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Common Misconception About School Law and Student’s Rights |
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First Published, January
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by Michael O’Connor, Ligy Pullappally, Lisa Wilson, and David Wolowitz |
| The right to a free public education is one of the most basic rights in our society. Education can be the ladder out of poverty for the children of poor families. Thus, educational rights are among the most critical guarantees safeguarded by Prairie State Legal Services’ advocacy. |
| This article
highlights some of the most common education law issues presented by
clients of Prairie State. The article only touches on the area of special
education law; the Common Misconceptions feature of the next issue of the
Prairie News will discuss special education in greater depth. For help
with a particular education law issue, contact your local Prairie State
office. The office listing on page
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| “My grandchildren are living with me because their parents, who live in another town, are having problems. The school in my town will not let me enroll the children because I do not have legal guardianship. I guess I need to go to court for guardianship.” |
| A guardianship should not be needed in this case. For a number of reasons, schools are hesitant to enroll children who do not live with their parents. However, a growing number of children live with someone other than their parents for a variety of reasons, and Illinois law does not allow these children to be denied access to education. |
| Under Illinois Law, a student will be considered a resident of the school district if the adult in the household has assumed the responsibility for the care of the child and the child stays there on a nightly basis, as long as the reason the child is there is not solely to attend school in the given district. Therefore, there is no need to obtain court ordered guardianship or custody of the child. |
| In this case, the grandparents are caring for the children for a reason other than an enhanced curriculum and, therefore, are entitled to enroll the children in the school district without paying tuition. The school is entitled to ask for documentation to verify why the child resides with them, but the school cannot deny enrollment if the information cannot be provided. For example, the school cannot refuse to enroll the child just because the parents refuse to sign a document requested by the school. |
| The person who enrolls a child will have to pay full tuition if the child is enrolled at that school specifically to reap the benefits of a better curriculum or other program offered by the school. It is a crime to make false statements about where a child lives and why a child lives there, if those statements are made in an attempt to enable the child to attend a particular school. |
| “I will be caring for my niece for the foreseeable future, because her mother, who lives out of town, is ill. My niece is in special education classes because she is learning disabled. Can she attend the school near my home?” |
| The law is different concerning children who require special education services. In these cases, the child is considered to be a resident of the school district where the parent or other person who has legal guardianship or custody of the child resides, even if the child does not actually live with that person. It is necessary for the non-parent to obtain legal guardianship of the child in order to enroll the child on a tuition-free basis in a district other than where the child’s parent resides. |
| “I have had to pay large fees to my child’s public school, and I do not have any money to pay my rent and utilities. I am going to be evicted by my landlord since I have had to pay all of the school fees.” |
| Illinois law provides that students from low-income households cannot be deprived of educational opportunities because of their families’ income levels. The law has been in place for almost a century. One of the duties of the local school boards under the Illinois School Code is “to waive all fees assessed by the district on children whose parents are unable to afford them.” School boards are required to adopt written policies and procedures for fee waivers to define eligibility requirements further. School boards are given some discretion in determining eligibility, but, at a minimum, their standards must include eligibility for students who qualify for free lunches or breakfasts and consideration of other financial circumstances. If a family’s primary means of income is from public assistance or if their employment income is minimal, they may meet the requirements for a waiver of school fees. Other circumstances may include a family’s significant loss of income due to illness, injury, fire, flood, or other similar emergency situations. |
| “I asked the principal at my child’s school not to hold me responsible for paying fees related to my child’s attendance and participation at school, but he told me I would have to pay. I guess I’m stuck.” |
| The School Code says school boards are to waive “all fees.” The Illinois State Board of Education requires schools to waive the following fees: charges for buying or lending textbooks; for deposits to use school property such as locks, towels, and lab equipment; charges for field trips made during school hours or after school if the field trip is a required or customary part of a class or extracurricular activity; charges or deposits for uniforms; equipment for varsity or intramural sports or for fine arts programs; charges to participate in extracurricular activities; charges for supplies required for a particular class such as shop, home economics, lab, or art supplies; graduation fees; school record fees; school health service fees; and driver’s education fees. These are the fees that a school district must waive. School districts may decide whether to waive other fees. |
| “My son’s principal told me that he would have to pay to get into all of the sports activities at school, and I thought that since the school waived his fees that he would not have to pay this type of admission fee.” |
| While the term “all fees” covers many different types of fees, the Illinois State Board of Education has determined that there are important exclusions to school fee waivers. The exclusions include ordinary supplies or materials such as pencils, paper, and notebooks; charges for the purchase of class rings, year books, and class pictures; charges for optional travel by a school group outside of school hours; admission fees to school dances, athletic events, or other social events; and library fines and other charges made for the loss, misuse, or destruction of school property. |
| “I was told by my daughter’s school principal that she could not attend school until the fees were paid. I asked the school principal if he could make an exception or if I could pay the fees on a sliding scale basis and he refused. I asked him for a copy of the school’s policy, but he said there were no written policies.” |
