THE
DEPARTMENT OF EDUCATION, COMMONWEALTH
OF KENTUCKY ; KENTUCKY STATE BOARD FOR
ELEMENTARY AND SECONDARY EDUCATION
(NOW THE KENTUCKY BOARD OF EDUCATION) ;
AND CALLOWAY COUNTY SCHOOL BOARD
APPELANTS
OPINION OF THE COURT BY JUSTICE JOHNSTONE
REVERSING AND REMANDING
This class action challenges the constitutionality of KRS 159 .051, Kentucky's "no
pass-no drive" law. The trial court struck the statute down on a variety of grounds,
including the conclusion that the statute unlawfully discriminates against students with
educational disabilities and because the statute violates students' constitutional rights to
equal protection under the law and substantive due process . The Court of Appeals
reversed the trial court and held that the statute was constitutional . We granted
discretionary review, and reverse the Court of Appeals based on our conclusion that the
statute violates equal protection under the law.
I.
Facts and Procedural History
KRS 159 .051 provides that when a 16 or 17 year old student drops out of school
or is declared to be academically deficient, the school principal "shall notify the
superintendent" who "shall report the student's name and Social Security number to the
Transportation Cabinet." The Transportation Cabinet shall then revoke or deny the
student's operator's license, permit, or privilege to operate a motor vehicle .
Revocation or denial of driving privileges only applies to students who attend
school or reside in school districts which "operate an alternative education program
approved by the Department of Education designed to meet the learning needs of
students who are unable to succeed in the regular program." KRS 159 .051 . In other
words, the "no pass-no drive" law only affects students in school districts that have
implemented alternative education programs . Students in school districts that do not
have alternative education programs will not lose their driver's licenses if they drop out
of school or are declared academically deficient.
The original plaintiff was a minor, M.F., who attended Calloway County High
School ("CCHS") in Western Kentucky. CCHS has an alternative education program.
M .F ., however, who has a learning disability, was enrolled in CCHS's regular academic
program, rather than the alternative education program . M.F., despite her best efforts,
was declared academically deficient and, as a result, lost her driver's license .
During
the course of litigation, the trial court certified the case as a class action. The class
consists of all students who are currently affected by KRS 159 .05 and all students who
will or may be affected by the statute in the future.
Simultaneously with filing suit, M.F . filed a complaint with the United States
Department of Education ("DOE") alleging that the "no pass-no drive" law violates the
federal Family Education Rights and Purposes Act of 1974 ("FERPA") . 20 U .S .C. §
1232g . FERPA provides that students' educational records are privileged and
confidential unless students' parents or guardians specifically waive those rights. After
investigating the complaint, the DOE wrote a letter finding that KRS 159.01 violated
FERPA because (1) KRS 159.051 requires impermissible disclosure of personally
identifiable information from an educational record, and (2) disclosure of educational
records under KRS 159 .051 occurs without prior written consent of the students'
parents or guardians. In response to this finding, the Director of the Division of Driver
Licensing at Kentucky's Department of Transportation ("DOT") sent a memorandum to
all circuit court clerks ordering them to "destroy" all existing parent/guardian consent-toliability forms, TC-30 Rev. 09/95 . In their place, the DOT Director ordered circuit court
clerks to use a new DOT form, TC 94-30, which required a parent or guardian to
consent to the release of his/her child's educational records as part of the regular
driver's license procedure for minors.
The trial court held KRS 159.051 unconstitutional on equal protection and
substantive due process grounds and permanently enjoined the DOT from using form
TC 94-30. The Court of Appeals reversed, holding that KRS 159 .051 is constitutional
and that the DOT's creation of a new waiver form constituted an appropriate regulatory
action under KRS Chapter 13A .
We granted discretionary review and reverse the Court of Appeals because KRS
159.051 violates the basic and fundamental right to equal protection under the law.
II.
