July 17, 2000
TO THE ADMINISTRATOR ADDRESSED:
This letter summarizes several important statutes relating to attendance, public school admission, enrollment records, and tuition. Part I of the letter relates to attendance, Part II relates to public school admission, Part III relates to enrollment records, and Part IV relates to tuition. We hope you will find this summary helpful as you begin the 2000-2001 school year.
Tex. Educ. Code §25.085 (Compulsory Attendance)
Compulsory attendance applies to students who are at least six years old as of September 1 of the applicable school year. The law requires a student to attend public school until the student’s 18th birthday, unless the student is exempt under §25.086. This requirement is enforced through §§25.093 and 25.094, which are noted below.
Under §25.085(d), compulsory attendance applies to certain extended-year programs, tutorial classes, accelerated reading, accelerated instruction, and basic skills programs.
Under §25.085(e), a person who voluntarily enrolls in or attends school after the person’s 18th birthday is required to attend each school day for the entire period the program of instruction for which the student is enrolled is offered. This requirement is not enforceable through §§25.093 and 25.094. However, if the person has more than five unexcused absences in a semester, the school district may revoke the person’s enrollment for the remainder of the school year under this subsection. This provision does not override the district’s responsibility to provide a free appropriate public education to a student who is eligible for special education services.
Tex. Educ. Code §25.086 (Compulsory Attendance Exemptions)
This section lists the exemptions from compulsory attendance. Three of the seven exemptions are
addressed in this letter.
The exemption from compulsory attendance for students who have been expelled applies only in counties with a population of 125,000 or less. Counties with populations greater than 125,000 are required to have juvenile justice alternative education programs. In those counties, expelled students are subject to compulsory attendance. Expelled students must attend the juvenile justice alternative education program (JJAEP), if they are placed there, or another educational program provided by the school district. If an expelled student from a county of l25,000 or less moves to a county of more than 125,000, the new school district may honor the expulsion under Chapter 37 but must allow the student to attend either the JJAEP or another education program provided by the school district for expelled students.
Notwithstanding the exemption from compulsory attendance, if an expelled student is a special education student, the school district has a continuing obligation to provide a free appropriate public education to the student as required by 34 C.F.R. §300.121(d) regardless of the size of the county.
17 year-old in GED course
The exemption from compulsory attendance for a child attending a GED course who is at least 17 years of age applies if: 1) the child has the permission of the child’s parent or guardian to attend the course; 2) the child is required by court order to attend the course; 3) the child has established a residence separate and apart from the person’s parent, guardian, or other person having lawful control; or 4) the child is homeless. (For a discussion of the enrollment in a school district of children with separate residences or who are homeless see Part II below.)
16 year-old in GED course
There is a separate exemption for a child attending a GED course who is at least 16 years old. This exemption applies if the student is recommended to take the course by a public agency that has supervision or custody of the child under a court order. Under an amendment to §54.021(d) of the Family Code, a justice or municipal court that finds that a child who is at least 16 years of age engaged in truant conduct may order the child to take a GED examination. The exemption also applies to a 16 year-old attending a GED course who is enrolled in a Job Corps training program. These are the only conditions under which 16 year-olds are exempt from compulsory attendance due to attending a GED course.
Tex. Educ. Code §25.087 (Excused Absences)
This section relates to excused absences. Under this section, a school district is required to excuse an absence for observance of a religious holy day, including travel for that purpose, even if no advanced written request is made. The former requirement that a parent, guardian, or person having custody or control of a student submit a written request for an excused absence in advance of the student’s absence has been removed.
Tex. Educ. Code §§25.092 and 11.158 (Ninety Percent Rule; Fees)
Section 25.092 contains the provision of law commonly referred to as “the 90 percent rule.” It conditions credit for a class on a student’s attendance for at least 90 percent of the days a class is offered. The board of trustees is required to appoint one or more attendance committees that may grant credit due to extenuating circumstances. The board is also required to adopt policies establishing alternative ways for students to make up work or regain credit lost because of absences. This flexible requirement allows a district to establish ways to make up work or regain credit that are workable in consideration of the circumstances. It does not require that students spend a certain amount of time in a “Saturday school” or other educational setting equal to time missed during regular school hours. The district should be prepared with other options that give the student a reasonable opportunity to make up work or regain credit even under challenging circumstances, including excessive absences that occur late in the school year.
If a district offers an educational program outside of regular school hours as a means for students to make up work or regain credit, under §11.158(a)(15) and (h), a district may charge a fee for such an education program under restricted circumstances. The school district may assess the fee only if the student returns a form signed by the student’s legal guardian stating that the fee would not create a financial hardship or discourage the student from attending the program. The fee may not exceed $50. Also, under §25.092(b) and (f), the board must provide at least one alternative for making up work or regaining credit that does not require a student to pay a fee under §11.158(a)(15). The availability of that alternative must be substantially the same as the availability of an educational program for which a fee is charged.
