Specific reasons underlying the finding of necessity:
The proposed amendment is designed to: (1) address reports that districts are denying enrollment of unaccompanied minors and undocumented youths if they are unable to produce documents sufficiently demonstrating age, guardianship, and/or residency in a district; and (2) provide clear requirements for school districts regarding enrollment of students, particularly as it pertains to procedures for unaccompanied minors and other undocumented youths.
Many school districts across the State have experienced an influx of unaccompanied minors and other undocumented youths. It has been reported that some school districts are refusing to enroll unaccompanied minors and undocumented youths if they, or their families or guardians, are unable to produce documents sufficiently demonstrating guardianship and/or residency in a district. These enrollment policies, as well as highly restrictive requirements for proof of residency, may impede or prevent many unaccompanied minors and undocumented youths from enrolling or attempting to enroll in school districts throughout the State. The proposed amendment is necessary to ensure that all children are enrolled in school, regardless of immigration status, pursuant to New York State and Federal law and to ensure that all school districts understand and comply with their obligation to enroll all resident students regardless of their immigration status.
The proposed amendment was adopted by emergency action at the December 15-16, 2014 Regents meeting, effective December 16, 2014. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on December 31, 2014. The proposed amendment was readopted as an emergency action at the February 2015 Regents meeting to ensure that the rule remains continuously in effect until it can be presented for adoption and take effect as a permanent rule.
The proposed rule has been revised in response to public comment as set forth in the Revised Regulatory Impact Statement submitted herewith. Emergency action to adopt the proposed rule is necessary now for the preservation of the general welfare to immediately repeal the February emergency rule and adopt the revised proposed rule for purposes of clarifying requirements for school districts regarding the enrollment of students, particularly as it pertains to procedures for unaccompanied minors and other undocumented youth, and thereby ensure compliance with federal and State laws regarding access to a free public education system.
It is anticipated that the revised rule will be presented to the Board of Regents for adoption as a permanent rule at the June 15-16, 2015 Regents meeting, which is the first scheduled meeting after expiration of the 30-day public comment period mandated by the State Administrative Procedure Act section 202(4-a) for revised proposed rulemakings.
Subject:
Student enrollment.
Purpose:
Clarify requirements on student enrollment, particularly as to procedures for unaccompanied minors and other undocumented youth.
Substance of emergency/revised rule:
Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on December 31, 2014, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The following is a summary of the revised proposed rule.
Paragraph (1) of section 100.2(y) sets forth the purposes of the regulation to establish requirements for determinations by a board of education or its designee of student residency and age, for purposes of eligibility to attend the public schools in the school district without the payment of tuition pursuant to Education Law section 3202, in order to ensure that all eligible students are admitted to such schools without undue delay; provided that nothing in this subdivision shall be construed to change or shift the burden of proof of the parent(s), the person(s) in parental relation or the child, as appropriate, to establish residency through physical presence as an inhabitant of the school district and intent to reside in the district.
Paragraph (2) of section 100.2(y) provides that each school district shall make publicly available its enrollment forms, procedures, instructions and requirements for determinations of student residency and age in accordance with this subdivision. Such publicly available information shall include a non-exhaustive list of the forms of documentation that may be submitted to the district by parents, persons in parental relation or children, as appropriate, in accordance with the provisions of this subdivision. Such list shall include but not be limited to all examples of documentation listed in this subdivision. No later than January 31, 2015, such information shall be included in the school district’s existing enrollment/registration materials and shall be provided to all parents, persons in parental relation or children, as appropriate, who request enrollment in the district, and shall be posted on the district’s website, if one exists. As soon as practicable but no later than July 1, 2015, the school district shall update such information and the district’s existing enrollment/registration materials as necessary to come into compliance with the provisions of this subdivision; and provide such updated information and materials to all parents, persons in parental relation or children, as appropriate, who request enrollment in the district; and post such updated information and materials on the district’s website, if one exists.
