Legal aspects of attendance and student records

1. Legal aspects of attendance and student records OAEP Fall Conference North Point Conference Center October 24, 2013 Presented by: Rhonda Porter, General Counsel Akron Public Schools

2. Overview • Attendance(R.C. 3313.64) • Residency • Parent defined • Custody • Grandparent Caregivers • Court Placed Students • Residency Disputes • Situations Impacting Attendance • Student Records • Who is considered a “parent” for purposes of obtaining access to student records? • FERPA

3. Residency “One cannot establish a residence merely by purchasing a house or apartment building or even by furnishing such a house or apartment . . . Residence involves something more. It must be a place where important family activity takes place during significant parts of each day; a place where the family eats, sleeps, works, relaxes, plays. It must be a place, in short, which can be called home.” -Kenton Bd. of Educ. v. Day, 506 NE2d 1239 (CP 1986)

4. Residency Check List… • Where does the individual sleep the majority of the time? • Where does the individual receive mail? • Where are the individual’s meals eaten? • Where is the individual registered to vote? • NO ONE FACTOR IS CONTROLLING. The conclusion must be reached considering all of the circumstances present. -Kenton Bd. of Educ. v. Day, 506 NE2d 1239 (CP 1986)

5. “District of Residency” (R.C. 3313.64) • A child (who is at least 5 but under 22 years old or a pre-school disabled child) shall be admitted to the schools in the school district in which the child’s parentresides. • R.C. 3313.64(B)(1)

6. Parent Defined (R.C. 3313.64)(for school attendance purposes) • Either natural parent (if married) • A parent who is the residential parent and legal custodian of the child (if separated or divorced) • *Mother(if unmarried) • *Grandparent(if executed grandparent caregiver affidavit or power of attorney) • Parent with residual parental rights, privileges, and responsibilities (if child is court placed into the legal custody of a gov. agency or a person other than a natural or adoptive parent) • Parent who was divested of parental rights… (if child is court placed into the permanent custody of a gov. agency or person other than a natural/adoptive parent)

7. Divorced/Separated Parents • Divorced parents will have a court order designating rights and responsibilities. The parent enrolling the student must provide this document. • Two primary senerios… • (1) one parent is named as the sole residential parent and legal custodian; or • (2) the parents have entered into a shared parenting plan

8. Shared Parenting Plan (R.C. 3109.04)(Residential parent and legal custodian) • If an order is issued by the court provides for shared parenting of a child, both parents have “custody of the child” or “care, custody, and control of the child”, to the extent and in the manner specified in the order. • Designation of one parent as “the residential parent for the school purposes” or “custodial parent for tax purposes of claiming the child as a dependent” or “residential parent for purposes of receiving public assistance” does NOT affect the designation that each parent is the “residential parent,” the “residential parent and legal custodian,” or the “custodial parent of the child.

9. Unmarried Female (R.C. 3109.042) • An unmarried female who gives birth to a child is the sole residential parent and legal custodianof the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian. • A court designating the residential parent and legal custodian of a child described in this section shall treat the mother and father as standing upon an equality when making the designation.

10. Who’s your daddy? • R.C. 3313.64 appears to allow for students of parents who have never married to attend (tuition-free) the schools in the district where either parent resides.

11. Grandparent Caregiver • Grandparent caretaker law creates two legal documents, both of which must be notarized and filed with the juvenile court within five (5) days of their execution • Grandparent Power of Attorney (RC 3109.52) • Caretaker Authorization Affidavit (RC 3109.65) • Both documents terminate after: • the child ceases to reside with the grandparent; • the document is terminated by court order; OR • the grandchild or grandparent dies. • POA also terminates if person who created it revokes it in writing. • Affidavit can also be terminated if person acts to negate, reverse or otherwise disapproves an action/decision of the grandparent.

12. Court Placed Students (abused, neglected, dependent) • The Court, at the time it orders the removal of a child from the child's own homeor vests legal or permanent custody of the child in a person other than the child's parentor a government agency, shall determine the school district that is to bear the cost of educating the child. • The court is required to make the determination a part of the order that provides for the child's placement or commitment. That school district shall bear the cost of educating the child unless and until the department of education determines that a different district shall be responsiblefor bearing that cost • R.C. 2151.362

13. Aunts, Uncles, Cousins, Family Friends… • WATCH OUT FOR… • Notarized statements • Attorney letters • Notarized letters from a parent giving custody to relatives or family friends • MOTIONS filed with the juvenile court seeking legal custody • ANY document presented as a “court document” that is NOT signed by the judge *The Ohio Attorney General has ruled that a notarized statement signed by a parent is insufficient to transfer legal custody; a court order is required (1995 OAG 032).

