Friday, September 16, 2005

Nebraska Supremes hold Fairbury Schools must provide for special education student’s schooling because he was not a ward of the state at the time he was enrolled, reverses Lancaster County District Court. Jefferson Cty. Bd. of Ed. v. York Cty. Bd. of Ed270 Neb. 407 September 16, 2005. No. S-03-1190. The Education board hearing officer ordered Fairbury to pay for the childs education while the District Court reversed holding that York should pay. Section 79-1127 provides that “[t]he board of education of every school district shall provide or contract for special education programs and transportation for all resident children with disabilities who would benefit from such programs.” (Emphasis supplied.) Whether Fairbury or York is obligated to provide or contract for C.G.’s 2002-03 education depends on whether C.G. was a resident of Fairbury or York during that school year. The answer to that question lies within § 79-215, which provides in relevant part: (1) Except as otherwise provided in this section, a student is a resident of the school district where he or she resides or any school district where at least one of his or her parents reside and shall be admitted to any such school district upon request without charge. . . . . (7) When a student as a ward of the state or as a ward of any court (a) has been placed in a school district other than the district in which he or she resided at the time he or she became a ward . . . the student shall remain a resident of the district in which he or she resided at the time he or she became a ward. (8) When a student is not a ward of the state or a ward of any court and is residing in a residential setting located in Nebraska for reasons other than to receive an education . . . the student shall remain a resident of the district in which he or she resided immediately prior to residing in such residential setting. . . . The resident district for a student who is not a ward of the state or a ward of any court does not change when the student moves from one residential setting to another. (Emphasis supplied.) Supreme Court agrees that under the statutes the child was a Fairbury resident and so Fairbury had to pay the cost of educating him: Section 79-215(7) plainly applies only to wards of the state or court. It is undisputed that C.G. was not a state ward at any time during the 2002-03 school year, the only year for which Fairbury sought a determination of its obligation to provide for C.G.’s education. Meanwhile, the plain language of § 79-215(8) applies in all respects. C.G. was not a ward of the state or any court during the 2002-03 school year, and he was residing in the described residential setting in Nebraska for reasons other than to receive an education. Fairbury’s view that § 79-215(8) can apply only to minor students is unfounded. It is clear that some individuals may reach the age of majority, yet still remain a “student” entitled to a free education in Nebraska. See, Neb. Const. art. VII, § 1 (“[t]he Legislature shall provide for the free instruction in the common schools of this state of all persons between the ages of five and twenty-one years”); Neb. Rev. Stat. § 43-245(1) (Cum. Supp. 2002) (for purposes of Nebraska Juvenile Code, age of majority means nineteen years of age). Furthermore, the permissive language of § 79-215(8), “request by a parent or legal guardian,” describes only a process for the contracting of a student’s education. It does not affect a student’s residency determination and therefore does not narrow the scope of the section to minor students only. There is no such evidence in our record indicating York claimed C.G. as a resident student during that year. In addition, Fairbury alleged in its petition for a declaratory order that York received an increased amount of special education reimbursement funds by listing C.G. as one of its students in the 1998 report.

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