Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

As is the case with a number of school districts in my part of the state, our enrollment is declining at an alarming rate. Our board of education has been discussing how best to deal with the issue, and last spring the board adopted a new policy to permit students from other towns to pay a reduced tuition rate to attend our schools.

When the board of education adopted this new policy, I wished it well, but thought that they were kidding themselves to think that parents would pay to send their children to our schools, such as they are. I was pleasantly surprised, therefore, to see this fall that we have welcomed a number of non-resident children into our schools. However, I am not sure what their status is. If one of them acts up, do we have to go through the normal discipline procedures or can we just cut them loose? Similarly, I wonder what is our responsibility if we think that a student needs special education help. I am sure that the board of education did not want to accept expensive new responsibilities when it admitted non-resident students at a reduced tuition rate. However, it seems counterintuitive to say that we can decline to meet the special education needs of any our students.

Intellectually Curious
Dear Curious:

The answer to your question depends on the definition of “our students.” Children who reside in your school district and attend your schools are indeed “your students,” and the statutes define the school district’s relationship with those students. Resident children are entitled to attend your schools, and they are entitled to the protections of the discipline statutes, including suspension and expulsion. And, of course, they are entitled to receive a free, appropriate public education from the district.

By contrast, tuition students attend your school by virtue of a contractual relationship. As a consequence, the rights of such students are very different from those of resident students. In such cases, the parents are obligated by contract to pay tuition, and the district is free to exclude students from school if parents do not meet that obligation. Similarly, in admitting non-resident students, the district is free to consider the student’s prior school record before admitting the student, and it may impose requirements of good behavior as a condition for continued attendance. Moreover, such students are not entitled to the protections of the student discipline statutes. However, Legal Mailbag recommends that school districts provide some sort of hearing as a matter of fairness when considering whether to exclude a non-resident student for disciplinary reasons.

The issue of special education is especially interesting. As a general principle, school districts may not discriminate against students (or others) with a disability. However, when non-resident students attend a school by contractual right, the parties have a business relationship. The school district is not the “LEA,” i.e., the “local educational agency” responsible for the student under state and federal law, special education and otherwise. The school district does not, therefore, have a legal duty to provide a tuition student with FAPE (“free appropriate public education”) as provided under the Individuals with Disabilities Education Act. Rather, as to such students, the district is subject to the provisions of Section 504 of the Rehabilitation Act of 1973 (“Section 504”) that pertain to private schools. Jefferson County Sch. Dist., 20 IDELR 1271 (OCR 1993); Cullman City Sch. Dist., 352 IDELR 519 (OCR 1987).

The Section 504 regulations state that a school cannot “exclude a qualified person with a disability from [a] program if the person can, with minor adjustments, be provided an appropriate education.” 34 C.F.R. § 104.39(a). However, a district may charge more tuition to persons with disabilities than to non-disabled persons “to the extent that any additional charge is justified by a substantial increase in cost to the recipient.” 34 C.F.R. § 104.39(b). Thus, your school district must determine whether only “minor adjustments” are necessary for the child to attend, or if the district would incur a “substantial increase in cost” in accepting that student into your school. If there is a substantial increase in cost to meet the special education needs of the student, that cost can be passed on to the parents.

In sum, non-resident tuition students can be a welcome addition to your school, and you just need to know how their rights differ from your other students. Aren’t you glad that you asked?