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Boards of education are increasingly faced with complex student residency issues. Population growth, divided families, and an increasingly urgent desire of parents to get their children into "good," safe school districts have contributed to an increase in student residency debates. Determining whether a student is a bona fide resident of a school district is not made any easier by the lack of clear and concise governing law.

The Illinois Legislature has recently shed light on the issue of student residency by adding an entirely new section to the School Code (Section 5/10-20.12b). The new statute, effective January 1, 1997, defines the term "residency," and also sets forth a detailed hearing procedure to be followed when a parent or guardian disagrees with a school district's student residency determination. It also requires school districts to bill the parents or guardians of students determined to be non-residents.

Prior to January, school districts faced with the unenviable task of determining a student's residency could not look to the School Code for assistance. The School Code did not define the term "residency" and it failed to provide any guidance for school districts when a parent disagreed with a residency determination. School boards were left with a series of Illinois court cases, some dating from the early 1900s, which provided the legal authority for making decisions regarding student residency.

Does the new statute differ significantly from the settled case law regarding residency? How does the new statute help school districts make residency determinations? This article includes a discussion of the provisions of the new statute and recommendations on how to implement them.

The School Code requires boards of education to establish free schools to accommodate students residing within the district between the ages of 5 and 21 years. School boards also are required to charge tuition to non-resident students who want to attend their schools.¹

Before January 1, 1997, Section 10-20.12a of the School Code was the only section that specifically dealt with student residency.² This section remains in the School Code and it provides that boards of education shall charge non-resident pupils who attend their schools an amount not exceeding 110 percent of the per capita cost of maintaining the schools for the preceding school year. The statute further defines how boards of education must compute such per capita cost.

This existing section of the School Code also provides that students who become non-residents during a school year shall not be charged tuition for the remainder of the school term. Provision is made for the payment of educational services for students enrolled in residential drug and alcohol dependency programs.

Glaringly absent from the existing statute is the definition of "non-resident" student. Without a definition of residency, Illinois courts were called on to interpret the statute, and have clearly established that children are presumed to reside in the school district where their parents reside.³

This presumption can be rebutted if the following two factors are proven:

1) Parents have relinquished custody and control of the child;⁴ and

2) The primary reason for such relinquishment must not be to allow the child to attend school in a district where his or her parents do not reside.⁵

It must be noted that a person who resides in the school district must have more than mere custody of the student. The parents must have relinquished any control they have of the student and the person residing in the district must exercise full control. That means the district resident must be the person who makes all decisions regarding the student, including those regarding school, discipline, health or financial issues.

The typical issues in residency cases are whether the parents actually reside in the school district or whether the person who resides in the district and has custody of the student actually exercises control over him or her. School districts must decide those issues on a case-by-case basis depending on the unique facts of each situation.

Often, school districts require guardians to show court orders of guardianship or some other similar transfer of custody. However, Illinois courts have not required a court order or official transfer of guardianship to transfer custody and control. Rather, the determinative factor is whether the child actually lives with a person other than his or her parents on a full-time, indefinite basis and whether that person exercises control over the student.⁶

The courts have acknowledged that custody and control can be transferred on a temporary basis due to family circumstances, such as a single parent recovering from illness. Custody and control is considered to have been transferred even though it is known that it will be transferred back to the parents at some future date. Importantly, case law provides that under no circumstances can the relinquishment of custody and control of a child be made solely to enable the child to attend another school district.

Thus, Illinois courts have offered valuable and much needed guidance to school districts faced with student residency issues. However, more specific guidance was needed on the issue of non-resident students.

Section 10-20.12b of the School Code is an attempt to provide more guidance regarding residency questions. It is a lengthy amendment that appears to codify the existing case law and further provides for hearing procedures when a school district determines that a student is a non-resident.

