Tuesday, January 18, 2011

School Law: What if I want to send my child to a School in another district? The view from both Illinois & Indiana

One of the most important things a parent can do is to provide his/her child with a good education.  Here in the U.S., children are provided an education that is primarily government subsidized through the public school systems.  But the ability to attend a particular school is determined by whether the student’s family resides within the geographic boundaries of the district. Unfortunately, many people (particularly poorer families residing in urban areas) live in school districts where the schools are inadequate at best.  How can parents find a way to get their children a better education?  

The most obvious way is for the family relocate to a better district.  But many families can’t afford housing in a more upscale neighborhood, or, in today’s economy, can’t sell their home for enough to make the move.  If the family stays put, a private school is an option, but the expense there can be too much, or the student might not meet admission requirements.  The family could try home schooling, but if both parents work, this is near impossible.
The last solution is one many families choose -- to simply enroll their kids in the better public school district, even though they don’t live there.
Of course, in most cases, in Illinois, this is illegal.  I used to represent several public school districts in the southern suburbs of Chicago.  Each semester, these schools discovered dozens of children sent by their parents from inner city Chicago neighborhoods to attend school in the suburbs.  To these parents the risk of being caught breaking the law was worth it -- the schools and neighborhoods were safer, and the quality of the education was infinitely better. 
But the cost to the school districts where these “cheaters” enroll can be astronomical.  According to a recent article in the Illinois Bar Journal, the average cost to taxpayers per student in the Chicago suburbs ranges from $7,000 to $10,000 per year.  But if the student is in special education, and requires additional service, the cost can skyrocket to five or six times that amount.  The cost of educating each student is presumed to belong to the district in which the student lives.
What happens when a student is “caught” attending school in a district where they don’t live?  In Illinois, the school will notify the family that tuition (that is, the school’s cost of educating that student) must be paid.  A family that objects and claims the child legitimately resides in district has an opportunity for due process.  But proving the child meets the residency requirements is a lot tougher than showing the kid lives in a domicile in the district. 

Illinois law provides that in order to prove residency in a public school district, the parent or legal guardian of the child must show 1) that they have legal custody of the child and 2) that the student resides in the district for purposes other than merely attending school.  

Under the school code, a minor child is presumed to reside with its parents, or custody can be established by a court order, guardianship, or custody by an adult exercising legal responsibility for the student.  But the school code is clear a custody arrangement created for the sole purpose of the child attending school in a particular district is NOT valid.  

This last concept is the biggest hurdle in Illinois.   Generally, the Courts strictly uphold this rule.  So simply having your child move in with Grandma or another relative isn’t enough.  Even if that relative has been appointed a legal guardian.  Even where there might be some other valid reason for the child to stay with the relative.  If the family can’t prove a legitimate, non-school related reason for the move, there is a good chance the family will be handed a tuition bill. 

Sometimes, the circumstances are compelling enough to sway the courts.  Sometimes broken homes and financial difficulties force the parents to send the child elsewhere.  Where the totality of the evidence shows the child’s residency is necessary for a steady or secure family life, the courts might rule in favor of establishing residency in a home other than the parents’.  For example, if a single mother abandoned a child, the father is unknown, and the child ends up living with the mother’s sister in a more affluent district, the school might be hard pressed to claim the custody was solely school related.  But each case is decided on its facts, and the courts tend to favor the schools. 

There are some special rules in Illinois which allow homeless children to attend school where that child lived before they became homeless, or where they are actually living at the time, though there have been instances where districts have refused to enroll students who can’t show residency because they technically don’t have one.   In today’s foreclosure crisis, this issue may become more acute. 

Then there are the Illinois parents who attempt to establish a second residence themselves.  Rather than have the kids live with Grandma in the swanky suburb, one parent will rent an apartment in order to get their child into a better school, while the rest of the family stays in the longstanding family home.  Illinois law on residency, however, requires both a physical presence and the intent to make that domicile a permanent residence.  For example, if only one parent moves with the child, or if the family resides together in the established home on weekends, leaving the apartment vacant at times when school is not in session, the Courts have not treated the arrangement favorably.  Of course, in the case of a divorce, it may be easier to show the reasons for a child to move to the other parent’s abode -- though if there is joint custody, the parents still might have to prove which house the child regularly spends his nights.  But in any case, if the family cannot prove the child regularly sleeps in the abode other than to have access to educational programs in the district, there could even be a tuition bill where there IS a family residence in the district.