Paragraph (3) of section 100.2(y) provides that when a child’s parent(s), the person(s) in parental relation to the child or the child, as appropriate, requests enrollment of the child in the school district, such child shall be enrolled and shall begin attendance on the next school day, or as soon as practicable, provided that nothing herein shall require the district to enroll such child if a determination of non-residency is made, in accordance with this subdivision, on the date of such request for enrollment. As soon as practicable but no later than three business days after such initial enrollment, the parent(s), the person(s) in parental relation to the child or the child, as appropriate, shall submit documentation and/or information in support of the child’s residency in the district and the board of education or its designee shall review all such documentation and/or information and make a residency determination in accordance with subparagraphs (i) and (ii) of paragraph (3); provided that if such documentation and/or information is submitted on the third business day after initial enrollment, the board of education or its designee in its discretion may make the residency determination no later than the fourth business day after initial enrollment. Subparagraph (i) of paragraph (3) sets forth requirements for documentation regarding enrollment and/or residency, including non-exclusive lists of documentation to establish that a child resides with the parents or persons in parental relation and to establish physical presence in the school district, and a non-exclusive list of documentation to establish. The subparagraph also provides that a school district shall not request as a condition of enrollment, a social security number or card or any information that would tend to reveal the immigration status of a child, or the child’s parent or person in parental relation.
Subparagraph (ii) of paragraph (3) sets forth requirements for documentation of age, including a non-exclusive list of documents that may be considered.
Subparagraph (ii) of paragraph (3) provides that school districts are required to comply with Public Health Law § 2164(7) and all other applicable provisions of the Public Health Law and its implementing regulations, including orders issued by a state or local health department pursuant to such laws or regulations, that impact a student’s admission to or attendance in school. Nothing in section 100.2(y) shall be construed to:
(1) require the immediate attendance of an enrolled student lawfully excluded from school temporarily pursuant to Education Law § 906 because of a communicable or infectious disease that imposes a significant risk of infection of others, or an enrolled student whose parent(s) or person(s) in parental relation have not submitted proof of immunization within the periods prescribed in Public Health Law § 2164(7)(a);
(2) require the immediate attendance of an enrolled student who is suspended from instruction for disciplinary reasons pursuant to Education Law § 3214;
(3) interfere with the recordkeeping and reporting requirements imposed on school districts participating in the federal Student and Exchange Visitor Program (SEVP) in grades 9-12 pursuant to applicable federal laws and regulations concerning nonimmigrant alien students who identify themselves as having or seeking nonimmigrant student visa status (F-1 or M-1), and nothing herein shall be construed to conflict with such requirements or to relieve such nonimmigrant alien students who have or seek an F-1 or M-1 visa from fulfilling their obligations under federal law and regulations related to enrolling in grades 9-12 in SEVP schools.
Paragraph (4) of section 100.2(y) provides that at any time during the school year and notwithstanding any prior determination to the contrary at the time of the child’s initial enrollment or re-entry into the public schools of the district, the board of education or its designee may determine, in accordance with paragraph (6) of section 100.2(y), that a child is not a district resident entitled to attend the schools of the district.
Paragraph (5) of section 100.2(y) provides that determinations regarding whether a child is entitled to attend a district’s schools as a homeless child or youth must be made in accordance with subdivision (x) of this section.
Paragraph (6) of section 100.2(y) is amended to provide that when the board of education or its designee determines that a child is not entitled to attend the schools of such district because such child is not a resident of such district, such board or its designee shall, within two business days, provide written notice of its determination to the child's parent, to the person in parental relation to the child, or to the child, as appropriate. Such written notice shall state:
(1) that the child is not entitled to attend the public schools of the district;
(2) the specific basis for the determination that the child is not a resident of the school district, including but not limited to a description of the documentary or other evidence upon which such determination is based;
(3) the date as of which the child will be excluded from the schools of the district; and
(4) that the determination of the board may be appealed to the Commissioner of Education, in accordance with Education Law, section 310, within 30 days of the date of the determination, and that the instructions, forms and procedures for taking such an appeal, including translated versions of such instructions, forms and procedures, may be obtained from the Office of Counsel at www.counsel.nysed.gov, or by mail addressed to the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234 or by calling the Appeals Coordinator at (518) 474-8927.
