LEGAL ASPECTS OF
ATTENDANCE AND STUDENT
RECORDS
OAEP Fall Conference
North Point Conference Center
October 24, 2013
Presented by: Rhonda Porter, General Counsel
Akron Public Schools
Overview
• Attendance(R.C. 3313.64)
• Residency
• Parent defined
• Custody
• Grandparent Caregivers
• Court Placed Students
• Residency Disputes
• Situations Impacting Attendance
• Student Records
• Who is considered a “parent” for purposes of obtaining access to
student records?
• FERPA
Residency
“One cannot establish a residence merely by
purchasing a house or apartment building or even by
furnishing such a house or apartment . . . Residence
involves something more. It must be a place where
important family activity takes place during
significant parts of each day; a place where the
family eats, sleeps, works, relaxes, plays. It must be
a place, in short, which can be called home.”
-Kenton Bd. of Educ. v. Day,
506 NE2d 1239 (CP 1986)
Residency Check List…
• Where does the individual sleep the majority of
the time?
• Where does the individual receive mail?
• Where are the individual’s meals eaten?
• Where is the individual registered to vote?
• NO ONE FACTOR IS CONTROLLING. The
conclusion must be reached considering all of
the circumstances present.
-Kenton Bd. of Educ. v. Day, 506 NE2d 1239 (CP 1986)
“District of Residency” (R.C. 3313.64)
• A child (who is at least 5 but under 22
years old or a pre-school disabled child)
shall be admitted to the schools
in the school district in which
the child’s parent resides.
• R.C. 3313.64(B)(1)
Parent Defined (R.C. 3313.64)
(for school attendance purposes)
• Either natural parent (if married)
• A parent who is the residential parent and legal
•
•
•
•
custodian of the child (if separated or divorced)
*Mother (if unmarried)
*Grandparent (if executed grandparent caregiver affidavit
or power of attorney)
Parent with residual parental rights, privileges, and
responsibilities (if child is court placed into the legal
custody of a gov. agency or a person other than a natural
or adoptive parent)
Parent who was divested of parental rights… (if child is
court placed into the permanent custody of a gov. agency
or person other than a natural/adoptive parent)
Divorced/Separated Parents
• Divorced parents will have a court order
designating rights and responsibilities. The
parent enrolling the student must provide
this document.
• Two primary senerios…
• (1) one parent is named as the sole residential
parent and legal custodian; or
• (2) the parents have entered into a shared
parenting plan
Shared Parenting Plan (R.C. 3109.04)
(Residential parent and legal custodian)
• If an order is issued by the court provides for shared
parenting of a child, both parents have “custody of the
child” or “care, custody, and control of the child”, to the
extent and in the manner specified in the order.
• Designation of one parent as “the residential parent
for the school purposes” or “custodial parent for tax
purposes of claiming the child as a dependent” or
“residential parent for purposes of receiving public
assistance” does NOT affect the designation that each
parent is the “residential parent,” the “residential parent
and legal custodian,” or the “custodial parent of the child.
Unmarried Female (R.C. 3109.042)
• An unmarried female who gives birth to a child
is the sole residential parent and legal
custodian of the child until a court of
competent jurisdiction issues an order
designating another person as the residential
parent and legal custodian.
• A court designating the residential parent and
legal custodian of a child described in this
section shall treat the mother and father as
standing upon an equality when making the
designation.
Who’s your daddy?
• R.C. 3313.64 appears to allow for
students of parents who have never
married to attend (tuition-free) the
schools in the district where either
parent resides.
Grandparent Caregiver
• Grandparent caretaker law creates two legal documents,
both of which must be notarized and filed with the juvenile
court within five (5) days of their execution
• Grandparent Power of Attorney (RC 3109.52)
• Caretaker Authorization Affidavit (RC 3109.65)
• Both documents terminate after:
• the child ceases to reside with the grandparent;
• the document is terminated by court order; OR
• the grandchild or grandparent dies.
• POA also terminates if person who created it revokes it in
writing.
• Affidavit can also be terminated if person acts to negate, reverse
or otherwise disapproves an action/decision of the grandparent.
Court Placed Students
(abused, neglected, dependent)
• The Court, at the time it orders the removal of a child from
the child's own home or vests legal or permanent custody
of the child in a person other than the child's parent or a
government agency, shall determine the school district
that is to bear the cost of educating the child.
