Education Law Perspective: Contending with Residency Issues in Public Schools
GOOD Morning Wilton welcomed a new contributor this summer, Wilton resident and attorney William Lalor, whose practice includes education and employment law, among other areas. He’ll be sharing his thoughts on those topics periodically in ways that we hope will help our readers.
Now that another school year (cue the parade!) begins next week, it seems worth revisiting a basic aspect of public school education in Connecticut, which is residency. For most of us, residency is an issue we never really think twice about. But school districts do question residency in some circumstances, and any parent or guardian of a student on the periphery of “residency” in a school district can face difficult legal questions.
Connecticut statutory law requires public schools to provide a free public education to “resident” students. This issue arises frequently enough in Wilton, often because families want to be able to send their children to Wilton’s exceptional schools. The issue of residency can arise in the context of a move, a temporary living arrangement, and a divorce, to name a few situations.
It took a Connecticut Supreme Court decision in 1890 to say that the word “residence” as used in the statute means (wait for it…) “residence” in the “ordinary and popular meaning of the word.” In other words, Connecticut applies something of a “stink” test: if, on a commonsense level, a student is a “resident,” the student is a “resident” for purposes of Connecticut law. Aren’t lawyers fantastic?
There are some important procedural points affecting how and when residency and eligibility may be addressed. The first is good news for parents or guardians who may be concerned about residency: By statute, an enrolled student is entitled to written notice and a hearing before privileges can be revoked by the district. (More on this below.)
The second point is not as good news as the first: If residency is challenged by the district, the student “shall have the burden of proving residency by a preponderance of the evidence,” (i.e. more than 50%).
Although questions about residency can arise in numerous situations, here are some common situations I have been asked about:
- We live outside of town, but we purchased a lot in Wilton [or are renovating a home before we move in] and (dagnabbit) we are paying property taxes. Can our kids attend school here?Answer: No–or, to be more exact, not just because you purchased real property in town. (There is a 2012 Connecticut Supreme Court case on this, but if I discuss it in much detail, you’ll probably stop reading and never return.) The short version is that property ownership does not really matter. This makes a lot of sense, I think, given what the statute says.
- I am divorced or separated, and my child spends time in two households, only one of which is in Wilton. Can my child attend school here?
Answer: As long as the student is residing in town, i.e., in the “ordinary” sense, then yes. School districts typically will not count days where there is a bona fide situation, such as shared custody, that results in the student splitting time between parents. Set aside legal “custody”; what matters is where the student spends time, and if either parent lives in town, this should suffice to establish residency. In most situations, districts, boards, and even hearing officers are not going to hassle students and inventory how many exact days they spend with one parent here versus the other parent there.
- I live outside of Wilton, but my children live with their Auntie Em in town. Can they attend school here?Answer
: It’s complicated. This question comes up frequently, which is why Connecticut has attempted to legislate an answer: a student may attend school in town despite their parents’ living elsewhere only if the residence is intended by the relative and by the parents to be (1) permanent; (2) provided without pay; and (3) not for the sole purpose of obtaining school accommodations. (The standard is not the same one applied to students living with parents in a shared custody situation.)Here, things get a bit messy.
Each of these requirements is the subject of state or other guidance that expand and explain them, e.g., if “Auntie Em” really is just the name of the LLC running a boarding house, there is no residency. But the most complex requirement is the first–“permanent”; in considering whether a claimed residence is “permanent” in this context, a district should account for eight factors under state DOE guidelines. These factors range from reasonable points (e.g., where most of the student’s stuff is located) to the mundane–perhaps outdated–points (e.g., where the student has a library card).
Challenges to residency can be harrowing and emotionally difficult for families, and counsel are often asked to become involved because the procedures mimic formal litigation. But the process, by design, is straightforward and solicitous toward families and students who may be impacted. Hearings are not all that complex, either, and savvy parents can represent themselves with the right input and preparation.
The procedural aspects of Connecticut law are generally meant to allow for a fair opportunity for the student to be heard and to provide basic safeguards. They are intended for self-represented parents and guardians to be able to make their case and present evidence in an informal and fair setting.
For instance, a district cannot unilaterally suspend or eliminate privileges. Rather, it must (in writing) advise the parents or guardians of their right to request a hearing before the Board of Education (or the Board’s designee or subcommittee). If such a request is made, the hearing must take place within 10 days of the Board’s receipt of the request.
Although the parent or guardian bears the burden of proof in establishing residency, the Board must make an eligibility determination within 10 days of any hearing. Moreover, a student who is enrolled and whose eligibility is challenged is entitled to remain enrolled while the issue is decided, although this is subject to tuition recoupment if there is an ineligibility determination.
All of this is provided in the Connecticut statutes, although I’ll just warn everyone that if you attempt to read the statute, your eyes will probably fall out of your head.
Parents and districts also have appeal rights before the State Board of Education and, following that, to the Connecticut courts.
As with other education-related issues, parents can retain counsel to either act on their behalf or provide advice “behind the scenes” in preparation for an eligibility hearing. Appeals can be much tougher for parents to handle on their own, especially when the formalities of the court system become involved.
Bill Lalor is an attorney in Wilton. He can be reached via email. (The foregoing is informational and intended as background only. It does not constitute legal advice.)