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The Science of Residency Determinations 2013. Carl N. Friedman NYS Education Department Prekindergarten through Grade 12 Education Student Support Services. LEGAL BASIS FOR MAKING RESIDENCY DETERMINATIONS.

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The Science of

Residency Determinations

2013

Carl N. Friedman

NYS Education Department

Prekindergarten through Grade 12 Education

Student Support Services


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LEGAL BASIS FOR MAKING RESIDENCY DETERMINATIONS

No Child Left Behind – School Choice – SINIs without progress – Persistently Dangerous

Stewart H. McKinney Homeless Assistance Act 42 USC 11431 et. seq.

Federal Law

Education Law 3202 – Entitlement

Education Law 3203 – Property Intersected…

Education Law 3209 – Education of Homeless Children

State Law

100.2(x)

100.2(y)

Education Commissioner’s Regulations

Judicial Decisions of the Commissioner of Education or Court Decisions

  • Catlin v. Sobol - Appellate Division of NYS Supreme Court 4/4/91 Opn 141 Misc 2d 169 OR 38 Ed. Dept. Rep.____ Dec. #14005

  • Plyler v. Doe – 457 U.S. 202 (1982)


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NYSED Websites for Legal Information

http://www.p12.nysed.gov/sss/lawsregs/#Residency

http://www.counsel.nysed.gov/Decisions/volume31/d12562.htm

http://www.p12.nysed.gov/nclb/parents/


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No Child Left Behind

Beginning 9/10/09, Title I Schools that have been designated as needing to improve, who have failed to show adequate yearly progress, must offer supplemental educational services to eligible students. Following two years of this status, those schools must allow their Title I students the option to be transferred to another school within the district.

Who At NYSED Can Help?

  • Regional Representative for School Improvement - (518) 486-6090

  • http://www.p12.nysed.gov/sss


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FEDERAL LAWS

Stewart H. McKinney Homeless Assistance Act

WHO AT NYSED CAN HELP?

  • Melanie Faby (518) 473-0295

  • State Technical Assistance Center 1-800-388-2014

Every school district should have a “Homeless Liaison” who will facilitate hassle-free entrance to school. The law provides that the school allow the registrant into school immediately and then do the appropriate paperwork to determine residency.

The McKinney Act requires the State and the local districts to develop and revise policies to remove barriers to enrollment and retention.

Homeless students have the right to choose the schools

  • The district in which they are sheltered as a homeless person

  • The district which they used to attend prior to homelessness

  • Any school within the BOCES who has space for homeless children


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Education Law 3202

Education Law 3203

Education Law 3209

STATE LAWS

Educational Entitlement – is afforded to residents of the district over five and under twenty-one years of age who have not received a high school diploma.

Where a body of land is intersected by two school districts and is the location of an owner occupied single family dwelling, the family may choose which district they may send their children.

Defines a homeless person as:

  • Lacking a fixed regular night-time residence, or

  • Living in a shelter or temporary living accommodation run by government or agency for the residency of homeless youth

Defines school district choice as the district of origin, current location, or specific accommodations within a BOCES affiliate.

Defines – transportation benefits for persons in receipt of public assistance.


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100.2(y)

  • Establishes procedures following a denial of residency

Commissioner of Education

Regulations

100.2(x)

  • Establishes who may make residency determinations

  • Establishes rules concerning residency as a homeless person

Either of these regulations may be reviewed at http://www.p12.nysed.gov/sss/lawsregs/


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DECISIONS

Catlin v. Sobol - The Commissioner agreed that when the parents moved from the school district thus changing their residency, the district was no longer required to pay the BOCES for special education services. This position was overturned by State Supreme Court and then overturned again by Appellate Court. (4/4/91)

.

Plyer v. Doe – State of Texas passed a statute which prohibited the use of State funds for children who were not citizens of the U.S. Though the case concerned equal protection of the law the court found that the right to a free public education was based upon where a person lives not their alien status.


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IRRELEVANT FACTORS IN MAKING RESIDENCY DETERMINATIONS:

  • How soon the renovation will be done.

  • How many houses or businesses the applicant owns within the district.

  • Who the applicant knows on the school board.

  • The applicant’s alien status except when the student is nonresident who has entered the country on a Visa.

  • How much the applicant pays the district in school taxes.

  • How long the applicant's children went to that school.

  • The legality of the applicant’s rental agreement.

  • How long the applicant lived at their old address.

  • The importance of family members.

  • How much leaving will hurt the student.


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RELEVANT FACTORS IN MAKING RESIDENCY DETERMINATIONS

  • Who is in charge of the student being enrolled (care and custody)?

