Van De Kamp, 042683 CAAGO, AGO 82-1101

• Case Date: April 26, 1983
• Court: California

JOHN K. VAN DE KAMP Attorney General CLAYTON P. ROCHE Deputy Attorney General AGO 82-1101 No. 82-1101 California Attorney General Opinion Office of the Attorney General State of California April 26, 1983          THE HONORABLE BRIAN A. BISHOP, COUNTY COUNSEL, NEVADA COUNTY, has requested an opinion on the following question:          May a student who has completed one year of kindergarten in a private school be admitted to the first grade in a public school despite the fact that the student does not meet the minimum age requirements for admission to the first grade set forth in section 48010 of the Education Code?          CONCLUSION          A student who has completed one year of kindergarten in a private school is not automatically entitled to be admitted to the first grade in a public school when the student fails to meet the minimum age requirements specified in section 48010 of the Education Code. Such a student, however, may be admitted to the first grade at the discretion of the school administration if he or she is at least five years old and is judged to be ready for first grade work by the school authorities.          ANALYSIS          The minimum age requirements for admission to kindergarten and the first grade in a public school in California are set forth in sections 48000 and 48010 of the Education Code respectively.1 These sections essentially provide that a child must be 4 years and 9 months of age by September 1st of the school year to be admitted to kindergarten and must be 5 years and 9 months of age by September 1st of the school year to be admitted to the first grade.^[2]          Section 48011 sets forth certain exceptions to the 5 years and 9 months requirement of section 48010 for admission to the first grade. Our focus will be primarily upon paragraph one of the section, although the section in full is still of relevance to our analysis. Section 48011 provides:

         "A child who has been lawfully admitted to the kindergarten, as defined by the State of California, maintained by a private or a public school in California or any other state, and who completed one year therein shall be admitted to the first grade of an elementary school regardless of age, unless the parent or guardian of the child and the school district agree that the child may be retained in kindergarten for not more than an additional school year.          "A child who has been lawfully admitted to a public school kindergarten or a private school kindergarten in California and who is judged by the administration of the school district, in accordance with rules and regulations adopted by the State Board of Education, to be ready for first-grade work may be admitted to the first grade at the discretion of the school administration of the district and with the consent of the child's parent or guardian regardless of age.          "Where a child has been legally enrolled in the public schools of another district within or out of the state, he may be admitted to school and placed in the grade of enrollment in the district of former attendance, at the discretion of the school administration of the district entered.          "No child shall be admitted to the first grade of an elementary school pursuant to this section unless the child is at least five years of age." (Emphasis added.)

         At first blush, paragraph one of section 48011 may appear to require that a child who has been properly (or "lawfully") admitted to a kindergarten in a public or private school, whether in California or another state, and who has completed kindergarten, shall be admitted to the first grade in a California public school regardless of age. Such a conclusion would flow from the language of paragraph one if the phrase "as defined by the State of California" is deemed to modify only the word "kindergarten" in that paragraph. Accordingly, so long as the child had completed kindergarten in a private or out-of-state school which was equivalent to a public school kindergarten in California, admission to the first grade would be mandated.          However, it is the opinion of this office that the legislative history of section 48011 precludes such a conclusion. Such legislative history demonstrates that the phrase "as defined by the State of California" modifies all the preceding language of the sentence in which it is found. Accordingly, to be admitted to the first grade, a child who has completed kindergarten, whether in a public or private school, must have been admitted to that grade level under criteria established by California law, that is, "as defined by the State of California." Only then may such child be admitted under paragraph one of section 48011 to the first grade "regardless of age."          It may be urged, however, that this conclusion itself is replete with difficulty. This is so because under current law the only way in which "lawful admission to kindergarten" may be said to be defined (other than the requisite inoculations and presenting proof of age) is that the child be four years and nine months of age by September 1st of the school year. Accordingly, if the child were "lawfully admitted to kindergarten," and has completed a year therein, he or she will of necessity meet the five years and nine months requirement for admission to the first grade the following year. Consequently, it may be urged that our construction of paragraph one of section 48011 gives rise to a conflict between the phrases "as defined by the State of California" and "regardless of age," or renders the latter phrase meaningless. Such, however, is not the case, as will be demonstrated below.          In determining...