Tex. Educ. Code §§25.093 and 25.094 (Compulsory Attendance Enforcement)
There are three options for compulsory attendance enforcement. Section 25.093 is an offense against the parent for thwarting compulsory attendance. Section 25.094 is an offense against the student for failing to attend school. A district may file an action to enforce compulsory attendance in any justice precinct in the county in which the school is located or in the justice precinct in which the person filed against, the parent or student, resides. Section 25.093 now provides for the deposit of one-half of a fine collected under that section to the credit of the juvenile justice alternative education program that the child has been ordered to attend rather than the school district, as applicable. The third option for enforcement is to proceed against the child in juvenile court as a “child in need of supervision” under Title 3 of the Family Code (Chapter 51, et seq.).
Texas Education Code §25.001(b) sets out the circumstances under which a person, who is at least five years of age and less than 21 on September 1 of a school year, is entitled to admission in a school district. A student is entitled to admission if any one (or more) of the seven subsections applies to the student. Most, but not all, of the subsections require that the student live in the district. If a district is considering denying admission to a student who is eligible for special education services, the district may wish to consult with its legal counsel or the Texas Education Agency regarding the effect of that decision on the student’s right to a free appropriate public education.
It is important to consider that most students are entitled to enrollment in at least one district regardless of with whom they live. The exceptions under §25.001(d) apply only if a student is living separate and apart from the student’s parent, guardian, or other person with lawful control under a court order (for discussion of these exceptions, see §25.001(b)(4) below).
All seven subdivisions of §25.001(b) are discussed below. These provisions create entitlements
to enroll. A district may choose to also admit students who are not entitled to enroll in the district. If
a district admits a school age Texas resident, the district may include the student in it’s average daily attendance whether or not the student is entitled to enroll in that district
under §25.001(b), unless the student is a high school graduate. An individual who is not a high school graduate is eligible for the Foundation School
Program if the individual is under the age of 21 on September 1 of the applicable school year. An individual who is eligible for special
education services and is not a high school graduate is eligible for enrollment and funding through the end of the school year or until graduation, whichever comes first, if the individual
is under the age of 22 on September 1 of the applicable school year. Through the end of the 2000-2001 school year, a student who is eligible
for special education services who has graduated from high school but meets the age eligibility requirements may continue to receive educational services (and be eligible for enrollment
and funding) if determined to be appropriate by the student’s ARD committee. However, as of the 2001-2002 school year, a student with
disabilities who has graduated with a high school diploma will no longer be eligible for state or federal special education funding. (See 2000-2001 Student Attendance Accounting Handbook, pages 22-23.)
§25.001(b)(1) (Parent and Student in District)
This provision entitles a student to admission if the student and either parent reside in the district. Although this subdivision applies only if the student and parent reside in the same district, it does not require that they live at the same address in the district. (For a student living separate and apart from a parent, guardian, or other person having lawful control of the student under a court order, see § 25.001(b)(4) below.)
§25.001(b)(2) (Parent Only in District)
This provision requires a district to serve a student who does not reside in the district if 1) a parent of the child resides in the district and 2) the parent is a joint managing conservator, sole managing conservator, or possessory conservator of the child. This provision does not apply to all parents living apart from their children. It applies only if the parent is a joint managing conservator, sole managing conservator, or possessory conservator. Those designations are established by the order of a court in a suit affecting the parent-child relationship under Title 5 of the Texas Family Code. If the parent’s relationship with the child has not been the subject of such a suit, this provision of §25.001(b) does not apply. The designation by a court of a parent as a joint managing conservator, sole managing conservator, or possessory conservator can occur under a number of different circumstances, but occurs most commonly in relationship to a divorce proceeding. A temporary order pending final disposition of a divorce action would qualify a student for enrollment under this provision.
To avoid treating separated parents who do not have a court order differently from separated parents with a court order, a district may admit any child from outside the district who has a parent residing in the district, but is not statutorily required to do so.
§25.001(b)(3) (Student and Guardian or Person with Lawful Control in District)
This provision entitles a student to admission if the student and the student’s “guardian or other person having lawful control
of the . . .[student] under a court order reside within the school district.” (For a student living separate and apart from a parent,
guardian, or other person having lawful control of the student, see §25.001(b)(4) below.)