• The court is required to make the determination a part of
the order that provides for the child's placement or
commitment. That school district shall bear the cost of
educating the child unless and until the department of
education determines that a different district shall be
responsible for bearing that cost
• R.C. 2151.362
Aunts, Uncles, Cousins, Family Friends…
• WATCH OUT FOR…
• Notarized statements
• Attorney letters
• Notarized letters from a parent giving custody to
relatives or family friends
• MOTIONS filed with the juvenile court seeking legal
custody
• ANY document presented as a “court document” that
is NOT signed by the judge
*The Ohio Attorney General has ruled that a notarized
statement signed by a parent is insufficient to transfer
legal custody; a court order is required (1995 OAG 032).
OTHER FORMS OF
CUSTODY
Legal Custody (R.C. 2151.011)
• a legal status that vests in the custodian the right
to have physical care and control of the child
… to determine where and with whom the child shall live,
and the right and duty to protect, train, and discipline the
child and to provide the child with food, shelter, education,
and medical care, all subject to any residual
parental rights, privileges, and
responsibilities...
Permanent Custody (R.C. 2151.011)
• a legal status that vests in a public children
services agency or a private child placing
agency, all parental rights, duties, and
obligations, including the right to consent to
adoption, and divests the natural parents
or adoptive parents of all parental
rights, privileges, and obligations, including
all residual rights and obligations.
Guardianship (R.C. R.C. 2151.011)
• a person, association, or corporation that is
granted authority by a probate court
pursuant to Chapter 2111. of the Revised
Code to exercise parental rights over a
child to the extent provided in the court's
order and subject to the residual parental
rights of the child's parents.
Guardianships
• Why are guardians appointed?
A guardian is appointed by the court to oversee the legal
and financial affairs (and/or the personal care) of a minor, or
of an adult who is not able to manage his or her own affairs
because of advanced age or some other physical or mental
disability.
• Under Ohio law, a guardianship is an involuntary proceeding
when family members or others ask the probate court to
protect someone who appears to be incompetent.
• Once appointed, a guardian is answerable to the court for
providing proper care and management of the ward’s affairs
in the ward’s best interest.
• O.R.C. 2111.03(c) and Reference Materials, Tab 6.
Guardianships
• An individual appointed as guardian of the
person of a minor, pursuant to RC Chapter
2111., has "legal custody" of the child, as that
term is used in R.C. 3313.64.
• Pursuant to RC 3313.64, a child who is in the legal
custody of a guardian shall be admitted to the
schools of the district in which the child resides:
OAG No. 83-041 (1983).
Santosky v. Kramer (1982), 455 U.S. 745
*Guardianships initiated for the purpose of admitting
student into a particular school district
• An application for the appointment of a guardian
who resides in a different school district from that
of the minor child's parents for the sole purpose of
bringing the child within the purview of a statute
which requires the schools of each city to admit
wards of actual residents of the school district will
not be granted when there are no circumstances or
conditions which would justify the appointment.
In re DiSalvo, 11 Ohio Misc. 259, 227 N.E.2d 441 (PC 1967).
Residual parental rights, privileges, and
responsibilities
• those rights, privileges, and
responsibilities remaining with the
natural parent after the transfer of
legal custody of the child, including, but
not necessarily limited to, the privilege of
reasonable visitation, consent to adoption, the
privilege to determine the child's religious
affiliation, and the responsibility for support.
COURT PLACED
STUDENTS
A child who does not reside in the parent’s district shall
be admitted to the schools in the district in which the
child resides if the child is court placed into the legal or
permanent custody of a government agency or a
person other than the child’s natural or adoptive parent.
(R.C. 3313.64(B)(2))
Court Placement of Students
• Once a court identifies the school district of
residency (R.C. 2151.362) (i.e., the school district
financially responsible) then it loses jurisdiction over the
issue of future changes in a parent’s residency for
attendance purposes.
• If the District determines through its investigation that a
student’s parent does not (or no longer) reside within the
school district it can petition the Ohio Department of
Education and request an official determination of
residency.
Disputes Over Residency of Court Placed
Students (R.C. 3313.64(K))
• Disputes often arise regarding the
residency because it is intertwined
with the obligation of another school
district to pay tuition.
