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School and Learning
School Residency Requirements

EACH FALL, many school-age children in New Jersey are not allowed to register for or attend public schools because of disputes about where they live. Many of these students should be permitted to register for school. Some children are mistakenly denied because they are not able to produce written leases, or because they cannot show that their homes have certificates of occupancy. Other children are wrongly denied because of their immigration status. This article explains some of the basic rules about school residency (registration) requirements.

Right to Free Public Education for Students Ages 5–20

Any child living in New Jersey and between the ages of 5 and 20 has a right to a free public education. This includes children who do not have legal immigration status. This also includes children who are unable to provide written leases or show that the apartment where they live complies with local housing laws.

Note: Some children younger than 5 and older than 20 also have a right to a free public education. One example is children who have disabilities and are receiving special education and related services. Another example is children living in certain low-income school districts, formerly called Abbott Districts, where the district must provide public preschool.

To enroll in public school, students must show that they are residents of the school district. There are special rules and procedures that school districts must use when determining where a child may attend school. These rules and procedures include a right to appeal when a school denies admission. School districts must allow students to attend the school during the time that it takes to decide the appeal.

Homeless children are entitled to certain rights and protections when they try to enroll in school. To learn more about the rights of homeless children, please see Rights of Homeless Students.

Who can attend school in New Jersey?

All school-age children who live in New Jersey have a right to a free public education from kindergarten through 12th grade. In 1982, the U.S. Supreme Court ruled in a case called Plyler v. Doe that undocumented children and young adults have the same right as U.S. citizens and permanent residents to attend school. Like other children in New Jersey, undocumented students are required to attend school from age 6 to 16. Public schools cannot deny free admission to students because of their immigrant status. (There is one exception to this rule. A student who is in the United States with an F-1 Visa for the sole purpose of attending a public high school is not entitled to receive a free public education.) Public schools may not treat immigrant students differently in order to prove residency. A public school cannot stop or discourage a student from enrolling by threatening to contact the Department of Homeland Security–United States Citizenship and Immigration Services (USCIS) [formerly known as the Immigration and Naturalization Service (INS)]. A public school cannot ask for proof of immigration status as a condition of school enrollment.

Where can a child attend school in New Jersey?

Students have the right to go to school in the school district where their parent or legal guardian is residing, even if the home is temporary. Students whose parents live in two different places will likely go to school in the district of the parent’s home where the student spends the most time. Usually students must attend school where their parent or legal guardian lives. In certain circumstances, students may attend school somewhere else when someone who is not their parent or legal guardian is caring for them. These students are called affidavit students.

What is an affidavit student?

An affidavit student is a student who lives with someone other than a parent or legal guardian and wants to attend school in the district where that person lives. The person they live with (caretaker) must support the student without any payment for the student’s care.

How can a child qualify as an affidavit student?

In order to qualify as an affidavit student, the student’s parent or legal guardian must give the school district an affidavit (a sworn statement) along with supporting documentation. The parent or guardian must show that he or she cannot support or provide for the child due to a family or economic hardship. The affidavit must also state that the student is not living with the caretaker solely to attend school in that district.

A school district may also ask the caretaker for an affidavit.

The affidavit must state the following:

  • The caretaker lives in the district.
  • The caretaker financially supports the student without payment.
  • The caretaker plans to continue to support the student for more than the school year.
  • The caretaker will be responsible for all of the student’s personal obligations related to school requirements.

The caretaker may also have to submit a copy of his or her lease if he or she is a tenant or a statement from the landlord if there is no written lease.

Even if there are no affidavits, the school must enroll the student if the above requirements are established.

Schools cannot deny admission when the evidence shows that the student has no home or possibility of attending school other than with the caretaker.

A parent or legal guardian is allowed to give gifts or limited contributions (cash or otherwise) for the welfare of the student. A school district cannot use parental gifts or limited contributions as the only reason to find a student ineligible. Courts have interpreted gifts and limited contributions in different ways. For example, in at least one case a caretaker was permitted to receive child support payments from the child’s parent. The court reasoned that the child support was to benefit the child and not the caretaker.

How can students prove that they are entitled to attend school in a school district?

School districts must accept a variety and combination of documents in order to show where a student lives and is entitled to attend school.

Specific examples of documents that can be used include:

  • Property tax bills,
  • Leases,
  • Letters from landlords,
  • Voter registrations,
  • Driver licenses,
  • Cancelled checks, and
  • Utility bills.

School districts are not permitted to require certain types of proof of residency. School districts are required to review and consider any proof of residency that is submitted. If the school district disagrees that residency has been established, it is required to give a written notice (see What happens if a school will not allow enrollment? below).

Can a school request proof of immigration status or income tax returns?

A school district cannot ask for documentation about immigration status, including passports, green cards, or other immigration-related information (except for F-1 Visa holders, explained above). A school district cannot require a student or parent to have a Social Security number. A school district cannot ask for income tax returns or require a Certificate of Habitability or a Certificate of Occupancy. A school cannot deny admission because it believes that an apartment violates zoning or housing codes.