To determine a student’s entitlement under §25.001(b)(3), a district must determine if a court order exists that identifies a guardian or
other person with lawful control residing in the district. A child is entitled to admission if a court orders the placement of the child with a
person or in a facility in the district or if, pursuant to a court order, an entity such as Child Protective Services or the Texas Youth Commission places a child in the district. If such a court order exists, the child is entitled to admission under this provision regardless of whether the student would be ineligible under the exclusions of §25.001(d),
which are discussed below.
§25.001(b)(4) (Student Only in District)
This provision, by reference to §25.001(d), allows a student under 18 years of age to “establish residence for purpose of attending public schools separate and apart from the . . .[student’s] parent, guardian, or other person having lawful control of the . . .[student] under a court order . . ..” §25.001(d). However, the student’s presence in the district may not be “for the primary purpose of participation in extracurricular activities.” Id.
The district is not required to admit a student under §§25.001(b)(4) and (d) if the student:
(1) has engaged in conduct or misbehavior within the preceding year that has resulted in:
(A) removal to an alternative education program; or
(2) has engaged in delinquent conduct or conduct in need of supervision and is on probation or other conditional release for that conduct; or
(3) has been convicted of a criminal offense and is on other conditional release. §25.001(d).
These exceptions cannot be used to prevent a student eligible for admission under a different subdivision of §25.001(b) from being served. The exceptions apply only if a student is living separate and apart from the student’s parent, guardian, or other person with lawful control of the child under a court order. (See §25.001(b)(3) above for a student placed with a person or in a facility in the district pursuant to a court order.)
Proof of Residency
Under §25.001(d), “the board of trustees shall determine whether an applicant for admission is a resident . . .for purposes of attending school” under that subsection. Furthermore, the “board may adopt reasonable guidelines for making a determination as necessary to protect the best interests of students.” [emphasis added] Id.; See also, §25.001(c) (board may require evidence of residency, may establish minimum proof of residency, and may make reasonable inquiries to verify eligibility for admission).
This ability to adopt guidelines should not be misinterpreted as the ability to redefine the legal concept of residency established by our state law. Residency is not defined by an address on a driver’s license, a signature on a lease, or the address on a utility bill. These are indicators that may assist a district in verifying residency, but do not define it. The traditional, basic residence criteria are living in the district and having the present intention to remain there. See, Martinez v. Bynum, 461 U.S. 321, 330-333 (1983), Arredondo v. Brockette, 648 F.2d 425 (5th Cir. 1981). The board of trustees’ authority is to provide guidelines that will enable a student to substantiate his or her residency and enable the board to determine if the student is a resident of the district.
§25.001(b)(5) (Homeless Student)
This provision entitles a person defined as “homeless” under 42 U.S.C. §11302 to admission “regardless of the residence of the person, of either parent of the person, or of the person’s guardian or other person having lawful control of the person.” Therefore, a person who is homeless is entitled to admission in any Texas school district. 42 U.S.C. §11302 provides that “homeless” includes
(1) an individual who lacks a fixed, regular, and adequate nighttime residence; and
(2) an individual who has a primary nighttime residence that is -
(A) a supervised publicly or privately operated shelter designed to provide temporary living accommodations (including welfare hotels, congregate shelters, and transitional housing for the mentally ill);
(B) an institution that provides a temporary residence for individuals intended to be institutionalized; or
(C) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.
§ 25.001(b)(6) (Foreign Exchange Student)
This provision entitles a foreign exchange student to admission if the student is placed with a host family that resides in the school district by a nationally recognized foreign exchange program. The only exception is under the terms of a waiver granted by the commissioner on application of a district under §25.001(e). For a waiver to be granted, the admission of a foreign exchange student must create one of three possible conditions. It must 1) create a financial or staffing hardship for the district, 2) diminish the district’s ability to provide high quality educational services for the district’s domestic students, or 3) require domestic students to compete with foreign exchange students for educational resources. The period of a waiver may not exceed three years.
Illegal Immigration Reform and Immigrant Responsibility Act (F-1 Visa)
Under this federal act, a nonimmigrant may not be granted an F-1 visa in order to pursue a public elementary or publicly-funded adult education program. The federal law permits a nonimmigrant F-1 immigration status for public secondary school if the aggregate period of study at the school will not exceed twelve months and the student reimburses the secondary school for the full unsubsidized per capita cost of the student’s education.
Texas law does not authorize a school district to charge a student tuition under these circumstances. This conflict between the federal law and Texas law prevents a student from being able to meet the second condition for the issuance of an F-1 visa.
