ODE Executive Memorandum 021-2003-04

December 18, 2003

We have recently received questions from a number of school districts from around the state regarding the relationship between student residency and state school fund distribution. As answers to questions were being developed, it became clear that we needed to provide a common background of more general information, before we deal with the specifics. This summary will clarify general residency issues to ensure that all school districts are operating from the same knowledge base.

1. Payment from the State School Fund
   The legislature has clearly determined that the Oregon Department of Education may distribute funds from the State School Fund (SSF) to a school district only for students residing within the school district. ORS 327.006. A "resident pupil" is defined as any pupil in attendance whose legal school residence is within the boundaries of the school district. Except in the case of an emancipated youth or a student over age 18, residency is in the district where the student's parents, guardian or person with a parental relationship actually lives. ORS 339.133. A school district does not have authority to determine unilaterally that a student, who by law is a resident of another district, is a resident of their own district. A school district may not claim SSF and the Oregon Department of Education may not pay SSF for a student who is not a resident of the claiming district, except as provided in ORS 327.006 (7) and 339.133 (6) regarding interdistrict transfer agreements.



2. Student Residency for School Purposes
   Excluding special circumstances, such as emancipation, homelessness and substitute agency care, residency for school purposes is decided on the basis of where the parents, guardians or persons in parental relationship reside. ORS 339.133. A parent is defined by law and cannot be changed by use of a contract. Likewise guardianship is created judicially, not contractually. While a "person in parental relationship" is not defined in law, the practical use of the phrase has developed and been supported in various Attorney General opinions. The AG opinions and the developing law resulted in the following general requirements for residency:
   
   1. As a rule, school residency for tuition free attendance purposes was generally determined by where the parents, guardians or person in parental relationship lived. Therefore, residency coincides with where a free appropriate public education can be claimed for a child. Residency could deviate from the rule if the child became independent of his parents; lived with another adult who in all regards acted as a parent; made the move for reasons other than school attendance and; did not merely move temporarily away from the parents.
   
   We have recently been asked if a power of attorney signed by a student's parent or guardian could be used to establish residence in a school district. Our research indicates that a power of attorney establishes a contractual relationship and grants a designee some authority over a child, but does not relieve the actual parent or guardian from legal obligations, including compulsory school attendance laws. While a power of attorney alone does not create residency for purposes of obtaining state school funds, it may provide additional evidence to demonstrate that a person is a "person in parental relationship" for a student living with someone other than an actual parent or guardian. The decision regarding residency must be made on a case by case basis, taking into account all of the facts, including the intent of the student and the student's parents or guardians. A signed power of attorney may be an effective indicator of a "person in parental relationship," but standing alone it does not provide sufficient evidence to allow a school district to enroll a student as a resident of the district.



3. Residency in Special Circumstances
   Students in substitute care. In general, children placed by public or private agencies who are living in substitute care programs licensed, certified or approved are considered resident in the school district in which they reside by placement of the public or private agency. A "substitute care program" includes family foster care, family group home care, parole foster care, family shelter care, adolescent shelter care and professional group care. ORS 339.133(4).
   
   Students with disabilities. In general, the residency of students with disabilities is determined the same way as for all students. However, Oregon statutes create two exceptions to this rule - first, students with disabilities attending out of district charter schools (discussed below) continue to be considered residents of their "home" district. Second, ORS 339.134 allows an exception for students with disabilities in substitute care to continue to be considered a resident where their parents or guardian reside. This exception applies if: "(a) The child is voluntarily placed outside the child's home by the child's parent or guardian; (b) The child's parent or guardian retains legal guardianship of the child; (c) There is a plan for the child to return home; (d) The placement is within 20 miles by the nearest traveled road from the original school building, unless there are physiographic conditions that make transportation to the original school building not feasible; and (e) The child's parent or guardian and the school staff can demonstrate that it is in the best interest of the child to continue to attend the school the child was attending prior to the placement. 1


1 The "best interest of the child" may be demonstrated by factors such as whether child has siblings attending the school; whether a change in the child's routine would be detrimental to the child, or whether the child has developed

Students in Residential and Day Treatment Programs: Students placed by the Oregon Department of Human Services (DHS) or Oregon Youth Authority (OYA) in a day or residential treatment program are considered residents of the educational agency that operates the educational program under contract with the Oregon Department of Education. See OAR 581-015-0044. However, some students may continue to receive mental health treatment from a residential or day treatment program but attend school outside of the residential or day treatment program. These students are typically considered resident of the district where they are getting their education program. For specific questions about the residency of students in these programs, contact Burl Oliver in the Office of Special Education, (503) 378-3600, ext. 2312.


