LEGAL ASPECTS OF ATTENDANCE AND STUDENT RECORDS OAEP Fall Conference North Point Conference Center October 24, 2013 Presented by: Rhonda Porter, General Counsel Akron Public Schools Overview • Attendance(R.C. 3313.64) • Residency • Parent defined • Custody • Grandparent Caregivers • Court Placed Students • Residency Disputes • Situations Impacting Attendance • Student Records • Who is considered a “parent” for purposes of obtaining access to student records? • FERPA Residency “One cannot establish a residence merely by purchasing a house or apartment building or even by furnishing such a house or apartment . . . Residence involves something more. It must be a place where important family activity takes place during significant parts of each day; a place where the family eats, sleeps, works, relaxes, plays. It must be a place, in short, which can be called home.” -Kenton Bd. of Educ. v. Day, 506 NE2d 1239 (CP 1986) Residency Check List… • Where does the individual sleep the majority of the time? • Where does the individual receive mail? • Where are the individual’s meals eaten? • Where is the individual registered to vote? • NO ONE FACTOR IS CONTROLLING. The conclusion must be reached considering all of the circumstances present. -Kenton Bd. of Educ. v. Day, 506 NE2d 1239 (CP 1986) “District of Residency” (R.C. 3313.64) • A child (who is at least 5 but under 22 years old or a pre-school disabled child) shall be admitted to the schools in the school district in which the child’s parent resides. • R.C. 3313.64(B)(1) Parent Defined (R.C. 3313.64) (for school attendance purposes) • Either natural parent (if married) • A parent who is the residential parent and legal • • • • custodian of the child (if separated or divorced) *Mother (if unmarried) *Grandparent (if executed grandparent caregiver affidavit or power of attorney) Parent with residual parental rights, privileges, and responsibilities (if child is court placed into the legal custody of a gov. agency or a person other than a natural or adoptive parent) Parent who was divested of parental rights… (if child is court placed into the permanent custody of a gov. agency or person other than a natural/adoptive parent) Divorced/Separated Parents • Divorced parents will have a court order designating rights and responsibilities. The parent enrolling the student must provide this document. • Two primary senerios… • (1) one parent is named as the sole residential parent and legal custodian; or • (2) the parents have entered into a shared parenting plan Shared Parenting Plan (R.C. 3109.04) (Residential parent and legal custodian) • If an order is issued by the court provides for shared parenting of a child, both parents have “custody of the child” or “care, custody, and control of the child”, to the extent and in the manner specified in the order. • Designation of one parent as “the residential parent for the school purposes” or “custodial parent for tax purposes of claiming the child as a dependent” or “residential parent for purposes of receiving public assistance” does NOT affect the designation that each parent is the “residential parent,” the “residential parent and legal custodian,” or the “custodial parent of the child. Unmarried Female (R.C. 3109.042) • An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian. • A court designating the residential parent and legal custodian of a child described in this section shall treat the mother and father as standing upon an equality when making the designation. Who’s your daddy? • R.C. 3313.64 appears to allow for students of parents who have never married to attend (tuition-free) the schools in the district where either parent resides. Grandparent Caregiver • Grandparent caretaker law creates two legal documents, both of which must be notarized and filed with the juvenile court within five (5) days of their execution • Grandparent Power of Attorney (RC 3109.52) • Caretaker Authorization Affidavit (RC 3109.65) • Both documents terminate after: • the child ceases to reside with the grandparent; • the document is terminated by court order; OR • the grandchild or grandparent dies. • POA also terminates if person who created it revokes it in writing. • Affidavit can also be terminated if person acts to negate, reverse or otherwise disapproves an action/decision of the grandparent. Court Placed Students (abused, neglected, dependent) • The Court, at the time it orders the removal of a child from the child's own home or vests legal or permanent custody of the child in a person other than the child's parent or a government agency, shall determine the school district that is to bear the cost of educating the child. • The court is required to make the determination a part of the order that provides for the child's placement or commitment. That school district shall bear the cost of educating the child unless and until the