School districts must take immediate action to respond to significant changes to Commissioner’s regulations governing student enrollment determinations. On December 10, 2014, the State Education Department issued new regulations governing how school districts determine enrollment eligibility and increasing procedural requirements when making such determinations. These new regulations stem from a growing concern by the State Education Department and the Attorney General’s Office regarding school districts’ reported failure to comply with State and federal law when determining enrollment status of unaccompanied minors and other undocumented youth. The new regulations, codified under 8 N.Y.C.R.R. § 100.2(y), were adopted on an emergency basis and went into effect on December 16, 2014.
Under the new 100.2(y), school districts must now make their enrollment forms, procedures, instructions and requirements for determinations of student residency and age publicly available. This information, including a non-exhaustive list of the forms of documentation which may be submitted to establish eligibility to attend the schools of the district, must be published on school districts’ websites and included in districts’ enrollment materials by January 31, 2015. Note, districts are prohibited from requesting Social Security cards or numbers or any information, including visas, that would tend to reveal the immigration status of the child or the child’s parents.
School districts must enroll students on the school day following a parent’s request (or as soon as practicable); allow parents to submit information concerning their child’s right to attend school within the district; and make an enrollment determination based upon the non-exhaustive list of documentation included in the regulations, within three business days of a student’s enrollment. Districts must also, however, comply with Public Health Law § 2164(7) and may deny entry of a student whose parents have not submitted proof of their child’s immunization.
The new 100.2(y) also expands the specificity required when notifying parents that their child is not entitled to attend the schools within that district. While previously districts were required to include the general basis for the determination (i.e. non-residency), now districts must provide "the specific basis for the determination that the child is neither a resident of the school district nor entitled to attend [as a homeless child], including but not limited to a description of the documentary or other evidence upon which such determination is based." Districts continue to be required to allow parents to submit information concerning their child’s right to attend school and to inform them of the date their child will be excluded from school and how they may appeal the district’s determination to the Commissioner. Notices must be provided in the parents’ native language.
In response to these regulatory changes, school districts should immediately review their residency determination forms and procedures with legal counsel and update them to comply with the new requirements, ensuring that they are translated into any dominant languages other than English spoken within the district. Although new procedures and forms need not be posted until January 31, 2015, districts should take care to ensure that they comply with the new regulations when making enrollment eligibility determinations in the interim, as the regulations are currently in effect. Finally, districts should continue to comply with regulations related to the designation of a student as a homeless student for purposes of the McKinney-Vento Homeless Education Assistance Act, which have not changed as a result of the revisions to 100.2(y).
