Residency
Illinois State Board of Education
Legal Department
September 30, 1997
The Legal Department has received your recent letter in which you state as follows:
The enactment of P.A. 89-480 (H.B. 3426) adds Section 10-20.12b to
The School Code effective 1/1/97. The Education for Homeless Children Act effective 1/1/95 was obviously there first. The two do not read well together in my mind.The legislature was apparently cognizant of potential conflicts between the two acts and provided in P.A. 89-480 that the Education for Homeless Children Act, 105 ILCS 45/1-1 et seq., takes precedence in case of inconsistencies. Section 10-20.12b at subsection (g) states as follows:
The provisions of [Section 10-20.12b] are subject to the provisions of
the Education for Homeless Children Act. Nothing in this Section shall
be construed to apply to or require the payment of tuition by a parent or
guardian of a "homeless child" (as that term is defined in Section 1-5 of
the Education for Homeless Children Act) in connection with or as a
result of the homeless child's continued education or enrollment in a
school that is chosen in accordance with any of the options provided in
Section 1-10 of that Act.Your specific questions and our responses are set forth below:
When does the Regional Superintendent act as ombudsman and when does the local Board of Education hold a hearing?
The requirement that the Regional Superintendent of Schools act as ombudsperson is found in the education for Homeless Children Act and is confined to situations involving the residence of homeless students only. The provisions at Section 10-20.12b are less limited. They provide hearing procedures in regard to residence in general and are found, together with other general residency provisions, in Article 10 of the School Code. Potential conflicts would occur only if residency questions in a particular situation arose as a result of a student's homelessness. In such cases, the Regional Superintendent would act as ombudsperson to ensure that the student is promptly admitted to an appropriate school in accordance with the Education for Homeless Children Act. If the district then wished to contest the admission of such a student, it would be free to initiate the hearing process under Section 10-2-.12b. The pupil is entitled to continue attendance at the schools of the district during the hearing process upon request of a person who enrolled the pupil. See Section 10-20.12b, subparagraph (d). As noted above, the Education for Homeless Children Act would prevail.
How is homelessness determined?
Section 1-5 of the Education for Homeless Children Act defines "homeless person, child or youth" as follows:
"Homeless person, child, or youth" includes, but is not limited to, any of
the following:(1) An individual who lacks a fixed, regular, and adequate nighttime
place of abode.
(2) An individual who has a primary nighttime place of abode that is:
(A) a supervised publicly or privately operated shelter designed to
provide temporary living accommodations (including welfare
hotels, congregate shelters, and transitional house);
(B) an institution that provides a temporary residence for
individuals intended to be institutionalized; or
(C) a public or private place not designed for or ordinarily used as
a regular sleeping accommodation for human beings.
[Emphasis added.]How is the determination made between night time abode and the desire to attend a particular school district?
The choice to attend school in the district in the school of origin or the district in which the student is actually living is that of the parents or guardians. Section 1-10 of the Education for Homeless Children Act provides as follows:
(a) When a child loses permanent housing and becomes a homeless
person within the meaning of Section [1-]5, or when a homeless
child changes his or her temporary living arrangements, the
parents or guardians of the homeless child will have the option
of either:
(1) continuing the child's education in the school of origin for as
long as the child remains homeless, or if the child becomes
permanently housed, until the end of the academic year
during which the housing is acquired; or
(2) enrolling the child in any school that nonhomeless students who
live in the attendance area in which the child or youth actually
living are eligible to attend.
[Emphasis added.]How do we determine the "solely for the purpose of attending school" intent?
"Solely for the purpose of attending school" is a question of fact which must be determined on a case-by-case basis considering all relevant facts in a given situation. If we may be of assistance in weighing the factors in a particular instance, please contact attorney Robin Cona at 217/782-5270.
Michael J. Hernandez
General Counsel
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