The federal reimbursement requirement does not apply to foreign exchange students who hold J-1 visas. It applies only to the very limited number of nonimmigrant students who seek F-1 student status by obtaining an I-20 certificate of eligibility from a local educational agency. The ineligibility for an F-1 visa does not affect the entitlement to admission of a student actually residing in the district. Please remember that, under the United State Supreme Court decision in Plyler v. Doe, 102 S.Ct. 2382 (1982), a student’s immigration status is not a permissible basis for denying admission to a public school.
§25.001(b)(7) (Student in Residential Facility)
This provision entitles a student residing at a residential facility located in the district to admission. A “residential facility” is defined in §5.001(8)
“Residential facility” means:
(A) a facility operated by a state agency or political subdivision, including a child placement agency, that provides 24-hour custody or care
of a person 22 years of age or younger, if the person resides in the facility for detention, treatment, foster care, or any noneducational purpose; and
(B) any person or entity that contracts with or is funded, licensed, certified, or regulated by a state agency or political subdivision to provide custody or care for a person under Paragraph (A).
Under §29.012, a residential facility is required to notify the school district in which the facility is located of the placement of a person three years of age or older. The facility is required to give the notice not later than the third day after the date of placement. A district should contact residential facilities in the district to coordinate implementation of this notice provision. In general, students placed in residential facilities are entitled to admission under other provisions of §25.001. However, §25.001(b)(7) provides a uniform admissions provision for children in such facilities. Additionally, the notice requirement should generate communication between the facilities and school districts that will promote efficiency in the provision of educational services to these children.
§25.001(b)(8) (Adult Student)
This provision entitles a student residing in the district to admission if the student is over 18 years of age or if the student is less than 18 years of age and has had the disabilities of minority removed through marriage or as otherwise permitted by law.
A decision of a school district to deny admission may be appealed to the commissioner of education under §7.057(c). In an appeal under that section, the commissioner will review the record developed at the district level to determine if the decision is supported by substantial evidence.
III. Enrollment Records
Section 25.002 requires that a child’s prior school district or the person enrolling the child provide certain records within 30 days from the date of enrollment. The required records are 1) a birth certificate or other proof of identity, 2) the child’s records from the school most recently attended, and 3) immunization records. The prior school district should promptly provide records to the enrolling district that are needed for the appropriate placement and continued education of the student, including records relating to Section 504 or to special education services under the Individuals with Disabilities Education Act. Under §25.002, the prior district must provide the records within the 30-day period. This requirement also applies to the transfer of records to or from other public schools, including open-enrollment charter schools and juvenile justice alternative education programs (JJAEPs).
The failure of a prior district or the person enrolling the child to provide identification or school records under §25.002 does not constitute grounds for refusing to admit an eligible student. However, if identifying records are not furnished within the 30-day period, §25.002(c) requires the district to notify law enforcement and request a determination of whether the child has been reported as missing. This requirement applies regardless of the child’s age. If a child is enrolled under a name other than the name in the identifying documents, the school district is required to notify the missing children and missing persons information clearinghouse. The notice is confidential.
A student may be withdrawn if immunization records are not received within 30 days unless an exemption to immunization applies or the student has begun immunizations and is receiving them as rapidly as medically feasible. Section 38.001, Education Code.
Absence of parent or guardian
During the 1995-1996 and 1996-1997 school years, a school district was required to notify the Department of Protective and Regulatory Services (DPRS) if a child was enrolled by a person other than the child’s parent, guardian, or other person with legal control of the child under a court order. The district was then to send parental communication regarding that child to DPRS or whomever DPRS directed. The requirement to notify DPRS was removed during the 1997 legislative session. The district must determine with whom communication regarding the child is appropriate as the DPRS is no longer a default. The absence of a parent, guardian, or other person with legal control of a child under a court order is not grounds for refusing admission to which a child is entitled under § 25.001.
Articles 62.019 – 62.022, Code of Criminal Procedure
There are additional requirements relating to school records in Chapter 62 of the Code of Criminal Procedure, which relates to the missing children and missing persons information clearinghouse in the Department of Public Safety. The requirements apply to the records of children under 11 years of age.
When a child under the age of 11 initially enrolls in a school, the school is required to take the following steps:
1. Request from the person enrolling the child the name of each previous school attended by the child.
2. Request from each school the school records for the child or, if the person enrolling the child provides the records, request verification from the school of the child’s name, address, birth date, and grades and dates attended.
3. Notify the person enrolling the student that not later than the 30th day after enrollment, or the 90th day if the child was not born in the United States, the person must provide a certified copy of the child’s birth certificate or other reliable proof of the child’s identity and age with a signed statement explaining the inability to produce a copy of the birth certificate.
