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When his theory was questioned, Einstein replied, only half in jest, “the facts are wrong.” Albert EinsteinWe have to live today by what truth we can get

today and be ready tomorrow to call it falsehood. William JamesIt requires a very unusual mind to make an

analysis of the obvious. Alfred North Whitehead

Carl N. FriedmanStudent Support Services

NYS Education Department

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LEGAL BASIS FOR MAKING RESIDENCY DETERMINATIONS

• 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)

Federal Law No Child Left Behind – School Choice – SINIs without progress – Persistently DangerousStewart H. McKinney Homeless Assistance Act 42 USC 11431 et. seq.

State Law Education Law 3202 – EntitlementEducation Law 3203 – Property Intersected…Education Law 3209 – Education of Homeless Children

Education Commissioner’s Regulations

Judicial Decisions of the Commissioner of Education or Court Decisions

100.2(x)100.2(y)

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http://www.emsc.nysed.gov/sss/Attendance/Matrix-AttLawsRegs.htm

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

http://www.emsc.nysed.gov/sss/Attendance/Matrix-AttLawsRegs.htm#RESIDENCY

NYSED Websites for Legal Information

http://www.emsc.nysed.gov/deputy/nclb/parents/facts/eng/eng-schoolchoice.htm

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No Child Left BehindTitle I Schools that fail to show adequate yearly

progress in two consecutive years are

considered in need of improvement. Parents

may request a transfer to another in-district

school. Similarly, victims of a violent criminal

offense may also ask for a transfer within the

district.Who At NYSED Can Help?• Regional

Representative for School Improvement - (518) 474-5923

• http://www.emsc.nysed.gov/deputy/nclb/nclbhome.htm

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FEDERAL LAWSStewart H. McKinney Homeless

Assistance ActWHO AT NYSED CAN HELP?

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.

• Patricia McGuirk (518) 473-0295• State Technical Assistance Center (631) 232-

4064

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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STATE LAWS

Education Law 3202

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.

Defines a homeless person as:

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

• 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

Education Law 3209

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

Education Law 3203

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.

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Commissioner of Education Regulations

100.2(x)

•Establishes who may make residency determinations

•Establishes rules concerning residency as a homeless person

100.2(y)

•Establishes procedures following a denial of residency

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DECISIONS

Catlin v. Sobol 4/4/91 Overturned by State Supreme Court and then overturned again by

Appellate Court

The Commissioner agreed with the district that the parents moved from the school district thus

changing the residency thus the district should no longer have to pay the BOCES for special education

services.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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The beginning of wisdom is the definition of terms.Socrates (470-399 BC)

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.• 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 (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?

DISCUSSION ITEMS

• How much evidence is needed

• Copies vs. the document

• Verifiable evidence

• Unreasonable requests

• District stance in illegal living accommodations

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WHAT CAN BE USED TO VERIFY RESIDENCY?

Eyewitness accounts (notarized)

• 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

Supportive evidence linked to a place of residence

• From the applicant• From the Family relinquishing care and

custody• Neighbors, the landlord, etc.

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WHO COMES TO SCHOOLTO REGISTER A STUDENT?

Parents Emancipated youth

Adults other than

Parents

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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

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Single Parent with Official Custody

• Relationship to child• The student is age appropriate• Has had immunizations• Lives in the district• 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

PARENTAL EVIDENCE NEEDED (continued)

FERPA(Family Education and Rights to Privacy Act)

Family Policy Compliance

Office202-260-3887

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Child spends equal time living with both parents

PARENTAL EVIDENCE NEEDED(continued)

For Online Citations:

Go to http://www.nysed.govAnd 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.

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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• Other parent provides an affidavit of approval of

other parent taking the lead• 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.

PARENTAL EVIDENCE NEEDED (continued)

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• Relationship to child• The student is age

appropriate• Has had immunizations• Lives in the district

NON-PARENTAL EVIDENCE NEEDED

PLUS

Formal custody awarded by Family Court

Either Or

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)

New Adult

1. They are in charge of all things

2. They pay all costs to raise the child

3. The new family arrangement is for the foreseeable future

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

Witnessed statement from the biological

parent(s) and the new adult Biological Parent

1. They have abandoned being in charge of the child

2. They pay no costs to raise the child

3. The new family arrangement is for the foreseeable future

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

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EMANCIPATED YOUTH EVIDENCE NEEDED

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

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

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

4. How can a person prove they are emancipated? (This really shouldn’t be that hard, read #1 !)

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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 as a freeloader

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,

immunization• Evidence that the applicant lives within the

school district

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WHAT ARE SCHOOLS REQUIRED TO DO WHEN THE RESIDENCY DETERMINATION IS

NEGATIVE?

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

• Written notice must include:

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

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

Rules:

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

• If the person filing for relief from damages 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 action being appealed

• The person filing the petition must have exhausted all means of resolving the issue locally before filing

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

• You don’t have to be an attorney to make an appeal but to win it you must provide evidence concerning why your argument should prevail.

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BOARD OF EDUCATION POLICY CONCERNING NON-RESIDENTS

• 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 denies entrance to the schools of the district while the student is under the penalty of another school district.

• 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

• A school district that operates a summer school may not deny their own residents 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 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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SOME WORKING GUIDANCE

1. If you need to call Student Education and Visitors Information System (SEVIS) for assistance, you’re already too late!

2. Students transferring from another school district with F1, J1 or M1 visas are allowed in the district based upon local non-resident policy. Use 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.

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

4. Students transferring from another district without visas fall under Plyler v. Doe, their alien status has nothing to do with their residency.

5. Transfer within a district is possible under NCLB

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Comprehensive Attendance

Policy

School Enrollme

nt Process

Enrollment at

School

Age Immunization Care &

Custody Residency

Attendance Roll Book Class Roll Book Removal from the Roll

Book- 20 day drop- Transfer- Destination unknown

CR 104.1

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Carl N. FriedmanStudent Support Services

NYS Education DepartmentRoom 318-M EB

Albany, New York 12234

PHONE: 518-486-6090FAX: 518-474-8299

EMAIL: cfriedma@mail.nysed.gov

http://www.emsc.nysed.gov/sss/Attendance/Matrix-AttLawsRegs.htm

WEB SITE: