RESIDENCY, OPEN ENROLLMENT,
AND APPEALS
SAI Law Conference
NICOLE PROESCH, LEGAL COUNSEL
IOWA DEPARTMENT OF
EDUCATION
FEBRUARY 9, 2016
RESIDENCY
RESIDENCY & ENROLLMENT
 Enrollment is tied to residency and not custody.
 “Residents” attend school tuition-free
 The student must be of school age and a resident.
 A Student who’s parents have joint custody or joint physical
care must pick a resident district. They cannot attend in
both.
SCHOOL AGE
 Iowa Code § 282.1 School Age
 Persons between 5 and 21 years of age are of school
age.
 Includes a student who has enrolled who was twenty
years of age on September 15 and turns 21 thereafter
during the school year.
VERIFY THE CHILD’S AGE
 Iowa Code § 282.3
 K - A child must be five on or before 9/15 to enter K
 1st Grade - and must be six on or before 9/15 to enter
1st Grade.
 Preschool – If the district gets state aid the children
must be four on or before 9/15.
VERIFY THE CHILD’S AGE
 NO Exceptions or WAIVERS
 Iowa Attorney General’s Opinion (#79-7-3)
 Example:
 Could enroll the child when legal to do so in Kindergarten, and
– if appropriate to do so in the District’s opinion and only the
District’s opinion – promote the child to first grade as soon as
warranted.
 Home school the child and enroll when of age
 Can enroll a child who completes K in another state.
PROOF OF BIRTHDATES
 Districts may require some form of proof of birth date to
ensure that child is “school age” (5 on or by 9/15 and under
age 21)
 CANNOT require Birth Certificate
 Alternatives include:
 an adoption record
 certified statement of physician
 or anything reasonably reliable
SSN & ADDRESSES
 SSNs are not required.
 Do NOT accept only a post office box unless you know
they reside in the district.
 Explain that Iowa Code 282.6 requires tuition for non-
resident pupils.
 A district may assume non-residency until proper residency
is proven.
DEFINITION OF RESIDENT
 Iowa Code §§ 282.1 & 282.6 – “Resident”
 “Resident" means a child who is physically present in a
district, whose residence has not been established in another
district by operation of law, and who meets any of the following
conditions:
1) Is in the district for the purpose of making a home and not
solely for school purposes.
2) Meets the definitional requirements of the term "homeless
individual" under 42 U.S.C. § 11302(a) and
3) Lives in a juvenile detention center, foster care facility, or
residential facility in the district.
TUITION
 Iowa Code § 282.6 Tuition –
 Every school shall be free of tuition to all actual residents between
the ages of five and twenty-one years . . .
 Student who has already graduated high school in another state or
country pays tuition if the diploma is equivalent to an approved 4
year program.
 Example: Out of country diploma (District determines
equivalency).
 A student here on a J1 Visa and part of a foreign exchange program
does not pay tuition
 A student here on a F1 Visa pays tuition
WHEN IN DOUBT . . .
 The Iowa Supreme Court ruled in a 1924 case that the laws
on tuition-free education for actual residents must be
liberally construed in favor of students who claim to be
residents.
 If in Doubt – Give the benefit to the student
HOMELESS STUDENTS
 Residency requirements are NOT to be a barrier to
enrollment, attendance, or success in school of homeless
children.
 McKinney-Vento applies – See your homeless student
liaison.
 A child could be a runaway or an unaccompanied minor.
DEFINITION OF HOMELESS STUDENT
 A homeless child or youth ages 3-21;
 A child who lacks a fixed, regular and adequate nighttime residence and includes the
following:

A child who is sharing the housing of others (includes doubled-up families) due to loss
of housing, economic hardship, or a similar reason; is living in a motel, hotel, or camping
grounds due to the lack of alternative accommodations; is living in an emergency or
transitional shelter; is abandoned in a hospital, or is awaiting foster care placement.

