HB 441-FN-LOCAL - AS INTRODUCED
2023 SESSION
23-0728
10/04
HOUSE BILL 441-FN-LOCAL
AN ACT eliminating residency requirements for public school attendance.
SPONSORS: Rep. Yokela, Rock. 32; Rep. Phillips, Rock. 7
COMMITTEE: Education
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ANALYSIS
This bill removes the requirement in the public school education laws that a pupil attend the school in the district of their residence. Changes of school or assignment are to be granted without discrimination based on the residence of the student.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
23-0728
10/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Three
AN ACT eliminating residency requirements for public school attendance.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Education; Compulsory Attendance; Residence Removed. Amend the introductory paragraph of RSA 193:1, I to read as follows:
I. A parent of any child at least 6 years of age and under 18 years of age shall cause such child to attend [the] a public school [to which the child is assigned in the child's resident district]. Such child shall attend full time when such school is in session unless:
2 Change of School of Assignment; Best Interest of the Student. Amend RSA 193:3, I through IV to read as follows:
I.(a) The parent or guardian of a student may apply to the superintendent of [the student's] a district [of residence] if the parent or guardian believes it would be in the best interest of the student to change the student's school or assignment.
(b) Upon such request, the superintendent shall schedule a meeting with the parent or guardian, to be held within 10 days of the request.
(c) Prior to or at such meeting, the parent or guardian shall make a specific request that the student be re-assigned [by the school board] to another public school, public academy, or an approved private school within the district or to a public school, public academy, or an approved private school in another district.
(d) At such meeting, the parent or guardian may present documents, witnesses, or other relevant evidence supporting the parent's belief that it is in the best interest of the student to change the student's school or assignment. The superintendent may present such information as he or she deems appropriate.
(e) In determining whether it is in the best interest of the student to change the student's school or assignment, the superintendent shall only consider the student's [academic, physical, personal, or social needs] best interest and the information provided by the parent.
(f) If the superintendent finds it is in the best of the interest of the student to change the student's school or assignment, the superintendent shall initiate:
(1) A change of assignment [within the student's current assigned school];
(2) The student's transfer to another public school or public academy within the superintendent's district [of residence]; or
(3) The student's transfer to a public school, public academy, or an approved private school in another district.
(g) If a student is reassigned as a result of a best interest determination to a public school or public academy, the superintendents or administrators involved in the reassignment shall jointly establish a tuition rate for such student. Some or all of the tuition may be waived by the superintendent of the receiving district for good cause shown or pursuant to school board policy of the receiving district. The school board of the student's district of residence shall approve the payment of tuition upon the superintendent's finding that is in the best interest of the student to be reassigned. Tuition shall not be charged to the parent or legal guardian. Transportation shall be the responsibility of the parent or legal guardian.
(h) If the student is reassigned as the result of a best interest determination to an approved private school, the private school may [charge tuition to the parent or may] enter into an agreement for payment of tuition with the school district in which the child resides.
(i) If the superintendent does not find that it is in the best interest of the student to change the student's school or assignment, the parent or guardian may request a hearing with the school board of residence to determine if the student is experiencing a manifest educational hardship under paragraph II. The school board of residence shall grant the hearing within 30 days of receiving written notification of the request.
II.(a) "Manifest educational hardship" means that a student has a documented hardship in his or her current educational placement; and that such hardship has a detrimental or negative impact on the student's academic achievement or growth, physical safety, or social and emotional well-being, or any other hardship as determined by the parent. [ Such hardship must be so severe, pervasive, or persistent that it interferes with or limits the ability of the student to receive an education.]
(b) The superintendent shall duly notify the school board that the parent or guardian has requested a manifest educational hardship hearing, upon which the school board shall schedule a hearing to be held no more than 15 days after the request has been received.
(c) At such hearing, the parent or guardian may present documents, witnesses, or other relevant evidence supporting their belief that the student is experiencing a manifest educational hardship. The superintendent may present such information as he or she may deem appropriate to assist the school board in reaching its decision. The parties shall have the right to examine all evidence and witnesses.
(d) Prior to or at such hearing, the parent or guardian shall make a specific request that the student be re-assigned by the school board to another public school, public academy, or an approved private school within the district or to a public school, public academy or an approved private school in another district.
(e) The [parent or guardian] superintendent shall have the burden of establishing the [presence] absence of a manifest educational hardship by clear and convincing evidence.
(f) If the school board finds that the student has a manifest educational hardship, the school board shall grant the parent's or guardian's request to re-assign the student to another public school, public academy or an approved private school within the district or to a public school, public academy, or an approved private school in another district.
