Each fall, a number of school-age children in New Jersey are denied admission to public schools because of disputes about where they live. Many of the students denied admission to a school are, in fact, eligible for enrollment. Some children are mistakenly denied because they are not able to produce written leases, or because they cannot show that their homes have certificates of occupancy. Other children are wrongly denied because of their immigration status. This article explains some of the basic rules regarding school residency requirements.
Right to Free Public Education for Students Ages 5-20
All children who live in New Jersey and are between the ages of 5 and 20 have a right to a free public education. These children have a right to attend public schools in the school districts where they live. This includes children who are undocumented aliens and immigrant children who do not have permanent resident status or citizenship. This also includes children who are unable to provide written leases or certifications that the apartment where they live complies with all local ordinances and codes.
Note: Some children younger than 5 and older than 20 also have a right to a free public education. One example is children who have disabilities and are receiving special education and related services. Another example is children living in certain low-income school districts, known as Abbott Districts, where the district must provide public preschool.
To enroll in public school, students must show that they are residents of the school district. There are special rules and procedures that school districts must use when determining where a child may attend school. These rules and procedures include a right to appeal when a school denies admission. School districts must allow students to attend the school during the time that it takes to decide the appeal.
Homeless children are entitled to certain rights and protections when they try to enroll in school. To learn more about the rights of homeless children, please see Rights of Homeless Students.
Who can attend school in New Jersey?
All school-age children who live in New Jersey have a right to a free public education from kindergarten through 12th grade. In 1982, the U.S. Supreme Court ruled in a case called Plyler v. Doe that undocumented children and young adults have the same right as U.S. citizens and permanent residents to attend school. Like other children in New Jersey, undocumented students are required to attend school from age 6 to 16. Public schools cannot deny free admission to students because of their immigrant status. (There is one exception to this rule. A student who is in the United States with an F-1 Visa for the sole purpose of attending a public high school is not entitled to receive a free public education.) Public schools may not treat immigrant students differently in order to prove residency. A public school cannot deter or discourage a student from enrolling by threatening to contact the Department of Homeland Security-United States Citizenship and Immigration Services (USCIS) [formerly known as the Immigration and Naturalization Service (INS)]. A public school cannot ask for proof of immigration status as a condition of school enrollment.
Where can a child attend school in New Jersey?
A child between the ages of 5 and 20 (or younger than 5 and older than 20 as explained earlier) must be admitted to a public school in the school district where the child is living. The place where the child’s parent or legal guardian is living is called a domicile. Once a student and his or her parent or legal guardian live in a district for one year or more, they are considered domiciled within the district for the purposes of school enrollment. If a student’s parents live in two different places, then the student’s domicile is the parent’s home where they spend the majority of their time. Usually students must attend school where their parent or legal guardian lives. In certain circumstances, a student may attend school somewhere else when someone who is not their parent or legal guardian is caring for them. These students are called affidavit students.
A student has the right to go to school in the district where his or her parent or legal guardian is residing, even if the home is temporary. A district may ask a parent or legal guardian to show proof that the reason the student is living there is not just so he or she can attend school in the district.
What is an affidavit student?
An affidavit student is a student who lives with someone other then a parent or legal guardian and wants to attend school in the district where that person lives. The person they live with (caretaker) must support them without any payment for their care.
How can a child qualify as an affidavit student?
In order to qualify as an affidavit student, the student’s parent or legal guardian must file an affidavit (a sworn statement) along with supporting documentation. The parent or guardian must show that he or she cannot support or provide for the child due to a family or economic hardship. The affidavit must also state that the student is not living with the caretaker solely to attend school in that district.
A school district may also require that a caretaker file an affidavit. The affidavit must state the following:
- The caretaker lives in the district.
- The caretaker financially supports the student without payment.
- The caretaker plans to continue to support the student for more than the school year.
- The caretaker will be responsible for all of the student’s personal obligations related to school requirements.
- The caretaker may also have to submit a copy of his or her lease if he or she is a tenant or a statement from the landlord if there is no written lease.
Even if there are no affidavits, the school must enroll the student if the above requirements are established.
Schools cannot deny admission when the evidence shows that the student has no home or possibility of attending school other than with the caretaker.
A parent or legal guardian is allowed to give gifts or limited contributions (cash or otherwise) for the welfare of the student. A school district cannot use parental gifts or limited contributions as the only reason to find a student ineligible. Courts have interpreted gifts and limited contributions in different ways. For example, in at least one case a caretaker was permitted to receive child support payments from the child’s parent. The court reasoned that the child support was to benefit the child and not the caretaker.
How can students prove that they are domiciled in a school district?
School districts must accept a variety and combination of documents in order to show where a student lives and is entitled to attend school. Specific examples of documents that can be used include:
The law allows parents and legal guardians to use other documents as proof of where they live. Other documents may also be used to show that a student is cared for in a particular school district. A parent, legal guardian, or caretaker can also submit an affidavit stating where they permanently live.
Can a school request proof of immigration status or income tax returns?