14. Other forms of custody

15. Legal Custody (R.C. 2151.011) • a legal status that vests in the custodian the right to have physical care and control of the child … to determine where and with whom the child shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and medical care, all subject to any residual parental rights, privileges, and responsibilities...

16. Permanent Custody (R.C. 2151.011) • a legal status that vests in a public children services agency or a private child placing agency, all parental rights, duties, and obligations, including the right to consent to adoption, and divests the natural parents or adoptive parents of all parental rights, privileges, and obligations, including all residual rights and obligations.

17. Guardianship (R.C. R.C. 2151.011) • a person, association, or corporation that is granted authority by a probate court pursuant to Chapter 2111. of the Revised Code to exercise parental rights over a child to the extent provided in the court's order and subject to the residual parental rights of the child's parents.

18. Guardianships • Why are guardians appointed? A guardian is appointed by the court to oversee the legal and financial affairs (and/or the personal care) of a minor, or of an adult who is not able to manage his or her own affairs because of advanced age or some other physical or mental disability. • Under Ohio law, a guardianship is an involuntary proceeding when family members or others ask the probate court to protect someone who appears to be incompetent.  • Once appointed, a guardian is answerable to the court for providing proper care and management of the ward’s affairs in the ward’s best interest. • O.R.C. 2111.03(c) and Reference Materials, Tab 6.

19. Guardianships • An individual appointed as guardian of the person of a minor, pursuant to RC Chapter 2111., has "legal custody" of the child, as that term is used in R.C. 3313.64. • Pursuant to RC 3313.64, a child who is in the legal custody of a guardian shall be admitted to the schools of the district in which the child resides: OAG No. 83-041 (1983). Santosky v. Kramer (1982), 455 U.S. 745

20. *Guardianships initiated for the purpose of admitting student into a particular school district • An application for the appointment of a guardian who resides in a different school district from that of the minor child's parents for the sole purpose of bringing the child within the purview of a statute which requires the schools of each city to admit wards of actual residents of the school district will not be granted when there are no circumstances or conditions which would justify the appointment. In re DiSalvo, 11 Ohio Misc. 259, 227 N.E.2d 441 (PC 1967).

21. Residual parental rights, privileges, and responsibilities • those rights, privileges, and responsibilities remaining with the natural parent after the transfer of legal custody of the child, including, but not necessarily limited to, the privilege of reasonable visitation, consent to adoption, the privilege to determine the child's religious affiliation, and the responsibility for support.

22. Court placed students A child who does not reside in the parent’s district shall be admitted to the schools in the district in which the child resides if the child is court placed into the legal or permanent custody of a government agency or a person other than the child’s natural or adoptive parent. (R.C. 3313.64(B)(2))

23. Court Placement of Students • Once a court identifies the school district of residency (R.C. 2151.362) (i.e., the school district financially responsible) then it loses jurisdiction over the issue of future changes in a parent’s residency for attendance purposes. • If the District determines through its investigation that a student’s parent does not (or no longer) reside within the school district it can petition the Ohio Department of Education and request an official determination of residency.

24. Disputes Over Residency of Court Placed Students (R.C. 3313.64(K)) • Disputes often arise regarding the residency because it is intertwined with the obligation of another school district to pay tuition. • Investigate • attendance liaisons • private investigators • safety and security personnel O.R.C. 3313.64(J)

25. Disputes Resolution • “In the event of a disagreement, the superintendent of public instruction shall determine the school district in which the parent resides.” O.R.C. 3313.64(K).

