Legal Alerts

2007 Education Code Amendment Closes Legislative Gap in State Residency Law

In a recent published decision in which BB&K attorneys represented the Orange County Department of Education, the Ninth Circuit ruled that the school district in which the “parent” resides is responsible for providing a foster youth’s special education program in an out-of-state facility. The decision was based upon a 2007 amendment to the Education Code which expanded the definition of “parent” to include “guardians authorized to make educational decisions for the child.” Prior to 2007, the Court held that if a student had no statutorily defined “parent,” the California Department of Education (CDE) was responsible by default. 

This ruling is significant in that it was the first time the Ninth Circuit held CDE directly responsible for a student’s special education program as the result of the state’s failure to properly delegate educational responsibility to a local educational agency. It is consistent with other circuit courts which have similarly held that a state educational agency is the entity ultimately responsible for providing each child within the state a free and appropriate public education.

The ruling clarifies who bears responsibility for the cost of a foster child’s out-of-state special education program depending on what law was in effect at the time. In this case, CDE was held responsible for funding the student’s education until October 2007, when the Legislature redefined the “parent” definition in the Education Code to include the child’s “de facto parent.”  

For more information on how this decision or the 2007 Education Code amendments may impact your district, please contact Karen Van Dijk, or another attorney in Best Best & Krieger’s School Law practice group.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.