12/22/2016

By: Brittany Flaherty Theis

Effective January 1, 2017, the procedures for challenging the residency of a student in school districts having a population less than 500,000 will change. Public Act 99-670 (the “Act”) amends the School Code provisions related to notices of non-residency sent by school districts, disclosures that must be made prior to a residency hearing, and notices that must be made in the school board’s decision. Notably, the Act also adds the right to petition the regional superintendent of schools for review of the school board’s residency decision.

Under the School Code, if a school district believes a student or pupil is a non-resident of the district and should be charged tuition under the School Code, the district must notify the person who enrolled that student of the non-residency determination and the amount of tuition due to the district for that student’s attendance in the district. As of January 1, 2017, the notice must also list the specific reasons why the board believes that the student is a non-resident of the district.

The person who enrolled the student has the opportunity to request a hearing to review the determination of the school board, which must be requested within 10 calendar days. If a hearing is requested within 10 days of receipt of the request for hearing, the school board must provide notice of a hearing time, date, and location. The hearing must be held not less than 10 nor more than 20 calendar days after the notice of hearing was given.

At least 3 calendar days before the hearing, each party is required to disclose to the other all written evidence and testimony it might submit during the hearing and a list of witnesses it might call to testify during the hearing. The notice sent by the school district must notify the requester that any written evidence or testimony, or witnesses not disclosed by the parties will be barred at the hearing, without consent of the other party.

The residency hearing can be conducted by the school board or a hearing officer designated by the school board. Both parties have the option of being represented at the hearing. At the hearing, the person who enrolled the student has the burden of going forward.

If the hearing was conducted by a hearing officer, that individual will send a written report of his or her findings to the school board within 5 calendar days of the conclusion of the hearing. The person who enrolled the student may file written objections to the hearing officer’s findings by sending them to the school board within 5 calendar days of receipt of the findings. Those timelines remain unchanged under the Act.

The school board then issues the final decision of whether or not the student is a resident of the district and the amount of tuition to be charged as a result of the student’s attendance in the district. The Act provides that the school board must make this decision within 30 calendar days after the conclusion of the hearing. Prior to January 1, 2017, school boards had only 15 days.

Under the Act, the person who enrolled the student has appeal rights. The Act requires that the board’s written decision must also provide notice that the school board’s decision may be appealed to the regional superintendent of schools and that such petition for review must be made to the regional superintendent within 5 calendar days of receipt of the school board’s decision. The petition for review must also be sent to the school district. Previously, the school board’s decision was final and subject only to administrative review in a circuit court.

If the school board’s decision is appealed to the regional superintendent of schools, the student may continue attending the schools of the district pending the regional superintendent’s decision (at the request of the person who enrolled the student). Tuition shall continue to be assessed during the pendency of the review and will become due upon the final determination of the regional superintendent. The school board’s decision must include notice of this option as well.

Within 5 calendar days of receiving the petition, the school district must deliver to the regional superintendent the written decision of the board, any written evidence and testimony that was submitted during the hearing, a list of all of the witnesses that testified during the hearing, and any written minutes or transcript, and any audio or video recording of the hearing. The board may also submit to the regional superintendent and petitioner a written response to the petition. The regional superintendent’s review is limited to the documentation submitted by the school district to the regional superintendent.

The regional superintendent will review the evidence and the board’s decision in order to determine whether or not there is clear and convincing evidence that the student is a resident of the district and eligible to attend the district’s schools tuition-free. The regional superintendent has 10 calendar days after receiving the documentation provided by the school district before he or she must provide a written decision that includes the specific rationale behind his or her decision. That written decision must be delivered to the school board and the person who enrolled the student.

Beginning January 1, 2017, all school districts in the state must be prepared to comply with the changes made by Public Act 99-670. School districts should review their policies and notices regarding residency disputes to ensure compliance with the Act. Whitt Law is currently involved in a residency hearing involving these changes. Please contact Whitt Law Attorneys Brittany Flaherty Theis or Rick Petesch if you have questions regarding the proper handling of disputes regarding the residency of students within your school district.

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