By Attorney Sarah Albert

Illinois has an abundance of fantastic public schools across many districts. But if your child is enrolling into a new school district and must submit proof of residency within that district, there are a few things you should be prepared to provide. As school districts take this verification very seriously, you should also consider hiring an attorney to help advance your child's best interests.

Most districts have established a streamlined process that allows parents to submit documents to verify residency within the district before the school year begins. This may include providing utility bills, vehicle registration, or title documents that show a family unit lives at a certain address. These districts also typically utilize software that flags potential residency issues, for example, if your child was previously enrolled in a nearby district or has more than one address on file. If this happens, the district's business manager will likely authorize surveillance at both addresses in question to determine if the student actually lives within the district's boundaries for tuition-free attendance. This process may alarm some parents, as it often involves sending a private investigator working for the district to check in on the home's appearance. If there aren't cars in the driveway, lights on at night, or if no one is observed to be entering and exiting before and after school hours, this activity – or lack of activity – is reported to the district. If the investigator reports to the district that the student does not appear to reside at the home within the district, be prepared to undergo additional steps for proof of residency.

Sometimes clearing this up doesn't require a lawyer; for example, if you're recently divorced or separated, you'll likely be asked to provide materials that indicate which residence is primary pursuant to the custody agreement. If you lease your home and you haven't provided the district with the renewal agreement, it can be as simple as providing a copy showing the new lease term.

If those quick fixes don't work and evidence has been compiled, the school district will notify the parents of the residency issue in a letter sent via certified mail. This notice must be sent via certified mail and must detail specific reasons why the board believes your child is a nonresident of the district and include the amount of nonresident tuition owed pursuant to 105 ILCS 5/10-20.12a (a). Within ten calendar days after receipt of this notice, you may request a hearing to review the determination. At this hearing:

• the district may lawfully request proof of your child's age to verify it is within the district's minimum and maximum requirements;
• the district may not ask about your or your child's citizenship or immigration status to establish residency;
• the district may not use foreign birth certificates or a lack of a social security number to deny school enrollment;
• the district may not require an exhaustive list of documents or mandate that parents provide any particular document as proof of residency; and
• the district must allow for sufficiently variable documents to prove residency.[1]

This hearing is also an opportunity for the parents to present evidence, including offering up witnesses and testimony, to prove that the home in question is the legitimate residence of their child. This is a good time to engage counsel, who can help safeguard important procedural rights as well as help prepare you to testify. These determinations are appealable in civil court, but the administrative agency's findings of fact are considered prima facie true, or accepted as correct, and will not be re-evaluated by a reviewing court, meaning it is wise to engage counsel well before an appeal.

The Illinois School Code indicates that the residence of a person who has legal custody of the child in question is deemed to be the residence of the child as well.[2] “Residence” is not defined, however. Courts look to caselaw to define this term, which usually turns out to be “a permanent abode or home in a particular place.”[3] It is where someone has “a physical presence [and] … the intent to make that location his permanent residence.”[4] Intent is crucial here, and although parents can provide testimony explaining their intent to have a child's residence be the home within a certain school district, the court will not be persuaded by words alone. In fact, in determining intent, “a person's acts are given more weight than his or her declarations.”[5] The court will look to determine “the true motivating factor” for the move into a certain district.[6] If that factor is tuition-free education, the courts will very likely uphold the board's determination that your child's actual residence is elsewhere. Put simply, “residence cannot be fluid or chosen.”[7] The court isn't interested in whether your child's residency within the district could be plausible; at this stage, the court is looking at whether the board made a clear error in its determination that the child's permanent home is elsewhere, and that is a high burden to overcome on appeal.

Many parents wonder why anyone would be precluded from sending their child to a school within a district wherein they lawfully own or rent a home. This is a better question for the district, but ultimately it boils down to money: districts cannot afford to enroll and educate every child who wants a spot, even if the parents go to great financial lengths to make that possible. Regardless of whether this residency verification process seems fair, the law is clear: no child may validly enroll in school if he or she lives within a district solely for the purpose of accessing that district's schools.

For some districts, residency verification has become a repetitive and expensive issue, and they are well-prepared to investigate. If you are facing this investigation and hearing, please contact an attorney to help guide and advise you of your options.

[1] See “Fact Sheet: Information on the Rights of All Children to Enroll in School,” authored by the U.S. Department of Justice: Civil Rights Division and the U.S. Department of Education: Office for Civil Rights.

[2] See 105 ILCS 5/10-20.12b.

[3] Gwozdz v. Bd. of Educ. of Park Ridge-Niles Sch. Dist. No. 64, 2021 IL App (1st) 200518, ¶ 32.

[4] Id.

[5] Id. at ¶ 38.

[6] Id. at ¶ 39.

[7] Id. at ¶ 43.