In Downtown Jersey City, widely described as one of the most walkable neighborhoods in the United States, many daily errands can be done on foot. For nearly 10 years, however, certain 3- and 4-year-old students have not attended a nearby school building. They have spent about an hour each day riding a bus to the Danforth Avenue Early Childhood Center, almost five miles from home.
In an editorial, Jersey City resident and Public School No. 16 parent Jeremy Ng posed a direct question: Do children in the community have the right to attend school near where they live?
Answering that question requires a close look at New Jersey’s laws governing public education and residency.
- New Jersey law guarantees tuition-free public education in a child’s resident district, not necessarily the nearest school building.
- For nearly 10 years, some Downtown Jersey City 3- and 4-year-olds have traveled almost five miles and spent about an hour daily commuting to the Danforth Avenue Early Childhood Center.
- If residency is denied, families have 21 days to appeal, and the student may remain in school during the appeal, though tuition can be charged if the decision is upheld.
The Right to a Free Public Education
New Jersey law states that every child who lives in the state and is between 5 and 20 years old is entitled to attend public school without paying tuition. This right applies even when families cannot provide written leases or documents showing that their housing complies with local housing codes.
Eligibility also extends in certain cases beyond those ages. Children with disabilities who receive special education and related services qualify. Preschool programs must also be provided in certain low-income districts, formerly known as Abbott Districts.
Residency Determines School Placement
While the right to public education is guaranteed, enrollment depends on residence within a school district. Families must show that the child lives in the district where they seek admission.
School districts must follow established procedures when reviewing residency. If enrollment is denied, families may appeal the decision. During the appeal process, the student has the right to remain in school.
Students who do not have a fixed, regular, and adequate nighttime residence are entitled to additional protections.
Immigration Status and Enrollment
With one exception for F-1 visa holders, all school-age children living in New Jersey are entitled to a free public education regardless of immigration status.
School districts may not apply different residency standards to immigrant students. They cannot request documentation about immigration status as a condition of enrollment. They also cannot discourage enrollment by threatening to contact the Department of Homeland Security or the United States Citizenship and Immigration Services (USCIS). A Social Security number cannot be required.
The Family Education Rights and Privacy Act (FERPA) prohibits schools from sharing information from a student’s educational record with outside agencies, including USCIS, if doing so would expose undocumented status, unless parents give permission. The only exception is when an agency obtains a court order or subpoena, which parents may challenge.
Where a Child May Attend School
In most situations, a student attends school in the district where a parent or legal guardian lives, even if that residence is temporary. If parents live in separate districts, the student typically enrolls in the district where they spend the most time.
In certain circumstances, a student may enroll in a district where they are cared for by someone other than a parent or legal guardian. These students are referred to as affidavit students.
Affidavit Students Explained
An affidavit student is a child living with a non-parent caregiver due to family or economic hardship who seeks enrollment in that district. One example is a child staying with another adult because a parent or guardian cannot provide care due to medical or health reasons. The caregiver must support the child without receiving payment from the parent.
To qualify, the parent or guardian must submit a sworn statement with supporting documentation explaining that they cannot support or provide for the child because of family or economic hardship. The statement must confirm that the child is not residing with the caregiver solely to attend school in that district.
The district may also require a sworn statement from the caregiver. That document must confirm that the caregiver lives in the district, financially supports the child without compensation, intends to continue providing support beyond the school year, and accepts responsibility for school-related obligations. If the caregiver rents the residence, a lease or landlord statement may be requested when no written lease exists.
If the requirements are otherwise established, the district must enroll the student even without formal affidavits. Admission cannot be denied when evidence shows the child lacks a home or cannot attend school unless living with the caregiver.
Parents may give gifts or limited financial contributions for the child’s welfare. Such contributions cannot be the sole basis for declaring a student ineligible. Courts have interpreted this differently in various cases. In at least one case, a caregiver received child support payments from a parent, and the court determined that the payments benefited the child, not the caregiver.
Proving Residency
School districts must consider multiple forms of documentation and cannot restrict proof to specific items. Examples include deeds, property tax statements, leases, landlord letters, voter registration records, driver’s licenses, cancelled checks, court documents, social service or disability records, and utility bills.
If a district decides that residency has not been established, it must issue a written notice explaining the reason and identifying the law supporting the decision. If English is not the applicant’s native language, the notice must be provided in that language.
Districts cannot require income tax returns, certificates of habitability, or certificates of occupancy. Enrollment cannot be denied because a resident allegedly violates zoning or housing codes.
When Residency Is Challenged
If a district believes an enrolled student no longer resides in the district, it may investigate and request updated proof. To remove a student, the matter must go before the board of education, which must vote at a public meeting. Before the hearing, the written notice must explain why residency is being challenged.
At the hearing, the parent, guardian, or caregiver may present witnesses and documents to support eligibility. The student remains in school during this process. After the hearing, the board must issue a written decision.
If an appeal is filed within 21 days of the notice, the student continues attending school throughout the appeal process.
The Appeals Process
When enrollment is initially denied, the district must provide written notice stating the reason and citing the legal authority. Families have 21 days to appeal. If an appeal is filed, the student may attend school while the case is reviewed. Tuition may be charged if the appeal is unsuccessful.
A parent, guardian, or caregiver without legal representation may submit a letter or complete the pro se residency appeal form from the New Jersey Department of Education. The appeal must include the petitioner’s name, address, and telephone number; the name of the district board of education; a statement that the appeal challenges a residency or domicile determination; the date of the decision; and a signed acknowledgment that tuition may be charged if the appeal is abandoned, withdrawn, or denied.
The Department of Education’s Office of Controversies and Disputes encourages appeals by email to [email protected]. Mailed appeals must be sent to: Commissioner of Education, c/o Director, Office of Controversies and Disputes, New Jersey State Department of Education, 100 Riverview Plaza, P.O. Box 500, Trenton, NJ 08625. Questions may be directed to (609) 376-9079 or [email protected].
The district has 20 days from service of the appeal to respond. The case is scheduled before an administrative law judge, who issues an initial ruling. The commissioner of education issues the final decision.
The petitioner must prove eligibility for tuition-free education in the district. If the commissioner rules in favor of the petitioner, the student may remain enrolled through graduation as long as residency requirements continue to be met. For affidavit students, annual statements confirming that family or economic circumstances have not changed may be required.
Tuition if a Student Is Found Ineligible
If the Department of Education upholds the district’s finding of ineligibility—or if a petition is filed and not pursued—tuition may be owed for the period the student attended school without eligibility.
For example, if a district spends $10,000 per student per 10-month school year and a student attended for three months during a pending case, the amount owed could total $3,000. A district may collect tuition from a parent or guardian, or from a caregiver residing in the district, for any period of ineligible attendance, even when no appeal is filed. In certain cases, a board of education or the commissioner may decide not to impose tuition charges.
What the Law Says About Proximity
New Jersey law guarantees a child the right to attend public school without tuition in the district where the child resides. The law does not require placement in the school building closest to the child’s home.