department of education determines that a different district shall be responsible for bearing that cost • R.C. 2151.362 Aunts, Uncles, Cousins, Family Friends… • WATCH OUT FOR… • Notarized statements • Attorney letters • Notarized letters from a parent giving custody to relatives or family friends • MOTIONS filed with the juvenile court seeking legal custody • ANY document presented as a “court document” that is NOT signed by the judge *The Ohio Attorney General has ruled that a notarized statement signed by a parent is insufficient to transfer legal custody; a court order is required (1995 OAG 032). OTHER FORMS OF CUSTODY Legal Custody (R.C. 2151.011) • a legal status that vests in the custodian the right to have physical care and control of the child … to determine where and with whom the child shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and medical care, all subject to any residual parental rights, privileges, and responsibilities... Permanent Custody (R.C. 2151.011) • a legal status that vests in a public children services agency or a private child placing agency, all parental rights, duties, and obligations, including the right to consent to adoption, and divests the natural parents or adoptive parents of all parental rights, privileges, and obligations, including all residual rights and obligations. Guardianship (R.C. R.C. 2151.011) • a person, association, or corporation that is granted authority by a probate court pursuant to Chapter 2111. of the Revised Code to exercise parental rights over a child to the extent provided in the court's order and subject to the residual parental rights of the child's parents. Guardianships • Why are guardians appointed? A guardian is appointed by the court to oversee the legal and financial affairs (and/or the personal care) of a minor, or of an adult who is not able to manage his or her own affairs because of advanced age or some other physical or mental disability. • Under Ohio law, a guardianship is an involuntary proceeding when family members or others ask the probate court to protect someone who appears to be incompetent. • Once appointed, a guardian is answerable to the court for providing proper care and management of the ward’s affairs in the ward’s best interest. • O.R.C. 2111.03(c) and Reference Materials, Tab 6. Guardianships • An individual appointed as guardian of the person of a minor, pursuant to RC Chapter 2111., has "legal custody" of the child, as that term is used in R.C. 3313.64. • Pursuant to RC 3313.64, a child who is in the legal custody of a guardian shall be admitted to the schools of the district in which the child resides: OAG No. 83-041 (1983). Santosky v. Kramer (1982), 455 U.S. 745 *Guardianships initiated for the purpose of admitting student into a particular school district • An application for the appointment of a guardian who resides in a different school district from that of the minor child's parents for the sole purpose of bringing the child within the purview of a statute which requires the schools of each city to admit wards of actual residents of the school district will not be granted when there are no circumstances or conditions which would justify the appointment. In re DiSalvo, 11 Ohio Misc. 259, 227 N.E.2d 441 (PC 1967). Residual parental rights, privileges, and responsibilities • those rights, privileges, and responsibilities remaining with the natural parent after the transfer of legal custody of the child, including, but not necessarily limited to, the privilege of reasonable visitation, consent to adoption, the privilege to determine the child's religious affiliation, and the responsibility for support. COURT PLACED STUDENTS A child who does not reside in the parent’s district shall be admitted to the schools in the district in which the child resides if the child is court placed into the legal or permanent custody of a government agency or a person other than the child’s natural or adoptive parent. (R.C. 3313.64(B)(2)) Court Placement of Students • Once a court identifies the school district of residency (R.C. 2151.362) (i.e., the school district financially responsible) then it loses jurisdiction over the issue of future changes in a parent’s residency for attendance purposes. • If the District determines through its investigation that a student’s parent does not (or no longer) reside within the school district it can petition the Ohio Department of Education and request an official determination of residency. Disputes Over Residency of Court Placed Students (R.C. 3313.64(K)) • Disputes often arise regarding the residency because it is intertwined with the obligation of another school district to pay tuition. • Investigate • attendance liaisons • private investigators • safety and security personnel O.R.C. 3313.64(J) Disputes Resolution • “In the event of a disagreement, the superintendent of public instruction shall determine the school district in which the parent resides.” O.R.C. 3313.64(K). ENROLLMENT REQUIRED Except as otherwise provided in R.C. 3321.10 A child shall be admitted to the schools of the school district in which the child’s parent resides (district of residence) Students Who Do Not Reside in the District Where Their Parent Resides are Entitled to Enroll and Attend Schools in Which the Student Resides if: 1. The child is in the legal or permanent custody of a government agency or a person other than the natural or adoptive parent. 