TO THE ADMINISTRATOR ADDRESSED:
The regular session of the 76th Legislature resulted in several changes in the state laws relating to public school admission and attendance that will apply during the 1999-2000 school year. This letter summarizes several important statutes relating to attendance, public school admission, and the maintenance of records related to admission, including the most recent legislative changes. Part I of the letter relates to attendance, Part II relates to public school admission, and Part III relates to enrollment records. We hope you will find this summary helpful as you begin the 1999-2000 school year.
I. Attendance
Tex. Educ. Code §25.085
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.
New legislation
Preceding this legislative session, §25.085(d) provided that compulsory attendance applied to certain extended-year programs and tutorial classes. Beginning with the coming school year,
§25.085 is expanded to also apply to certain accelerated reading, accelerated instruction, and basic skills programs created by new legislation.
Under new §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, under new §25.085(e) the school district may revoke the person's enrollment for the remainder of the school year.
Tex. Educ. Code §25.086
This section lists the exemptions from compulsory attendance. Three of the seven exceptions 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, if they are placed there, or another educational program provided by the school district.
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.)
New legislation
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. This amendment applies to conduct that occurs on or after September 1, 1999. Other legislation amended §25.086 to
extend the exemption 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 (New legislation)
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. An
amendment to this section removes the 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. An absence for a religious holy day is now excused even if no advanced written request is made.
Tex. Educ. Code §§25.092 and 11.158 (New legislation)
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. Many districts have offered an educational program outside of school hours as
a means for students to make up work or regain credit. However, there has not been statutory authority to charge a fee for that purpose. An amendment grants authority under §11.158(a)(15) for a
fee for such an education program under restricted circumstances. Under §11.158(h), 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 (New legislation)
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. An amendment to §25.093 provides for the deposit of one-half of a fine collected under that section on or after September 1, 1999, 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.
II. Admission
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. A student who resides in a school district is entitled to admission in that district with very limited exception. If a district is considering denying admission
to a student who is eligible for special education and related 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 admit students who are not entitled to enroll under these
provisions. If a district admits a school age individual, the student's attendance may be counted in the district's average daily attendance for purposes of the Foundation School Program, unless
the student is a high school graduate, whether or not the student is entitled to enroll in that district under §25.001(b). 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 and related services may
remain eligible until age 22 under applicable federal and state laws related to special education.
§25.001(b)(1)
This provision entitles a student to admission if the student and either parent reside in the district. This scenario reflects the traditional, and most common, set of facts. (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)
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)
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)
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, a district may decline to admit a student under
this section if the student's presence in a district is for the "primary purpose of participation in extracurricular activities." Id.
The district also 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
(B) expulsion;
(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, and 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. 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 not to define residence, but 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)
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)
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
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 a J-1 visa does not affect the entitlement of a student actually residing in the district to admission. Please remember that, under the United State Supreme Court decision in Plyler v. Doe, a student's immigration status is not a permissible basis for denying admission to a public school.
§25.001(b)(7) (New legislation)
This new provision entitles a student residing at a residential facility located in the district to admission. A "residential facility" is defined in §5.001(8) as follows:
"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 new §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. You may wish to contact residential facilities in your district immediately to coordinate implementation of this new notice provision. In general, students placed in residential facilities were already entitled to admission under other provisions of §25.001. However, the addition of new §25.001(b)(7) provides a uniform admissions provision for children in such facilities. Additionally, the new notice requirement should lead to improved communication between the facilities and school districts that will promote efficiency in the provision of educational services to these children.
§25.001(b)(8) (renumbered)
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.
Appeal
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
§25.002
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 or
related 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 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.
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.
Enrollment Procedure
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 (such as to another school in which the student is enrolling). 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.
I hope this information is helpful to you in preparing for the 1999-2000 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.
Sincerely,
David Anderson
Chief Counsel
For further information on this topic, contact the Office of Legal Services
at (512) 463-9720.