This notice is intended
to serve as both a notice of emergency adoption and a notice of revised rule making. The notice of proposed rule making was published in the State Register on December 31, 2014, I.D. No. EDU-52-14-00014-EP. The emergency rule will expire June 12, 2015.
Emergency rule compared with proposed rule:
Substantial revisions were made in section 100.2(y)(1), (2), (3) and (4).
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, State Education Department, Office of Counsel, State Education Building Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov
Data, views or arguments may be submitted to:
Cosimo Tangorra, Jr., Deputy Commissioner, State Education Department, Office of P-12 Education, State Education Building 2M West, 89 Washington Ave., Albany, NY 12234, (518) 474-5520, email: NYSEDP12@nysed.gov
Public comment will be received until:
30 days after publication of this notice.
Revised Regulatory Impact Statement
Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on December 31, 2015, the substantial revisions were made to the proposed amendment as follows.
The previous paragraph (1) of section 100.2(y) has been renumbered to (2), and a new paragraph (1) has been added to expressly state the purpose of section 100.2(y) to set forth requirements for determinations by a board of education of student residency and age, for purposes of eligibility to attend the public schools in the school district without the payment of tuition pursuant to Education Law section 3202, in order to ensure that all eligible students are admitted to such schools without undue delay; and to provide that nothing in section 100.2(y) shall be construed to change or shift the burden of proof of the parent(s), the person(s) in parental relation or the child, as appropriate, to establish residency through physical presence as an inhabitant of the school district and intent to reside in the district.
Renumbered paragraph (2) has been revised to clarify that, as soon as practicable but no later than July 1, 2015, school districts shall update their publicly available information on enrollment and residency procedures and enrollment/registration materials as necessary to come into compliance with section 100.2(y), as revised; and provide such updated information and materials to all parents, persons in parental relation or children, as appropriate, who request enrollment in the district; and post such updated information and materials on the district’s website, if one exists.
The previous paragraph (2) has been renumbered to paragraph (3) and revised to clarify that nothing in section 100.2(y) shall require the school district to enroll a child if a determination of non-residency is made, in accordance with section 100.2(y), on the date of such request for enrollment. The paragraph has been further revised to clarify the procedures and timeline for the district to make its residency determination. As soon as practicable but no later than three business days after such initial enrollment, the parent(s), the person(s) in parental relation to the child or the child, as appropriate, shall submit documentation and/or information in support of the child’s residency in the district and the board of education or its designee shall review all such documentation and/or information and make a residency determination in accordance with section 100.2(y)(3)(i) and (ii); provided that if such documentation and/or information is submitted on the third business day after initial enrollment, the district in its discretion may make the residency determination no later than the fourth business day after initial enrollment.
Clause (b) of section 100.2(y)(3)(i) has been revised to clarify the documentation and/or information that a school district may require the parent(s) or person(s) in parental relation to submit as evidence of the physical presence of the parent(s) or person(s) in parental relation and the child in the school district.
Clause (c) of section 100.2(y)(3)(i) has been revised to provide that for purposes of proof of parental relationship or proof that the child resides with the parent(s) or person(s) in parental relation, the district may accept an affidavit of the parent(s) or person(s) in parental relation indicating either: (1) that they are the parent(s) with whom the child lawfully resides; or (2) that they are the person(s) in parental relation to the child, over whom they have total and permanent custody and control, and describing how they obtained total and permanent custody and control, whether through guardianship or otherwise.
The previous paragraph (3) has been deleted because the revisions made to renumbered paragraph (3), as described above, have made the provisions in the previous paragraph (3) redundant and unnecessary.