Discussion
Citizens of Kentucky are entitled to equal protection of the law under the 14th
Amendment of the United States Constitution and Sections 1, 2, and 3 of the Kentucky
Constitution . Commonwealth v. Howard , Ky., 969 S.W .2d 700, 702 (1998). The Equal
Protection Clause applies to all governmental activity, whether legislative, executive, or
judicial and not only protects groups of persons, but also applies to individuals who
have not alleged membership in a particular class . Willowbrook v Olech , 528 U .S. 562,
120 S . Ct. 1073, 145 L. Ed . 2d 1060 (2000) . This is consistent with the simple goal of
the Equal Protection Clause to "keepo governmental decision makers from treating
differently persons who are in all relevant respects alike." Nordlinger v. Hahn, 505 U .S.
1, 10, 112 S . Ct. 2326, 2331, 120 L. Ed. 2d 1 (1992) . But, as a practical matter, nearly
all legislation differentiates in some manner between different classes of persons, and
the Equal Protection Clause does not forbid such classifications per se. Romer v.
Evans , 517 U.S . 620, 631, 116 S . Ct. 1620, 1627, 134 L. Ed . 2d 855 (1996). Nor are all
equal protection challenges reviewed equally . The level of judicial scrutiny applied to
such challenges depends on the classification made in the statute and the interests
affected by it. See Memorial Hospital v. Maricopa County, 415 U .S . 250, 253, 94 S . Ct .
1076, 1079, 39 L .Ed .2d 306, 312 (1974).
Currently, there are three levels of review : rational basis, strict scrutiny, and the
seldom used intermediate scrutiny, which falls somewhere between the other two. See ,
e.g_, Steven Lee Enterprises v. Varney , Ky., 36 S .W.3d 391, 394-95 (2000) . Strict
scrutiny applies whenever a statute makes a classification on the basis of a "suspect
class," such as race, Grutter v. Bollinger, _U .S ._, 123 S. Ct . 2325, 2337, 156 L.
Ed . 2d 304, 331 (2003), or when a statute significantly interferes with the exercise of a
fundamental right . Zablocki v. Redhail , 434 U .S. 374, 387, 98 S . Ct. 673, 681, 54 L.
Ed. 2d 618, 631 (1978). Under this highest standard of review, the challenged statute
can survive only if it is suitably tailored to serve a "compelling state interest." Varney,
36 S . W.3d at 294. On the other hand, "if the statute merely affects social or economic
policy, it is subject only to a 'rational basis' analysis ." Id. Under this standard of review
"[I]egislative distinctions between persons . . . must bear a rational relationship to a
legitimate state end ." Chapman v. Gorman , Ky., 839 S .W .2d 232, 239 (1992).
Between the rational basis and strict scrutiny tiers of review, an intermediate scrutiny
"fashion[s] constitutional protections" for groups, like women, who are not "suspect
classes" but who "have been historically victimized by intense and irrational
discrimination ." Montgomery v. Carr , 101 F.3d 1117, 1121 (6th Cir. 1996); Craig v
Boren , 429 U .S. 190, 97 S. Ct . 451, 50 L . Ed . 2d 397 (1976). "Under this higher
standard, usually referred to as heightened scrutiny, discriminatory laws survive equal
protection analysis only to the extent they are substantially related to a legitimate state
interest." Varnev, 36 S .W.3d at 394 (emphasis in the original and internal quotation
marks omitted) .
In the case at bar, the trial court applied the rational basis test, even though it
concluded that KRS 159 .051 "infringes on the fundamental education rights of the
students in this Commonwealth ." Of course, if a statute fails the rational basis test it, it
certainly would fail to pass strict scrutiny. Thus, the trial court pragmatically decided
this issue under a rational basis analysis rather than applying strict scrutiny, which
would otherwise flow from its conclusion that the statute burdened the exercise of a
fundamental right. The Court of Appeals rejected out of hand the trial court's
conclusion that the statute infringed upon the exercise of a fundamental right, though it
had no quarrel with the trial court's position that the right to an adequate education is a
fundamental right under the Kentucky Constitution . See Rose v. Council for Better
Education, Inc., Ky., 790 S .W .2d 186, 212 (1989) (interpreting Section 183 of the
Kentucky Constitution) ; see also San Antonio Independent School Dist. v.