2. The child resides in a “home” (a home, institution, foster placement, group home, or other residential facility in the state that receives and cares for children) 3. The child requires special education When the child requires special education The residence of the parent is important for determining the district responsible for the costs of the student’s education When a district admits a student in special education whose parents do not reside in the district, the school district educating the child may asses tuition The only exception to a school district’s duty to educate a child with a disability residing in the district is if the child is already being served by another school district, agency, or other provider The responsibility to serve a nonresident disabled child residing in the district includes a child with a disability placed in a juvenile justice facility, institution, hospital, agency, department, home Situations impacting student attendance • Adoption (R.C. 3313.64(B)(3)) When a student is placed with a resident of the school district for adoption, the student is entitled to attend schools in that district unless . for adoption has been terminated or a the placement another school district is required to admit the child under division (B)(1) of this section. • 60 Day Affidavit (R.C. 3313.64(E)) A board of education may enroll a child (free of tuition) for a period not to exceed 60 days, on the sworn statement of an adult resident of the district that the resident has initiated legal proceedings for custody of the child. • Emancipated Child (R.C. 3313.64(F)(1)) An emancipated child is entitled to attend tuition free in the school district in which the child resides. • A child is not automatically emancipated upon the age of 18. • A child is only emancipated when the child is totally self-supporting. • Living apart from parents and • Supporting themselves by their own labor • Has not successfully completed the District’s high school program or IEP • Case by case basis. Married Student (R.C 3313.645(F)(2)) • Any child under 18 years old who is married is entitled to attend school in the child’s district of residence. • Students are still subject to compulsory attendance laws • Marriage of the student supersedes the childparent relationship The Emancipated Disabled Child • A disabled child cannot be compelled to attend school once the child reaches 18 years of age. O.R.C. 3321.01 (defining the compulsory school age). • Yet, a disabled child is entitled to a free and appropriate public education until the child is 22 years old. O.R.C. 3313.64(B) (defining the free admission school age for disabled students). Child With Medical Condition (R.C. 3313.64(F)(3)) • If a student has a medical condition that may require emergency medical attention and either parent is employed by an employer located in the district, the student is entitled to attend. • Physician’s statement certifying the student’s medical condition • Board may require additional supporting evidence Student of Military Parent Serving Outside of Ohio (R.C. 3313.64(F)(4) • A child residing with a person other than the parent is entitled to attend school in the district in which that person resides if the parent files an affidavit with the district. • Affidavit must be executed and presented to the District • Cannot exceed 12 months • The Affidavit must indicate the name and address of the person with whom the child is living while the parent is outside the state • Parent must intend to reside in the district upon returning to Ohio Death of a parent (R.C. 3313.64(F)(5) • A student, after a parent’s death, may continue to attend a school in the district in which the student attended at the time of the parent’s death for the remainder of the year if the school board approves. Parent Building a New House in the District (R.C. 3313.64(F)(6) • Student is entitled to attend (tuition free) for up to 90 days • Parent must provide affidavit explaining the situation, designating the location of the house being built and indicating an intent to reside there • Statement from the builder required Parent is Purchasing a Home in the District (R.C. 3313.64(F)(7)) • Student entitled to attend (tuition free) in the district for up to 90 days • Parent must provide affidavit explaining the situation, designating the location