Transcript Document

Carl N. Friedman
Student Support Services
NYS Education Department
When his theory was questioned, Einstein replied, only
half in jest, “the facts are wrong.”
Albert Einstein
We have to live today by what truth we can get today and
be ready tomorrow to call it falsehood.
William James
It requires a very unusual mind to make an analysis of the
obvious.
Alfred North Whitehead
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LEGAL BASIS FOR MAKING RESIDENCY DETERMINATIONS
Federal Law
State Law
No Child Left Behind – School Choice – SINIs without
progress – Persistently Dangerous
Stewart H. McKinney Homeless Assistance Act 42
USC 11431 et. seq.
Education Law 3202 – Entitlement
Education Law 3203 – Property Intersected…
Education Law 3209 – Education of Homeless Children
Education Commissioner’s
Regulations
100.2(x)
100.2(y)
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.emsc.nysed.gov/sss/Attendance/MatrixAttLawsRegs.htm#RESIDENCY
http://www.emsc.nysed.gov/sss/Attendance/MatrixAttLawsRegs.htm
http://www.counsel.nysed.gov/
Decisions/volume31/d12562.htm
http://www.emsc.nysed.gov/
deputy/nclb/parents/facts/
eng/eng-schoolchoice.htm
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No Child Left Behind
Title 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 LAWS
Stewart H. McKinney Homeless Assistance Act
WHO AT NYSED CAN HELP?
• Patricia McGuirk (518) 473-0295
• State Technical Assistance Center (631) 232-4064
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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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.
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.
Education Law 3209
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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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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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.
The beginning of wisdom is the definition
of terms.
Socrates (470-399 BC)
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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)
• 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
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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
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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
FERPA
Other parent gets copies of school
correspondence but has nothing to (Family Education and Rights
to Privacy Act)
say about day-to-day school
Family Policy
activities
Compliance Office
• If child has an IEP both parents are
202-260-3887
legally allowed to be involved in
the child’s day-to-day operational
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activities
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.
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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
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.
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NON-PARENTAL EVIDENCE NEEDED
•
•
•
•
Relationship to child
The student is age appropriate
Has had immunizations
Lives in the district
PLUS
Either
Or
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
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
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
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better school
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?
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
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 nonresident 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 nonresident 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
CR 104.1
School
Enrollment
Process




Age
Immunization
Care & Custody
Residency
Enrollment
at School
 Attendance Roll Book
 Class Roll Book
 Removal from the Roll Book
- 20 day drop
- Transfer
- Destination unknown
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Carl N. Friedman
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.emsc.nysed.gov/sss/Attendance/
Matrix-AttLawsRegs.htm
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