| The Illinois State Board of Education requires school boards to notify parents of the availability of fee waivers and of the district’s policies and procedures for the waivers. If the school determines that a parent meets the financial requirements for school fees to be waived, this means that the parent will not be held responsible for paying those fees. Notices to parents must list the fees subject to waiver, the procedure parents can use to request a waiver, and a procedure for the resolution of disputes about the waivers, including a parent’s right to appeal denials of the fee waiver requests. Schools are under an obligation to provide parents with this information. |
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“I have paid my children’s school fees, but I just found out that I didn’t have to pay them because my income is low. Is there any way I can obtain a refund from the school for the fees that I just paid?” |
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| Many families that meet the requirements for school fee waivers may have paid their children’s school fees because they were not aware of their right to request waivers. Illinois law and the State Board of Education regulations do not provide a time deadline for requesting waivers. Unless a district’s policy contains deadlines, parents could conceivably request a waiver and receive a refund from their districts |
| “Special education is for children who are learning disabled, or mentally retarded.” |
| Special education services are available for any child who has a “disability.” The definition of disability goes far beyond learning disabilities and low IQ’s. Any of the following conditions will qualify a student for special education services so long as the condition interferes with learning or adversely affects educational performance: a visual (sight) impairment; a hearing impairment; a physical or health impairment; a speech and/or language impairment; a specific learning disability (for example, dyslexia); a behavior or emotional disorder; a mental impairment; autism; or traumatic brain injury. |
| “I don’t want my child in special education. I don’t want her in a separate classroom, and I don’t like the ‘special education’ label.” |
| Parents sometimes are fearful of their children being “labeled” as a special ed student, but there are many positives to a child being found eligible for special education services. Once a child is found eligible, a wide range of services becomes available to help address the child’s learning problems. These services can range from aides (individual assistants) in the regular classroom to placement in a special school. Where appropriate, students can also receive physical, occupational or speech therapy, as well as psychological or social work services. With many kinds of disabilities (for example, speech problems and certain learning disabilities) a child may need special education services only for a period of time. Special education does not necessarily mean a separate classroom. In fact, the law requires that children be educated in the “least restrictive environment” - in other words, that children be in the regular classroom if possible. |
| “The school will decide what kind of special education services my child needs.” |
| School staff play a role in this determination, but parents play an importantrole as well. Parents have the right to be present at and participate in the Multidisciplinary Conference (MDC) at which school staff determine whether the child is entitled to special education services and also at the meeting at which the child’s Individualized Education Program (IEP) is developed. When parents and school officials cannot agree regarding educational placement, parents have a variety of appeal rights. These appeal rights and other aspects of special education will be discussed in much greater detail in the next issue of the Prairie News. |
| “Since my children and I lost our housing, we’ve moved around a lot. Between staying with family members, friends, and shelters, my children have been in a number of school districts. Where am I supposed to enroll my kids?” |
| Each homeless child must be notified of, and given a choice in, school selection. A child may enroll at: |
| • the school at which the child was last enrolled; |
| • the school at which the child was enrolled when he or she lost housing; or |
| • the school which non-homeless children attend in the area nearest where the child or youth is actually living. |
| Your child must be permitted to remain in the school chosen for as long as he or she is homeless, or once permanently housed, until completion of the academic year. |
| “We’ve had so much going on in our lives since we lost our housing. I don’t have my kids’ full medical records or the money to get their new immunizations. Will I have to wait and get all my children’s records ready before they can start school?” |
| Enrollment should be achieved immediately. If records are missing, including medical records, it is the school’s responsibility to “make a reasonable effort” to contact the prior school and to procure medical records. If immunizations are not up-to-date, the school must give immediate referrals to free medical clinics for physicals or immunizations. A school may not deny or delay enrollment because those items are missing. |
| “After losing our apartment, we’ve had to live in a shelter in another district. I don’t want my kids’ school year to be disrupted. The problem is, I don’t have a way to get them to their former school.” |
| The federal McKinney Act states that schools must try to remove barriers to homeless children’s education, including transportation barriers. If you decide that your child will go to the school he or she attended before becoming homeless, he or she may be eligible for school busing service, or for free public transportation tokens. Transportation must be made available for school-related activities as well. |
| “My family just lost our housing, but we’re living temporarily with my sister. Are my kids eligible for the services provided to homeless children?” |
| Yes. Anyone who falls into the following categories is eligible: |
| • children and youth (from preschool-age and up) who are “doubled up” in another family’s housing because of a loss of housing or similar situation; |
| • runaways, even if their parents are willing to house them; |
| • children who have been thrown out by their parents; |
| • teen mothers living in facilities for unwed parents; |
| • children abandoned in hospital settings; |
| • migrant children living in unfit habitations; |
| • children awaiting placement in foster care; |
| • children who are in the care of the state and are institutionalized because they have no other placement in which to live; or, |
| • children and youth in emergency shelters or living in trailer parks and camping grounds without adequate accommodations. |
| Michael O’Connor is Managing Attorney of Prairie State’s Kankakee office; Ligy Pullappally is a Staff Attorney in Prairie State’s Waukegan office; Lisa Wilson is a Staff Attorney in Prairie State’s Peoria office; and David Wolowitz is Prairie State’s Director of Special Projects. |