of the house being purchased and indicating an intent to reside there • Confirming statement from real estate broker or bank officer required Parent is Full Time Employee of District (R.C. 3313.64(F)(8)) • Board policy (or union contract) must provide for the right of the employee to enroll their child in the school district • Policy must take effect on the first day of school and uniformly apply to all students • Not applicable for admission of students after the first day of classes Student with Parent under Care of Shelter for Victims of Domestic Violence (R.C. 3313.64(F)(9)) • A child who is with the child's parent under the care of a shelter for victims of domestic violence, as defined in section 3113.33 of the Revised Code, is entitled to attend school free in the district in which the child is with the child's parent, and no other school district shall be required to pay tuition for the child's attendance in that school district. • Enrollment may not be denied due to a delay in the receipt of records normally required for admission Parent Moves out of District During Student’s Senior Year (R.C. 3313.64(F)(10) • With Board approval, student entitled to attend the remainder of the year, may continue for additional semester (or longer in order to complete IEP – with Board approval) Student Still in Custody of Parent But Resides With Grandparent (R.C. 3313.64(F)(11)) • A child in the custody of the parent, but resides with grandparent, and does not require special education is entitled to attend the schools of the district in which the child's grandparent resides, provided … • prior to such attendance in any school year, the board of education of the school district in which the child's grandparent resides and the board of education of the school district in which the child's parent resides enter into a written agreement specifying that good cause exists for such attendance, describing the nature of this good cause, and consenting to such attendance. Superintendent Agreement (R.C. 3313.64(F)(12) • A student is entitled to attend school in the school district in which the student is not entitled to attend under R.C. 3313.64(B), (C), or (E) ONLY If the following conditions are met: • The superintendent of the school district the student IS entitled to attend under R.C. 3313.64(B), (C), or (E) contacts the superintendent of another district for purposes of facilitating enrollment of the student • Both superintendents enter into a written agreement consenting to the attendance and specifying that the purpose of such attendance is to protect the student’s physical or mental well-being or to deal with other extenuating circumstances deemed appropriate by the superintendents. Student is Homeless (R.C. 3313.64(F)(13) • “McKinney-Vento Homeless Assistance Act,” 42 U.S.C.A. 11431 et seq. defines “Homeless Children” are children who lack a fixed, regular, and adequate nighttime residence and who are: • sharing the housing of other persons due to loss of housing, • • • • economic hardship or similar reasons; living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; living in emergency or transitional shelters; have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings. Migratory children as defined by Federal law. • O.R.C. 3313.64(F)(13) The District’s Duty to Homeless Students • The parent or guardian shall have the option of enrolling the student in the student’s “school of origin” or the school operated by the district in which the shelter is located Homeless children must be enrolled in their school of choice during the pendency of any disputes on placement, and to provide transportation, upon request, to a homeless child’s school of origin, even if such school is located in another school district. (NCLB) • When the “school of origin” is located in another district, transportation is apportioned between both districts. (43 USC 11432). Homeless Students can… • Enroll in school and attend classes immediately even if they don’t have proof of residence, immunization records, a birth certificate, guardianship records, school records or other documents normally needed for enrollment. • Enroll in school and attend classes immediately even without a parent or guardian. Any student who lacks a fixed, adequate and regular nighttime residence and who is not in the custody of a parent or guardian, including runaway youth, can enroll themselves in school. Military Power of Attorney (R.C. 3313.64(F)(14) • A student who resides with a person other than parent is entitled to attend school in the district in which that person resides provided that… • The person has been appointed, through a military power of attorney executed under section 574(a) of the “National Defense Authorization Act for Fiscal Year 1994,” 107 Stat. 1674 (1993), 10 U.S.C. 1044b, or through a comparable document necessary to complete a family care