Chapter 697 Oregon Laws 2011

AN ACT

HB 3681

Relating to residency of students; creating new provisions; and amending ORS 327.006, 329.485, 332.405, 339.115, 339.133, 339.134 and 343.151.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 339.133, as amended by sections 1 and 3, chapter 21, Oregon Laws 2010, is amended to read:

339.133. (1)(a) Except as provided in [subsection (3), (4), (5) or (7)] subsections (2) to (5) of this section, children between the ages of 4 and 18 shall be considered resident for school purposes in the school district in which their parents, their guardians or persons in parental relationship to them reside.

[(2)] (b) Nonemancipated individuals between the ages of 4 and 18 living outside the geographic area of the school district for such reasons as attending college, military service, hospital confinement or employment away from home shall be considered resident in the district in which their parents, their guardians or persons in parental relationship to them reside.

(c) Persons living temporarily in a school district for the primary purpose of attending a district school may not be considered resident in the district in which they are living temporarily, but shall be considered resident in the district in which they, their parents, their guardians or persons in parental relationship to them reside.

[(3)] (2) Individuals considered legally emancipated from their parents shall be considered resident in the district in which they actually reside, irrespective of the residence of their parents, their guardians or persons in parental relationship.

[(4)] (3) Children placed by public or private agencies who are living in licensed, certified or approved substitute care programs shall be considered resident in the school district in which they reside because of placement by a public or private agency.

[(5)(a)] (4)(a) Notwithstanding subsection [(4)] (3) of this section, when a juvenile court determines that it is in a child’s best interest to continue to attend the school that the child attended prior to placement by a public agency, the child:

(A) Shall be considered resident for school purposes in the school district in which the child resided prior to the placement; and

(B) May continue to attend the school the child attended prior to the placement through the highest grade level of the school.

(b) The public agency that has placed the child shall be responsible for providing the child with transportation to and from school when the need for transportation is due to the placement by the public agency.

(c) Paragraph (b) of this subsection applies only to a public agency for which funds have been designated for the specific purpose of providing a child with transportation to and from school under this subsection.

[(6) Persons living temporarily in a school district for the primary purpose of attending a district school may not be considered resident in the district in which they are living temporarily, but shall be considered resident in the district in which they, their parents, their guardians or persons in parental relationship to them maintain residency.]

[(7)] (5) Except as provided in ORS 327.006 (7) and 335.090, persons whose legal residence is not within the district but who attend school in the district [with the written consent of the affected district school boards shall be considered to be] are considered residents in the district in which the persons attend school [for purposes of the receipt by that district of State School Fund moneys for those persons.] if those persons receive:

(a) Written consent from both of the affected district school boards as provided by policies adopted by the boards; or

(b) Written consent from the district school board for the district in which the school is located as provided by section 2 of this 2011 Act.

[(8)] (6) For the purposes of this section:

(a) “Person in parental relationship” means an adult who has physical custody of a child or resides in the same household as the child, interacts with the child daily, provides the child with food, clothing, shelter and incidental necessaries and provides the child with necessary care, education and discipline. “Person in parental relationship” does not mean a person with a power of attorney or other written delegation of parental responsibilities if the person does not have other evidence of a parental relationship.

(b) “Substitute care program” means family foster care, family group home care, parole foster care, family shelter care, adolescent shelter care and professional group care.

SECTION 2. (1) For purposes of ORS 339.133 (5)(b), a person whose legal residence is not within a school district but who attends school in the district is considered a resident of the district in which the person attends school if the person receives written consent to attend school from the district school board where the school is located, as provided by this section.

(2)(a) By March 1 of each year, a district school board shall determine whether the board will give consent to persons whose legal residence is not within the school district.

(b) If the district school board will give consent, the board shall establish standards by which consent will be given. The standards must:

(A) Identify the number of persons to whom consent will be given for the school year. The district school board may limit the number of persons to whom consent will be given based on school, grade or a combination of school and grade.

(B) Allow persons who live within the boundaries of the school district the first opportunity to change to a different school in the district if the district school board will be giving consent to attend that school to persons who do not reside within the district.

(3) A person seeking consent as provided by this section must request consent no later than April 1 prior to the beginning of the school year for which consent is being requested. Requests may be submitted before the district school board makes the determination and establishes the standards described in subsection (2) of this section, but may not be considered by the board when the board makes the determination and establishes the standards.

(4)(a) A district school board must give consent to a person who requests consent unless:

(A) The board decides to not give consent to any person as allowed by subsection (2) of this section;

(B) The board decides to limit the number of persons to whom consent will be given and the person was not selected to be given consent based on the selection process described in subsection (5) of this section; or

(C) The board is not required to admit the person, as provided by ORS 339.115 (8).