  • Is the place of residence the actual and only residence?

  • Where those who claim residency predominately sleep, reside, change clothes, use as base of operation, abode?

  • What verifiable evidence can be presented to support the claim of residence?


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WHAT PROVES RESIDENCY?

Does a record from Family Court attesting to the transfer of care and custody, tell you any more about residency than a birth certificate?

No- It only provides information on care and custody, not where the family resides.

DISCUSSION ITEMS

  • How much evidence is needed – the more you can provide, the stronger your position

  • Copies vs. the document – copies should suffice

  • Verifiable evidence – can the school check the validity of the documents you have provided

  • Unreasonable requests – are requests for information that have nothing to do with answering the question of where you live or are unnecessarily specific when the information can be obtained from other available documents

  • District stance in illegal living accommodations – enrollment to school cannot be denied based upon the legality of a rental agreement


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WHAT CAN BE USED TO VERIFY RESIDENCY?

Eyewitness accounts (notarized)

  • From the applicant

  • From the Family relinquishing care and custody

  • Neighbors, the landlord, etc.

Supportive evidence linked to a place of residence

  • Voter registration

  • Forms associated with filing Income Tax

Supportive evidence:

  • Rental agreement

  • Driver’s license

  • Utility bills that link the resident to residence

  • Library card

  • Dog license

A school should not deny student enrollment for failure of the parent or guardian to provide a single document when other forms of documentation have been provided to the school.


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WHO COMES TO SCHOOL

TO REGISTER A STUDENT?

Adults other than Parents

Parents

Emancipated youth


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PARENTAL EVIDENCE NEEDED

Two Parent Household

  • Relationship to the child

  • The student is:

  • Age appropriate

  • Has had immunizations

  • Lives in the district as a resident.


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PARENTAL EVIDENCE NEEDED (continued)

Single Parent with Official Custody

  • Relationship to child

  • The student is age appropriate

  • Has had immunizations

  • Lives in the district as a resident

  • Other parent gets copies of school correspondence but has nothing to say about day-to-day school activities

  • If child has an IEP both parents are legally allowed to be involved in the child’s day-to-day operational activities

FERPA(Family Education and Rights to Privacy Act)

Family Policy Compliance Office

202-260-3887


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PARENTAL EVIDENCE NEEDED

(continued)

Child spends equal time living with both parents

For Online Citations:Go to http://www.nysed.gov

And in the Google Search Engine type in “Commissioner’s Decisions”. You will be brought to a list of possible sites all dealing with Commissioner’s Decisions.

Where a child spends equal time with both parents commissioners have left the choice of the school district which the child will attend up to the parents.


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PARENTAL EVIDENCE NEEDED (continued)

Single Parent With Care But No Official Custody (Gen. Ed.)

  • Relationship to child

  • The Student is age appropriate

  • Has had immunizations

  • Lives in the district as a resident

  • Where the district is aware of a formal custodial arrangement, parents can demonstrate that the custodial parent is voluntarily relinquishing that role to the non-custodial parent by providing an affidavit of their approval

  • Other parent gets copies of school correspondence but has nothing to say about day-to-day activity

  • If the child has an IEP both parents are legally allowed to be involved in the child’s day-to-day operational activities.


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NON-PARENTAL EVIDENCE NEEDED

  • Relationship to child

  • The student is age appropriate to enroll in shcool

  • Has had immunizations

  • Lives in the district as a resident

PLUS

Either Or

Both

Formal custody awarded by Family Court

Witnessed statement from the biological parent(s) and the new adult the minimums for care and custody


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NON-PARENTAL EVIDENCE NEEDED (continued)

Witnessed statement from the biological parent(s) and the new adult

New Adult

Biological Parent

  • They are in charge of all things concerning the child

  • They pay all costs to raise the child

  • The new family arrangement is for the foreseeable future

  • The reason for the new arrangement can be anything but hunting for a better school

  • Kinship Care Family

  • They have abandoned being in charge of the child

  • They pay no costs to raise the child

  • The new family arrangement is for the foreseeable future

  • The reason for the new arrangement can be anything but hunting for a better school

  • Parent provides temporary custody to an adult family member who resides within the district


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EMANCIPATED YOUTH EVIDENCE NEEDED

  • A person becomes emancipated by the act of separating themselves from their parent(s) and by not accepting financial support from their parent(s)

  • A person cannot go to an office, an agency or a court to be designated as emancipated

  • Do all students become emancipated upon their 18th birthday? (No, read # 1 and #2 !)

  • How can a person prove they are emancipated? (By providing evidence that they no longer reside with their parents or through a means provided by the parents and by providing evidence from where their support emanates.)


