Amid concerns about the education of unaccompanied youth who have been sent to New York State communities by the federal Office of Refugee Resettlement, the state Board of Regents adopted emergency amendments to existing regulations on student residency and enrollment at their December meeting. Although designed with undocumented youths in mind, these amendments apply to all residency determinations.

The amendments were adopted on an emergency basis with no opportunity for public comment. Officially, they are temporary; they went into effect on Dec. 16, 2014 for a 90-day period. However, the amendments are expected to be presented for permanent adoption at the March 25 Regents' meeting, following a public comment period.

NYSSBA and the New York State Association of School Attorneys have submitted a joint letter to the Regents expressing concerns about the revised regulations, which have provisions that could result in school districts educating non-resident students tuition-free. This article includes a summary of the amendments and an analysis of their likely impact in their current form.

Key changes for school districts

Under the amendments, students seeking to enroll in a school district must begin attendance on the next school day or as soon as practicable.

The methods used to establish the residency of the child are as follows:

• The revised regulation provides specific guidance on enrollment criteria including acceptable proof of residency, age and guardianship. These may be submitted by the child or by a responsible adult - that is, the child's parent(s) or someone in parental relation to the child.
• Within three business days of this initial enrollment, the board of education or its designee must review all documentation submitted in accordance with newly established procedural requirements.
• The school district may require documentation and/or information that establishes the physical presence of the child in the school district. This may take the form of proof regarding the residency of the parent or guardian of the child. Such documentation may include, but shall not be restricted to: (1) a copy of a residential lease or proof of ownership of a house or condominium, such as a deed or mortgage statement; (2) a statement by a third-party landlord, owner or tenant that the parent or other responsible adult leases or share property in the school district; or (3) such other statement by a third party establishing the physical presence of the parent or guardian in the school district. If the above three documents are not available, then the school district can consider other forms of documentation and/or information to establish physical presence in the school district, such as a pay stub, an income tax form, utility or other bills, membership cards based on residency, voter registration documents, official driver's license, documents issued by federal, state or local agencies.
• Adults, acting on the child's behalf may be required to provide an affidavit regarding their parental or guardian relationship to the child. This affidavit must state that either (1) they are the parent(s) with whom the child lawfully resides; or (2) they are the person(s) in parental relation to the child. For the latter, the affidavit must state that they have obtained total and permanent custody and control, and describe how this was obtained.

The regulations also require each school district to make publicly available (and post on its website) its enrollment forms, procedures, instructions and requirements for determinations of student residency and age, including a non-exhaustive list of documentation that may be submitted to the school district for residency determinations. A requirement that information be included in the school district's existing enrollment/registration materials (and be provided to all parents, persons in parental relation or children requesting enrollment) went into effect on Jan. 31.

In addition, the amendments add language to make it clear that school districts are precluded from requesting a Social Security card, Social Security number or any information regarding or that would tend to reveal the immigration status of the child or the adults requesting that the child be enrolled. An exception is provided to enable participating school districts to comply with the record keeping and reporting requirements of the Federal Student and Exchange Visitor Program (SEVP) in grades 9-12.

Likely impact of the amendments

NYSASA has alerted the State Education Department about its members' concerns with the regulations. First, it should be noted that these emergency regulations were created in the absence of any documented evidence of systematic problems throughout the state with regard to residency procedures, much less an "emergency."

Of particular concern to our client districts is that the effects of the revised regulations are not limited to the admission procedures for unaccompanied minors and/or undocumented youths. When applied broadly to all groups of students, the new procedures will make it easier for fraudulent applicants to gain entry - and more expensive for districts to remove them at a later date.

Before making these regulations permanent, the Regents have the opportunity to revise them and prevent unintended effects. Chief among this is the requirement that a child seeking to be educated in the district must be enrolled and begin attendance on the next school day, or as soon as practicable. Meanwhile, the school board or its designee has three days to review all documentation and make a determination of the child's residency. This approach puts the cart before the horse, and could negatively affect children.

If the parent or guardian submits inadequate documentation in the eyes of school officials, the revised regulation could result in a child being enrolled in a school district and then two days later being removed. This could result in a child being bounced around between school districts, which would not be beneficial to the student's education or socialization.

A more prudent approach would be to maintain the status quo during the three-day period allowed for acting on residency documentation. The regulations could simply require districts to make a residency determination within three school days, without requiring admission of the child after the first day. If the school district denies the application because the family did not provide adequate proof of residency, nothing would preclude a family from appealing that decision and seeking a stay. Another option would be for the parent or guardian to obtain additional documents, then reapply.

As stated above, the revised regulations now list documents that a parent or guardian can use to prove that the child has a physical presence in the school district. The revised regulation seems to handcuff the school district in what proof can be requested from a parent trying to register with a school district, specifically if the parent provides a copy of a residential lease, a statement from a landlord or a statement from any other third party stating that the parent resides in the school district, the school district cannot ask for any other documents.

Allowing a statement from any third party that the person lives in a particular school district, without further evidence to establish residency, makes school districts vulnerable to specious claims. It is conceivable, and perhaps likely, that parents will exploit this provision in unscrupulous ways.

The amount of documentation needed to establish residency can vary from case to case. For example, a family submitting a third party statement plus a copy of a utility bill would likely have enough to establish physical presence in the school district, but a family who only has one or the other may not. Yet, the way the amendments are presently written, the submission of such a third party statement precludes districts from asking for any further documentation.

Furthermore, the amendments seem to minimize or ignore the second prong of establishing residency pursuant to Education Law 3202(1), which points to an "intent to remain" within the school district. An undue emphasis on physical presence can cause anomalous results, such as accepting a student whose family lives out of state but leases or owns an apartment or vacation home within New York.

Of particular concern is the fact that hastily drafted regulations effectively negate precedents developed through decades of case law. The development of the "common law" on student residency reflected in court rulings and decisions of the commissioner of education is a superior method of protecting the rights of all concerned.

As currently written, the regulations appear to make it significantly easier to enroll in a school district. While the content of the final regulations remain to be seen, it is important that school boards consult with their school attorneys when implementing these new rules.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Mara N. Harvey of Lamb & Barnosky, LLP.