• Investigate
• attendance liaisons
• private investigators
• safety and security personnel
O.R.C. 3313.64(J)
Disputes Resolution
• “In the event of a disagreement, the
superintendent of public instruction
shall determine the school district in
which the parent resides.” O.R.C.
3313.64(K).
ENROLLMENT
REQUIRED
Except as otherwise provided in R.C. 3321.10
A child shall be admitted to the
schools of the school district in which
the child’s parent resides
(district of residence)
Students Who Do Not Reside in the District Where Their Parent
Resides are Entitled to Enroll and Attend Schools in Which the
Student Resides if:
1. The child is in the legal or permanent custody of
a government agency or a person other than
the natural or adoptive parent.
2. The child resides in a “home” (a home,
institution, foster placement, group home, or
other residential facility in the state that receives
and cares for children)
3. The child requires special education
When the child requires special education
The residence of the parent is
important for determining the
district responsible for the costs of
the student’s education
When a district admits a student in
special education whose parents do
not reside in the district, the school
district educating the child may asses
tuition
The only exception to a
school district’s duty to
educate a child with a
disability residing in the
district is if the child is
already being served by
another school district,
agency, or other
provider
The responsibility to
serve a nonresident
disabled child residing in
the district includes a
child with a disability
placed in a juvenile
justice facility, institution,
hospital, agency,
department, home
Situations impacting student attendance
• Adoption (R.C. 3313.64(B)(3)) When a student is placed
with a resident of the school district for adoption, the
student is entitled to attend schools in that district unless
. for adoption has been terminated or a
the placement
another school district is required to admit the child under
division (B)(1) of this section.
• 60 Day Affidavit (R.C. 3313.64(E)) A board of education
may enroll a child (free of tuition) for a period not to
exceed 60 days, on the sworn statement of an adult
resident of the district that the resident has initiated legal
proceedings for custody of the child.
• Emancipated Child (R.C. 3313.64(F)(1)) An
emancipated child is entitled to attend tuition free
in the school district in which the child resides.
• A child is not automatically emancipated upon
the age of 18.
• A child is only emancipated when the child is
totally self-supporting.
• Living apart from parents and
• Supporting themselves by their own labor
• Has not successfully completed the District’s
high school program or IEP
• Case by case basis.
Married Student (R.C 3313.645(F)(2))
• Any child under 18 years old who is
married is entitled to attend school in the
child’s district of residence.
• Students are still subject to compulsory
attendance laws
• Marriage of the student supersedes the childparent relationship
The Emancipated Disabled Child
• A disabled child cannot be compelled to attend
school once the child reaches 18 years of age.
O.R.C. 3321.01 (defining the compulsory school
age).
• Yet, a disabled child is entitled to a free and
appropriate public education until the child is 22
years old. O.R.C. 3313.64(B) (defining the free
admission school age for disabled students).
Child With Medical Condition (R.C.
3313.64(F)(3))
• If a student has a medical condition that may require
emergency medical attention and either parent is
employed by an employer located in the district, the
student is entitled to attend.
• Physician’s statement certifying the student’s medical
condition
• Board may require additional supporting evidence
Student of Military Parent Serving Outside
of Ohio (R.C. 3313.64(F)(4)
• A child residing with a person other than the
parent is entitled to attend school in the district in
which that person resides if the parent files an
affidavit with the district.
• Affidavit must be executed and presented to the District
• Cannot exceed 12 months
• The Affidavit must indicate the name and address of the
person with whom the child is living while the parent is
outside the state
• Parent must intend to reside in the district upon
returning to Ohio
Death of a parent (R.C. 3313.64(F)(5)
• A student, after a parent’s death, may continue to
attend a school in the district in which the student
attended at the time of the parent’s death for the
remainder of the year if the school board
approves.