School districts cannot request certain types of documents as a condition of enrollment. A school district cannot ask for documentation about immigration status, including passports, green cards, or other immigration-related information (except for F-1 Visa holders, explained above). A school district cannot require a student or parent to have a Social Security number. A school district cannot ask for income tax returns or require a Certificate of Habitability or a Certificate of Occupancy. A school cannot deny admission because it believes that an apartment violates zoning or housing codes.
The Family Education Rights and Privacy Act (FERPA) does not allow schools to provide any outside agency—including USCIS—with any information from a child’s school file that would expose the student’s undocumented status, without first getting permission from the student’s parents. The only exception is if the agency gets a court order—known as a subpoena—that parents can then challenge.
Can a school remove a child from school if it thinks that the child’s residence has changed?
Yes, but districts must first follow certain rules. Schools are allowed to investigate a student’s residency status and ask for current proof of eligibility. If a school thinks an enrolled student is no longer eligible to attend the school, they have to ask the board of education to remove the child from the school. The child’s parent, guardian, or caregiver (if an affidavit student) has the right to have a hearing before the board of education. Before the hearing, the district must give written notice that tells why the district is challenging the student’s residency. This notice must also meet the notice rules that are outlined below.
At the hearing, a parent, guardian, or caregiver will have the chance to show that the student is eligible to attend the school (see the sections above explaining where a student is domiciled and affidavit students). At the hearing, a parent, guardian, or caregiver should bring any witnesses who can testify about the student’s residency or eligibility as an affidavit student. Any documents that support the claim should also be brought to the hearing.
After the hearing, the board of education must make a decision and send written notice of its decision. In order to decide to remove the student from school, the whole board of education must vote at a public meeting.
How can a parent, legal guardian, or caregiver appeal a denial of admission or continued enrollment?
The parent, guardian, or caregiver (if it is a case involving an affidavit student) must prepare a petition. If the parent, legal guardian, or caregiver files the petition pro se (without a lawyer), then the petition can be in the form of a letter. The letter must contain the following information:
- The name, address, and telephone number (if available) of the person filing the appeal (known as the petitioner);
- The name of the district board of education (known as the respondent);
- A statement that this is an appeal from a determination of ineligibility to attend school in the district based upon residency or domicile;
- The date when the determination of ineligibility to attend school was made; and
- A signed statement by the petitioner that the claim or entitlement to attend school is based upon facts that are true to the best of the petitioner's knowledge and belief.
You can file a pro se appeal (where you represent yourself without an attorney) with the Bureau of Controversies and Disputes at:
State Commissioner of Education
c/o Director of Bureau of Controversies and Disputes
New Jersey Department of Education
100 Riverview Plaza
P.O. Box 500
Trenton, NJ 08625-0500
If possible, a copy of the papers should also be faxed to the Controversies and Disputes office at (609) 292-4333. You may call that office at (609) 292-5705 to ask questions about filing.
The Bureau will fax a copy of the petition to the district board. It will also send the district a notice requiring the school board to answer the petition and to ensure that the child attends school pending the outcome of the hearing.
The school board has 20 days from the date of service to respond to the petition. Once the board’s response has been given to the petitioner and filed with the Commissioner, the case will be scheduled for a hearing before an Administrative Law Judge, who will make an initial decision. The case will then go to the Commissioner for a final decision.
When a claim goes before the Administrative Law Judge and the Commissioner, there are a few things the petitioner should know:
The petitioner is responsible for proving that the student is eligible for a free public education in the district.
If the Commissioner decides the case in the petitioner’s favor, the student can attend public school in the district until graduation, as long as he or she continues to meet the legal requirements for residency.
If the student is an affidavit student, the board of education might require the parent, guardian, or caregiver to provide statements every year showing that the student’s family or economic circumstances have not changed.
What school will a child attend while waiting for an appeal to be decided?
If a school denies admission, it must give the parents or guardians written notice of ineligibility. The notice must clearly describe the reason why the child is not eligible. It must also specify what law or part of the law is the basis for the denial. If English is not the applicant’s native language, the school must also give notice in the applicant’s native language.
An applicant who disagrees with the school’s decision has a right to appeal the denial within 21 days of the date of notice. If the parent or caregiver intends to appeal the decision, the student must be allowed to attend school while the appeal is processed and decided. (They may be charged tuition for the time that the child attends school if they lose the appeal. See below.)
What happens if the Department of Education agrees with the school district and finds the child ineligible?
If the Commissioner of Education decides against the petitioner, the petitioner could be required or asked to pay tuition to a school district for the time the student attended public school there. For example, if the case is lost and the district spends $6,000 per student each year, and the student attended the school for 90 days while the case was pending, then the parent, guardian, or caregiver could be required to pay $3,000 to the district. A school board can collect tuition from a parent or guardian, or from a caregiver who resides in the district, for any period of ineligible attendance, even if an appeal is not filed. Under certain circumstances, a school board or the Commissioner of Education may decide not to charge tuition.
Contact the Education Representation Project
For additional information, contact Legal Services of New Jersey’s Education Representation Project by calling LSNJ-LAW™, Legal Services of New Jersey’s statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529). You can also write to:
Legal Services of New Jersey
Education Representation Project
P. O. Box 1357
Edison, New Jersey 08818-1357
This article appeared in the September 2010 issue of Looking Out for Your Legal Rights®.
This information last reviewed 8/2/10. |