plan, as the parent's agent for the care, custody, and control of the child while the parent is on active duty as a member of the national guard or a reserve unit of the armed forces, and is on a duty assignment away from the parent’s residence. • The Military Power of Attorney or comparable document must include the authority to enroll the child into school Foreign Exchange Student (R.C. 3313.64(G) • A Board of education, after approving admission, may waive tuition for students temporarily residing in the district who are either of the following: • Residents of a foreign nation who request attendance as a foreign exchange student, or • Residents of the United States but not Ohio who request attendance as participants in an exchange program operated by a student exchange organization Student is Illegal Alien • School aged illegal immigrants are entitled to the same public education that the State offers other children within its borders. See Plyer v. Doe (1982), U.S. 202 • “Denying undocumented or non-citizen children access to a tuition free public education “imposes a lifetime hardship on a descrete class of children not accountable for their disabling status… by denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.” Plyer, 457 U.S. at 223 STUDENT RECORDS Family Educational Rights and Privacy Act 20 U.S.C. § 1232g F E R PA FERPA overview • A Federal Law that protects the privacy of student educational records and personally identifiable information. • Any school district that receives funds under any program administered by the U.S. Secretary of Education is bound by FERPA. • FERPA prohibits the release of educational records about a student without parental (or eligible student) consent. Ohio Revised Code 3319.321 “Confidentiality” “No person shall release, or permit access to … information concerning any students attending a public school to any person or group…” Student Records • “Educational Records” are records that contain information that is directly related to a student; and • Are maintained by an educational agency or by a party acting for the agency; and • Not identified as one of the exceptions (like “directory information”). • School officials with legitimate educational interests are entitled to access to student records Who is Considered a Parent (Access to Student Records) • FERPA definition of “parent” • A natural parent • A guardian • Individual acting as a parent in the absence of a parent or guardian • A parent is “absent” is he or she is not present in the day-to-day home environment of the child. • Along with the concern of who may be a parent, many educational agencies and institutions are caught in the middle of legal issues involving the rights of non-custodial parents and joint custodial parents. Regulation 34 C.F.R. § 99.4 anticipates some of the issues involved with custody and FERPA by providing that an educational agency or institution before limiting the FERPA rights of a parent must receive “evidence” of a court order, mandated statute or “legal binding document” relating to divorce, separation and/or custody. Presumption of Access • A school district cannot deny a parent access by demanding a court order indicating that the parent has the right to access. • There is a presumption of access to all “parents” and it is incumbent upon a custodial parent to present evidence to the educational agency or institution that the other parent does not have a right of access. • Fay v. South Colonie Cent. Sch. Dist., 802 F. 2d 21 (2nd Cir 1986). • Under 20 U.S.C. § 1232g(a)(1)(A) and 34 C.F.R. § 99.10 (b), an educational agency has forty-five (45) days to respond to a request by a parent for student records. Step Parent (Access to Student Records) • A step parent is a “parent” under FERPA when the step parent is present on a day-to-day basis with the natural parent and the child and the other parent is absent from that home. • A step parent is not a “parent” under FERPA when the step parent is not present on a day-to-day basis in the home of the child. • Custody arrangements • Written authorization 57 R.C. 3319.321 • Allows for a transfer of public student records to another institution for a legitimate educational purpose. • Allows “free access” disclosure to law enforcement officers investigating missing child cases. • For purposes of the Education Management Information System (EMIS) Districts may collect personally identifiable information about students but may only be used by authorized personnel of the computer A-site involved in making the EMIS reports. Records Required for Enrollment/Attendance • Statutory requirements of pupil/parent at the time of enrollment in any public or nonpublic school • Produce any records given to the student from school recently attended • Certified copy of an order, decree, or modification of such an order or decree allocating parental rights and