Paragraph (4) of section 100.2(y) has been revised to clarify that at any time during the school year the board of education or its designee may determine in accordance with section 100.2(y)(6) that a child is not a district resident entitled to attend the schools of the district, notwithstanding any prior determination to the contrary at the time of the child’s initial enrollment or re-entry into the public schools of the district.
The proposed amendment has been generally revised to make certain technical changes relating to terminology and organizational structure within the proposed amendment.
The above revisions require that the Local Government Mandates and Paperwork sections in the previously published Regulatory Impact Statement be revised to read as follows.
LOCAL GOVERNMENT MANDATES:
Each school district shall make publicly available its enrollment forms, procedures, instructions and requirements for determinations of student residency and age, including a non-exhaustive list of the forms of documentation that may be submitted to the district, as specified in the regulation. By no later than January 31, 2015, such information shall be included in the district’s existing enrollment/registration materials and be provided to all parents/persons in parental relation or children, as appropriate, who request enrollment in the district, and be posted on the district’s website, if one exists. As soon as practicable but no later than July 1, 2015, school districts shall update their publicly available information on enrollment and residency procedures and enrollment/registration materials as necessary to come into compliance with section 100.2(y), as revised; and provide such updated information and materials to all parents, persons in parental relation or children, as appropriate, who request enrollment in the district; and post such updated information and materials on the district’s website, if one exists.
When a child’s parent(s)/person(s) in parental relation or the child, as appropriate, requests enrollment of the child in the school district, such child shall be enrolled and begin attendance on the next school day, or as soon as practicable, provided that nothing in section 100.2(y) shall require the school district to enroll such child if a determination of non-residency is made, in accordance with this subdivision, on the date of such request for enrollment. As soon as practicable but no later than three business days after initial enrollment, the parent(s), the person(s) in parental relation to the child or the child, as appropriate, shall submit documentation and/or information in support of the child’s residency in the district and the board of education or its designee shall review all documentation and/or information and make a residency determination in accordance with the regulation. At any time during the school year, the board of education or its designee may determine, in accordance with the regulation, that a child is not a district resident entitled to attend the schools of the district. Determinations regarding whether a child is entitled to attend a district’s schools as a homeless child or youth must be made in accordance with section 100.2(x) of the Commissioner’s Regulations.
School districts are required to comply with Public Health Law § 2164(7) and all other applicable provisions of the Public Health Law and its implementing regulations, including orders issued by a state or local health department pursuant to such laws or regulations, that impact a student’s admission to or attendance in school.
PAPERWORK:
The regulation provides that the district may require parents/persons in parental relation or the child, as appropriate, to submit documentation/information as evidence of their physical presence in the school district, as specified in the regulation, including:
(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 from whom the parent(s) or person(s) in parental relation leases or with whom they share property within the district, which may be either sworn or unsworn;
(3) such other statement by a third party relating to the parent(s)’ or person(s) in parental relation’s physical presence in the district; and/or
(4) other forms of documentation and/or information establishing physical presence in the district, which may include but not be limited to those listed in section 100.2(y)(3)(i)(d).
A district may not require submission of a judicial custody order or an order of guardianship as a condition of enrollment.
Revised Regulatory Flexibility Analysis
Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on December 31, 2014, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The revisions require that the Compliance Requirements section in the previously published Regulatory Flexibility Analysis be revised to read as follows.
2. COMPLIANCE REQUIREMENTS:
The proposed amendment merely codifies applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. The proposed amendment will not impose any additional compliance requirements beyond those inherent in such applicable laws.
Each school district shall make publicly available its enrollment forms, procedures, instructions and requirements for determinations of student residency and age, including a non-exhaustive list of the forms of documentation that may be submitted to the district, as specified in the regulation. By no later than January 31, 2015, such information shall be included in the district’s existing enrollment/registration materials and be provided to all parents/persons in parental relation or children, as appropriate, who request enrollment in the district, and be posted on the district’s website, if one exists.