4. If the person enrolling the child does not provide valid prior school information or the required documentation, the school shall notify the appropriate law enforcement agency before the 31st day after the person fails to comply. The failure to provide records does not constitute grounds for refusing to admit an eligible student.
Records of Children Identified as Missing
When a law enforcement agency receives a report that a child under 11 years of age is missing, the law enforcement agency or the clearinghouse will notify each school in which the child has been enrolled or has attended. When the school receives the notice, the school is required to take the following steps:
1. Flag the child’s records that are maintained by the school.
2. On receipt of a request regarding the child, notify law enforcement that a request for a flagged record has been made. If the request is made in person, include a physical description of the requesting party, the identity and address of the requesting party, and a copy of the requesting party’s driver’s license or other photographic identification. If the request is in writing, include a copy of the request.
3. Do not disclose to the requesting party that the request concerns a missing child.
4. Require the requesting party to complete a form stating the person’s name, address, telephone number, and relationship to the child and the name, address, and birth date of the child.
5. Obtain a copy of the requesting party’s driver’s license or other photographic identification, if possible.
6. After notifying law enforcement, mail a copy of the requested record to the requesting party on or after the 21st day after the date of the request.
Removal of Flag
On the return of a missing child whose records have been flagged, the law enforcement agency or the clearinghouse will notify each school the child has attended. On receipt of that notification, the school shall remove the flag from the records. A school that has reason to believe a missing child has been recovered may request confirmation of that from the appropriate law enforcement agency or the clearinghouse. If a response is not received after the 45th day after the date of the request for confirmation, the school may remove the flag from the record and notify the law enforcement agency or the clearinghouse that the flag has been removed.
Relationship to FERPA
When a school receives a request for records, the school first needs to consider whether the information may be released at all. Articles 62.019 – 62.022 of the Code of Criminal Procedure do not replace the limitations on the disclosure of educational records that are found in the federal Family Educational Rights and Privacy Act (FERPA). FERPA prohibits the disclosure of educational records to persons other than the student’s parent, guardian, or an individual acting as a parent in the absence of a parent or guardian or, if age 18, the student, unless the disclosure comes within certain exceptions provided under FERPA. (One exception permits disclosure to another school district in which the student is enrolling, which is required by Section 25.002, Education Code). If the requester is someone other than the student’s parent or guardian, an individual acting as a parent in the absence of a parent or guardian, or the student, if age 18, the district should still notify law enforcement of the request but may not release the records to the requester unless consent to the release is obtained or a FERPA exception to the general requirement for consent applies. Whether or not the information is released, remember that under Articles 62.019 – 62.022 of the Code of Criminal Procedure, the school district may not disclose to any requester (including a parent, guardian, individual acting as a parent, or student) that the request concerns a missing child.
Relationship to Public Information Act
Articles 62.019 – 62.011, Code of Criminal Procedure, require that the district wait 21 days before mailing copies of flagged records to a
requester. However, the Public Information (or Open Records) Act provides that “[i]f an officer for public information cannot produce public
information for inspection or duplication within 10 calendar days after the date the information is requested . . . , the officer shall certify that fact in writing to the requester and
set a date and hour within a reasonable time when the information will be available for inspection or duplication.” Tex. Govt. Code, §552.221(d). Due
to this provision, a district should notify a requester within 10 days that the records will be mailed on a certain date that is on or after the 21st day after the request is received.
In April of this year, the Attorney General issued an opinion that school districts do not have authority to charge tuition for prekindergarten or for students who are under or over the ages of eligibility for the Foundation School Program. A.G. Op. No. JC-0207 (2000). This opinion is in keeping with previous opinions that a school district may charge a fee or tuition only if it is specifically authorized to do so by statute or under the constitution. As discussed under Part II of this letter, under the section on the Illegal Immigration Reform and Immigrant Responsibility Act, school districts also do not have authority to charge the tuition necessary for a student to qualify for an F-1 visa.
There are other misperceptions regarding the authority to charge tuition. For example, there is no authority for tuition for students living in adjoining states who want to “transfer” into a Texas school district. If your district is charging tuition for any purpose, please review the statutes to determine if there is authority for the tuition. Statutes authorizing tuition under certain limited circumstances include §§25.003 (Certain Children From Other States), Sec. 25.004 (Certain Military Dependents), 25.038 (Transfer Students), 25.039 (Contract for Education Outside District), 25.041 (Children of State School Employees), and 25.042 (Children of Texas Youth Commission Employees).
I hope this information is helpful to you in preparing for the 2000-2001 school year. If you have questions about the statutory provisions discussed in this letter, you are welcome to call the Office of Legal Services at (512) 463-9720.
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For further information on this topic, contact the Office of Legal Services at (512) 463-9720.