June 6, 2001

Paul E. Rice
Attendance Director
Division of Pupil Services
475 Baird Street
Morgantown, WV 25801

Dear Mr. Rice:

I am in receipt of your request for a Superintendent's Interpretation dated May 16, 2001. You describe a situation in which the family of a Morgantown High School student will be moving to Pennsylvania this summer. The family wants the child to complete her last year of high school at Morgantown High. The family residence will be in Pennsylvania, however, the student and her mother will reside in a rented apartment in Monongalia County during the week and in Pennsylvania on the weekends and throughout the summer.

Specifically, you have asked:

Does this arrangement meet the legal requirement of state residency. [sic] If not, what are the requirements. [sic].

Article XII , Section 1 of the West Virginia Constitution provides for a statewide thorough and efficient system of free schools. The term free schools means a system of public schools into which all children, who are residents of the area and of prescribed school age, are admitted free and without discrimination. 51 Op. Att'y Gen. 852 (1966). Thus, the constitutional guarantee of a free public education is extended to residents only.

To determine whether a child is entitled to a free education in West Virginia, we must discern whether the child is a resident of West Virginia. This issue was addressed in the case of Grand Lodge, I.O.O.F. v. Board of Education, 90 W. Va. 8, 110 S.E. 440 (1922), which stated:

The residence required under our school law is not such residence as would be required to establish a right to vote, or which would fix liability of a city or county for the support of a pauper, or for the purpose of determining the rights of administration of his estate. The right to attend school is not limited to the place of the legal domicile. A residence, even for a temporary purpose, in a school district, is sufficient to entitle

Mr. Paul E. Rice
June 6, 2001
Page 2

children to attend school there. We do not mean to say that a child sent to a school district by parents residing outside of it, solely for the purpose of taking advantage of the free schools there, would have the right to attend such schools, as that is not the question before us . . . . The only requirement as far as residence is concerned, is dwelling in the school district.

As we understand it, the child now in question is a dependent minor residing with her mother and step-father. According to the Attorney General of the State of West Virginia:

The legal residence of a minor unmarried child is the same as that of its parent and follows the parent wherever the parent goes. There is a recognized exception, however, to this rule when the right to school enrollment is considered. Code 18-8-2 compels any person having a child in his legal or actual charge to attend school, unless the child comes within one of the exceptions provided for in Code 18-8-1.

51 Op. Att'y Gen. 168 (1965). Thus, for our present purposes only, it is appropriate to consider the residency of the parents along with the residency of the child.

The mother and step-father of the child in question previously lived in Monongalia County, West Virginia. They recently have advised that they will be moving from Monongalia County to Pennsylvania. One parent, the mother, will hold a job in West Virginia. The mother has agreed to rent an apartment in Monongalia County where she will stay with her daughter throughout the school week to enable her daughter to attend her senior year of high school at Morgantown High School. However, on the weekends and throughout the summer the mother and her daughter will return to Pennsylvania to reside with the rest of the family. As this issue was not specifically addressed in Grand Lodge, supra, we must look to other indicia of residency sufficient to require West Virginia to continue to provide a free public education to this child.

West Virginia's Attorney General has examined the issue as follows:

It is generally held that school laws should be liberally construed, with reference to residence for school purposes, and should not be governed by the technical rules for which we determine residence for voting, holding public office, and other similar purposes. The Courts generally observe the principal that all school children residing in the school district are entitled to free school privileges in the district where they reside; however, a superficial residence within a county primarily for the purpose of obtaining free public school privileges is insufficient to entitle a child to attend public schools without payment of tuition fees. If the child resides in a school district, in good faith, with relatives or friends, with the understanding that he is under the charge and legal control of such relative or friend, with no present intent of removal and not for the primary purpose of obtaining the school privileges of that school district, such child is entitled to attend the public schools of the county without payment of tuition.

Mr. Paul E. Rice
June 6, 2001
Page 3

51 Op. Att'y Gen. 168 (1965). Again, the present issue is not specifically addressed in this opinion. Though the laws of the state generally do not permit a child with superficial residence in a county to attend its schools free of charge, in the limited instance where a child, along with a parent, travels between two homes, the child may still be entitled to a free public education in the West Virginia county of residence. To make the final determination, we must still examine other residence indicators to rule out the possibility that a "superficial residence within a county for the purpose of obtaining free public school privileges" exists.

In West Virginia, only bona fide residents of the state shall be allowed to vote in elections. West Virginia Code §3-1-3. Any person who is a legal resident of West Virginia may register to vote in the county where he or she resides. West Virginia Code §3-2-2. For purposes of voter registration, presentation of a valid West Virginia driver's license is considered proof of residency. West Virginia Code §3-2-7(d)(2).

Because only residents of West Virginia may vote and because possession of a current West Virginia driver's license is considered proof of residency for voter registration purposes, it is the opinion of the West Virginia Department of Education that an individual who is either registered to vote in West Virginia or possesses a valid / current West Virginia driver's license is a resident for purposes of public school attendance. Therefore if either the child in question or her parents are registered to vote in West Virginia or possess a valid West Virginia driver's license, the child shall be entitled to attend school in West Virginia.

The residency analysis set forth herein, which is more strict than that set forth in Grand Lodge, should only be used in those instances where a child's family appears to maintain a primary residence outside of West Virginia and a secondary residence within West Virginia with the intent of sending their children to school in West Virginia. Otherwise, it is likely that a more liberal residence standard will apply. See, e.g., White v. Linkinoggor, 176 W. Va. 410, 344 S.E.2d 633 (1986), State ex rel. Doe v. Kingery, 157 W. Va. 667, 203 S.E.2d 358 (1974).

Hoping that I have been of service, I am

Sincerely,

/s/

David Stewart
State Superintendent of Schools
DS/mp