When a child’s parent(s)/person(s) in parental relation or the child, as appropriate, requests enrollment of the child in the school district, such child shall be enrolled and begin attendance on the next school day, or as soon as practicable, provided that nothing in section 100.2(y) shall require the school district to enroll such child if a determination of non-residency is made, in accordance with this subdivision, on the date of such request for enrollment. As soon as practicable but no later than three business days after initial enrollment, the parent(s), the person(s) in parental relation to the child or the child, as appropriate, shall submit documentation and/or information in support of the child’s residency in the district and the board of education or its designee shall review all documentation and/or information and make a residency determination in accordance with the regulation. At any time during the school year, the board of education or its designee may determine, in accordance with the regulation, that a child is not a district resident entitled to attend the schools of the district. Determinations regarding whether a child is entitled to attend a district’s schools as a homeless child or youth must be made in accordance with section 100.2(x) of the Commissioner’s Regulations.
School districts are required to comply with Public Health Law § 2164(7) and all other applicable provisions of the Public Health Law and its implementing regulations, including orders issued by a state or local health department pursuant to such laws or regulations, that impact a student’s admission to or attendance in school.
The regulation provides that the district may require parents/persons in parental relation or the child, as appropriate, to submit documentation/information as evidence of their physical presence in the school district, as specified in the regulation, including:
(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 from whom the parent(s) or person(s) in parental relation leases or with whom they share property within the district, which may be either sworn or unsworn;
(3) such other statement by a third party relating to the parent(s)’ or person(s) in parental relation’s physical presence in the district; and/or
(4) other forms of documentation and/or information establishing physical presence in the district, which may include but not be limited to those listed in section 100.2(y)(3)(i)(d).
A district may not require submission of a judicial custody order or an order of guardianship as a condition of enrollment.
Revised Rural Area Flexibility Analysis
Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on December 31, 2014, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The revision requires that the Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services section in the previously published Rural Area Flexibility Analysis be revised to read as follows.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES
The proposed amendment merely codifies applicable federal and State laws, as well as existing SED guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. The proposed amendment will not impose any additional compliance requirements beyond those inherent in such applicable laws.
Each school district shall make publicly available its enrollment forms, procedures, instructions and requirements for determinations of student residency and age, including a non-exhaustive list of the forms of documentation that may be submitted to the district, as specified in the regulation. By no later than January 31, 2015, such information shall be included in the district’s existing enrollment/registration materials and be provided to all parents/persons in parental relation or children, as appropriate, who request enrollment in the district, and be posted on the district’s website, if one exists.
When a child’s parent(s)/person(s) in parental relation or the child, as appropriate, requests enrollment of the child in the school district, such child shall be enrolled and begin attendance on the next school day, or as soon as practicable, provided that nothing in section 100.2(y) shall require the school district to enroll such child if a determination of non-residency is made, in accordance with this subdivision, on the date of such request for enrollment. As soon as practicable but no later than three business days after initial enrollment, the parent(s), the person(s) in parental relation to the child or the child, as appropriate, shall submit documentation and/or information in support of the child’s residency in the district and the board of education or its designee shall review all documentation and/or information and make a residency determination in accordance with the regulation. At any time during the school year, the board of education or its designee may determine, in accordance with the regulation, that a child is not a district resident entitled to attend the schools of the district. Determinations regarding whether a child is entitled to attend a district’s schools as a homeless child or youth must be made in accordance with section 100.2(x) of the Commissioner’s Regulations.
School districts are required to comply with Public Health Law § 2164(7) and all other applicable provisions of the Public Health Law and its implementing regulations, including orders issued by a state or local health department pursuant to such laws or regulations, that impact a student’s admission to or attendance in school.