A child who has a primary nighttime residence that is a public or private place not
designed for or ordinarily used as a regular sleeping accommodation for humans
beings

A child who is living in a car, park, abandoned building, substandard housing, bus or
train station, or similar setting; or

A migratory child/youth who qualifies as homeless because of the living circumstances
described above

Includes youth who have runaway or youth being forced to leave home.
HOMELESS YOUTH EXAMPLES
 Example: A child who is living with an Aunt or Uncle, family, or other
friend because they were kicked out or ran away from home.
 Could be an unaccompanied minor under McKinney Vento thus, they
could either attend the school of origin or the district they are living
in. (Receiving district counts the student).
 Districts should utilize a caregiver form for decisions regarding the
student. This is not a guardianship and is not official.
 If the student is 18 they can make decisions
 If the student is not 18 and has no guardian the homeless liaison acts
as the advocate. The student can still enroll without a guardian. This
is about rights to education.
HOMELESS YOUTH EXAMPLES
 Example: A child who is living with an Aunt or Uncle, family, or other
friend through an arrangement with parents who are still financially
supporting the child.
 Question: What is the purpose of the student living in this
arrangement?
 If it is for the purpose of going to school then the child has to pay tuition
or attend parents resident district. Example: convenience in location
 If it is for the purpose of making a home and other than school then the
child attends in the district of residence.
 This is not a homeless student under McKinney Vento.
OPEN ENROLLMENT
OPEN ENROLLMENT
 282.18 Open Enrollment
 Construed broadly to maximize parental choice
 Deadline 1st -12th – March 1st of the proceeding year
 Deadline for K – September 1st of the current school year
 Board of the receiving district shall enroll the child if they file for OE
by March 1st
 After March 1st Good Cause is required
 Special Students must get approval from the AEA special education
director of the receiving district at all times.
DEFINITION OF “GOOD CAUSE”
 “Good Cause” –
 Two main categories:
Change in child’s residence –
1)

Family moves, parents divorce, guardianship or custody proceeding,
placement in foster care, adoption, participation in foreign exchange,
participation in a substance abuse or mental health treatment
program
Change in the status of the child’s current school –
2)

