D.F. v. Codell

Decision Date18 December 2003
Docket NumberNo. 2001-SC-0718-DG.,2001-SC-0718-DG.
Citation127 S.W.3d 571
PartiesD.F., the Natural Parent and Next Friend of M.F., a Minor, on Behalf of Themselves and all Others Similarly Situated, Appellants, 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 (Now the Kentucky Board of Education); and Calloway County School Board, Appellees.
CourtSupreme Court of Kentucky

Priest & Owsley, Bowling Green, Counsel for Appellee, Calloway County School Board.


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 159.051 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 159.051 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-to-liability 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 "keep[] 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, 539 U.S. 306, 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 394. 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 "[l]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." Varney, 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. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 1297, 36 L.Ed.2d 16, 43 (1973). ("Fundamental rights" are those...

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