The regulation provides that the district may require parents/persons in parental relation or the child, as appropriate, to submit documentation/information as evidence of their physical presence in the school district, as specified in the regulation, including:
(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 from whom the parent(s) or person(s) in parental relation leases or with whom they share property within the district, which may be either sworn or unsworn;
(3) such other statement by a third party relating to the parent(s)’ or person(s) in parental relation’s physical presence in the district; and/or
(4) other forms of documentation and/or information establishing physical presence in the district, which may include but not be limited to those listed in section 100.2(y)(3)(i)(d).
A district may not require submission of a judicial custody order or an order of guardianship as a condition of enrollment.
The rule does not impose any additional professional service requirements on rural areas.
Revised Job Impact Statement
Since publication of a Notice of Emergency Adoption and Proposed Rule Making in the State Register on December 31, 2014, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.
The proposed amendment, as revised, relates to student enrollment, and will codify applicable federal and State laws, as well as existing State Education Department guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. The proposed revised amendment does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed revised amendment that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
Assessment of Public Comment
Since publication of Notice of Emergency Adoption and Proposed Rule Making in State Register on December 31, 2015, the State Education Department (SED) received comments summarized as follows:
1. COMMENT:
Strong support expressed for requiring enrollment information/instructions be made publicly available and on existing district websites, for requiring immediate enrollment and admission to attendance of students upon request, and for clarifying that school districts may not require certain materials to establish residency, age or guardianship.
DEPARTMENT RESPONSE:
No response necessary as comment is supportive.
2. COMMENT:
Amendment inconsistent with Education Law § 3202(1), which requires residency be established through physical presence and intent to remain in the district. Appears to allow persons to establish residency based merely on physical presence, as established through one of the forms of proof listed in the amendment, including unsworn third-party statements.
DEPARTMENT RESPONSE:
Comment misinterprets amendment, which is not intended to change requirement that residency be established by both physical presence and intent to remain. Amendment revised to clarify purpose of 100.2(y), and expressly provide nothing shall be construed to change or shift the burden of proof of the parent/person in parental relation or the child, as appropriate, to establish residency through physical presence as an inhabitant and intent to reside in the district. Language added clarifying documents listed are meant to be non-exclusive.
Nothing precludes districts from considering unsworn statements vis-à-vis sworn statements when weighing evidence regarding residency determination.
3. COMMENT:
Amendment is overbroad and exceeds scope of purpose. Ensuring unaccompanied minors/undocumented youth are provided constitutional right to a free public education can be achieved with more education about existing federal and State laws.
DEPARTMENT RESPONSE:
Amendment is not overbroad and does not exceed its purpose. It is not limited to unaccompanied minors/other undocumented youths, but instead is meant to ensure all students eligible to attend schools under Education Law § 3202 are admitted without undue delay. Amendment strikes appropriate balance between ensuring eligible students are admitted without undue delay by requiring immediate enrollment upon request, and minimizing negative effects of enrolling ineligible students by providing a three to four day period to resolve residency determinations. Amendment is necessary to codify applicable federal/State laws, and existing SED guidance, to ensure unaccompanied minors/undocumented youths are provided constitutional right to free public education.
4. COMMENT:
Amendment creates additional costs for districts, authorizes unlawful gift of public funds, and is contrary to best educational interest of students, because it requires immediate admission of all students, including non-resident students, upon request, and then a determination as to whether a child is district resident.
DEPARTMENT RESPONSE:
Three-business day period is meant to be maximum period within which district must make residency determination, and doesn’t preclude district from making earlier determination if practicable. Amendment revised to clarify the timelines for residency determinations. While SED acknowledges there may be instances where non-resident children are enrolled for a short time and then removed, any resulting costs/negative effects are minimized by above clarifications and public interest in ensuring that children who are eligible to attend the public schools in the district under Education Law § 3202 are admitted without undue delay, outweighs such associated costs/negative effects.
5. COMMENT:
Amendment not required by federal law, regulation or administrative guidance.
