School Residency Related to Residential Placement

School Residency Law

Issue:

Which school district must serve, and which must pay, when a student is placed residentially in an orphanage or other child welfare facility without state wardship or court order?

Introduction

In Illinois, there are separate laws of residency governing regular education and special education students.  The residency requirements of Illinois law are contained in the Illinois School Code, 105 ILCS 5/10-20.12(b) and 105 ILCS 5/14-1.11(a).  The Illinois statute will be presented as it pertains to “privately placed” students for both sets of students.  A brief discussion of case law will follow.

Law of Residency for Regular Education Students

Under 105 ILCS 5/10-20.12b(1), “the residence of a person who has legal custody of a pupil is deemed to be the residence of the pupil.”  Section 10-20.12b(2) defines legal custody.  There are two possibilities where the location of the student – when not placed with his parent or guardian – would be his/her residence:

(1) The student was ordered by an Illinois court to live at the facility for reasons other than to have access to the educational programs of the district where the facility is located, or

(2) Custody of the child is exercised by an adult who demonstrates that, in fact, he or she has assumed and exercises legal responsibility for the pupil and provides the pupil with a regular fixed night-time abode for purposes other than to have access to the educational programs of the district.

The case law for regular education students has been supportive of the position that privately placed students are “residents” of the district where the student is located. In regular education cases the courts apply a multi-factor balancing test to determine residency, commonly using the following core cases: 

Ashley[1]– a 1916 case finding children placed in orphan’s home were residents of the home and entitled to free education from home’s district.

Connelly[2]– a 1983 case stating that residency is a matter of intent.

Israel S.[3]– a 1992 case finding a child’s residence in a school district other than parent’s is sufficient to receive free tuition so long as placement is not made solely to enjoy the free schools.

Law of residency for special education students

For special education students, the legal guidelines are provided under the Illinois School Code, 105 ILCS 5/14-1.11(a).  Unlike residency determinations for regular education students, the legislature has created “bright line” tests to determine the special education student’s residency.

For such cases, the resident district is that of the parent or legal guardian when either (1) The parent has legal guardianship of the student and resides within Illinois or (2) An individual guardian has been appointed by the courts and resides within Illinois.

On the other hand, the resident district is that of the student when (1) The student is 18 years of age or older and no legal guardian has been appointed, or (2) The student is a legally emancipated minor, or (3) The student is homeless.  

The case law concerning special education students emphasizes that the Illinois School Code makes it clear as to what constitutes residency for a special education student.

District 428 v. 214[4]– a 1997 case distinguishing special education situations from regular education situations in terms of residency.   The district where the legal guardians resided was compelled to reimburse the district where the child’s foster parents resided (and where the child was served).

153 v. 154 ½[5](Known as “SPEED v. ECHO”) - Parent’s placement in a mental health facility did not change special education student’s residence.   Parent’s district was required to reimburse costs to district where student was placed.

Conclusion

With regard to regular education students, there is clear statutory and decisional language that non-ward children who are informally or privately placed anywhere in the state for “noneducational” reasons are residents of the district where they are actually living.  An argument could be made that the parents retain custody of these children and therefore, residency is that of the parents.  However, when one applies the multi-factor balancing test, this argument is likely to fail in the courts.  Regardless, even  if such an argument is successful, it doesn’t relieve the district of the child’s location from serving children located within its boundaries, for the reasons discussed below.

Privately placed special education students will generally have the same residence as their parents.  Case law seems to support the position that the parent’s district is obligated to reimburse the district actually serving the child for the child’s special education programming.  The existing case law is a result of “serving” districts seeking reimbursement from “residential districts.”

The decisional case law certainly implies that any school district refusing to serve a non-ward child placed within its boundaries (for example, with a grandparent or other relative) would be taking a legally indefensible position.  Furthermore, Illinois and Federal special education law provide a safety net when a family is faced with a recalcitrant school district:

Special education and related services included in the child’s individualized education program which are not provided by another state agency shall be included   in the special education and related services provided by the State Board of Education and the local school district.  (emphasis added) 105 ILCS 5/14-8.01

In addition, there is the following “safety net” provision at the end of Section 5/14-8.01,

A school district is responsible for the provision of educational services for all school age children residing within its boundaries, excluding any students placed under the provision of Section 7.02 [this section covers special ed. placements by school districts] or any disabled student whose parent or guardian lives outside of the State of Illinois as described in Section 14.1.11.  (emphasis and comment in brackets added)

See also, Honig v. Doe, 484 U.S. 305, 324 (1988)(finding Congress required participating states to educate all disabled children).  Clearly, it is the intent of the state and Federal legislatures that no special education student should go unserved.  Someone has to deliver educational services to privately placed students.  From a practical standpoint, it makes no sense to require the residential district to fund and service special education students that are privately placed within the state but far away from their geographical boundaries.

[1] 275 Ill. 274

[2] 112 Ill.App.3d 257

[3] 601 N.E.2d 1264

[4] 288 Ill.App.3d 382

[5] 54 Ill.App.3d 587