Residency |
The Safe Schools Act defines Missouri's residency requirements for public school attendance purposes. Determining residency is complicated by the fact that there are constitutional considerations, statutory exemptions, and laws that give qualifying nonresident students the ability to enroll and be counted for state aid. Table of Contents:1. How is residency in the school district determined? 1. How is residency in the school district determined? Whoever is registering a student under the age of 18 must demonstrate that the student lives in the district and is domiciled there. The domicile of the student shall be that of the student’s parent, military guardian pursuant to a military guardianship, or court-appointed legal guardian. Pursuant to subsection 11 in section 475.060, RSMo a person may now obtain guardianship of a minor for the sole purpose of school registration. Proof of residency may come in a number of forms. The district may ask the registrant to sign a statement or affidavit relating to residency, produce a lease or rent receipts, or ask for a copy of an occupancy permit where appropriate. A person registering a child who resides in the district but who is not living with a parent, military guardian, or court-appointed legal guardian, may request a waiver of proof of residency at the time of registration. A school district should not require a court-ordered guardianship before enrolling a child who is not living with a parent. See subsection 2 and 6 in section 167.020, RSMo. 2. How is a proof of residency waiver obtained? A student residing in the district who is not living with a parent, military guardian, or court-appointed legal guardian may request a proof of residency waiver at the time of registration. The school board has 45 days from the time of the request to hold a hearing for the purpose of determining whether the student is eligible to waive proof of residency on the basis of hardship or good cause. See subsection 2 and 3 in section 167.020 RSMo. 3. Who determines the standard of hardship or good cause? It is up to local school boards to set the standard for review. Missouri’s residency law refers to "athletic ability" as the only unacceptable reason for granting a waiver. Likewise, federal law would bar acceptance or rejection based upon race, creed, religion, national origin, gender or disability. In Horton v. Marshall Public Schools the Court of Appeals for the Eighth Circuit of which Missouri is a part, held that an Arkansas law requiring school districts to enroll only those students who were domiciled in the district with a parent or legal guardian, violated the due process and equal protection clauses of the Constitution. The Court recognized that there are situations where a child, living with someone other than a parent or court-appointed guardian, is eligible to enroll in the local public school. If that child is living in the district for reasons other than attending that particular school district, then the child has the right to enroll as a resident student of the district and to be counted for state aid. Any denial of services must be based upon specific statutory authority such as 167.171 of the Safe Schools Act, which indicates that a child which has been convicted of one of the enumerated felonies in this section may not be readmitted or enrolled to a regular program of instruction. See subsection 2 in section 167.020 and section 167.171, RSMo and Horton v. Marshall Public Schools, 769 F.2d 1323 (8th Cir. 1985).
4. Is the student allowed to register and attend school within the 45 day period the board has to act on the proof of residency waiver? The student must be allowed to register and attend classes until the board makes it’s determination to either accept or reject the requested proof of residency waiver. If the district has information that the student's presence will create an immediate danger, the superintendent or the superintendent’s designee may prevent the student from registering after convening a hearing on the matter. The hearing must take place within three days of the request to register. See subsection 2 in section 167.020, RSMo. 5. What happens if no action is taken by the board within 45 days from the time of the waiver request? The student enrolls as a resident student.
6. What recourse does the student have if the board rejects the proof of residency waiver? The student or someone acting on the student’s behalf may appeal the board’s decision to the circuit court in the county in which the school district is located. See subsection 3 in section 167.020, RSMo.
7. Are there exceptions to the residency requirement as defined in subsection 2 of section 167.020, RSMo?
8. Is a power of attorney, by itself, an acceptable measure of residency? A power of attorney only confers the authority to act on behalf of a student; it does not confer or establish residency. However, when a minor student is residing in the district with someone other than a parent, military guardian, or court-appointed legal guardian, a power of attorney can be very useful in helping school district personnel deal with issues such as discipline, reporting of grades, and medical treatment.