responsibilities for the care of the child and designating a residential parent and legal custodian (as applicable) • Grandparent caregiver affidavit/pow (if applicable) • Birth certificate (or passport, attested transcript of the a hospital record, certificate of birth, certificate of baptism or other religious record showing the date and place of birth) • R.C. 3313.672 Attendance • Within 24 hours of entry… • The school district shall request the student’s official record from the school most recently attended. • If the student does not produce a birth certificate or equivalent, OR there is no record of the student’s attendance at the most recent school attended OR the records are not received within 14 days of the date of the request, the principal or chief administrative officer of the school shall notify the law enforcement agency having jurisdiction in the area where the student resides of the possibility the student may be a missing child. • R.C. 3313.372 Duty to transfer grades and credits • A board shall require that the grades, credits, official transcripts, IEPs, or 504 plan of a pupil (abused, neglected, or dependent child) be transferred immediately upon the receipt of either another district's or school's request for those records under R.C. 3313.672 or a juvenile judge's order R.C. 2151.272. WITHHOLDING RECORDS For non-payment of school fees School Fees, Generally… BIG PICTURE • When a school board seeks to charge school fees to parents for their children’s participation in public education, the school board bears a heavy burden of rebutting this constitutionally based presumption. • In 1963 the Ohio General Assembly provided school districts with the ability to charge school fees by creating R.C. 3313.642 Ohio’s Updated Statutory Authority to Charge School Fees • Boards of education may adopt rules and regulations prescribing both a schedule of fees for materials used in a course of instruction and a schedule of charges which may be imposed upon pupils for the loss, damage, or destruction of school apparatus, equipment, musical instruments, library material, textbooks, or electronic textbooks required to be furnished without charge, and for damage to school buildings… • See R.C. 3313.642(C) (eff. 10/11/2013) Interpretation of R.C. 3313.642 • Ohio public school districts can charge reasonable instructional fees, under R.C. 3313.642 for materials used in the course of instruction with the exception of necessary textbooks, as long as the fees were used for classroom materials such as paper, paste, pencils, paint and items used by teachers to aid in their instruction of students. - See State ex rel. Massie v. Gahanna-Jefferson Pub. Schools Bd. of Edn., 76 Ohio St. 3d 584 (1996). R.C. 3313.642, generally • Permits school districts to charge fees for any materials used in a course of instruction • R.C. 3313.642 does not permit school districts to charge fees for necessary textbooks or electronic textbooks required to be furnished without charge pursuant to R.C. 3329.06 Ohio’s Statutory Authority to Enforce Payment of School Fees • Boards may enforce the payment of such fees and charges by withholding the grades and credits of the pupils concerned. • See R.C. 3313.642 (C). R.C. 3313.642 – free lunch exceptions • No board of education of a school district shall charge a fee to a pupil eligible for a free lunch under the “National School Lunch Act,” 60 Stat. 230 (1946), 42 U.S.C. 1751, as amended; and the “Child Nutrition Act of 1966,” 80 Stat. 885, 42 U.S.C. 1771, as amended, for any materials needed to enable the pupil to participate fully in a course of instruction. Exception to Free Lunch Exception • The prohibition of charging a fee does NOT apply to the following fees: (1) Materials needed to enable a pupil to participate fully in extracurricular activities or in any pupil enrichment program that is not a course of instruction; (2) Tools, equipment, and materials that are necessary for workforce-readiness training within a career-technical education program that, to the extent the tools, equipment, and materials are not consumed, may be retained by the student upon course completion. Duty to report to ODE annually • A board that is required to transfer records under division (D) of this section may request a copy of any order regarding the child's custody or placement issued pursuant to a complaint filed under section 2151.27 of the Revised Code. However, a board shall not withhold records required to be transferred under that division pending receipt of a copy of the order. • Each board of education annually shall report to the department of education the number of pupils for whom the board sends transcripts under division R.C. 3313.642(D) and the total amount of unpaid fees lost due to compliance with that division. Exception to withholding grades/credits for failing to pay fees for instructional