DEPARTMENT RESPONSE:
SED disagrees and believes amendment is necessary to codify applicable federal/State laws, as well as existing SED guidance, to ensure unaccompanied minors/undocumented youths are provided constitutional right to free public education.
6. COMMENT:
Require districts to translate any documents submitted by parents/persons in parental relation to establish physical presence in district and any enrollment-related documents made publicly available, and provide educational services to any child pending receipt, translation, and analysis of such records.
Revise 100.2(y)(1) to add: "Such information shall be made available in the six most common non-English languages spoken by individuals with limited-English proficiency in the school district. Language assistance shall be made available in languages other than the six most common languages spoken by individuals with limited-English proficiency.”
DEPARTMENT RESPONSE:
Districts must comply with existing federal/State civil rights laws concerning language access for English Language Learners and limited English proficient parents/ persons in parental relation. Imposing additional unfunded, translation mandates on districts is unduly burdensome.
7. COMMENT:
Give districts 15 business days minimum, instead of three, to provide sufficient time for districts to conduct review and parents to collect/submit documents.
DEPARTMENT RESPONSE:
Amendment strikes appropriate balance between ensuring eligible students are admitted without undue delay by requiring immediate enrollment upon request, and minimizing negative effects on districts of enrolling ineligible students by providing a three to four day period to resolve residency determinations. Nothing precludes submission of additional information on child’s residency as such becomes available. In addition, § 100.2(y)(4) specifies “[a]t any time during the school year, the board of education or its designee may determine... that a child is not a district resident entitled to attend the schools of the district.”
8. COMMENT:
Permitting districts to require affidavits that individuals are the parent with whom the child lawfully resides or that they are the person in parental relation to the child, places an undue and unnecessary burden on them. Revise to provide that proof of parental relationship/proof of residency may be satisfied by submitting an affidavit indicating the child lawfully resides with that parent or that they are the person(s) in parental relation to the child, and that districts may also accept other proof. Revise to clarify unaccompanied/homeless youth are not required to submit proof of parental relation or that person in parental relation has custody/control.
DEPARTMENT RESPONSE:
Amendment is revised to provide for proof of parental relationship/proof child resides with parents, district may accept affidavit indicating: (1) they are parent(s) with whom child lawfully resides; or (2) they are person(s) in parental relation with total and permanent custody/control, and how they obtained total and permanent custody/control. Provision that “[a] district may also accept other proof...” has been retained. Because of above revision, unnecessary to address suggested revision concerning unaccompanied/homeless youths.
9. COMMENT:
Provide more options for supporting documents used to establish residency in district.
DEPARTMENT RESPONSE:
Supporting documents to establish residency include, but not limited to, documents specifically identified in §§ 100.2(y)(2)(i)(b) and 100.2(y)(2)(i)(d). Therefore, parents may submit documents such as those identified, and district must make a determination as to such documents’ sufficiency to establish residency. If necessary, SED may consider issuing guidance.
10. COMMENT:
Where undocumented/unaccompanied youth won’t have access to documents in § 100.2(y)(2)(ii), an affidavit of age, provided by an individual present at time of child's birth/baptism/other such religious ceremonies, should be considered as proof of age. Urge SED to work with State Legislature to amend Education Law § 3218 to allow use of such affidavits. Recommend regulations allow for submission of uncertified copy of the child’s birth certificate as sufficient proof of age.
DEPARTMENT RESPONSE:
Education Law § 3218 governs what forms of evidence may be used to determine age, and any amendments must be enacted by State Legislature. SED will consider recommendation to work with State Legislature to amend Education Law § 3218.
11. COMMENT:
To ensure maximum amount of time under Public Health Law (PHL) § 2164(7) to gather proof of immunization, revise rule to specify districts may provide families with up to 30 days to secure necessary records.
Revise § 100.2(y)(2)(iii) to add: ”In certain cases, immunization records from other countries may be unavailable immediately. In such situations, students should be allowed to attend school while the school ascertains the child’s immunization status and the person in parental relation to the child arranges for immunizations, if necessary.”