The Family Education Rights and Privacy Act (FERPA) does not allow schools to provide any outside agency—including USCIS—with any information from a child’s school file that would expose the student’s undocumented status without first getting permission from the student’s parents. The only exception is if the agency gets a court order—known as a subpoena—that parents can then challenge.

Can a school remove a child from school if it thinks that the child’s residence has changed?

Yes, but a school district must first follow certain rules. Schools are allowed to investigate a student’s residency status and ask for current proof of eligibility. If a school thinks an enrolled student is no longer eligible to attend the school, it must ask the board of education to remove the child from the school. The child’s parent, guardian, or caregiver (if an affidavit student) has a right to have a hearing before the board of education. Before the hearing, the district must give written notice that explains why the district is challenging the student’s residency. This notice must also meet the notice rules that are outlined below.

At the hearing, a parent, guardian, or caregiver will have the chance to show that the student is eligible to attend the school (see Where can a child attend school in New Jersey? and What is an affidavit student? above). At the hearing, a parent, guardian, or caregiver should bring any witnesses who can testify about the student’s residency or eligibility as an affidavit student. Any documents that support the claim should also be brought to the hearing.

After the hearing, the board of education must make a decision and send the parent, guardian or caregiver a written decision. In order to decide to remove the student from school, the whole board of education must vote at a public meeting.

What happens if a school will not allow enrollment?

If a school denies enrollment, it must give a written notice of ineligibility. The notice must clearly describe the reason the child is not eligible. It must also specify what law or part of the law is the basis for the denial. If English is not the applicant’s native language, the school must also give notice in the applicant’s native language.

An applicant who disagrees with the school’s decision has a right to appeal the denial within 21 days of the date of notice. If the parent, guardian, or caregiver intends to appeal the decision, the student must be allowed to attend school while the appeal is processed and decided. (They may be charged tuition for the time that the child attends school if they lose the appeal. See What happens if the Department of Education agrees with the school district and finds the child ineligible? below.)

A parent, legal guardian, or caregiver who files an appeal pro se (without a lawyer) can submit a letter or use the pro se residency appeal form provided by the NJ Department of Education. The pro se residency appeal form can be downloaded (the form is on page 17).

If you choose to write a letter, the letter must include the following information:

  • The name, address, and telephone number (if available) of the person filing the appeal (known as the petitioner);
  • The name of the district board of education (known as the respondent);
  • A statement that this is an appeal from a determination of ineligibility to attend school in the district based upon residency or domicile;
  • The date when the determination of ineligibility to attend school was made; and
  • A signed statement by you that you understand that you may be charged tuition for the period of the child’s ineligible attendance and that such assessment may be recorded as a judgment if the Commissioner of Education determines that the appeal was abandoned, withdrawn, or that the child is ineligible for a free education in the school district.

Appeals must be sent to the Bureau of Controversies and Disputes at:

State Commissioner of Education
c/o Director of Bureau of
Controversies and Disputes
New Jersey Department of Education
100 Riverview Plaza
P.O. Box 500
Trenton, NJ 08625-0500

You can fax the appeal to the Controversies and Disputes office at (609) 292-4333, and send a copy in the mail afterward if you have any questions about filing the appeal, you can call the Controversies and Disputes office at (609) 292-5705.

The Bureau will fax a copy of the petition to the school district. It will also send the school district a notice requiring them to respond in writing to your petition and to ­ensure that the child attends school pending the outcome of the hearing.

The school district has 20 days from the date of service to respond to your petition. Once the response has been filed with the Commissioner, the case will be scheduled for a hearing before an Administrative Law Judge, who will make an initial decision. The case will then go to the Commissioner for a final decision.

When a claim goes before the Administrative Law Judge and the Commissioner, there are a few things you (the petitioner) should know:

  • You are responsible for proving that the student is eligible for a free public education in the district.
  • If the Commissioner decides the case in your favor, the student can attend public school in the district until graduation, as long as the student continues to meet the legal requirements for residency.
  • If the student is an affidavit student, the board of education might require the parent, guardian, or caregiver to provide statements every year showing that the student’s family or economic circumstances have not changed.

What happens if the Department of Education agrees with the school district and finds the child ineligible?

If you do not win the case or if you file a petition and do not go to court, you may be required to pay the school district tuition for the time the student attended public school there. For example, if the case is lost and the school district spends $10,000 per student each school year (10 months), and the student attended the school for three months while the case was pending, then the parent, guardian, or caregiver could be required to pay $3,000 to the district. A school district can collect ­tuition from a parent or guardian, or from a caregiver who resides in the district, for any period of ineligible attendance, even if an appeal is not filed. Under certain circumstances, a school board or the Commissioner of Education may decide not to charge tuition.

Education Representation Project

For additional information, contact Legal Services of New Jersey’s Education Representation Project by calling LSNJLAWSM, Legal Services of New Jersey’s statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529). You can also write to the ERP at:

Legal Services of New Jersey
Education Representation Project
P. O. Box 1357
Edison, New Jersey 08818-1357

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7/25/2018