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Decision No. 12,617

Appeal of NATHANIEL DASHE, on behalf of Michael Dashe and Marcus Dashe, from action of the Board of Education of the Sewanhaka Central High School District regarding student residency.

Decision No. 12,617

(December 19, 1991)

Graynor and Graynor, Esqs., attorneys for petitioner, Andrew D. Graynor, Esq., of counsel

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals on behalf of his two sons from respondent's determination that they are not residents of the Sewanhaka Central High School District and are therefore not entitled to attend the schools of that district tuition-free. The appeal must be sustained in part.

Petitioner, Nathaniel Dashe, is the father of Michael and Marcus Dashe. Marcus was admitted to the schools of respondent school district in 1988 and Michael was admitted in September 1990, based upon petitioner's representation that he resided in an apartment within respondent's school district.

Petitioner alleges that while he and his two sons reside in an apartment located within respondent's district, because of an unusual "extended family home" situation, he and his two sons spend considerable time each day at the home of petitioner's mother, located in another school district. Apparently, petitioner is the father of 12 children, ranging in age from 6 to 21, 10 of whom he adopted. It further appears that all of the children, except allegedly Michael and Marcus, reside at his mother's home. Petitioner contends that even though his living arrangements are unusual, his apartment within respondent's district is his principal residence and that of his sons Michael and Marcus.

In a letter dated December 21, 1990, respondent informed petitioner that Michael and Marcus were no longer entitled to attend the schools of the district because they had an "actual residence elsewhere." Petitioner appealed the decision and a hearing was held in January 1991. In a decision dated February 25, 1991, the hearing officer affirmed respondent's determination after finding that petitioner owns his mother's home; that petitioner is not a tenant and pays no rent in the apartment where he claims residence within respondent's school district; and that petitioner, Michael and Marcus actually reside in petitioner's mother's home. Petitioner subsequently commenced this appeal with service of a petition, and requested a stay of proceedings pursuant to 8 NYCRR '276.1 on March 25, 1991. On April 4, 1991, I issued an order requiring respondent to continue to admit the students to its public schools pending a final decision on the merits of this appeal.

8 NYCRR '100.2(y) requires that any adverse residency decision by a school official other than the board of education or its designee must include notification of the procedures for obtaining review of the decision within the district. The regulation further provides that prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child's parent the opportunity to submit information concerning the child's right to attend school in the district.

Section 100.2(y) was drafted to ensure that, when challenged, parents have an opportunity to submit information concerning their child's right to attend the schools of the district prior to a final determination (Application of Mandel, 29 Ed Dept Rep 187). The regulation does not require a formal hearing. However, the record indicates that it is respondent's policy to provide parents or persons claiming custodial relationships with a "full due process hearing" to determine student residency, including the opportunity to present evidence, cross-examine district witnesses and representation by counsel.

Having given parents the right to an evidentiary due process hearing, respondent board of education is bound by its own policy and must assure that the hearing procedures comport with due process. As the Commissioner of Education has held in other contexts, one of the essential elements of a due process hearing is that it be conducted before a neutral fact finder (Appeal of Snowberger, 24 Ed Dept Rep 256; Matter of DeVore, 11 id. 296; Matter of Dishaw, 10 id. 34). However, the record indicates that the hearing officer in this case was not a neutral fact finder, but instead actively presented the school district's case against the petitioner. While the school district attorney was present at the hearing, his participation was minimal. The hearing officer himself introduced and accepted into evidence most of the significant documentation in support of the school district's position. On several occasions petitioner's attorney objected to various proposed exhibits, thus requiring the hearing officer to rule on the admission of the very items that the officer sought to introduce. The hearing officer's active involvement in the prosecution of the school district's case against petitioner has thus resulted in a record so compromised as to preclude any meaningful review. In fairness to petitioner, the matter must be remanded for a rehearing before a neutral hearing officer.

THE APPEAL IS SUSTAINED.

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