materials • No board of education shall withhold the grades, credits, official transcripts, diploma, IEPs, or 504 plans of a pupil for nonpayment of fees for materials used in a course of instruction, if a complaint has been filed at any time in a juvenile court alleging that the pupil is an abused, neglected, or dependent child or if the pupil has been adjudicated an abused, neglected, or dependent child. Tuition Fees Student transfers into your school district. The student’s former Ohio public school district refuses to release “grades and credits” due to unpaid tuition. Apparently, the student’s parent enrolled the student into the other district fraudulently and now owes that district the price of tuition for the time period of unauthorized enrollment. (They cite to R.C. 3313.642 as their authority to withhold student’s transcript/records, etc.) Question: Can this Ohio public school district legally withhold this student’s grades and credits from being transferred? NO • R.C. 3313.642(C) (allowing Ohio public school districts to withhold grades and credits when parents fail to pay school fees) is the SOLE exception to Ohio’s provision of free education and does not apply to tuition. Public School Tuition – is not a fee • Ohio public schools are only authorized to adopt fee/charge schedule for “materials used in the course of instruction” and “for the loss, damage, or destruction of school apparatus, equipment, musical instruments, library material, textbooks…damage to school buildings…” R.C. 3313.642(C). What about the tuition owed to the other district? • Because Ohio boards of education have only those powers expressly authorized by statute, the school board in this instance was authorized to initiate tuition collection proceedings to obtain a judgment entry against the parents for “unauthorized attendance” under R.C. 3327.06(B). • The Ohio public school district possesses has no express or implied authority to withhold the student’s transcript to coerce payment on the judgment entry for tuition. Tuition owed to private schools… • Generally, parties are free to enter into contracts that contain provisions which apportion damages in event of default. • A private school can provide in the enrollment contract for withholding a student's transcript if all tuition, fees, and charges have not been paid in full. Bankruptcy Exception • In a case where parents have filed for bankruptcy, however, the private school’s failure to provide a student’s transcript because of a past-due tuition bill violates the US Bankruptcy Code. See In re Dembek, 64 B.R. 745 (Bankr. N.D. Ohio 1986). Duty to enroll • Assuming the parent provides your school district with its required residency documentation, there is a duty to admit the student pursuant to R.C. 3313.64(B)(1) and you cannot delay enrollment “due to a delay in the … receipt of any records required under [R.C. 3313.672] … or any other records required for enrollment.” R.C. 3313.64(F)(9) When Ohio Public School District Refuses to Provide Transcript for Transfer Student • Refusing to release a student’s transcript limits the student’s ability to demonstrate the school credits that could be applied towards satisfaction of graduation requirements. See R.C. 3301.07; 3301.16 ; 3313.60 and OAC 3301-35 and 3301-59 (authorizing boards of education to assign grade placement and to recognize credits earned and courses taken when the proper assurance and the student's transcript has been received…). • Revised R.C. 3313.642 would change this for disabled, abused, neglected, or dependent students…. Extra-Curricular or Sports Fees Example: • Students participating in extra-curricular activities were charged a reasonable fee for their participation. • The fee was mandatory. • A parent of one of the students who participated in the extra-curricular activity failed to pay the fee. • Can the school district withhold the student’s grades and credits for the parent’s failure to pay the fee? • Since fees for extracurricular activities fall outside the statute, its sanctions cannot be applied to force their collection. • The attorney general has opined that grades cannot be withheld from students who failed to account for items entrusted to them for extracurricular fund-raising programs, because the activity was not instructional and the items were not intended to become school property. Ohio Op. Att'y Gen. No. 84-027; See Association for Defense of Washington Local School Dist. V. Kiger, 42 Ohio St. 3d 116 (1989) but see State ex rel. Massie v. Ghanna-Jefferson Pub. Schools Bd. of Ed., 76 Ohio St. 3d 584 (1996). How about a “per-pupil fee” • A public school district decides to charge a “per pupil fee” to be used to defray the cost of administrative supplies. • Parent fails to pay the fee. • Can the district withhold grades and credits for the failure to pay this fee? Per-pupil fee… • R.C. 