Parent Building a New House in the
District (R.C. 3313.64(F)(6)
• Student is entitled to attend (tuition free) for up to
90 days
• Parent must provide affidavit explaining the
situation, designating the location of the house
being built and indicating an intent to reside there
• Statement from the builder required
Parent is Purchasing a Home in the
District (R.C. 3313.64(F)(7))
• Student entitled to attend (tuition free) in the
district for up to 90 days
• Parent must provide affidavit explaining the
situation, designating the location of the house
being purchased and indicating an intent to
reside there
• Confirming statement from real estate broker or
bank officer required
Parent is Full Time Employee of District
(R.C. 3313.64(F)(8))
• Board policy (or union contract) must provide
for the right of the employee to enroll their child
in the school district
• Policy must take effect on the first day of school
and uniformly apply to all students
• Not applicable for admission of students after
the first day of classes
Student with Parent under Care of Shelter for Victims
of Domestic Violence (R.C. 3313.64(F)(9))
• A child who is with the child's parent under the care of a
shelter for victims of domestic violence, as defined in
section 3113.33 of the Revised Code, is entitled to attend
school free in the district in which the child is with the
child's parent, and no other school district shall be
required to pay tuition for the child's attendance in that
school district.
• Enrollment may not be denied due to a delay in the receipt of
records normally required for admission
Parent Moves out of District During Student’s
Senior Year (R.C. 3313.64(F)(10)
• With Board approval, student entitled to attend
the remainder of the year, may continue for
additional semester (or longer in order to
complete IEP – with Board approval)
Student Still in Custody of Parent But Resides
With Grandparent (R.C. 3313.64(F)(11))
• A child in the custody of the parent, but resides
with grandparent, and does not require special
education is entitled to attend the schools of the
district in which the child's grandparent resides,
provided …
• prior to such attendance in any school year, the board
of education of the school district in which the child's
grandparent resides and the board of education of the
school district in which the child's parent resides enter
into a written agreement specifying that good cause
exists for such attendance, describing the nature of
this good cause, and consenting to such attendance.
Superintendent Agreement (R.C.
3313.64(F)(12)
• A student is entitled to attend school in the school district
in which the student is not entitled to attend under R.C.
3313.64(B), (C), or (E) ONLY If the following conditions
are met:
• The superintendent of the school district the student IS entitled to
attend under R.C. 3313.64(B), (C), or (E) contacts the
superintendent of another district for purposes of facilitating
enrollment of the student
• Both superintendents enter into a written agreement consenting to
the attendance and specifying that the purpose of such attendance
is to protect the student’s physical or mental well-being or to deal
with other extenuating circumstances deemed appropriate by the
superintendents.
Student is Homeless
(R.C. 3313.64(F)(13)
• “McKinney-Vento Homeless Assistance Act,” 42
U.S.C.A. 11431 et seq. defines “Homeless
Children” are children who lack a fixed, regular,
and adequate nighttime residence and who are:
• sharing the housing of other persons due to loss of housing,
•
•
•
•
economic hardship or similar reasons;
living in motels, hotels, trailer parks, or camping grounds due to
the lack of alternative adequate accommodations;
living in emergency or transitional shelters;
have a primary nighttime residence that is a public or private
place not designed for or ordinarily used as a regular sleeping
accommodation for human beings.
Migratory children as defined by Federal law.
• O.R.C. 3313.64(F)(13)
The District’s Duty to Homeless Students
• The parent or guardian shall have the option of enrolling the
student in the student’s “school of origin” or the school operated
by the district in which the shelter is located
Homeless children must be enrolled in their school of choice
during the pendency of any disputes on placement, and to provide
transportation, upon request, to a homeless child’s school of
origin, even if such school is located in another school district.
(NCLB)
• When the “school of origin” is located in another district, transportation is
apportioned between both districts. (43 USC 11432).
Homeless Students can…
• Enroll in school and attend classes immediately
even if they don’t have proof of residence,
immunization records, a birth certificate,
guardianship records, school records or other
documents normally needed for enrollment.
• Enroll in school and attend classes immediately
even without a parent or guardian. Any student
who lacks a fixed, adequate and regular nighttime
residence and who is not in the custody of a
parent or guardian, including runaway youth, can
enroll themselves in school.
Military Power of Attorney (R.C.
3313.64(F)(14)
• A student who resides with a person other than parent is
entitled to attend school in the district in which that person
resides provided that…
• The person has been appointed, through a military power of
attorney executed under section 574(a) of the “National Defense
Authorization Act for Fiscal Year 1994,” 107 Stat. 1674 (1993), 10
U.S.C. 1044b, or through a comparable document necessary to
complete a family care plan, as the parent's agent for the care,
custody, and control of the child while the parent is on active duty
as a member of the national guard or a reserve unit of the armed
forces, and is on a duty assignment away from the parent’s
residence.