(g) If the school board finds that the parent or guardian has not met their burden of proof, the parent or guardian may appeal the local school board decision to the state board of education. If the state board of education chooses to accept the parent's or guardian's appeal, the state board of education shall schedule hearing on the matter, pursuant to applicable department of education rules.
(h) If a student is assigned to attend a public school or public academy in another district because of a manifest educational hardship, the district in which the student resides shall pay tuition to the district to which the child is re-assigned. Such tuition shall be computed according to RSA 193:4. The school board of the district in which the student resides shall approve the tuition payment.
III. The state board of education may permit such child to withdraw from the school the student currently attends for such time as the state board deems necessary. Children with disabilities as defined in RSA 186-C:2 shall be accorded a due process review pursuant to rules adopted under RSA 186-C:16.
III-a.(a) A student reassigned under this section shall be counted in the average daily membership in residence of the student's resident school district. The student's resident district shall forward any tuition payment due to the district to which the student was reassigned.
(b) The superintendent of the student's resident school administrative unit shall notify the department of education within 30 days of any reassignment of students under this section.
(c) Nothing in this section shall alter or impair the right of a child with a disability, as defined in RSA 186-C:2, to be accorded a due process review pursuant to rules adopted under RSA 186-C:16.
(d) The total reassignments or transfers in any one school year shall not exceed one percent of the average daily membership in residence of a school district, or 5 percent of the average daily membership in residence of any single school, whichever is greater, unless the school board votes to exceed this limit.
(e) The state board of education shall adopt rules, pursuant to RSA 541-A, relative to manifest educational hardship. Each school board shall establish a policy, consistent with the state board's rules, which shall allow a school board, with the recommendation of the superintendent, to take appropriate action including assignment to another public school or public academy within the district or to a public school or public academy in another district.
(f) Students re-assigned under this section shall meet the admission requirements of the school to which the student is re-assigned, provided the admission requirements do not include discrimination based on the residence of the student.
IV.(a) Any person having custody of a child may apply to enroll that child in a public school or public academy outside the school district in which the person and child reside. If the non-resident school district or public academy agrees to enroll the child it may not charge tuition to the parent [or] and may enter into an agreement for payment of tuition with the school district in which the child resides.
(b) When a child is enrolled pursuant to subparagraph (a), the district in which the child is enrolled shall immediately notify the district in which the child resides of the name, date of birth, address, and grade assignment of the child. This same notification shall be made at the beginning of each school year for which the child is enrolled.
(c) When a child is enrolled pursuant to subparagraph (a), the district in which the child [resides] attends shall retain all responsibility for the provision of special education and related services pursuant to RSA 186-C.
(d) The decision by a school district or a public academy to deny enrollment of a non-resident pupil shall not be based, in whole or in part, on whether such pupil is a child with a disability as defined in RSA 186-C:2, I, or a child that requires an accommodation under the Rehabilitation Act of 1973, as amended. If a parent or guardian believes the denial was based upon the child's disability, such parent may appeal the decision to the state board of education consistent with the provisions of RSA 21-N:11, III or file a complaint with the state commission for human rights under RSA 354-A:28. The decision of a parent to enroll a child in a chartered public school shall not be subject to the provisions of this section.
(e) The decision of a parent to enroll a child in a charter school shall not be subject to the provisions of this section.
(f) Disputes related to the provision of special education services under this paragraph shall be governed by RSA 186-C.
3 School Attendance; Legal Residence Defined RSA 193:12 is repealed and reenacted to read as follows:
193:12 Legal Residence Required.
I. For the purposes of this title, "legal resident" of a school district means a natural person who is domiciled in the state and who, if temporarily absent, demonstrates an intent to maintain a principal dwelling place in the state indefinitely and to return there, coupled with an act or acts consistent with that intent. A married person may have a domicile independent of the domicile of his or her spouse. A person may have only one legal residence at a given time.
II. The term "homeless children and youths" means individuals who lack a fixed, regular, and adequate nighttime residence, and shall include the following:
(a) Children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement.
(b) Children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings.
(c) Children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings.
(d) Migratory children, as defined in 20 U.S.C. section 6399 who qualify as homeless because such children are living in circumstances as described in subparagraphs (a)-(c).
III. Nothing in this section shall limit or abridge the right of any child placed and cared for in any home for children, as defined in RSA 193:27, or of any child placed in the home of a relative of that child by the department of health and human services, or placed in the home of a relative or friend by a court pursuant to RSA 169-B, RSA 169-C, RSA 169-D, RSA 170-C, or RSA 463, to attend the public schools of the school district in which the home for children or home of the relative or friend in which a child is placed by the department of health and human services or by a court of competent jurisdiction is located, as provided in RSA 193:28.