4. Admission of Nonresident Students
   Direct Admission of Nonresident Students ORS 339.115 gives school districts the discretion to unilaterally admit nonresident students who seek admission and are not part of an agreement between districts. The local school district board may set tuition rates for these nonresident students. A district board should set the tuition at a level equal to the actual cost per student, at an average cost per student or at some other rate acceptable to the district board. In this situation, no school district will be entitled to claim SSF for the student. A school district choosing to waive tuition or set a very low tuition rate may want to consult with their own legal counsel regarding the possibility that such an action would represent an unauthorized expenditure of public funds.
   
   Admission of Nonresident Students by Interdistrict Agreement ORS 339.133 (6) allows a school district to admit nonresident students and claim the students for purposes of obtaining SSF if the district board where the student lives and the district board where the student wants to attend both consent to the interdistrict transfer in writing. Because the transfer must be approved by both boards, either board has the ability to deny the transfer. A denial from either board may only be appealed under the denying board's policy. Neither the State Superintendent of Public Instruction, the Department of Education nor the State Board of Education has the authority to override a local board's decision regarding an interdistrict transfer. Districts that allow interdistrict transfer agreements in general cannot refuse to consider interdistrict transfers for students with disabilities. Districts must use disability neutral criteria in deciding whether to grant an interdistrict transfer. The responsibility for special education students with disabilities remains with the resident district, as does the requirement to claim that child as eligible by the resident district on the annual Special Education Child Count (SECC).



5. Admission of Homeless, Abandoned and Runaway Students The federal McKinney-Vento Homeless Assistance Act of 1987 (reauthorized in 2002) protects homeless children from being excluded from school admission due to the lack
   
   and maintained a network of personal contacts, support services and friends and a sense of community within the school. ORS 339.134(1)(e).
   
   of a fixed, regular and adequate residence. "Homeless" is defined to include students living in transitional or emergency shelters, campgrounds, vehicles and motels, as well as those families and youth sharing housing with relatives or others due to loss of housing and economic hardship. For more information and the complete federal law and guidance, see the Homeless Education page on the ODE website at: http://www.ode.state.or.us/stusvc/homeless/ .
   
   Under the federal McKinney-Vento Homeless Assistance Act, Subtitle VII-B, Section 722(g), each local education agency is required to designate a Homeless Liaison to identify homeless students, make determinations of eligibility, assist with school placement and provide other supportive services. School districts are required to continue the homeless student's education in his or her school of origin for the duration of homelessness, to the extent that it is feasible and not contrary to the wishes of the student's parent or guardian. "School of origin" is defined as the school that the child or youth attended when permanently housed or the school in which the child or youth was last enrolled.
   
   Homeless, abandoned and runaway youth cannot be denied enrollment to public schools in Oregon due to lack of supervision by a parent or legal guardian, under ORS 339.115(7). In such cases, the district's Homeless Liaison may act as a contact for emergencies. Further, lack of a parent or guardian's signature on a school liability waiver form is insufficient reason to deny or delay school enrollment or attendance for an unaccompanied or runaway youth.
6. Admission of Students by Approved Charter Schools
   Oregon's charter school law, enacted in 1999, established a non-resident student or interdistrict admission procedure that differs from the general admission procedures. The charter law allows students to enroll in a charter school that is located in a school district other than the student's resident district, if space is available, without the interdistrict transfer agreement referred to in section 4 above. With one exception, non-resident students appropriately enrolled in a charter school may be claimed by the district where the charter school is located for purposes of obtaining state school funds without an interdistrict transfer agreement. The residency of a student with disabilities under the Individuals with Disabilities Education Act (IDEA) does not change if that student enrolls in an out of district charter school. The student's resident district, rather than the chartering district, continues to be responsible for the student's special education services. Only the resident district should claim students with disabilities on the annual Special Education Child Count (SECC).
   
   The original law limited the charter school to no more than 20% of their enrollment from districts other than the district where the charter school is located. This provision in the law will "sunset" January 1, 2004. After that date, a charter school will not be limited by the 20% out of district enrollment. The charter school will, however, continue to be available first to resident students, and then, if space is available, to non-resident students. Oregon School Boards Association at http://www.osba.org/hotopics/charters/index.htm .
   
   

Conclusion

We hope that this memorandum will clarify issues around student residency and state school funds. We believe that common understanding of terms, requirements and procedures will allow districts to work together to provide students with the appropriate educational opportunities. We encourage you to contact your district's legal counsel regarding residency policies and specific situations. If you would like to read the advice letter prepared at our request by Department of Justice staff you can access it at http://www.ode.state.or.us . If you have questions regarding this memorandum, please call Randy Harnisch at 503.378.3600 ext. 2223.

Sincerely,
Susan Castillo
Superintendent of Public Instruction