Rodriquez, 411 U .S. 1, 33-34, 93 S . Ct. 1278, 1297, 36 L. Ed . 2d 16, 43 (1973).
("Fundamental rights" are those rights "explicitly or implicitly guaranteed by the
Constitution .") We agree with the Court of Appeals that KRS 159 .051 does not infringe
on any student's fundamental right to an adequate education as provided for in the
Kentucky Constitution, though we disagree with its conclusion that the statute does not
violate Appellants' right to equal protection under the law.
Rose v. Council for Better Education, Inc., supra, is the seminal case on the
fundamental right to an education within the Commonwealth . This right derives from
Section 183 of the Kentucky Constitution, which provides that "[t]he General Assembly
shall, by appropriate legislation, provide for an efficient system of common schools
throughout the State." Rose concerned a challenge to the constitutionality of the
Commonwealth's common school system, which required us to determine the meaning
of the phrase "efficient system of common schools." This we did by conducting a
thorough analysis of existing legal precedent and the relevant discussion contained in
the 1890 Constitutional Debates . Rose, 790 S.W.2d at 205-12 . At the conclusion of
this analysis, we held that the "essential, and minimal, characteristics of an 'efficient'
system of common schools" included the fundamental right to an adequate education .
Id . at 213 . In turn, we concluded that an adequate education must provide each and
every student within the Commonwealth the opportunity to learn and develop seven
different intellectual, physical, and social capacities . Id. at 212.
KRS 159 .051 in no way interferes with a student's fundamental right to pursue
and achieve these important educational "capacities ." Rather, the statute simply
attaches adverse consequences to academic failure. As made clear in Rose, one of
the most important components of an efficient system of common schools is that every
student in the Commonwealth, regardless of wealth or geographic location, is
guaranteed the right to the same educational opportunities . Rose, 790 S .W.2d at 207.
Thus, the fundament right to an education includes the right to the equal opportunity to
achieve academic success . But it includes no guarantee of success itself. With the
pursuit of excellence comes the risk of failure . If the failure or the refusal to take
advantage of the opportunity guaranteed by the Kentucky Constitution carried no
adverse consequences, then the right to an education would have very little meaning or
value. While the statute adds marginally to the ill effects of not achieving academic
success, it does not increase the risk of failure itself. The statute in no way limits a
student's right to seize the opportunity to learn and better himself or herself . Therefore,
because KRS 159.051 neither infringes upon a fundamental right, nor classifies on the
basis of a suspect class, we apply a rational basis review to the question of whether the
statute violates Appellants' equal protection rights .
The trial court examined two different classifications created by the statute : (1)
the age-based classification made between 16 and 17 year old students who were
subject to losing their licenses under the statute, and 18 year old students who were not
subject to losing their licenses ; and (2) the geographically-based distinction made
betwee n students who lived in counties with an alternative education plan (which made
them subject to losing their licenses under the statute) and students who lived in
counties without an alternative education plan (which precluded them from being
subject to losing their licenses under the statute) . The trial court concluded that there
was no rational basis for either classification . We disagree with its conclusion with
regard to the age-based classification, but we agree with its conclusion with regard to
the geographic-based classification .
Eighteen is the age of legal majority in the Commonwealth, with the exception of
the right to purchase alcoholic beverages and the right to care for and treat children
with disabilities . KRS 2.015 . The consequences, both in terms of privileges and
obligations, that attach to this occurrence are too vast and wide ranging to list here .
This substantial change in legal status is, by itself, a sufficient and rational reason for
making the age-based classification between non-legal majority students and legal
majority students . The situation is vastly different, however, under the geographicbased classification.