Removal or surrender of accreditation, closure, revocation of
charter, failure to negotiate a whole-grade sharing, reorganization,
dissolution, or rejection of whole-grade sharing agreement or
reorganization plan.
DEFINITION OF “GOOD CAUSE”
 [Gist of “good cause” is that child has no control over the
circumstances that give rise to wanting to use open
enrollment.]
 Must be actual change in residence – ex. adoption of
foster child is not a change in residence
OPEN ENROLLMENT
 This table indicates which district should take action.
Receiving District
OE filed on or before
March 1st
X
OE filed after March 1st
X
Resident District
OE filed after March 1st
and alleges pervasive
harassment
XX
Must Act First!
Regardless of when OE
filed, resident district has
a diversity plan
X
BOARD/SUPERINTENDENT ACTION
 Superintendents may be given authority to approve, but
not deny applications.
 “Good Cause” Application - Board must act within 30
days of receiving the request.
 The receiving district will notify the resident district
and the parent within 15 days of board action to approve
or deny an application.
DENIAL
 “Insufficient Classroom Space” - To deny OE based on
class size the district must adopt an "insufficient classroom
space" policy and review this policy annually.
 A district can deny an application based on insufficient
classroom space, lack of appropriate program (a district
does not have to hire additional staff to accommodate an
OE applicant), or if a student will be under suspension or
expulsion at the time of enrollment.
RESCIND
 A district can rescind an approved application for OE due to
a change in the student’s program that cannot be accommodated
by the district without hiring additional staff or due to an
increase in enrollment that exceeds a class size policy.
 An OE cannot be rescinded based on discipline or
attendance.
LATE FILED APPLICATIONS
 The receiving district must deny late filed applications
unless there is good cause.
 The resident district does not have authority to act on
late-filed application unless there is harassment or severe
health need.
DISTRICT APPEAL PROCESS
 Appeal - Resident District may appeal to the director an
approval of a late-filed open enrollment if the district
believes there the request lacked good cause.
 Within 15 days after the board action by the receiving
district.
DISTRICT APPEAL PROCESS
 Process:
1) Submit Appeal to Director
2) Attempt to mediate/resolve
3) Hearing
4) Decision within 10 days
5) Appeal to State Board within 5 days
ONLINE SCHOOLS
AND OPEN ENROLLMENT
OPEN ENROLLMENT TO ONLINE SCHOOLS
 Cam or Clayton Ridge
 Students can OE to Cam or Clayton Ridge
 Must meet residency and age requirements, not be under suspension,
expulsion, and not have a high school diploma or GED.
 Must file an application for OE
 Must meet OE deadline of March 1st unless Good Cause, harassment,
or severe medical condition.
 1% Cap on students being sent – both the sending and the receiving
districts are responsible to know the cap.
 Cannot deny an application based on sunset date.
HARASSMENT OR
SERIOUS MEDICAL CONDITION
HARASSMENT OR
SERIOUS MEDICAL CONDITION
 Harassment & Serious Medical Condition – In the
case of an applicant that claims harassment or severe health
need as a good cause exception for missing the OE
deadline, the resident district has the authority to approve
or deny the application.
 Consult your attorney on these applications.
 The Resident District must do an analysis to determine if it
fits under the legal criteria for Harassment or Serious
Medical Condition.
HARASSMENT OR
SERIOUS MEDICAL CONDITION
Process
 Resident district approves or denies the application
 Once the resident district approves/denies the receiving
district is notified.
 If the resident district approves then the receiving
district can approve or deny the application.
 If the resident district denies the application then the
receiving district must deny the application.
HARASSMENT OR
SERIOUS MEDICAL CONDITION
 Appeal to the State Board - A decision by either board
denying a late-filed open enrollment application that is
based on “repeated acts of harassment of the student or
serious health condition of the student that the resident
district cannot adequately address” is subject to appeal to
the State Board under Iowa Code section 290.1. Iowa Code
§ 282.18(5) (2013).
HARASSMENT OR
SERIOUS MEDICAL CONDITION
 Appeal Process
 Parent or guardian must appeal the local board decision
within 30 days to the Director
 Director appoints designee – ALJ
 Hearing - Parties present evidence and testimony
 Proposed decision is drafted
 Presented to the State Board at the next meeting
 If the State Board approves decision – final action
 Parties may appeal to district court
HARASSMENT
 All of the following criteria must be met for the State Board to
reverse a local decision and grant such a request:
1)
The harassment must have occurred or extent not known until
after March 1
2)
Must meet the definition of pervasive harassment
3)
The evidence must show that the harassment is likely to