(b) A district school board may not deny consent or give priority based on race, religion, sex, sexual orientation, ethnicity, national origin, disability, terms of an individualized education program, income level, proficiency in the English language or athletic ability.

(5) If the number of persons seeking consent exceeds the number of persons to whom the district school board has determined will be given consent, the board shall give consent based on an equitable lottery selection process. The process may give priority to persons who have siblings currently enrolled in a school of the school district, but in no event may a sibling be given priority to any open spot in the schools of the school district over any persons who reside within the school district.

(6)(a) Except as provided by paragraphs (b) and (c) of this subsection, a person who receives consent and who is considered a resident of a district as provided by this section shall be considered a resident of the district for all educational purposes. A person who is considered a resident of the district as provided by this section shall continue to be considered a resident of the district until the person:

(A) Graduates from high school;

(B) Is no longer required to be admitted to the schools of the school district under ORS 339.115; or

(C) Enrolls in a school in a different school district.

(b) A school district is not required to provide transportation outside the boundaries of the district to a person who is considered a resident of the district as provided by this section, except that a district:

(A) Must allow persons who are considered a resident of the district as provided by this section to use existing bus routes and transportation services of the district. Transportation provided under this subparagraph is considered approved transportation costs for purposes of ORS 327.013.

(B) May provide a stipend for a person who is a member of a low-income family, as defined in ORS 339.147, in an amount that does not exceed the district’s average cost per student for transportation.

(C) Must provide transportation if required by federal law.

(c) After the first year that a person is considered a resident of a district as provided by this section, the district school board may transfer the person to a different school in the district. Any transfers must be made consistent with district policy and do not affect the status of the person as a resident of the district.

(7) A district school board shall provide written notification of the attendance of a person who receives consent as provided by this section to the district school board where the legal residence of the person is located. The written notification required by this subsection must be provided no later than May 1 prior to the beginning of the school year for which consent was given.

(8) Nothing in this section:

(a) Requires a district school board to give consent to siblings if the board determines that consent will not be given to any students for a school year.

(b) Prevents a school district from entering into interagency agreements to provide services to persons who do not reside in the school district or are not considered residents of the school district.

(c) Prevents or otherwise limits a district school board from providing consent to a person who has received consent from the district school board for the school district in which the person resides, as provided by ORS 339.133 (5)(a).

SECTION 3. (1) Section 2 of this 2011 Act and the amendments to ORS 339.133 by section 1 of this 2011 Act first apply to persons who seek consent for the 2012-2013 school year.

(2) Nothing in section 2 of this 2011 Act or the amendments to ORS 339.133 by section 1 of this section affects the status of a person who was considered a resident as provided by ORS 339.133 (5) prior to the 2012-2013 school year.

SECTION 4. ORS 329.485 is amended to read:

329.485. (1) As used in this section:

(a) “Content-based assessment” means testing of the understanding of a student of a predetermined body of knowledge.

(b) “Criterion-referenced assessment” means testing of the knowledge or ability of a student with respect to some standard.

(c) “Performance-based assessment” means testing of the ability of a student to use knowledge and skills to create a complex or multifaceted product or complete a complex task.

(2)(a) The Department of Education shall implement statewide a valid and reliable assessment system for all students that meets technical adequacy standards. The assessment system shall include criterion-referenced assessments including performance-based assessments, content-based assessments, and other valid methods to measure the academic content standards and to identify students who meet or exceed the standards.

(b) The department shall develop the statewide assessment system in mathematics, science, English, history, geography, economics and civics.

(3) In addition to the assessment system implemented under subsection (2) of this section, the department may make available to school districts and public charter schools an assessment system that uses criterion-referenced assessments including performance-based assessments and content-based assessments to:

(a) Measure a student’s progress in achieving the academic content standards for the student’s current grade level;

(b) Determine the grade level of the understanding, knowledge or ability of a student, which shall be determined regardless of the actual grade level of the student and may be determined by adapting the assessment during the assessment process as a result of the performance of the student;

(c) Track and provide reports on the progress of a student based on the information provided under paragraphs (a) and (b) of this subsection; and

(d) Provide predictions of anticipated student progress that are based on the information provided under this subsection and not on the current grade level of the student.

(4)(a) School districts and public charter schools shall implement the statewide assessment system in mathematics, science and English. In addition, school districts and public charter schools may implement the statewide assessment system in history, geography, economics and civics.

(b) School districts and public charter schools may implement the assessment system described in subsection (3) of this section.