The new section provides that "[t]he residence of a person who has legal custody of a pupil is deemed to be the residence of the pupil."⁷

"Legal custody" is defined in the statute as one of the following five situations:

This is obviously the most common situation that will occur. In the event that a school district has any doubt about the veracity of individuals claiming to be a child's parents, school district personnel may require such proof. It should be noted that in the case of divorced or separated parents, Section 14-1.11 provides that when only one parent has legal custody or guardianship, the resident district is the district in which that person resides. When both parents have custody or guardianship, the resident district is the parent who claims the child as a dependent on his or her tax return. Although Article 14 covers special education students, there is no reason to believe that there is a different rule regarding separated or divorced parents of non-special education students.

This form of legal custody will not be difficult for school districts to determine since a court order is specifically required.

Likewise, school districts may require a guardian to provide them with statutory short-term guardianship papers and the resulting court order establishing permanent guardianship as proof of legal custody.

This form of legal custody is also not difficult for a school district to determine. School districts may require the adult caretaker relative to provide them with documents from the Illinois Department of Public Aid or other acceptable proof that such aid is being provided to the adult for the benefit of the child.

This definition of legal custody is the one that is open to interpretation. It will be the definition most often relied upon by adults attempting to wrongfully enroll children in school districts. It should be noted, however, that the burden is on the adult to demonstrate that he or she exercises legal responsibility for the student and not on the district to demonstrate that he or she does not.

Keep in mind that the tuition cannot be charged for homeless children¹³ and children placed in the custody of the Department of Children and Family Services (DCFS).¹⁴ In addition, students who become non-residents during a school term are entitled to attend school within the district for the remainder of the school term tuition-free.¹⁵

Last, the resident district of an emancipated child is the district in which he or she resides.

It must be noted that the new definition of residency does not use the term "custody and control" that was used by courts in interpreting the prior law. Instead, the new definition looks to whether the in-district adult has "assumed and exercises legal responsibility" for the student.

This is the area of the statute which will generate the most litigation. Is "assumed and exercises legal responsibility" the same as having "custody and control" over a student? How does a board of education determine whether an adult "assumed and exercises legal responsibility" for a child? Are the factors used by courts interpreting the old statute used? Does exercising legal responsibility simply mean providing food, shelter, and clothing, or does it entail something more like making major decisions in the child's life? Does the adult with custody have to have full legal responsibility or can it be shared with someone else?

Many of these questions will ultimately be answered by case law or amendments to Section 10-20.12b. In the meantime, we believe that the legislature did not intend to create a different standard under "assumed and exercises legal responsibility" as had developed under the "custody and control" definition. Therefore, we believe that the standards developed under the case law are still valid.

In particular, the standard developed under Kraut v. Rachford is useful. In Kraut v. Rachford, the Illinois appellate court held that the child's mother had "relinquished custody and control" of the child to an aunt, in part, because the aunt financially supported the child (i.e. paid for shelter, food, clothing), was to be notified in case of an emergency, disciplined the child, assumed responsibility for damages caused by the child, monitored the whereabouts of the child, decided the child's 'choice of companions', cooked for the child, chauffeured the child, and did the child's laundry.¹⁶ Those factors are prime indicators of legal responsibility and can be used under Section 10-20.12b also. However, they are not by any means the only indicators.

The new statute also requires the in-district adult to provide a "regular, fixed, night-time abode." Does this mean that the child must sleep in the home only on school nights or every night?

Again, there is a case that is helpful. The parents in Connelly by Connelly v. Gibbs did not relinquish custody and control of the student, but that case is still useful regarding the issue of providing a regular, fixed night-time abode. The family in Connelly maintained a "permanent" home in the city of Chicago. They subsequently purchased a condominium in Skokie, Illinois. After purchasing the condominium, the parents enrolled their child in the Skokie School District. The child in question slept in the Skokie condominium on school nights with his father and slept in the Chicago home on the weekends.¹⁷ The child continued to eat the majority of his meals in the Chicago home.¹⁸