The Commonwealth asserts that KRS 159.051 was enacted in order to deter 16
and 17 year old students from dropping out of school and to encourage them to achieve
at least a minimum academic proficiency, i .e . , to deter these students from becoming
"academically deficient." But this particular "encouragement" is available only to those
students whose "local school district . . . operate[s] an alternative education program
approved by the Department of Education designed to meet the learning needs of
students who are unable to succeed in the regular program ." KRS 159.051(2). There
is nothing to indicate that an alternative education program adds anything to the
existing statutory requirements that obligate local school districts to meet the unique
learning needs of students with learning and other disabilities . See KRS 157 .200 et
seg . ; 20 U.S .C . § 1400 et seq . In other words, if, as Appellees argue, the alternative
education program is designed to meet the academic needs of students who are unable
to succeed in a school system's regular program, i .e. , students with physical and/or
learning disabilities, then the alternative education program required by the statute is a
redundancy. That is, regardless of whether a local school district has an alternative
education plan in place, the school district is still required to provide for the needs of
those students with physical and/or learning disabilities that might prevent them from
succeeding academically in the school system's regular program . On the other hand, if,
as Appellants argue, the purpose of the alternate education program is to establish an
alternative school for students with disciplinary problems, then the establishment of an
alternative education program creates no nexus between the classification made in the
statute and the asserted purpose of the law. Neither scenario provides a rational basis
for using the existence of an alternative education program as the basis for classifying
which students are subject to having their driver's licenses revoked or denied .
For the reasons set forth above, we hold that KRS 159.051 violates Appellants'
rights to equal protection under the law and, therefore, we hold that the statute is
unconstitutional . This holding renders all other issues raised on appeal moot, including
the challenge made to the DOT form, because the Department of Transportation's
authority for creating and issuing the form derives from the statute itself, which we now
hold to be unconstitutional .
Therefore, we reverse the decision of the Court of Appeals and remand this case
to the trial court for entry of a judgment consistent with this opinion .
Graves, Keller, and Stumbo, JJ ., concur. Cooper, J., dissents by separate
opinion, with Lambert, C.J ., and Wintersheimer, J., joining that dissent .
COUNSEL FOR APPELLANTS :
Randall Alan Hutchens
300 Maple Street
Murray, KY 42071
Max W. Parker
104 North Fourth Street
Murray, KY 42071
COUNSEL FOR APPELLEE,
JAMES C . CODELL, 111, SECRETARY
OF THE TRANSPORTATION CABINET,
COMMONWEALTH OF KENTUCKY:
Mary R. Harville
Trevor L. Earl
Reed Weitkamp Schell & Vice PLLC
500 West Jefferson Street, Suite 2400
Louisville, KY 40202
COUNSEL FOR APPELAEES,
THOMAS BOYSON (NOW WILMER C.
CODY), SECRETARY OF THE DEPARTMENT
OF EDUCATION, COMMONWEALTH OF
KENTUCKY, AND KENTUCKY STATE BOARD FOR
ELEMENTARY AND SECONDARY
EDUCATION (NOW THE KENTUCKY
BOARD OF EDUCATION) :
Robert V. Bullock
Assistant Attorney General
700 Capitol Avenue
Suite 118, Capitol Building
Frankfort, KY 40601-3449
D. Brent Irvin
Assistant Attorney General
Civil & Environmental Law Division
Office of the Attorney General
P . O . Box 2000
Frankfort, KY 40602-2000
COUNSEL FOR APPELLEE,
CALLOWAY COUNTY SCHOOL
BOARD :
Richard W . Jones
Hurt & Jones
105 North Sixth Street
P. O. Box 430
Murray, KY 42071
Michael A . Owsley
English, Lucas, Priest & Owsley
1101 College Street
P . O. Box 770
Bowling Green, KY 42102-0770
RENDERED : DECEMBER 18, 2003
TO BE PUBLISHED
,$ixPrrMr
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.1-aixrf of ~rnfurhv
2001-SC-0718-DG
D .F ., THE NATURAL PARENT AND
NEXT FRIEND OF M.F., A MINOR, ON
BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED
V
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1998-CA-2895-MR, 1998-CA-2897-MR, 1998-CA-3069-MR
1998-CA-3176-MR, 1998-CA-3177-MR, AND 1998-CA-3178-MR
CALLOWAY CIRCUIT COURT NO . 1995-CI-0056
JAMES C. CODELL, III, SECRETARY OF
THE TRANSPORTATION CABINET,
COMMONWEALTH OF KENTUCKY;
THOMAS BOYSON (NOW WILMER C.