• The Military Power of Attorney or comparable document must
include the authority to enroll the child into school
Foreign Exchange Student (R.C.
3313.64(G)
• A Board of education, after approving admission,
may waive tuition for students temporarily
residing in the district who are either of the
following:
• Residents of a foreign nation who request attendance
as a foreign exchange student, or
• Residents of the United States but not Ohio who
request attendance as participants in an exchange
program operated by a student exchange organization
Student is Illegal Alien
• School aged illegal immigrants are entitled to the same
public education that the State offers other children within
its borders. See Plyer v. Doe (1982), U.S. 202
• “Denying undocumented or non-citizen children access to a tuition
free public education “imposes a lifetime hardship on a descrete
class of children not accountable for their disabling status… by
denying these children a basic education, we deny them the ability
to live within the structure of our civic institutions, and foreclose any
realistic possibility that they will contribute in even the smallest way
to the progress of our Nation.” Plyer, 457 U.S. at 223
STUDENT RECORDS
Family Educational Rights and Privacy Act
20 U.S.C. § 1232g
F E R PA
FERPA overview
• A Federal Law that protects the privacy of student
educational records and personally identifiable
information.
• Any school district that receives funds under any program
administered by the U.S. Secretary of Education is bound
by FERPA.
• FERPA prohibits the release of educational records about
a student without parental (or eligible student) consent.
Ohio Revised Code 3319.321
“Confidentiality”
“No person shall release,
or permit access to …
information concerning
any students attending a
public school to any
person or group…”
Student Records
• “Educational Records” are records that contain
information that is directly related to a student;
and
• Are maintained by an educational agency or by a
party acting for the agency; and
• Not identified as one of the exceptions (like
“directory information”).
• School officials with legitimate educational interests are
entitled to access to student records
Who is Considered a Parent (Access to
Student Records)
• FERPA definition of “parent”
• A natural parent
• A guardian
• Individual acting as a parent in the absence of a
parent or guardian
• A parent is “absent” is he or she is not present in the
day-to-day home environment of the child.
• Along with the concern of who may be a parent,
many educational agencies and institutions are
caught in the middle of legal issues involving the
rights of non-custodial parents and joint custodial
parents. Regulation 34 C.F.R. § 99.4 anticipates
some of the issues involved with custody and
FERPA by providing that an educational agency
or institution before limiting the FERPA rights of a
parent must receive “evidence” of a court order,
mandated statute or “legal binding document”
relating to divorce, separation and/or custody.
Presumption of Access
• A school district cannot deny a parent access by
demanding a court order indicating that the parent has the
right to access.
• There is a presumption of access to all “parents” and it is
incumbent upon a custodial parent to present evidence to
the educational agency or institution that the other parent
does not have a right of access.
• Fay v. South Colonie Cent. Sch. Dist., 802 F. 2d 21 (2nd Cir 1986).
• Under 20 U.S.C. § 1232g(a)(1)(A) and 34 C.F.R. § 99.10
(b), an educational agency has forty-five (45) days to
respond to a request by a parent for student records.
Step Parent (Access to Student Records)
• A step parent is a “parent” under FERPA when the step
parent is present on a day-to-day basis with the natural
parent and the child and the other parent is absent from
that home.
• A step parent is not a “parent” under FERPA when the
step parent is not present on a day-to-day basis in the
home of the child.
• Custody arrangements
• Written authorization
57
R.C. 3319.321
• Allows for a transfer of public student records to
another institution for a legitimate educational
purpose.
• Allows “free access” disclosure to law
enforcement officers investigating missing child
cases.
• For purposes of the Education Management Information
System (EMIS) Districts may collect personally
identifiable information about students but may only be
used by authorized personnel of the computer A-site
involved in making the EMIS reports.
Records Required for Enrollment/Attendance
• Statutory requirements of pupil/parent at the time of
enrollment in any public or nonpublic school
• Produce any records given to the student from school recently
attended
• Certified copy of an order, decree, or modification of such an order
or decree allocating parental rights and responsibilities for the care
of the child and designating a residential parent and legal custodian
(as applicable)
• Grandparent caregiver affidavit/pow (if applicable)
• Birth certificate (or passport, attested transcript of the a hospital
record, certificate of birth, certificate of baptism or other religious
record showing the date and place of birth)
• R.C. 3313.672
Attendance
• Within 24 hours of entry…
• The school district shall request the student’s official record from
the school most recently attended.