The Illinois appellate court held that the student was not a bona fide resident of the Skokie school district even though his parents owned a condominium within the district.¹⁹ The court found that the purchase of the condominium as the child was to enter high school was solely "to provide their handicapped son with what they perceived to be the best education possible."²⁰

Section 10-20.12b probably does not require a student to sleep in the district every night. It should be expected that students will not sever all family ties and will sleep at their parents' house on occasion. However, as Connelly illustrates, the fact that the student sleeps at home on occasion coupled with other facts may indicate that the student is residing in the district in order to attend school there. In addition, the frequency in which a student sleeps at his or her parents house may be an indication that the in-district adult has not actually assumed, and does not exercise, legal responsibility for the student. That would certainly be the case if the student resides at home during the summer or during school breaks.

Section 10-20.12b gives school districts an additional weapon in fighting illegally enrolled students. The statute provides that a person who knowingly enrolls or attempts to enroll a non-resident student on a tuition-free basis or who knowingly or willfully gives the school district false residency information may be charged with a Class C misdemeanor.²¹

Prior to the passage of the statute, school districts had no criminal law provisions to rely on against an individual who attempted to wrongfully enroll a non-resident student on a tuition-free basis. Hopefully, this new weapon will cause people to think twice before they attempt to enroll a non-resident student.

Under the common law, boards of education were required to afford students some measure of due process before they could be denied continued attendance at school on a tuition-free basis:

[I]t cannot be questioned that the Illinois School Code conferred upon plaintiff an interest in attending a school on a tuition-free basis and that the retention of such a benefit is protected by the requirements of due process of law.²²

The new statute provides detailed hearing procedures in the event that a board of education determines that a student currently attending school in the district is a non-resident of the district. It is important to note that Section 10-20.12b requires a hearing for only those students who are found to be non-residents and who are already attending school in the district. It does not require a hearing for students who attempt to enroll in a district but who are determined to be non-residents before they are allowed to attend school in the district.

The board must notify the person who enrolled the student, by certified mail, return receipt requested, that it has been determined that the student is a non-resident. That person must also be informed of the amount of tuition due the district for the period in which the student attended school in the district.

Within 10 calendar days after receiving this notice, the person who enrolled the student may request a hearing to challenge the board's residency determination. This request must be sent by certified mail, return receipt requested, to the district superintendent.

Within 10 calendar days after receiving such a hearing request, the board of education must notify the person requesting the hearing of the time and place of the residency hearing. Again, this notice must be sent by certified mail, return receipt requested. The hearing must be conducted not less than 10 nor more than 20 calendar days after the notice of the hearing is given.

The board of education or a hearing officer appointed by the board shall conduct the hearing. The person who enrolled the student may be represented by the person of his or her choice. Most importantly, he or she has the burden of producing evidence demonstrating that the student lives in the district. If the hearing is conducted by a hearing officer, he or she must send a written report of his or her findings by certified mail, return receipt requested, to the school board and to the person who enrolled the student. The report must be sent within five calendar days of the hearing. Within five calendar days of receiving those findings, the person who enrolled the student may file written objections to the hearing officer's report with the school board by sending them to the superintendent by certified mail, return receipt requested. If the hearing is conducted by the board, written objections may not be filed by the person attempting to enroll the student.

Within 15 days after the conclusion of the hearing (whether conducted by the board itself or a hearing officer), the board of education must decide whether or not the student is a bona fide resident of the district. Essentially, the board of education is either upholding or reversing the administration's prior decision that the student is a non-resident. The school board must send a copy of its decision to the person who enrolled the student. In the event the board determines that the student is a non-resident, it must also advise that person of the amount of tuition owed the district for the period in which the student attended school in the district.

The statute further provides that while a residency hearing is pending, the student in question must be allowed to attend school tuition-free. However, if the board affirms the determination that the student is a non-resident, the board must charge the parent/guardian tuition for the whole period of time that the student was in attendance. In addition, the board has no discretion on whether to allow the student to finish the semester or school year tuition-free. If the board ultimately determines that a student is a non-resident, the school board must refuse to permit the pupil to continue attending school unless tuition is paid.