26. Enrollment Required Except as otherwise provided in R.C. 3321.10 A child shall be admitted to the schools of the school district in which the child’s parent resides (district of residence)

27. Students Who Do Not Reside in the District Where Their Parent Resides are Entitled to Enroll and Attend Schools in Which the Student Resides if: • The child is in the legal or permanent custody of a government agency or a person other than the natural or adoptive parent. • The child resides in a “home” (a home, institution, foster placement, group home, or other residential facility in the state that receives and cares for children) • The child requires special education

28. When the child requires special education The residence of the parent is important for determining the district responsible for the costs of the student’s education When a district admits a student in special education whose parents do not reside in the district, the school district educating the child may asses tuition The responsibility to serve a nonresident disabled child residing in the district includes a child with a disability placed in a juvenile justice facility, institution, hospital, agency, department, home The only exception to a school district’s duty to educate a child with a disability residing in the district is if the child is already being served by another school district, agency, or other provider

29. Situations impacting student attendance • Adoption (R.C. 3313.64(B)(3)) When a student is placed with a resident of the school district for adoption, the student is entitled to attend schools in that district unless the placement for adoption has been terminated or a another school district is required to admit the child under division (B)(1) of this section. • 60 Day Affidavit (R.C. 3313.64(E)) A board of education may enroll a child (free of tuition) for a period not to exceed 60 days, on the sworn statement of an adult resident of the district that the resident has initiated legal proceedings for custody of the child. .

30. Emancipated Child (R.C. 3313.64(F)(1)) An emancipated child is entitled to attend tuition free in the school district in which the child resides. • A child is not automatically emancipated upon the age of 18. • A child is only emancipated when the child is totally self-supporting. • Living apart from parents and • Supporting themselves by their own labor • Has not successfully completed the District’s high school program or IEP • Case by case basis.

31. Married Student (R.C 3313.645(F)(2)) • Any child under 18 years old who is married is entitled to attend school in the child’s district of residence. • Students are still subject to compulsory attendance laws • Marriage of the student supersedes the child-parent relationship

32. The Emancipated Disabled Child • A disabled child cannot be compelled to attend school once the child reaches 18 years of age. O.R.C. 3321.01 (defining the compulsory school age). • Yet, a disabled child is entitled to a free and appropriate public education until the child is 22 years old. O.R.C. 3313.64(B) (defining the free admission school age for disabled students).

33. Child With Medical Condition (R.C. 3313.64(F)(3)) • If a student has a medical condition that may require emergency medical attention and either parent is employed by an employer located in the district, the student is entitled to attend. • Physician’s statement certifying the student’s medical condition • Board may require additional supporting evidence

34. Student of Military Parent Serving Outside of Ohio (R.C. 3313.64(F)(4) • A child residing with a person other than the parent is entitled to attend school in the district in which that person resides if the parent files an affidavit with the district. • Affidavit must be executed and presented to the District • Cannot exceed 12 months • The Affidavit must indicate the name and address of the person with whom the child is living while the parent is outside the state • Parent must intend to reside in the district upon returning to Ohio

35. Death of a parent (R.C. 3313.64(F)(5) • A student, after a parent’s death, may continue to attend a school in the district in which the student attended at the time of the parent’s death for the remainder of the year if the school board approves.

36. Parent Building a New House in the District (R.C. 3313.64(F)(6) • Student is entitled to attend (tuition free) for up to 90 days • Parent must provide affidavit explaining the situation, designating the location of the house being built and indicating an intent to reside there • Statement from the builder required

37. Parent is Purchasing a Home in the District (R.C. 3313.64(F)(7)) • Student entitled to attend (tuition free) in the district for up to 90 days • Parent must provide affidavit explaining the situation, designating the location of the house being purchased and indicating an intent to reside there • Confirming statement from real estate broker or bank officer required

38. Parent is Full Time Employee of District (R.C. 3313.64(F)(8)) • Board policy (or union contract) must provide for the right of the employee to enroll their child in the school district • Policy must take effect on the first day of school and uniformly apply to all students • Not applicable for admission of students after the first day of classes

39. Student with Parent under Care of Shelter for Victims of Domestic Violence (R.C. 3313.64(F)(9)) • A child who is with the child's parent under the care of a shelter for victims of domestic violence, as defined in section 3113.33 of the Revised Code, is entitled to attend school free in the district in which the child is with the child's parent, and no other school district shall be required to pay tuition for the child's attendance in that school district. • Enrollment may not be denied due to a delay in the receipt of records normally required for admission

