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SEE YOU IN COURT! - April 2012

CABE Journal

April 2012

Authors: Thomas B. Mooney

The budget of the Nutmeg Public Schools has been tight for the last five years, and Mr. Superintendent has been running out of ways to cut costs. He was, therefore, intrigued when a local busybody sent him a list of three students who allegedly did not live in Nutmeg. He got right on it to see how many students he could send packing.

The first case was straightforward. The student’s parents had moved back to Venezuela, and the student was living with his uncle in Nutmeg. Mr. Superintendent promptly sent the uncle a letter informing him that the student was excluded and should not return upon pain of arrest for trespassing.

The next case was harder – the student’s family owned a house in town, but they were living in a motel in a neighboring town while their house was renovated. Mr. Superintendent saw an opportunity for a little revenue, and he called up the father and told him, “We know how your son is sneaking into our schools, and we understand that you don’t want to withdraw him. So just for you, we will permit your child to continue to attend school in Nutmeg upon your payment of the tuition for the year.” The father was apoplectic, protesting that he was a taxpayer and that he and his family would soon be returning to their home. But Mr. Superintendent was unmoved, and he informed the father that he expected to receive a tuition check by the end of the week.

In the last case, the address did not match up with any residential housing, but rather was in a commercial zone. Again, Mr. Superintendent simply sent a letter excluding the student from school. Even if the student lived “above the store,” he figured, the family was in violation of zoning regulations.

Mr. Superintendent thought that he had expediently cleared out some non-residents, and he was very surprised to receive a nastygram from local legal scourge Bill Alot. In his letter, Attorney Alot demanded that a hearing be held before the Nutmeg Board of Education to review Mr. Superintendent’s “illegal and discriminatory actions” in excluding the Venezuelan student. In addition, the parents of the student whose house was being renovated filed their own appeal, and they even asked for a stay of execution, to permit their child to continue in attendance while the appeal is heard.

Mr. Superintendent was now having second thoughts about his actions. He figured he needed guidance from the Board, and during the executive session at the end of the last meeting, he kept the Board for another few minutes to tell them about these cases. For once, veteran Board member Bob Bombast was totally supportive of Mr. Superintendent’s actions. “You have my vote,” Bob pledged. “We have to draw the line somewhere.” The other Board members murmured their assent, and they and Mr. Superintendent agreed that they would hold any hearings as necessary to make sure that these students either paid tuition or got out of town.

Does the Board have anything to worry about? 
  
                                                                *        *        *

Yes. Mr. Superintendent and the Board should be worried about at least three different things. First, the right to attend school is an important expectation, akin to a property right. Before a student can be denied that right school officials must give the affected student and his/her family notice that they are deemed not eligible for school privileges. That notice must also inform them that they may appeal and that their child has the right to attend school pending the outcome of that appeal. Simply sending letters excluding these children from school was a due process violation.

Due process also requires an impartial decision-maker. Here, it was inappropriate for Mr. Superintendent to talk with the Board members ex parte about these cases, and Bob was way off base to pledge his support to Mr. Superintendent before he even heard the parents’ side of the story. Board members hear these cases as impartial judges, and they must not talk with administration about the facts of the cases ahead of time. All discussion of the facts should occur at the hearing.

On the merits, Mr. Superintendent’s decision-making was also flawed. We start with the basic premise that there is a strong public policy in favor of educating children. If a child is physically present in a school district, there is a presumption in favor of his/her eligibility to attend school. Issues such as where the parents live, zoning and even immigration status do not affect a child’s right to attend school. The critical question is where the child actually resides. The student whose parents returned to Venezuela, for example, is entitled to attend school in Nutmeg as long as he can show his residence in Nutmeg is permanent, provided without pay and not for the sole purpose of education. With the student’s parents gone, Mr. Superintendent was hard-pressed to say where the student should otherwise be attending school.

School boards have more discretion when a student is moving into or out of the school district. Most school boards have special rules for such situations, such as permitting the student to complete the school year after the move (provided that the parents provide transportation). Some boards even permit students to complete their senior year if the move occurs anytime during the junior or senior year. Those are policy judgments, however, and students are legally entitled to attend school in a school district only when they reside there.

The converse situation can be problematic. Parents may present their children for enrollment based on the fact that they are building or renovating a house in the district. The legal duty to enroll the student does not arise until the family is actually in residence. However, many boards of education make accommodations so that the student need not transfer mid-year. Such accommodations may include an agreement for reimbursement of tuition if the family does not in fact move in by the deadline set. By contrast, the student in the family that was temporarily displaced during renovation retained the right to attend school, because the family’s residence never changed. Indeed, the school district in which the motel was located had the better argument to exclude the student, since the family’s stay in the motel was temporary and did not establish residence. Motel stays of homeless families is a different story, however, and homeless children must be admitted to school while we figure out who is responsible.

Finally, the temptations of executive session once again caused a problem. Public agencies can discuss matters in executive session only if the item is on the agenda, is privileged to executive session, and the reason for the executive session is announced before the executive session. Here, there is no indication that any of these requirements were met as Mr. Superintendent informally filled in the Board members on these residency issues at the end of the executive session.

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