(5) Each year the resident district shall be accountable for determining the student’s progress toward achieving the academic content standards. Progress toward the academic content standards shall be measured in a manner that clearly enables the student and parents to know whether the student is making progress toward meeting or exceeding the academic content standards. In addition, the district shall adopt a grading system based on the local school district board adopted course content of the district’s curriculum. The grading system shall clearly enable the student and parents to know how well the student is achieving course requirements.

(6) If a student has not met or has exceeded all of the academic content standards, the school district shall make additional services or alternative educational or public school options available to the student.

(7) If the student to whom additional services or alternative educational options have been made available does not meet or exceed the academic content standards within one year, the school district, with the consent of the parents, shall make an appropriate placement, which may include an alternative education program or the transfer of the student to another public school in the district or to a public school in another district that agrees to accept the student. The district that receives the student shall be entitled to payment. The payment shall consist of:

(a) An amount equal to the district expenses from its local revenues for each student in average daily membership, payable by the resident district in the same year; and

(b) Any state and federal funds the attending district is entitled to receive payable as provided in ORS 339.133 [(2)] (1)(b).

SECTION 5. ORS 339.115 is amended to read:

339.115. (1) Except as provided in ORS 339.141, authorizing tuition for courses not part of the regular school program, the district school board shall admit free of charge to the schools of the district all persons between the ages of 5 and 19 who reside within the school district. A person whose 19th birthday occurs during the school year shall continue to be eligible for a free and appropriate public education for the remainder of the school year. A district school board may admit nonresident persons, determine who is not a resident of the district and fix rates of tuition for nonresidents.

(2)(a) A district must admit an otherwise eligible person who has not yet attained 21 years of age prior to the beginning of the current school year if the person is:

(A) Receiving special education and has not yet received a high school diploma as described in ORS 329.451 (2); or

(B) Receiving special education and has received a modified diploma, an extended diploma or an alternative certificate as described in ORS 329.451.

(b) A district may admit an otherwise eligible person who is not receiving special education and who has not yet attained 21 years of age prior to the beginning of the current school year if the person is shown to be in need of additional education in order to receive a high school diploma.

(3) The obligation to make a free appropriate public education available to individuals with disabilities 18 through 21 years of age who are incarcerated in an adult correctional facility applies only to those individuals who, in their last educational placement prior to their incarceration in the adult correctional facility:

(a) Were identified as being a child with a disability as defined in ORS 343.035; or

(b) Had an individualized education program as described in ORS 343.151.

(4) For purposes of subsection (3) of this section, “adult correctional facility” means:

(a) A local correctional facility as defined in ORS 169.005;

(b) A regional correctional facility as defined in ORS 169.620; or

(5) An otherwise eligible person under subsection (2) of this section whose 21st birthday occurs during the school year shall continue to be eligible for a free appropriate public education for the remainder of the school year.

(6) The person may apply to the board of directors of the school district of residence for admission after the 19th birthday as provided in subsection (1) of this section. A person aggrieved by a decision of the local board may appeal to the State Board of Education. The decision of the state board is final and not subject to appeal.

(7) Notwithstanding ORS 339.133 (1)(a), a school district shall not exclude from admission a child located in the district solely because the child does not have a fixed place of residence or solely because the child is not under the supervision of a parent, guardian or person in a parental relationship.

(8) Notwithstanding subsection (1) of this section, a school district:

(a) May for the remaining period of an expulsion deny admission to the regular school to a resident student who is expelled from another school district; and

(b) Shall for at least one calendar year from the date of the expulsion and if the expulsion is for more than one calendar year, may for the remaining period of time deny admission to the regular school program to a student who is under expulsion from another school district for an offense that constitutes a violation of a school district policy adopted pursuant to ORS 339.250 (6).

(9) A child entering the first grade during the fall term shall be considered to be six years of age if the sixth birthday of the child occurs on or before September 1. A child entering kindergarten during the fall term shall be considered to be five years of age if the fifth birthday of the child occurs on or before September 1. However, nothing in this section prevents a district school board from admitting free of charge a child whose needs for cognitive, social and physical development would best be met in the school program, as defined by policies of the district school board, to enter school even though the child has not attained the minimum age requirement but is a resident of the district.

SECTION 6. ORS 339.134 is amended to read:

339.134. (1) Notwithstanding ORS 339.133 [(4)] (3), a child with a disability shall be considered a resident for school purposes in the school district in which the child’s parent or guardian resides if:

(a) The child is voluntarily placed outside the child’s home by the child’s parent or guardian;

(b) The child’s parent or guardian retains legal guardianship of the child;

(d) The placement is within 20 miles by the nearest traveled road from the original school building, unless there are physiographic conditions that make transportation to the original school building not feasible; and

(e) The child’s parent or guardian and the school staff can demonstrate that it is in the best interest of the child to continue to attend the school the child was attending prior to the placement. The best interest of the child may be demonstrated by factors, including but not limited to the following:

(A) The child’s siblings attend the school;

(B) A change in the child’s routine would be detrimental to the child; or

(C) The child has developed and maintained a network of personal contacts, support services and friends and a sense of community within the school.