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EMANCIPATED YOUTH EVIDENCE NEEDED (continued)

Irrelevant Factors in residency determinations for emancipated youth?

  • How loud or how long dad/mom complains that the school is breaking up their family

  • The student’s means of support is freely provided by someone other than the parent

Relevant Factors in registering an emancipated youth?

  • Evidence that the student is not financed by the parent away from home

  • Evidence that the student doesn’t live home

  • Evidence of the student applicant’s age and immunization

  • Evidence that the applicant lives within the school district

  • School records will be required to determine the appropriate course of study but should not be used to deny a student the right to be instructed


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WHAT ARE SCHOOLS REQUIRED TO DO WHEN THE RESIDENCY DETERMINATION IS NEGATIVE?

Commissioner’s Regulation 100.2(x) – where the board of education or its designee determines that the child is neither a resident nor entitled to attend the schools of the district they must

  • Send a written notice of the determination to the applicant within two days of making it;

  • Written notice must include:

  • Basis for the determination

  • Date of exclusion from the district (if applicable)

  • Statement about the right to appeal to the Commissioner for 30 days.

Instructions for making an appeal to the Commissioner of Education is available at www.counsel.nysed.gov


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310 Appeals DETERMINATION IS NEGATIVE?

Rules:

  • Those making a petition must be at least 18 years of age

  • If the person filing for relief from damages (the right to attend school) is less than 18 years of age, they may seek the assistance of an older person who may file for them

  • An appeal must be filed within 30 days of the decision of the school to deny enrollment

  • The person filing the petition has exhausted all means of resolving a residency issue locally and therefore may petition directly to the Commissioner

  • A petitioner may request that the Commissioner provide a stay of the school district’s action to deny the enrollment of the student

  • A petitioner doesn’t have to be an attorney to make an appeal but to win an appeal they must provide evidence concerning why their argument should prevail.


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BOARD OF EDUCATION POLICY CONCERNING NON-RESIDENTS DETERMINATION IS NEGATIVE?

  • A board has the right to accept all non-residents without charge

  • A board has the right to accept all non-residents and to charge a formula-driven tuition

  • A board of education can refuse to take nonresident students

  • The board or its designee cannot make a determination based upon:

  • The disciplinary history of the student applicant

  • The cost of programming (special education)

  • The board may elect to adopt a policy that imposes the same suspension penalties upon entrance to the schools of the new as those that were imposed by the sending district. Under these conditions the student would register and be put on immediate suspension for the same term as the sending school.

  • The board of education cannot rid itself of an undesirable non-resident student. They are entitled to the same protections as resident students.

  • A board of education may hire a private detective to provide evidence concerning non-residency.


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SUMMER SCHOOL DETERMINATION IS NEGATIVE?

  • A school district that operates a summer school may not deny their own students free access to their summer school programs based solely upon residency. This applies equally to residents who send their children to public or non-public schools

  • Districts operating summer schools may deny access to nonresident students

  • Residency determinations for summer school are established using the same criteria as regular school

  • Districts operating summer schools may accept nonresidents on a tuition basis, who have permission to attend from their home school principal


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GUIDANCE CONCERNING EXCHANGE STUDENTS DETERMINATION IS NEGATIVE?

  • Students transferring from another school district with F1, J1 or M1 visas are allowed in the district based upon local non-resident policy. Policies concerning Plyler v. Doe 457 U.S. 202 (1982). They must be charged non-resident tuition if the school accepts them as non-resident students. This status must not exceed 12 months.

  • Students entering the country with an F1, J1 or M1 status must present an I-20 form at the port of entry or they will be turned away. Only SEVIS approved schools or agencies may issue I-20s.

  • Students transferring from another district without visas fall under Plyler v. Doe 457 U.S. 202 (1982). , their alien status has nothing to do with their residency.

  • Transfer within a district is based upon local board of education policy.


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Comprehensive Attendance Policy DETERMINATION IS NEGATIVE?

CR 104.1

Describes the process of school and classroom enrollment

School District Enrollment Process

Enrollment at School and in a Classroom

  • Age

  • Immunization

  • Care & Custody

  • Residency

  • Attendance Roll Book

  • Class Roll Book

  • Removal from the Roll Book

  • 20 day drop

  • Transfer

  • Destination unknown


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Carl N. Friedman DETERMINATION IS NEGATIVE?

Student Support Services

NYS Education Department

Room 318-M EB

Albany, New York 12234

PHONE: 518-486-6090

FAX: 518-474-8299

EMAIL: [email protected]

WEB SITE:

http://www.p12.nysed.gov/sss/lawsregs/#Residency


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