9. A 17-year-old living with her boyfriend’s family in the district wants to register. His parents aren’t her legal guardians and her parents do not reside in the district. Must she be registered? The law presumes a student who is physically present in the district is a resident until proven otherwise. She should be allowed to request a proof of residency waiver so that the board may then determine whether she is a resident under the hardship or good cause standard. She may also be eligible to enroll if she qualifies under an exemption to the residency requirement. (See question 7.) Until the board renders it’s decision she should be allowed to attend school unless the superintendent determines her presence poses an immediate danger or she is otherwise ineligible to enroll pursuant to section 167.171, RSMo. The Safe Schools Act grants schools the authority not to enroll students in a regular program of instruction who have been charged with or convicted of specific felonies enumerated in the law. (See question 11.) School officials must also be aware of the law as it applies to students with disabilities. (See question 17.) See subsection 2 in section 167.020 and subsection 3 and 4 in section 167.171, RSMo. 10.How old must a student be to establish residency on his/her own? Under Missouri law, a person reaches majority at the age of 18. A student who is 18 or older may legally establish residence and become domiciled in any district within the state. A student under the age of 18 may be able to establish residency independent of his/her parents if the student can prove that he/she does not rely on them for financial support. See subsection 2 in section 167.151, RSMo. 11.Are there circumstances in which registration of a student may be denied? A student may be denied registration if within five (5) days of the request for a proof of residency waiver the superintendent or the superintendent’s designee, after a hearing, determines the student poses an immediate danger. A student may also be denied enrollment if, in accordance with the Safe Schools Act, the student’s discipline record indicates that he/she is currently suspended or expelled from another school, including a private, parochial, charter or out-of-state school, and the enrolling school would have suspended or expelled the student for the same offense. A student may not be enrolled in a course of regular instruction if the student has been removed from school because the student was charged with or convicted of certain felonies listed in section 167.171, RSMo. However, this provision does not prohibit a school district from enrolling the student in an alternative education program. School officials must also be aware of the law as it applies to students with disabilities. (See question 15.) A student who has not met the state’s immunization requirements for entering school will also be denied enrollment. See subsection 2 in section 167.020, subsection 3 and 4 in section 167.171, and 167.181, RSMo. 12. How will the district know if the student attempting to enroll poses an immediate danger or is ineligible to enroll in accordance with the Safe Schools Act? At registration the district should require the parent, guardian or student to provide a sworn statement or affirmation indicating whether the student has been expelled from another school for violations of school policies relating to weapons, drugs, alcohol or intentional acts resulting in injury or acts which, if committed in another state, would have resulted in expulsion. The registrant should be informed that knowingly making a false statement could result in his/her conviction of a class B misdemeanor. The registrant should also be informed that the statement or affirmation will be kept as part of the student’s education record. Information about a student’s discipline history can also be obtained through a records request. The enrolling school district is required by law to request the education and discipline records of the student enrolling within two business days of the request to enroll. The responding school district has five days in which to comply with the records request. With the passage of SB 944 in 2000, superintendents or chief school officer equivalents in charter and non-public schools have the responsibility of forwarding written notification of the disposition of any juvenile case involving a crime enumerated in subsection 1 of 167.115, RSMo to any public, private, parochial, or charter school to which a student transfers. See section 167.023, subsection 7 in section 167.020 and section 167.115, RSMo. 13. What happens if the district finds out that a signed statement or affidavit of residence contains false information? Anyone who knowingly falsifies a statement of residence is guilty of a class A misdemeanor. The district may file a civil action for the purposes of recovering the costs of school attendance. See subsections 4 and 5 in section 167.020, RSMo. 14. May a district allow nonresident employees’ children to attend and be counted as resident students? A school district may allow the children of nonresident teachers and regular employees to attend and be counted as resident students for purposes of receiving state aid. A teacher may not be charged tuition in the district where the teacher’s child attends school. (An exception exists in subsection 5 in section 167.151, RSMo. that allows Lee's Summit School District to charge its nonresident teachers and regular employees tuition.) School districts have the option of allowing the children of nonresident regular support staff to attend without having to pay tuition. Once the nonresident teacher or regular employee is no longer employed with the district, the student is no longer eligible to be counted as a resident student. See subsection 2 in section 163.031, 167.151 and 168.151, RSMo. 15. What about special education students? The issue of residency is not affected by whether or not the child is a special education student. However, the issue of discipline is. If you have further questions about residency or discipline issues pertaining to special education students, visit The Division of Special Education web site or please contact the Department’s Division of Special Education at 573-751-5739. 16. What is the Missouri State High School Activities Association position on residency? The Department makes no attempt to determine the position of the Missouri State High School Activities Association (MSHSAA) on any residency issue. MSHSAA may apply separate standards regarding eligibility to participate in interscholastic activities. Member schools are urged to contact MSHSAA on these matters. Visit the MSHSAA web site. SUMMARY You may find it helpful to address the question of residency by using the following three-step model: 1. Is the child living in the district with a parent, military guardian, or court-appointed legal guardian? If yes, the child is a resident of your district and you must enroll (barring the suspension/expulsion issue). If no, continue to Step Two. 2. Pursuant to the Safe Schools Act, subsections 1 and 6 section 167.020, RSMo. is there another reason why the district is required to enroll the child? If the child meets criteria addressed in subsection 2 in section 167.151, RSMo. the child is entitled to attend school in the district and is counted for purposes of state aid. If the child does not meet Step One or Step Two, the child may still be eligible to attend school in the district as noted in Step Three. 3. Does the proof of residency waiver provision apply (for example, is this a Horton v. Marshall situation)? If the child applies for a proof of residency waiver and is eligible to register because of a hardship or for good cause, then the child attends school without paying tuition. If the child is determined not eligible, then he/she must pay tuition in order to attend. The preceding questions and answers are intended for your information only. If you need further assistance on specific issues in this area you may want to contact legal counsel. All state statutes referred to in the Q&A are available on the web through the Department’s School Laws and Legislation or through the Missouri General Assembly’s web site. |