Hopefully, the provisions of Section 10-20.12b will reduce the number of non-residents who are enrolled in school districts. However, the effectiveness of those provisions depends on the individual school district's level of preparation. School districts would be wise to notify parents and others with custody of students of the provisions found in Section 10-20.12b. This notification should be contained on the form used to enroll students, preferably right above the place for their signature. The Section 10-20.12b information should be in darker or larger type. They should also be warned in the student handbook, enrollment information and any other appropriate documents seen by parents. You may also want to post a notice in the office where students are enrolled.

The notice should advise parents or others who enroll students that if it is determined the student was wrongfully enrolled, Section 10-20.12b requires the District to charge them tuition for all the time the student attended school in the district. They should also be advised of the amount they can be charged for one whole year. Remember, Section 10-20.12a allows districts to charge non-residents up to 110 percent of the per capita cost of maintaining the schools for the previous school year.

The notice should warn those who enroll students that they are guilty of a Class C misdemeanor if they enroll a student who does not fall within one of the five types of custody discussed in Section 10-20.12b. They should also be warned that they could be guilty of a second Class C misdemeanor for knowingly or willfully presenting false information regarding the student's residency or custody. Lastly, they should be warned that all cases where a student has been determined to be a non-resident will be referred to the States Attorneys office for prosecution.

The next step is to acquire substantial information when the student is enrolled. It is important to obtain all of the relevant information at this time not just to uncover those students who are being wrongfully enrolled, but to pin down those people enrolling students to make it harder for them to change their stories when damaging information is discovered later.

Obtain copies of all relevant documents. In reality, custody will not be difficult to establish except for those instances where an in-district adult has assumed and exercises legal responsibility for the student. Carefully investigate those claims. Look for any instances where the person enrolling the student will not be legally responsible for the student. Develop a standard questionnaire for people enrolling students. You may want to develop an agreement whereby the in-district person agrees to be personally liable to the school district for any extraordinary costs associated with the student such as repair expenses due to the student's vandalism or damage to equipment, replacement of lost books or other materials, fines or tuition if the student is determined to be a non-resident. Be wary if the in-district person refuses to sign it.

There will come a time when you will receive information which indicates that a student has been wrongfully enrolled in your school district. This will be a troubling and trying experience. Parents want to do what is best for their children. Unfortunately, that includes lying and cheating for some parents.

Therefore, you must be careful and diligent during your investigation. Complete your investigation and obtain all necessary information before you advise the in-district person that a hearing will be conducted. Otherwise, they will change their story before you are able to make them commit to just one story.

Complete as much of your investigation as possible before you seek additional information from the in-district person so you do not alert them to any possible problems. Obtain additional documents. Send someone out to the in-district address to confirm that the student lives there if necessary. Determine if he or she leaves that house for school each morning. If necessary, ask neighbors or the landlord open ended questions about who lives at the address. You can ask whether the student in question lives in the residence, but only after you have elicited some general information from the individual. Ask other open ended questions about how long the student has lived at the address, when he stays there, and when he comes back to the address.

Hopefully, you have been able to get the in-district person to commit to one story regarding custody when he or she enrolled the student. That, and any other information you have been able to develop before presenting the in-district person with your information, will prevent him or her from giving you a logical story to explain the new information.

Section 10-20.12b provides that school districts must advise the person who enrolled the student of the determination that the student is a non-resident, and of the student's right to a hearing. The notification must be sent by certified mail, return receipt requested. Receipt of the notice starts the time period for the in-district person to request a hearing. All subsequent notices must be sent the same way. In reality, service by certified mail, return receipt can be difficult. Many times people do not want to go to the post office to pick the notice up or refuse to accept it because they know it is an official letter.