continue despite the efforts of school officials to resolve the
situation.
4)
Changing the student’s school district will alleviate the
situation.
Iowa Code § 280.28(2)(b) (2013); In re: Open Enrollment of Jill F., 26
D.o.E.App. Dec. 177, 180 (2012); In re: Hannah T., 25 D.o.E. 26, 31
(2007) (emphasis added).
CASE EXAMPLES:
HARASSMENT
 In re: Open Enrollment of Kali B., 26 D.o.E.App. Dec. 383
(2014).
 Alleged repeated acts of harassment of by teachers –
teacher kicking a trash can, disparaging comments
directed at all the students, bias against K.B. from a
teacher
 Resident district denied application
 SBE Found there was not pervasive harassment
 Affirmed
CASE EXAMPLES:
HARASSMENT
 In re: Open Enrollment of Annaliese Z., 26 D.o.E.App. Dec. 467
(2014).
 Alleged repeated acts of harassment of by students –
teasing, leaving A.Z. out on the playground
 Resident district denied application
 SBE Found there was not pervasive harassment
 SBE Found that the district could serve the student in
another attendance center
 Dismissed due to lack of jurisdiction
CASE EXAMPLES:
HARASSMENT
 In re: Open Enrollment of T.D., 26 D.o.E. App. Dec. 473 (2013).
 Alleges repeated acts of harassment of by students – rumors that T.D.
was a drunk, druggie, whore, name-calling, during volleyball practice
“are you stupid”, text messages tell T.D. to get the “f**K” out of town,
scissors thrown at her head, bounty on her head to get her virginity,
culminated when loosened the lug nutts on her car.
 Resident district denied – had another attendance center
 SBE Found T.D. was harassed
 However, SBE found that the district could serve the student in
another attendance center due to whole-grade sharing agreement
 Affirmed
CASE EXAMPLES:
HARASSMENT
 In re: Open Enrollment of S.K., 27 D.o.E. App. Dec. 538 (2014).
 Alleged repeated acts of harassment of by students – name
calling (ugly, fat, stupid), flicking pencils, “would you do that”
 Resident district denied
 SBE noted that the resident district must act first, then the
receiving district
 SBE found there was not harassment, even if it was the
harassment stopped
 Affirmed
CASE EXAMPLES:
HARASSMENT
 In re: Open Enrollment of C.L., 26 D.o.E. App. Dec. 509 (2014).
 Alleged repeated acts of harassment of by students –
name calling, “chuckie,” finger accidently slammed in a
locker.
 Resident district denied
 SBE found there was not harassment, even if it was the
harassment it was addressed by the district
 Affirmed
SERIOUS MEDICAL CONDITION
 All of the following criteria must be met for the State Board to reverse a local
decision and grant such a request:
1) The serious medical condition must be diagnosed and provided to the district.
2) The child’s serious health condition is not of a short-term or temporary nature.
3) The district has been provided with the specifics of the child’s health needs
caused by the serious so the district knows or should know what specific steps
will meet the needs
4) School officials have failed to implement steps or were unsuccessful.
5) A reasonable person could not have known before March 1 that the district
could not or would not adequately address the child’s health needs.
6) It can be reasonably anticipated that a change in the child’s school district will
improve the situation.
In re Anna C., 24 D.o.E.App. Dec. 5 (2006).
CASE EXAMPLES:
SERIOUS MEDICAL CONDITION
 In re: Open Enrollment of S.H., 27 D.o.E. App. Dec. 545 (2014).
 Alleged serious medical condition – Anxiety, Stomach
issues, related to going to a big school
 Resident district denied because the application was after
March 1
 SBE REVERSED and REMANDED back to the district to
determine if S.H. Had a serious medical condition.
 On remand district found no serious medical condition.
 Affirmed
CASE EXAMPLES:
SERIOUS MEDICAL CONDITION
 In re: Open Enrollment of Samantha H., 26 D.o.E.App. Dec. 373
(2013).
 Severe Health Condition - Depression
 Resident district would have approved
 Receiving district denied
 State board found that the district was on notice of a
serious medical condition – even before diagnosis.
 Recognized depression as a serious medical condition.
 Reversed
OPEN ENROLLMENT & NONPUBLIC
OPEN ENROLLMENT & NONPUBLIC
 Children who are presently in a nonpublic school but who
will attend a public school next year (2014-15) have the
open enrollment option available to them, but must comply
with open enrollment deadlines.
 Parents/Guardians must file a request of OE in both the
district of residence and the receiving district by March 1st.
RESOURCES
RESOURCES
 Open Enrollment Resources
 https://www.educateiowa.gov/pk-12/options-educational-choice/open-
enrollment
 Open Enrollment Handbook
 https://www.educateiowa.gov/sites/files/ed/documents/Open%20Enroll
ment%20Handbook%2015-16_0.pdf
 Homeless Students
 https://www.educateiowa.gov/pk-12/title-programs/title-x-part-c-
homeless-education
 Appeals
 https://www.educateiowa.gov/appeals-appeals-and-more-appeals
DEPARTMENT OF EDUCATION CONTACTS
 General Counsel
 Nicole Proesch – (515) 281 -8661;
Nicole.Proesch@Iowa.gov