Who Has a Right to Attend the Milton Public Schools?

Periodically during the past decade or so the question has been asked whether some students attending our schools were non-residents, and therefore not eligible to attend. The question has been asked by neighbors and friends, in public meetings of elected officials, and as I know from personal experience, by Warrant Committees of the School Administration.

Repeatedly School Superintendents and the Police Department, which has two detectives assigned to investigate potential residency violations, have assured the Town that they are on top of this issue. There is an extensive registration process during which multiple pieces of documentation regarding residency are requested. Detectives with many years of combined experience use their abilities and tips from Milton residents to identify cases that require investigation. Each year students are asked to leave the Milton schools as a result—seven during this past year.

Now, once again, the town faces this question, albeit in a more sensationalized and politicized way that threatens to be very divisive. In May at the Annual Town Meeting Selectman Jimmy Mullen stood before the town meeting, and the television cameras, proclaiming that he had reason to believe there were as many as 100 students in the system who were not Milton residents. A few weeks later at a School Committee meeting Attorney Robert Connolly told committee members that all they had to do was go to the borders of the town on any school day to see people walking into Milton to go to school.

Selectman Mullen based his charge on an anonymous person he claims is in a position to know. When asked subsequently to provide the name of a single student who should not be attending our schools, he could not. Presumably either the source could provide no names or Mr. Mullen didn’t consider it important to ask. But if a single violator can’t be identified, why should anyone believe there are any, let alone one hundred? As for Mr. Connolly’s charge, it strains credulity to suggest that Milton Police Detectives would be so incompetent as to be fooled by such open flouting of residency laws on a daily basis.

Unable to support his claim, while perfectly content to repeat it, Mr. Mullen is now attacking the school system’s residency policy. He suggests it is more liberal than necessary and has offered the policy of the Boston Public Schools for comparison. The Milton Times, in an article that tended to promote the controversy while offering little clarity or understanding, echoed this message.

The right of any student to attend a public school is not, in the final analysis, governed by any community’s residency policy. That right is defined by state law and any precedents established in court cases that interpret that law. To find out more about the state of the law on this issue I contacted Nate Mackinnon of the Department of Education, the source mentioned in the Milton Times article. After some discussion Mr. Mackinnon agreed to check with the legal department and obtain any legal advisories on the residency issue. He then faxed me two legal opinions that represent the Department of Education’s view on the legal definition of residency. I’m going to quote extensively from one of these letters because it lays out detailed reasoning concerning Massachusetts law.

The letter is from 1990 and is addressed to the Town of Peabody. It comments on a complicated case of physical and legal custody of a student with parents in two different towns.

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“As you know, the basic rule regarding the right of children to attend school is contained in G.L. c. 76, s.5. This statute provides in pertinent part as follows:

‘Every person shall have a right to attend
the public schools of the town where he
actually resides, subject to the following
section. [Emphasis in original]’

In the Department of Education’s opinion, this statute is to be read literally: children who actually reside (i.e. live) in a town, whether with their natural parents, other relatives, by themselves, in a foster or group home or in virtually any other living situation, are legally entitled to attend the town’s public schools. In short, the statute avoids technical questions of custody, guardianship and domicile; the only question to ask is: where does the student actually live. This interpretation of G.L. c. 76, s.5 is supported by the statute’s legislative history as well as Opinions of the Attorney General and the courts. Prior to a 1913 amendment, G.L. c. 76, s.5 referred to the legal residence of the child’s parent or guardian, or the child’s residence if there was no parent or guardian present. The 1913 amendment omitted the technical issue of custody by basing the right to attend school on the child’s actual residence. The literal interpretation of G.L. c.76, s.5 was reaffirmed in Mulrain v. Board of Selectmen of Leicester 479 N.E. 2d 745 (Mass. App. 1985). The court held that while the statutory meaning of residence varies, where a particular statute uses the expression “actual residence”, residency becomes a matter of “personal presence”, with or without any implication of civic privileges or duties. (Id., 479 N.E. 2d at 746). Since G.L. c. 76, s.5 states that every person shall have a right to attend the public schools of the town where he or she actually resides, residence under this statute does not include any other factors except the location of the child’s home.

The only statutory limitation on a child’s right to attend the schools of the town where he or she actually resides appears in G.L. c.76, s.6, which states in pertinent part:

‘If a child resides temporarily in a town other than the legal
residence of his parent or guardian for the special purpose of
there attending school, the said town may recover tuition from the
parent or guardian…computed at the regular rate established by the school committee for non-resident pupils, but in no case exceeding the average expense per pupil in such school for said period. [Emphasis in original]'

Therefore a child is entitled to attend the public schools of town in which he or she actually lives, but, if the child is living in a town which is not the legal residence of his or her parent or guardian, for the sole purpose of going to its schools, the town may charge tuition. Since few children live in a town apart from their parents “for the special purpose of there attending school”, the applicability of G.L. c.76 is quite limited. This analysis of G.L. c.76, SS5 and 6 has been supported by the courts of the commonwealth. In the 1977 opinion in Anrig v. Joseph, Suffolk Superior court docket number 18871, the court applied this approach to a case in which two children moved from their mother’s home in Dedham to their grandmother’s home in Norwood because of family problems. Norwood refused to admit the students unless they paid tuition or their grandmother became their legal guardian. Based on the facts in that case, the Court held that the children were entitled to attend school without payment of tuition in the town in which they were residing with their grandmother, regardless of their guardianship”

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So unless the town can show that a student living with someone other than a parent or legal guardian is doing so for the sole purpose of attending the schools, that student has a right to attend. Given the many family and social reasons that might occasion a young person’s choice of living situation, this is a difficult legal standard to meet.

What about the Boston schools policy? Mr. Mullen cites in particular the words: “the residence of a minor child is presumed to be the legal residence of the parent (s) or guardian (s) who have physical custody of the child.” Remember, this is a policy statement and Boston is entitled to publicize as stringent a set of requirements as they wish. The question is, how are decisions actually made. The policy “presumes” parental or guardian residency. But it does not say admission will be denied in non-parental and non-guardianship living situations. Another DOE legal opinion from 2000 states: “Nothing in the statute authorizes a school district to condition admission on additional requirements. Therefore a school district may not condition admission on such things as legal guardianship, parent’s residence or receipt of certain documents, with the exception of immunization records in accordance with G.L. c.76, S15.”

So why do we find ourselves in the middle of this acrimonious debate? Why hasn’t the Board of Selectmen, which has legal counsel on retainer, sought a legal opinion regarding the residency policy, one that I believe would clearly show that ours is a thoughtful approach crafted with state law and legal precedent in mind? And by what perversion of logic is the School Committee being pressured to perform an investigation of violations that have not even been shown to have occurred? The School Committee needs to make a comprehensive public statement on this issue, and those elected officials who seem intent on creating a controversy for whatever reason need to start acting more responsibly.