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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6316

September 25, 1985

SCHOOLS AND SCHOOL DISTRICTS:

School attendance of foreign exchange student without payment of tuition

Tuition for foreign exchange student attending school

A school district is not required to charge tuition for a foreign exchange student living with a host family resident of the school district and attending a public school within the district.

A foreign exchange student may attend the public schools of the district in which the host family with whom the student lives is resident without payment of tuition.

Honorable Gary Corbin

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on a question which can be phrased as:

Whether a Michigan school district is required to charge tuition for a foreign exchange student living in the school district and attending the public school thereof.

MCL 380.1147; MSA 15.41147, provides that a child who is at least five years of age shall have the right to attend school in the school district in which the child is resident. Nonresident students may enroll in the elementary and secondary schools of a school district pursuant to MCL 380.1401(1); MSA 15.41401(1), which states:

'The board of a school district may admit nonresident pupils to the schools of the district. The board shall determine the rates of tuition of the nonresident pupils and shall collect the tuition.'

This statutory provision enables boards of education to utilize discretionary authority in deciding whether to admit nonresident pupils in their respective schools. Those boards of education that admit nonresident pupils, however, must charge tuition for these pupils. Jones v Grand Ledge Public Schools, 349 Mich 1; 84 NW2d 327 (1957); OAG, 1981-1982, No 5995, p 412 (October 12, 1981).

Since tuition must be charged for a nonresident pupil admitted to the schools of a school district, it is necessary to determine whether a foreign exchange student is a resident of the school district in which he or she lives and attends school.

It is noted that, pursuant to 95 Stat 1611 (1981); 8 USC 1101(a)(15)(F)(i), foreign exchange students have non-immigrant status and are considered residents of their foreign country. This, however, does not preclude the foreign exchange student from being a resident of the Michigan school district in which he or she lives for the purpose of school attendance without the payment of tuition.

In In the Matter of Yap, 39 Misc 2d 835; 241 NYS2d 976 (1963), a foreign exchange student sought to bring an action against the Motor Vehicle Accident Indemnification Corporation. Respondent argued that because the petitioner was a foreign exchange student he could not be a resident of the State of New York. The court held that the foreign exchange student had established a fixed abode for the time being and was a resident for purposes of the New York insurance law.

In School District No. 1, Fractional, of the Twp of Mancelona v School Dist No. 1 of Twp of Custer, 236 Mich 677; 211 NW 60 (1927), the Michigan Supreme Court held that residence for public school enrollment purposes is not the same as domicile and a student is not required to attain a residence in the school district in the technical sense of the term. The court added that the residence of the person in loco parentis to the student is the residence of the student.

Although a foreign exchange student is considered a resident of his country of origin by the federal government, the student also establishes a local residence by living in Michigan with a host family pursuant to federal law. For public school attendance purposes, that local residence of the foreign exchange student is the public school district in which the host family is resident.

As noted in the School District No. 1, Fractional, of the Twp of Mancelona case, it is sufficient for school district residency purposes if the child and the person in loco parentis are actually resident in the district.

In Hush v Devilbiss Company, 77 Mich App 639, 649; 259 NW2d 170, 174 (1977), the Court of Appeals addressed the status of in loco parentis as follows:

'Legally, the assumption of in loco parentis status is a question of intent. Intent to assume parental status can be inferred from the acts and declarations of the parties. Rutkowski v Wasko, supra. . . .'

The relationship of the sponsor family and the foreign exchange student is outlined in the Host Family Handbook (1985-1987 edition, written and compiled by Judith M. Blohm) utilized by Youth for Understanding, one of the largest student exchange programs currently operating in the United States. As stated at page 35 of the Handbook, students are 'expected to participate as a family member,' and, 'as parents, you will want to take an active interest in your student's school work and activities and offer your support and guidance along the way.' (Handbook, p 48)

The primary purpose of the foreign exchange student program as set out at 22 CFR 514.13(b) (1985):

'. . . is to improve the foreign student's knowledge of American culture and language through active participation in family, school and community life. A secondary purpose is to improve American knowledge of a foreign culture.'

A student who leaves his or her country of residence for a year to live with a Michigan family and attend the public schools in the school district in which such family resides does not do so for the narrow educational purpose of attending the public schools of that school district. Rather, he or she does so for the cultural benefits of living in a foreign country for a year. Compare, Shapiro v Ann Arbor School District, 14 Mich App 738; 165 NW2d 919 (1968).

It is my opinion, therefore, that a school district is not required to charge tuition for a foreign exchange student living with a host family which is a resident of the school district and attending the public school thereof. It is my further opinion that a foreign exchange student is a resident of the school district in which the host family with whom the student lives is resident and the student may attend the public school thereof without the payment of tuition.

Frank J. Kelley

Attorney General


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