40. Parent Moves out of District During Student’s Senior Year (R.C. 3313.64(F)(10) • With Board approval, student entitled to attend the remainder of the year, may continue for additional semester (or longer in order to complete IEP – with Board approval)

41. Student Still in Custody of Parent But Resides With Grandparent (R.C. 3313.64(F)(11)) • A child in the custody of the parent, but resides with grandparent, and does not require special education is entitled to attend the schools of the district in which the child's grandparent resides, provided … • prior to such attendance in any school year, the board of education of the school district in which the child's grandparent resides and the board of education of the school district in which the child's parent resides enter into a written agreement specifying that good cause exists for such attendance, describing the nature of this good cause, and consenting to such attendance.

42. Superintendent Agreement (R.C. 3313.64(F)(12) • A student is entitled to attend school in the school district in which the student is not entitled to attend under R.C. 3313.64(B), (C), or (E) ONLY If the following conditions are met: • The superintendent of the school district the student IS entitled to attend under R.C. 3313.64(B), (C), or (E) contacts the superintendent of another district for purposes of facilitating enrollment of the student • Both superintendents enter into a written agreement consenting to the attendance and specifying that the purpose of such attendance is to protect the student’s physical or mental well-being or to deal with other extenuating circumstances deemed appropriate by the superintendents.

43. Student is Homeless (R.C. 3313.64(F)(13) • “McKinney-Vento Homeless Assistance Act,” 42 U.S.C.A. 11431 et seq. defines “Homeless Children” are children who lack a fixed, regular, and adequate nighttime residence and who are: • sharing the housing of other persons due to loss of housing, economic hardship or similar reasons; • living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; • living in emergency or transitional shelters; • have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings. • Migratory children as defined by Federal law. • O.R.C. 3313.64(F)(13)

44. The District’s Duty to Homeless Students • The parent or guardian shall have the option of enrolling the student in the student’s “school of origin” or the school operated by the district in which the shelter is located Homeless children must be enrolled in their school of choice during the pendency of any disputes on placement, and to provide transportation, upon request, to a homeless child’s school of origin, even if such school is located in another school district. (NCLB) • When the “school of origin” is located in another district, transportation is apportioned between both districts. (43 USC 11432).

45. Homeless Students can… • Enroll in school and attend classes immediately even if they don’t have proof of residence, immunization records, a birth certificate, guardianship records, school records or other documents normally needed for enrollment. • Enroll in school and attend classes immediately even without a parent or guardian. Any student who lacks a fixed, adequate and regular nighttime residence and who is not in the custody of a parent or guardian, including runaway youth, can enroll themselves in school.

46. Military Power of Attorney (R.C. 3313.64(F)(14) • A student who resides with a person other than parent is entitled to attend school in the district in which that person resides provided that… • The person has been appointed, through a military power of attorney executed under section 574(a) of the “National Defense Authorization Act for Fiscal Year 1994,” 107 Stat. 1674 (1993), 10 U.S.C. 1044b, or through a comparable document necessary to complete a family care plan, as the parent's agent for the care, custody, and control of the child while the parent is on active duty as a member of the national guard or a reserve unit of the armed forces, and is on a duty assignment away from the parent’s residence. • The Military Power of Attorney or comparable document must include the authority to enroll the child into school

47. Foreign Exchange Student (R.C. 3313.64(G) • A Board of education, after approving admission, may waive tuition for students temporarily residing in the district who are either of the following: • Residents of a foreign nation who request attendance as a foreign exchange student, or • Residents of the United States but not Ohio who request attendance as participants in an exchange program operated by a student exchange organization

48. Student is Illegal Alien • School aged illegal immigrants are entitled to the same public education that the State offers other children within its borders. See Plyer v. Doe (1982), U.S. 202 • “Denying undocumented or non-citizen children access to a tuition free public education “imposes a lifetime hardship on a descrete class of children not accountable for their disabling status… by denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.” Plyer, 457 U.S. at 223

49. Student records Family Educational Rights and Privacy Act 20 U.S.C. § 1232g F E R P A

50. FERPA overview • A Federal Law that protects the privacy of student educational records and personally identifiable information. • Any school district that receives funds under any program administered by the U.S. Secretary of Education is bound by FERPA. • FERPA prohibits the release of educational records about a student without parental (or eligible student) consent.