IV. Whenever a parent or guardian voluntarily places a child with a relative at the recommendation or request of the department of health and human services, that child shall be permitted to attend the public schools of the school district in which that relative resides provided that:
(a) Upon request of the school district, the department of health and human services shall confirm that the department recommended or requested that the child be placed with the relative to promote the child's well being, and not for the purpose of allowing the child to attend school in the district where the relative resides; and
(b) Upon request of the school district, the relative shall take reasonable steps to secure a court award of guardianship over the child, the child being allowed to attend school in that district while the relative seeks guardianship.
V. Whenever a dispute arises among one or more school districts, the department of health and human services, or one or more of the previously mentioned parties, as to the residency of a child who is in the legal custody or guardianship of the department of health and human services, or who has been placed pursuant to a court order in a proceeding under RSA 169-B, RSA 169-C, RSA 169-D, or RSA 463, the department of health and human services shall request in writing that the superintendents involved resolve the dispute. If the residency dispute remains unresolved 10 days after such request, the department of health and human services shall request that the commissioner of the department of education determine the residence of the child. The child shall be permitted to attend school in the district in which the child has been placed by the court or the department of health and human services. Liability as to the cost of school attendance provided under this paragraph shall be determined by the commissioner of education.
VI.(a) The commissioner of the department of education, or designee, shall decide residency issues for all pupils, excluding homeless children and youths, in accordance with this section. When addressing residency issues, the only question the commissioner may decide is whether the child is a resident of the state. The commissioner's decision, including a written explanation for that decision, shall be provided to the parties of record and a copy of such explanation shall be kept on file by the department of education. No school district shall deny a pupil attendance or implementation of an existing individualized education program.
(b) A pupil shall remain in attendance in the pupil's school of origin during the pendency of a determination of residency. If a child does not have a school of origin within this state, the child shall be immediately admitted to the school in which enrollment is sought pending determination of the residency dispute, provided such school is in the school district in which the child temporarily resides. For the purpose of this paragraph, "school of origin" means the school the child attended when permanently housed or the school in which the child was last enrolled.
(c) Notwithstanding the provisions of RSA 21-N:11, III any person aggrieved by a determination of the commissioner may appeal such determination to a court of competent jurisdiction.
VII. Nothing in this section shall require or prohibit a district to provide transportation for a student beyond the geographical limits of that district.
VIII. Each school district shall adopt an admission and attendance of non-resident students policy.
IX. The commissioner of education may enter into agreements with other states relative to liability for educational costs, including special education costs, of students placed in New Hampshire by those states, or of students placed outside the state of New Hampshire.
X. For the purpose of determining liability for a child placed and cared for in any home for children or health care facility, the provisions of RSA 193:29 shall apply.
4 Education; Discrimination in Public Schools; Residency. Amend RSA 193:38 to read as follows:
193:38 Discrimination in Public Schools. No person shall be excluded from participation in, denied the benefits of, or be subjected to discrimination in public schools because of their age, sex, gender identity, sexual orientation, race, color, marital status, familial status, disability, religion, or national origin, all as defined in RSA 354-A, or their residence within the borders of the state. Any person claiming to be aggrieved by a discriminatory practice prohibited under this section, including the attorney general, may initiate a civil action against a school or school district in superior court for legal or equitable relief, or with the New Hampshire commission for human rights, as provided in RSA 354-A:27-28.
5 Effective Date. This act shall take effect 60 days after its passage.
23-0728
1/9/23
HB 441-FN-LOCAL- FISCAL NOTE
AS INTRODUCED
AN ACT eliminating residency requirements for public school attendance.
FISCAL IMPACT: [ ] State [ ] County [ X ] Local [ ] None
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| Estimated Increase / (Decrease) | |||
LOCAL: | FY 2023 | FY 2024 | FY 2025 | FY 2026 |
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable |
Revenue | $0 | $0 | $0 | $0 |
METHODOLOGY:
This bill strikes the requirement in RSA 193:1 that the child attend a school in his or her resident district and modifies what a parent must prove under best interest and manifest educational hardship to have their child attend a different school. The Department of Education states any fiscal impact from this bill would occur at the local school district level, however, such impact is indeterminable since it unknown how many people would request a change of school assignment pursuant to best interest and manifest educational hardship.
AGENCIES CONTACTED:
Department of Education