School Residency in 2008:
An Attack on Non-Traditional Families
A Commentary

By Neal Takiff and Brooke Whitted

The Illinois School Code does not grant school officials the power to dictate parental decisions regarding custody or child care. The statute does not confer upon school officials the authority to reject or alter a parent’s employment choice or work schedule. However, as recent cases illustrate, school officials have become increasingly brazen in challenging the residency of families, and as a result, parental custody arrangements, work schedules, and child care arrangements have been scrutinized in a manner never before seen. Areas that have typically been considered sacred and private matters between parents are now subject to review by school officials, private investigators, and attorneys. School districts have gone beyond investigating sham or fraudulent residency cases and are going after families that are “different,” homeless families, single parent households, and parents who have non-traditional work schedules, despite the fact that these families have established bona fide residencies within the boundaries of their respective school districts.

In one case handled by Whitted Takiff LLC a few years ago, a board member was actually heard to say that there was “no room” in the community for people like our client. The client was a single mother who had enrolled her children in the community while living with her mother, a result of economic setbacks. School boards have no business behaving in this manner and should stick to the statute and to the business of educating children. At the time many in the education community saw that case as an aberration. Today, it appears that such beliefs are being promoted with far more frequency, resulting in injustices throughout the state.

School districts now hire “investigators” and share private information about their students with other community members as part of their “residency investigations.” [1] Unreliable computer programs and internet search engines spit out information on parents (often incorrect), which is then used and considered as evidence. When parents respond to these investigations by requesting a hearing, they enter a Kafkaesque world in which the hearing officer is often the school district’s own attorney. Rather than listen to both sides in an impartial manner, they find that the “impartial” hearing officer conducts the inquisition, attends closed session meetings with the board of education (where parents are not allowed), and “assists” the school board in making their determination. As judge, jury and executioner, the hearing officer is far from independent. The result is the parent receives a letter from the school district indicating that their child is not a resident, can no longer attend school, and owes thousands of dollars in tuition. For parents who are not fraudulent about where they live and put their trust in common sense and the good faith of school officials, the letter is a shocking realization that they may need legal assistance just to receive their constitutionally guaranteed free education.

Why are school districts engaging in such actions and how do they justify their behavior? In part because school officials, along with just about everyone else, lack a basic understanding of Illinois residency requirements, in part because they are guided by attorneys more interested in billable hours than solution of a problem. The result is that these forces turn Illinois residency law on its head. The parent is forced to appeal the determination into court, with typically no opportunity to recover attorney fees. School officials end up paying more in legal fees than what it would have cost to educate the child for the remainder of the student’s time in the district. Of course, the child suffers in limbo, with no school districts willing to accept his residency status.

Under Illinois law, the residence of a person who has legal custody of a pupil is deemed to be the residence of the pupil. 105 ILCS 5/10-20.12b(a)(1) Residency of regular education students is controlled by Section 10-20.12b of the School Code in five “custody” situations.

1. The “natural” custody of a natural or adoptive parent with whom the child resides;

2. Custody granted by a court to a person with whom the pupil resides for reasons other than to have access to the educational programs of the district;

3. Custody exercised under a statutory short-term guardianship, provided that within sixty days of the student’s enrollment a court order is entered which establishes a permanent guardianship for reasons other than to have access to the educational programs of the district;

4. Custody exercised by an adult caretaker or relative who is receiving aid under the Illinois Public Aid Code for the pupil who resides with that adult caretaker for reasons other than to have access to the educational programs of the district; and

5. Custody 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 nighttime abode for reasons other than to have access to the educational programs of the district.

A student over 18 or who is emancipated by order of court is a resident wherever the student lives.

What is strikingly absent from the legal definitions is a requirement that parents submit their homes to inspection or that the child spend a particular number of nights at the home. In fact, the regulations issued by the State Board of Education are clear, “No school district shall impose requirements for enrollment more restrictive than those established under relevant Illinois and federal law.” 23 Ill. Admin. Code 1.240

It is time for school districts to get back to what they do best – educate children, and stop acting as the parenting police. While there is a legitimate interest to protect taxpayers from fraudulent residencies that do occur from time to time, the actions of school districts must be tailored to address those situations and not to substitute it’s values and judgments for those of hard working parents of “non-traditional” families.

[1] These activities likely violate the Illinois School Student Records Act.