3313.642 only authorizes a public school to withhold a student's grades and credits for failure to pay assessed fees for "materials used in a course of instruction" other than textbooks or electronic textbooks, which must be furnished without charge under R.C. 3329.06. Generally, “per-pupil” fees may be found to be invalid • Emphasizing that free education is the general rule, the Ohio Supreme Court has declared that this statutory exception must be construed narrowly. • Thus, a public school district’s attempt to assess a per pupil fee, enforced by withholding transcripts, to defray the cost of administrative supplies was held to be an invalid fee. Case law • 1980 - Picklesimer v. Southwestern Cty Schl Dist. 1980 WL 353732 (Ohio App.10th Dist.) • Parking fee imposed • Question turned on whether the Board had the “authority” and “reasonable” • 1985 - Andreozzi v. Edison Local School Dist.1985 WL 10401 (Ohio App. 7 Dist.) • Instructional fee imposed – with credit issued if not used • Consumable materials • Grades and credits withheld • Question turned on whether the fees were illegal, improper and unconstitutional • 1986 - In re Dembek, 64 B.R. 745 (1986) • 1989 –Assoc. for Defense of Washington Local School Dist v.Kiger, 42 Ohio St. 3d 116 • Per pupil fees imposed due to budget issues • Fee held invalid as the fees were being assessed for the costs of administrative materials and not classroom instructional materials. • 1996 -State ex rel. Massie v. Gahanna-Jefferson Pub. Schools, 76 Ohio St. 3d 584 • Fees were assessed for consumable materials such as workbooks • Parents argued the Kiger case • Court found that paper, paste, pencils and expenditures for items used by teachers to aid in the instruction were authorized by R.C. 3313.642 and not “administrative” in nature • 2013 - N. Baltimore Local Schools v. Todd 2013 WL 3205431 (2013-Ohio-2599) • Here the argument was also made that consumable workbooks and assignment books should be reconsidered, and the Massie case revisited. • Court held that the fees were authorized and not illegal Post-Secondary Options • When a student participating in a post secondary option and attains a failing grade in a college course, the superintendent or chief administrator “shall seek reimbursement from the participant or the participant’s parent for the amount of state funds paid to the college on behalf of the participant for that college course.” - R.C. 3365.11(A) - *The School Board may withhold grades and credits received by the participant for district courses taken by the participant until the participant or the participant’s parent provides reimbursement – in accordance with R.C. 3313.642(C) Post-Secondary Enrollment • Program requires counseling services to student in grades 8-11 and to their parents before participation. • Students and parents must be fully aware of the possible risks and consequences of participation, including: • Program eligibility • Financial arrangements for tuition, books, materials and fees • Criteria for any financial aid • Consequences of failing or not completing a course and the effect of the grade… • A requirement that the student and the student’s parent sign a form, that they have received the counseling required by R.C. 3365.02(C) Summary • Fees charged under R.C. 3313.642 will be “invalidated” if not reasonable, or the “item” is not used in the course of educational instruction. • It has also been stressed, in holding a fee invalid, that the item for which the fee is charged is a necessary element of any school's activity or is "educational" in character. • The primary factors emphasized in decisions upholding the validity of a fee have been— • there is statutory authorization for the exaction of the fee. • the purpose for charging the fee was reasonable. Notification to Parents • Annually, parents should be notified of the eligibility requirements and the procedures required to obtain a waiver of school fees. The notice should contain a procedure for the resolution of disputes. • No fee should be collected from a parent seeking a school fee waiver unless the district has acted on the initial request and notified the parent of the decision. • Denials should be mailed to the parent within 15 school days of the receipt of the request. Access to student records under Ohio law • Ohio's Student Privacy Act, RC 3319.321, refers only to student records in public schools and does not apply to private schools. • Most private schools, whether or not technically subject to the Act, have adopted policies that generally reflect the spirit of FERPA. • If a private school is not subject to FERPA, only a parent who has contracted for the education of the child is entitled to review student records made available by the school. Permission of the contracting parent should be sought before allowing a non-contracting parent to review information. THANK YOU!