• If the student does not produce a birth certificate or
equivalent, OR there is no record of the student’s
attendance at the most recent school attended OR the
records are not received within 14 days of the date of
the request, the principal or chief administrative officer of
the school shall notify the law enforcement agency having
jurisdiction in the area where the student resides of the
possibility the student may be a missing child.
• R.C. 3313.372
Duty to transfer grades and credits
• A board shall require that the grades, credits, official
transcripts, IEPs, or 504 plan of a pupil (abused,
neglected, or dependent child) be transferred immediately
upon the receipt of either another district's or school's
request for those records under R.C. 3313.672 or a
juvenile judge's order R.C. 2151.272.
WITHHOLDING
RECORDS
For non-payment of school fees
School Fees, Generally…
BIG PICTURE
• When a school board seeks to charge school
fees to parents for their children’s participation in
public education, the school board bears a heavy
burden of rebutting this constitutionally based
presumption.
• In 1963 the Ohio General Assembly provided school districts with the
ability to charge school fees by creating R.C. 3313.642
Ohio’s Updated Statutory Authority to
Charge School Fees
• Boards of education may adopt rules and regulations
prescribing both a schedule of fees for materials used in
a course of instruction and a schedule of charges which
may be imposed upon pupils for the loss, damage, or
destruction of school apparatus, equipment, musical
instruments, library material, textbooks, or electronic
textbooks required to be furnished without charge, and for
damage to school buildings…
• See R.C. 3313.642(C) (eff. 10/11/2013)
Interpretation of R.C. 3313.642
• Ohio public school districts can charge reasonable
instructional fees, under R.C. 3313.642 for materials
used in the course of instruction with the exception of
necessary textbooks, as long as the fees were used for
classroom materials such as paper, paste, pencils, paint
and items used by teachers to aid in their instruction of
students.
- See State ex rel. Massie v. Gahanna-Jefferson
Pub. Schools Bd. of Edn., 76 Ohio St. 3d 584 (1996).
R.C. 3313.642, generally
• Permits school districts to charge fees for any materials
used in a course of instruction
• R.C. 3313.642 does not permit school districts to charge
fees for necessary textbooks or electronic textbooks
required to be furnished without charge pursuant to R.C.
3329.06
Ohio’s Statutory Authority to Enforce
Payment of School Fees
• Boards may enforce the payment of such fees
and charges by withholding the grades and
credits of the pupils concerned.
• See R.C. 3313.642 (C).
R.C. 3313.642 – free lunch exceptions
• No board of education of a school district shall charge a
fee to a pupil eligible for a free lunch under the “National
School Lunch Act,” 60 Stat. 230 (1946), 42 U.S.C. 1751,
as amended; and the “Child Nutrition Act of 1966,” 80
Stat. 885, 42 U.S.C. 1771, as amended, for any
materials needed to enable the pupil to participate
fully in a course of instruction.
Exception to Free Lunch Exception
• The prohibition of charging a fee does NOT apply to the
following fees:
(1) Materials needed to enable a pupil to participate fully in
extracurricular activities or in any pupil enrichment program
that is not a course of instruction;
(2) Tools, equipment, and materials that are necessary for
workforce-readiness training within a career-technical
education program that, to the extent the tools, equipment,
and materials are not consumed, may be retained by the
student upon course completion.
Duty to report to ODE annually
• A board that is required to transfer records under division (D) of
this section may request a copy of any order regarding the
child's custody or placement issued pursuant to a complaint
filed under section 2151.27 of the Revised Code. However, a
board shall not withhold records required to be transferred
under that division pending receipt of a copy of the order.
• Each board of education annually shall report to the
department of education the number of pupils for whom
the board sends transcripts under division R.C.
3313.642(D) and the total amount of unpaid fees lost due
to compliance with that division.
Exception to withholding grades/credits for
failing to pay fees for instructional
materials
• No board of education shall withhold the grades, credits,
official transcripts, diploma, IEPs, or 504 plans of a pupil
for nonpayment of fees for materials used in a course
of instruction, if a complaint has been filed at any time in
a juvenile court alleging that the pupil is an abused,
neglected, or dependent child or if the pupil has been
adjudicated an abused, neglected, or dependent child.