CODY), SECRETARY OF THE
DEPARTMENT OF EDUCATION,
COMMONWEALTH OF KENTUCKY ;
KENTUCKY STATE BOARD FOR
ELEMENTARY AND SECONDARY
EDUCATION (NOW THE KENTUCKY
BOARD OF EDUCATION) ; AND
CALLOWAY COUNTY SCHOOL BOARD
APPELLEES
DISSENTING OPINION BY JUSTICE COOPER
Numerous issues pertaining to the validity of KRS 159 .051 and its
implementation have been raised and briefed in this class action. Since the majority
opinion has invalidated the statute solely on equal protection grounds, this dissent will
be confined to that issue . I have no quarrel with the legal principles outlined in the
majority opinion. However, I disagree with the application of those principles to this
statute . The majority concludes that KRS 159.051 denies equal protection because no
rational basis exists for the exception contained in KRS 159 .051(2) . That exception
reads as follows :
Revocation under this subsection shall not be permitted unless the local
school district shall operate an alternative education program approved by
the Department of Education designed to meet the learning needs of
students who are u nable to succeed_ in the regular r)rogram .
(Emphasis added .)
This emphasized language obviously refers to the special education programs
described in KRS 157.200 to KRS 157 .280 . KRS 157.230 requires the establishment of
such programs:
School boards of any school district subject to the provisions of KRS
157.200 to 157.280, shall establish and maintain special education
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(1) permits a school district with an insufficient number of children of
school age with special needs to justify a special education program to contract with
another district or approved private organization to provide the required special
education classes . Finally, KRS 157.224(2) provides :
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 . . . . .
Thus, the statutory scheme requires eve
county and independent school district
to provide "an alternative education program approved by the Department of Education
designed to meet the learning needs of students who are unable to succeed in the
regular program." KRS 159.051(2). If every county and independent school district
complied with this statutory mandate, there would be no need for the exception in KRS
159 .051(2) . However, both KRS 157 .224(2) and KRS 159.051(2) recognize that some
school districts are in noncompliance . KRS 157.224(2) authorizes monetary penalties
for noncompliance, and KRS 159 .051(2) protects students in those districts from being
additionally penalized because they happen to live in a noncomplying district .
Absent the exception contained in KRS 159 .051(2), learning-disabled students in
noncomplying districts could argue that the statute discriminates against them because
their districts have not provided alternative education programs in which they could
participate and thereby avoid revocation of their motor vehicle operator's licenses
because of academic deficiencies . The majority opinion turns that argument on its head
and holds that learning-disabled students in complying districts are discriminated
against because their districts have provided alternative education programs in which
they can participate and thereby avoid revocation of their motor vehicle operator's
licenses because of academic deficiencies . In fact, the statutory scheme only penalizes
those students in complying districts who refuse to participate in available alternative
education programs designed to cure their academic deficiencies. The fact that some
districts have not complied with the requirement to provide such programs does not
amount to unlawful discrimination against students in complying districts.
The rational basis for KRS 159 .051 is the General Assembly's desire to
encourage high school students under the age of eighteen to stay in school. The
rational basis for the exception in KRS 159.051(2) is the General Assembly's desire not
to further penalize students in noncomplying school districts . Since there is a rational
basis for both the statute and the exception, there is no violation of either the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution or
section 3 of the Constitution of Kentucky. Steven Lee Enter. v. Varney , Ky., 36 S .W .3d
391, 396 (2000) .
Accordingly, I dissent.
Lambert, C.J., and Wintersheimer, J ., join this dissenting opinion .
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