What about Indiana?  Those of us dealing with this situation in the southern suburbs of Chicago can gaze over the state line and see a slightly different picture. While the concepts are similar, Indiana law is not quite so strict.  And a recent change allowing school districts (called “school corporations” in Indiana) to “loosen up” residency requirements has really changed the rules completely.
Traditionally, a public school student in Indiana could attend school tuition free in the school corporation where he/she established “legal settlement.”  “Legal settlement” was generally defined as where a student’s parents resided, or the resident of a legal guardian.  A student could attend school in a corporation where he/she did not reside if the student or his/her parents paid transfer tuition to another school corporation and the second school corporation is willing to accept the student (similar to Illinois’ rules); the student could demand to be “better accommodated” in another school corporation; or the student might have been placed in a licensed health care facility, child care facility, or foster home in an area outside the student's legal settlement.

The concept of “better accommodation” was designed to allow for a student who was pursuing a particular vocational training program or college preparatory course, and their home school corporation did not offer such programs.  The student could be allowed to transfer to the district that offered the necessary classes.  Other issues that could allow for a “better accommodation” transfer were overcrowding, a medical/disability need, or if the home school corporation lost its certification.  If the schools were not cooperative, all this would have to be argued and proved in court.  But if the transfer for “better accommodation” was granted, there was no need to pay the tuition.  (Illinois has a procedure similar to this for special needs students, but it generally will only be allowed for children that are in special education and require services the home district can’t afford to or doesn’t have the capacity to provide). 

But then the Indiana School Law was amended effective July 1, 2010 to allow for what some school officials are calling “open enrollment.”  It’s really not “open,” by any means.  But the new law allows schools to accept students from other districts for cash tuition.  However, each school corporation is allowed to establish its own cash tuition policies, require parents to adhere to them, or decide to not accept students from outside the district at all.  The Legislature has pretty much left the details of how this will work up to the individual school corporations. 

I have heard rumors that one of the top-rated school systems in Lake County Indiana is openly promoting its cash tuition options -- in effect, advertising for students from other school districts to choose to transfer there, despite not living in that municipality.  How can this be? 

Last year, the Indiana legislature changed the way schools are funded.  Before last year, if a parent wanted to send their student to a school corporation different from their “legal settlement,” the family would be responsible to pay the equivalent of the per-pupil cost of in new school, based on what the school collected in local taxes.  But now, public education is pooled into a statewide “general fund.”  Thus, public education in Indiana is now funded at the state level by more than just property taxes, rather than at the local level.  This means that as long as parents elect to make this choice, and the new school accepts them before final enrollment figures are established in early September of each school year, there will be little or no extra “tuition” that will be required.  Indeed, all the family will probably be liable to pay is the difference between the per-pupil cost in their home school corporation and the new one, if any. 

This is truly a radical concept.  But there are limitations.  As mentioned, the school could adopt objective policies to screen potential students, such as minimal academic thresholds.  As long as it’s objectively fair, it’s allowed.  The old “better accommodation” standards are still available, but probably won’t need to be invoked much anymore.  Plus, once a student is accepted by a new school, the school can’t revoke that enrollment; the “legal settlement” is established in the new school corporation, regardless of where the student lives.  (Of course, the student could still be excluded for disciplinary or health reasons, as was true in their home corporation).  The one big hitch in this concept is athletics.  No “cash tuition” transfer to a new school will be allowed if it appears it was done primarily for athletic reasons, and the student involved will be barred from interscholastic sports at the new school. 

So there is a stark contrast between the public school residency requirements of Indiana and Illinois.  In Illinois, a parent takes a legal risk by trying to enroll his/her student to a school district in which they do not live. For under Illinois law, a family that sends a student to an out-of-district school without paying for it commits fraud.  There is also a risk that a family which legitimately meets the residency requirements could be accused of violating the statute in instances where the facts are questionable, e.g. a student coming to live with his divorced father when he starts high school after years of living with his mother.

Indiana, on the other hand, is blazing a new trail in the world of “school freedom, allowing students to attend a school corporation in a town or county they do not live in as long as they are willing to meet certain criteria established by the school and are willing to pay the difference in the tuition.  But this is an untested concept.  Will many students actually make the switch?  How will this affect the poor performing schools?  Will the “prime” schools face overcrowding? What happens when a school turns away students that objectively seem to qualify?  Only time will tell whether the new Indiana “cash tuition” program will succeed.  

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