Tuition Fees
Student transfers into your school district. The student’s
former Ohio public school district refuses to release
“grades and credits” due to unpaid tuition.
Apparently, the student’s parent enrolled the student into
the other district fraudulently and now owes that district the
price of tuition for the time period of unauthorized
enrollment. (They cite to R.C. 3313.642 as their authority to
withhold student’s transcript/records, etc.)
Question:
Can this Ohio public school district legally withhold this
student’s grades and credits from being transferred?
NO
• R.C. 3313.642(C) (allowing Ohio public school
districts to withhold grades and credits when
parents fail to pay school fees) is the SOLE
exception to Ohio’s provision of free education
and does not apply to tuition.
Public School Tuition – is not a fee
• Ohio public schools are only authorized to adopt
fee/charge schedule for “materials used in the
course of instruction” and “for the loss,
damage, or destruction of school apparatus,
equipment, musical instruments, library
material, textbooks…damage to school
buildings…”
R.C. 3313.642(C).
What about the tuition owed to the other
district?
• Because Ohio boards of education have only those
powers expressly authorized by statute, the school board
in this instance was authorized to initiate tuition collection
proceedings to obtain a judgment entry against the
parents for “unauthorized attendance” under R.C.
3327.06(B).
• The Ohio public school district possesses has no express
or implied authority to withhold the student’s transcript to
coerce payment on the judgment entry for tuition.
Tuition owed to private schools…
• Generally, parties are free to enter into contracts
that contain provisions which apportion damages
in event of default.
• A private school can provide in the enrollment
contract for withholding a student's transcript if all
tuition, fees, and charges have not been paid in
full.
Bankruptcy Exception
• In a case where parents have filed for bankruptcy,
however, the private school’s failure to provide a
student’s transcript because of a past-due tuition
bill violates the US Bankruptcy Code.
See In re Dembek,
64 B.R. 745
(Bankr. N.D. Ohio 1986).
Duty to enroll
• Assuming the parent provides your
school district with its required
residency documentation, there is a
duty to admit the student pursuant to
R.C. 3313.64(B)(1) and you cannot
delay enrollment “due to a delay in the
… receipt of any records required
under [R.C. 3313.672] … or any other
records required for enrollment.”
R.C. 3313.64(F)(9)
When Ohio Public School District Refuses
to Provide Transcript for Transfer Student
• Refusing to release a student’s transcript limits the
student’s ability to demonstrate the school credits that
could be applied towards satisfaction of graduation
requirements. See R.C. 3301.07; 3301.16 ; 3313.60 and
OAC 3301-35 and 3301-59 (authorizing boards of
education to assign grade placement and to recognize
credits earned and courses taken when the proper
assurance and the student's transcript has been
received…).
• Revised R.C. 3313.642 would change this for disabled,
abused, neglected, or dependent students….
Extra-Curricular or Sports Fees
Example:
• Students participating in extra-curricular activities
were charged a reasonable fee for their
participation.
• The fee was mandatory.
• A parent of one of the students who participated
in the extra-curricular activity failed to pay the fee.
• Can the school district withhold the student’s
grades and credits for the parent’s failure to pay
the fee?
• Since fees for extracurricular activities fall outside the
statute, its sanctions cannot be applied to force their
collection.
• The attorney general has opined that grades cannot be
withheld from students who failed to account for items
entrusted to them for extracurricular fund-raising
programs, because the activity was not instructional and
the items were not intended to become school property.
Ohio Op. Att'y Gen. No. 84-027; See Association for Defense of Washington
Local School Dist. V. Kiger, 42 Ohio St. 3d 116 (1989) but see State ex rel.
Massie v. Ghanna-Jefferson Pub. Schools Bd. of Ed., 76 Ohio St. 3d 584
(1996).
How about a “per-pupil fee”
• A public school district decides to charge a “per pupil fee”
to be used to defray the cost of administrative supplies.
• Parent fails to pay the fee.
• Can the district withhold grades and credits for the failure
to pay this fee?
