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SEE YOU IN COURT! - September 2010

September 1, 2010

The beginning of the school year is an exciting time of the year. However, this year, it has been a little too exciting for the Nutmeg Public Schools. On the first day of school, ten students more than were expected showed up at Acorn Elementary School. When she got the news, Mrs. Superintendent was fit to be tied, given the tight budget. She called Mr. Principal to demand an explanation, but all he could say was that a number of parents came in late in the summer and enrolled their children. Mrs. Superintendent told Mr. Principal that he will have to do better than that, because the Board will go crazy if it has to add a teacher at Acorn Elementary.

Ms. Superintendent was prescient. Veteran Board member Bob Bombast had already heard through the parent network that classes at Acorn Elementary were way too large, and he got right on the telephone with Ms. Superintendent to demand action. When he had heard that a bunch of parents had simply enrolled their children, he expressed shock. “Who’s minding the store here?” he barked. “With our budget problems, we can’t afford all these new kids. What are you going to do?”

Ms. Superintendent tried to explain that all the newly-enrolled students may well be legitimate, but Bob wasn’t buying it. Later that day, Bob forwarded to Ms. Superintendent an email he had received from a “concerned citizen.” The author claimed that one Sammy Student was coming to Nutmeg from his mother’s house in a neighboring town. Bob ended his email with the warning that he expects results.

Ms. Superintendent forwarded Bob’s email to Mr. Principal, who promptly went to work. At the end of the school day, he kept watch from his car in front of the school. When Sammy’s mother picked him up, Mr. Principal gave chase, doing his best to tail her without being obvious. “Gotcha!” he said to himself when he saw Ms. Student get out of the car with Sammy in front of her house in a neighboring town.

When Ms. Superintendent received Mr. Principal’s report, she informed Ms. Student by letter that she would have to withdraw Sammy from the Nutmeg Public Schools, given that he is not a resident. However, Sammy’s mother promptly responded with a request for a hearing before the Board of Education.

The hearing was held last evening. Mr. Principal testified about following Sammy’s mother home out of town. However, Sammy’s mother explained to the Board that she was having difficulty with Sammy and that she had asked her sister and brother-in-law to raise Sammy at their house, which happened to be in Nutmeg. She also claimed that Sammy was just visiting her when they were observed. However, since Sammy is now living in Nutmeg, she argued, he should be permitted to attend Acorn Elementary.

Bob couldn’t wait to pounce on that. In short order, he asked Ms. Student if Sammy was her son, if she had custody, if she lived in the neighboring town, and if she ever drove Sammy to her house after school. When Ms. Student admitted to these facts, Bob turned to his fellow Board members. “See. Sammy is not our responsibility. Ms. Student is the mother, and there is no evidence that she has given up her parental rights. Sammy should be living with his mother and go to school there. Since his mother is not a resident, neither is he. Case closed.”

Some Board members were a little uncomfortable with the abrupt close of the hearing. But they did not dispute Bob’s cogent analysis, and the Board unanimously denied Ms. Student’s appeal. Did the Board get this one right?

*        *        *

Eligibility for school privileges is a lot more complicated than Bob would have the Board believe. Moreover, Bob was off-base in playing prosecutor instead of judge.

The presumption, of course, is that students reside with their parents. When they do so, they are entitled to free school privileges in the district where they reside. However, life is not always simple, and sometimes parents live in different towns. In such cases, school officials must often defer to their claim as where the student lives. The parents have control of the child, and they can change the living arrangements at any time. Indeed, depending upon the circumstances, the student may even “reside” in both towns if he/she spends an appreciable amount of time in both places.

Students may even be entitled to school privileges even though they do not reside with either parent. Conn. Gen. Stat. Section 10-253d(e) sets forth the rule: students living apart from their parents are entitled to free school privileges when such residence is (1) permanent, (2) provided without pay, and (3) not for the sole purpose of obtaining school accommodations. These terms are not self-defining, but school administrators and board members can reasonably interpret them to mean that the residence must be indefinite (not for a fixed term, such as the school year), and the residence should be based on reasons other than attending school.

Notwithstanding Bob’s comments, a parent need not give up custody in such a situation. The question is always where the student “resides” (another term that is not self-defining), not who has custody. We will typically look at where the student sleeps and under what circumstances (e.g., how often, where are the student keeps his clothes, where the student spends vacation periods), irrespective of whether the parent retains custody. Of course, when a parent retains custody of the child, that fact is relevant in determining whether the residence elsewhere may fairly be described as “permanent.”

Given these requirements, boards of education should have rigorous procedures for enrolling students. Those procedures should include a requirement that parents provide proof of residence. Once a student is enrolled, he/she is entitled to remain in school pending hearing and possible appeal, which can take months and even years.

Finally, Board members hear such cases as “judges,” and as such they are required to decide the matter impartially. Here, Bob was wildly inappropriate in acting both as advocate for excluding Sammy (giving the Superintendent information and urging her to exclude Sammy) and then purporting to sit in judgment on the case. Board members must hear such cases with an open mind and base their decision on the evidence presented in the hearing. As interesting as the facts of a particular case may be, board members should leave such matters to the superintendent unless and until the matter comes before them on the parents’ appeal.

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