If notification by certified mail, return receipt requested is not successful, personal delivery may be sufficient. The Illinois Supreme Court in Stratton v. Wenona Community Unit District²³ ruled that an expulsion hearing could still be conducted even though the notice was hand-delivered instead of sent by certified or registered mail, as is required under Section 10-22.6 of the School Code. Personal service should likewise suffice for a residency hearing. School districts should attempt to notify the in-district person by certified mail, return receipt first. However, if that is unsuccessful, personal delivery should suffice. Sending a letter regular mail in addition to certified or requested mail may also help.

While the new statute appears to essentially codify the common law rules regarding student residency, it does set forth specific definitions of residency and legal custody which differ somewhat from the definitions of residency developed under the case law. The statute also provides comprehensive hearing procedures to be utilized when a residency determination is disputed and it allows for the imposition of criminal penalties against individuals who wrongfully attempt to enroll a non-resident student on a tuition-free basis.

The new statute does contain shortcomings. For example, it fails to define the terms "assumed and exercises legal responsibility" and the provision of a "regular, fixed, night-time abode." As discussed, we believe that the criteria used to determine whether an adult has assumed and exercises legal responsibility will be the same as that developed under the case law for determining whether an adult has custody and control of a student. The statute also does not give any guidance to school districts regarding the more practical considerations involved in making student residency determinations, such as what documents a school district can require to ascertain whether a parent/guardian lives in the district. For example, many school districts require a parent/guardian to show three documents evidencing their residence for purposes of student enrollment. Can a school district require ten separate documents? What if the family can only show school district personnel a residential lease, is that sufficient?

Unfortunately, such questions are not easily answered. Student residency issues can be complex and must be considered on a case-by-case basis. School boards are well advised to gather as much information as possible from all interested parties when a student residency issues arises. It is advisable that all school districts adopt student residency policies and practices that comply with the new law.

Rest assured, Illinois courts will begin hearing cases relating to student residency under the new statute and will define missing terms, giving guidance to school districts faced with student residency issues. Until then, boards of education and school district personnel, along with their legal counsel, should continue to implement their existing student residency policies and procedures, keeping in mind the complexities of this developing area of the law.

1. 105 ILCS 5/10-20.12
2. 105 ILCS 5/10-20.12a
3. The residency of special education students is governed by 105ILCS 5/14-1.11, 105 ILCS 5/14-1.11a, and 105ILCS 5/14-1.11b, the attendance of foreign students on a tuition-free basis is governed by 105 ILCS 5/10-22.5a, and the assignment of non-resident pupils to schools is governed by 105 ILCS 5/10-22.5.
4. Turner v. Board of Education, 54 Ill.2d 68, 72(1973); Kraut v. Rachford, 51 Ill.App.3d 206, 212 (1977); Connelly v. Gibbs, 112 Ill.App.3d 257, 261 (1983)
5. Kraut at 220
6. Ashley v. Board of Education, 175 Ill 274, 279 (1916); Turner at 72
7. Kraut at 216; Saxe v Board of Education, 206 IllApp. 381, 384 (1917)
8. 105 ILCS 5/10-20.12b (a)(1)
9. 105 ILCS 5/10-20.12b (a)(2)(I)
10. 105 ILCS 5/10-20.12b (a)(2)(ii)
11. 105 ILCS 5/10-20.12b (a)(2)(iii)
12. 105 ILCS 5/10-20.12b (a)(2)(iv)
13. 105 ILCS 5/10-20.12b (a)(2)(v)
14. 105 ILCS 5/10-20.12b (g)
15. 105 ILCS 5/10-20.12b (b)
16. 105 ILCS 5/10-20.12a
17. Kraut at 211, 219
18. Connelly at 263
19. Connelly at 263, 264
20. Connelly at 264
21. Connelly at 264
22. 105 ILCS 5/10-20.12b(3) 105 ILCS 5/10-20.12b(f)
23. Stratton v. Wenona Community Unit District, 133 Ill.2d 413 (1990).

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