Per-pupil fee…
• R.C. 3313.642 only authorizes a public school to
withhold a student's grades and credits for failure
to pay assessed fees for "materials used in a
course of instruction" other than textbooks or
electronic textbooks, which must be furnished
without charge under R.C. 3329.06.
Generally, “per-pupil” fees may be found
to be invalid
• Emphasizing that free education is the general rule, the
Ohio Supreme Court has declared that this statutory
exception must be construed narrowly.
• Thus, a public school district’s attempt to assess a per
pupil fee, enforced by withholding transcripts, to defray
the cost of administrative supplies was held to be an
invalid fee.
Case law
• 1980 - Picklesimer v. Southwestern Cty Schl Dist. 1980 WL 353732 (Ohio App.10th Dist.)
• Parking fee imposed
• Question turned on whether the Board had the “authority” and “reasonable”
• 1985 - Andreozzi v. Edison Local School Dist.1985 WL 10401 (Ohio App. 7 Dist.)
• Instructional fee imposed – with credit issued if not used
• Consumable materials
• Grades and credits withheld
• Question turned on whether the fees were illegal, improper and unconstitutional
• 1986 - In re Dembek, 64 B.R. 745 (1986)
• 1989 –Assoc. for Defense of Washington Local School Dist v.Kiger, 42 Ohio St. 3d
116
• Per pupil fees imposed due to budget issues
• Fee held invalid as the fees were being assessed for the costs of administrative materials and not classroom
instructional materials.
• 1996 -State ex rel. Massie v. Gahanna-Jefferson Pub. Schools, 76 Ohio St. 3d 584
• Fees were assessed for consumable materials such as workbooks
• Parents argued the Kiger case
• Court found that paper, paste, pencils and expenditures for items used by teachers to aid in the instruction
were authorized by R.C. 3313.642 and not “administrative” in nature
• 2013 - N. Baltimore Local Schools v. Todd 2013 WL 3205431 (2013-Ohio-2599)
• Here the argument was also made that consumable workbooks and assignment books should be
reconsidered, and the Massie case revisited.
• Court held that the fees were authorized and not illegal
Post-Secondary Options
• When a student participating in a post secondary option
and attains a failing grade in a college course, the
superintendent or chief administrator “shall seek
reimbursement from the participant or the participant’s
parent for the amount of state funds paid to the college on
behalf of the participant for that college course.”
- R.C. 3365.11(A)
- *The School Board may withhold grades and credits
received by the participant for district courses taken by
the participant until the participant or the participant’s
parent provides reimbursement – in accordance with R.C.
3313.642(C)
Post-Secondary Enrollment
• Program requires counseling services to student in
grades 8-11 and to their parents before participation.
• Students and parents must be fully aware of the possible
risks and consequences of participation, including:
• Program eligibility
• Financial arrangements for tuition, books, materials and fees
• Criteria for any financial aid
• Consequences of failing or not completing a course and the effect
of the grade…
• A requirement that the student and the student’s parent sign a form,
that they have received the counseling required by R.C. 3365.02(C)
Summary
• Fees charged under R.C. 3313.642 will be “invalidated” if
not reasonable, or the “item” is not used in the course of
educational instruction.
• It has also been stressed, in holding a fee invalid, that the
item for which the fee is charged is a necessary element
of any school's activity or is "educational" in character.
• The primary factors emphasized in decisions upholding
the validity of a fee have been—
• there is statutory authorization for the exaction of
the fee.
• the purpose for charging the fee was reasonable.
Notification to Parents
• Annually, parents should be notified of the eligibility
requirements and the procedures required to obtain a
waiver of school fees. The notice should contain a
procedure for the resolution of disputes.
• No fee should be collected from a parent seeking a school
fee waiver unless the district has acted on the initial
request and notified the parent of the decision.
• Denials should be mailed to the parent within 15 school days of the
receipt of the request.
Access to student records under Ohio law
• Ohio's Student Privacy Act, RC 3319.321, refers only to
student records in public schools and does not apply to
private schools.
• Most private schools, whether or not technically subject to
the Act, have adopted policies that generally reflect the
spirit of FERPA.
• If a private school is not subject to FERPA, only a parent
who has contracted for the education of the child is
entitled to review student records made available by the
school. Permission of the contracting parent should be sought
before allowing a non-contracting parent to review information.
THANK YOU!