DEPARTMENT RESPONSE:
SED is not agency with regulatory authority over implementation of PHL § 2164(7). However, § 100.2(y)(2)(iii) clarifies districts required to comply with PHL § 2164(7), which includes provision that student may be allowed to attend for up to 30 days where such student is transferring from out-of-state or another country and can show a good faith effort to get the necessary certification or other evidence of immunization. The language in section 100.2(y)(2)(iii) is sufficient for its purposes and further specification/elaboration should be left to guidance.
12. COMMENT:
How can a district determine parental rights if there is no requirement for a birth certificate? Not all proof of age includes both parent names.
DEPARTMENT RESPONSE:
Amendment comports with Education Law § 3218, which provides that if a birth certificate is not available, then a passport showing the date of birth, or other documentary evidence or other recorded evidence in existence two years or more (except an affidavit of age) may be presented as evidence of age. Amendment provides non-exclusive list of what may be considered as “other documentary evidence or other recorded evidence.”
13. COMMENT:
Does a student stay in school during an appeal of a negative residency determination?
DEPARTMENT RESPONSE:
Pursuant to 8 NYCRR § 276.1, a person bringing an appeal under Education Law § 310 may apply for a stay which, if granted, will allow the student to remain in school during pendency of the appeal.
14. COMMENT:
Does three-day residency determination rule apply to summer registrations?
DEPARTMENT RESPONSE:
Amendment provides child shall be enrolled upon request and “shall begin attendance on the next school day, or as soon as practicable.” If child would be eligible to attend summer school if a resident of district, then child must be enrolled upon request and begin attendance on next school day that summer school is in session or as soon as practicable. District must make residency determination as soon as practicable but no later than three business days (or four business days if documentation/information on residency is submitted on the third business day). If the child ineligible to attend summer school, but eligible to attend regular session, then child must be enrolled upon request and district must make residency determination in accordance with above (i.e. as soon as practicable, but no later than three/four days etc.). However, child would be required to be admitted pending a residency determination within the three/four day period only on those school days, if any, that fall within regular session.
15. COMMENT:
Does McKinney-Vento form need to be included in registration packet?
DEPARTMENT RESPONSE:
Districts that receive federal funding as part of the State’s Consolidated Application must administer the McKinney-Vento Residency/Enrollment Questionnaire, and Questionnaire must be included in district’s registration packet. Questionnaire should be placed in the registration packet as the first page, to eliminate enrollment delays.
16. COMMENT:
Can Home Language Questionnaire (HLQ) be provided at time of enrollment so district can immediately identify need for assessment and, if so, which school student needs to be assigned based upon the need and resources? If HLQ cannot be provided there may be delay for student in terms of assessment.
DEPARTMENT RESPONSE:
HLQ, in its current form, should be administered as soon after point of enrollment as possible. SED may consider issuing guidance.
17. COMMENT:
Can districts ask question on enrollment form on “migrant status”, and include resource information as part of enrollment packet to get families in touch with appropriate resources?
Revise § 100.2(y)(2)(i)(a)(2) to state: “any oral or written information regarding or which would tend to reveal the immigration status of the child, the child’s parent(s) or the person(s) in parental relation, including but not limited to copies of or information concerning visas, permanent residence cards, or other documentation indicating immigration status of the child or any family members..." to clarify that the regulation prohibits verbal questions about immigration status when interviewing families for purposes of enrollment, as well as questions on forms.
DEPARTMENT RESPONSE:
To extent that asking about “migrant status” on enrollment forms may tend to reveal immigration status, districts may not ask such questions. However, districts may ask other questions pertinent to provision of resources for migrant families. SED believes language in § 100.2(y)(2)(i)(a)(2) is sufficient for its purposes and further specification or elaboration is best addressed, if necessary, in guidance.
