AGO 11-05.

Case DateMay 12, 2011
CourtNew Mexico
New Mexico Attorney General Opinions 2011. AGO 11-05. OPINION OF GARY K. KING Attorney GeneralMay 12, 2011Opinion No. 11-05BY: Andrea R. Buzzard Assistant Attorney GeneralTO: The Honorable Thomas A. Garcia New Mexico State Representative P.O. Box 56 Ocate, NM 87734QUESTION: Does the residency requirement of Subsection C of NMSA 1978, Section 22-13-8 (2009) violate the Equal Protection Clause of the United States and New Mexico Constitutions and create an irrebutable presumption of nonresidence in violation of the procedural due process protections of the United States and New Mexico Constitutions? CONCLUSION: We do not believe that a court would find NMSA 1978, § 22-13-8(C) in violation of the United States and New Mexico Constitutions. ANALYSIS: NMSA 1978, Section 22-13-8(C) simply states that "residency" may not be based "solely" on "enrollment" at a residential treatment center by school-age persons who would not otherwise be considered residents of the state. Subsection C provides:
A school district in which a private, nonsectarian, nonprofit educational training center or residential treatment center is located shall not be considered the resident school district of a school-age person if residency is based solely on the school-age person's enrollment at the facility and the school-age person would not otherwise be considered a resident of the state.
Subsection C pertains to "school age persons," meaning non-public school students that are not defined as "qualified students." See definitions at Section 22-13-8(A)(1) and (2). The Public Education Department's rule implementing Chapter 162 incorporates the statutory definitions of "school age persons" and "qualified students." See Rule 6.31.2.7(F) NMAC. All children with disabilities who meet certain age requirements and who "reside" in New Mexico are entitled to a free appropriate public education (FAPE) that is made available by public agencies. Only those children who meet the criteria specified in the Department's rules may be included in calculating special education program units for state funding. See Rule 6.31.2.8 NMAC. A New Mexico public agency must develop procedures to ensure that all children with disabilities who "reside" within the agency's educational jurisdiction, including children who are enrolled in private facilities such as residential treatment...

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