(2) If a child qualifies under subsection (1) of this section, the child may continue to attend the school the child was attending prior to the placement in the child’s resident school district.

(3) Nothing in this section shall affect the ability of school districts to enter into agreements with other school districts for the transportation of students.

SECTION 7. ORS 327.006 is amended to read:

327.006. As used in ORS 327.006 to 327.133, 327.348, 327.355, 327.357, 327.360 and 327.731:

(1) “Aggregate days membership” means the sum of days present and absent, according to the rules of the State Board of Education, of all resident pupils when school is actually in session during a certain period. The aggregate days membership of kindergarten pupils shall be calculated on the basis of a half-day program.

(2)(a) “Approved transportation costs” means those costs as defined by rule of the State Board of Education and is limited to those costs attributable to transporting or room and board provided in lieu of transporting:

(A) Elementary school students who live at least one mile from school;

(B) Secondary school students who live at least 1.5 miles from school;

(C) Any student required to be transported for health or safety reasons, according to supplemental plans from districts that have been approved by the state board identifying students who are required to be transported for health or safety reasons, including special education;

(D) Preschool children with disabilities requiring transportation for early intervention services provided pursuant to ORS 343.224 and 343.533;

(E) Students who require payment of room and board in lieu of transportation;

(F) A student transported from one school or facility to another school or facility when the student attends both schools or facilities during the day or week; and

(G) Students participating in school-sponsored field trips that are extensions of classroom learning experiences.

(b) “Approved transportation costs” does not include the cost of constructing boarding school facilities.

(3) “Average daily membership” or “ADM” means the aggregate days membership of a school during a certain period divided by the number of days the school was actually in session during the same period. However, if a district school board adopts a class schedule that operates throughout the year for all or any schools in the district, average daily membership shall be computed by the Department of Education so that the resulting average daily membership will not be higher or lower than if the board had not adopted such schedule.

(4) “Consumer Price Index” means the Consumer Price Index for All Urban Consumers of the Portland, Oregon, Metropolitan Statistical Area, as compiled by the United States Department of Labor, Bureau of Labor Statistics.

(5) “Kindergarten” means a kindergarten program that conforms to the standards and rules adopted by the State Board of Education.

(6) “Net operating expenditures” means the sum of expenditures of a school district in kindergarten through grade 12 for administration, instruction, attendance and health services, operation of plant, maintenance of plant, fixed charges and tuition for resident students attending in another district, as determined in accordance with the rules of the State Board of Education, but net operating expenditures does not include transportation, food service, student body activities, community services, capital outlay, debt service or expenses incurred for nonresident students.

(7)(a) “Resident pupil” means any pupil:

(A) Whose legal school residence is within the boundaries of a school district reporting the pupil, if the district is legally responsible for the education of the pupil, except that “resident pupil” does not include a pupil who pays tuition or for whom the parent pays tuition or for whom the district does not pay tuition for placement outside the district; or

(B) Whose legal residence is not within the boundaries of the district reporting the pupil but who attends school in the district with the written consent [of the affected school district boards] received as provided by ORS 339.133 (5).

(b) A pupil is not considered to be a resident pupil under paragraph (a)(A) of this subsection if the pupil is attending school in another school district pursuant to a contract under ORS 339.125 and in the prior year was considered to be a resident pupil in another school district under paragraph (a)(B) of this subsection. The pupil shall continue to be considered a resident of another school district under paragraph (a)(B) of this subsection.

(c) A pupil is not considered to be a resident pupil under paragraph (a)(B) of this subsection if the pupil is attending school in a school district pursuant to [an agreement with another school district under] ORS 339.133 (5) and in the prior year was considered to be a resident pupil under paragraph (a)(A) of this subsection because the pupil was attending school in another school district pursuant to a contract under ORS 339.125. The pupil shall continue to be considered a resident pupil under paragraph (a)(A) of this subsection.

(d) “Resident pupil” includes a pupil admitted to a school district under ORS 339.115 (7).

(8) “Standard school” means a school meeting the standards set by the rules of the State Board of Education.

(9) “Tax” and “taxes” includes all taxes on property, excluding exempt bonded indebtedness, as those terms are defined in ORS 310.140.

SECTION 8. ORS 327.006, as amended by section 11, chapter 846, Oregon Laws 2007, and section 41, chapter 11, Oregon Laws 2009, is amended to read:

327.006. As used in ORS 327.006 to 327.133, 327.348 and 327.731: