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Decision No. 13,372

Appeal of BLANCA MORALES, on behalf of JOB LOPEZ, from action of the Board of Education of the Roosevelt Union Free School District regarding admission to school.

Decision No. 13,372

(March 15, 1995)

Dunn & Smith, Esqs., attorneys for respondent, Oliver A. Smith, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of the Board of Education of the Roosevelt Union Free School District ("respondent") that her son, Job Lopez, is not a resident and is, therefore, ineligible to attend the district schools tuition-free. The appeal must be sustained.

Neither party has presented a clear picture of the facts in this case. It appears, however, that on some unspecified date, petitioner attempted to enroll Job in respondent's schools. As proof of residency, she completed a form provided by the district, a "renter affidavit of residency", stating that she and Job were residing at 336 Pennsylvania Avenue within the Roosevelt district. Petitioner also supplied affidavits from one Gladys Lopez, attesting that she owns 336 Pennsylvania Avenue, that the property is within the Roosevelt district and that petitioner and Job reside at that address. Petitioner also supplied copies of correspondence, including letters from the Social Security Administration, addressed to her at 336 Pennsylvania Avenue. Petitioner further submitted copies of a telephone bill, motor vehicle registration and insurance identification card, all addressed to one Jose Lopez at that address.

A school official reviewed the items submitted by petitioner and informed her that Job was not eligible to attend Roosevelt schools. Petitioner commenced this appeal on November 28, 1994. On December 7, 1994, I issued an interim order directing respondent to admit Job to the schools of the district pending final determination of this appeal.

Education Law '3202(1) provides in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

Respondent contends that petitioner has failed to submit a sufficient number of documents to establish that she and Job reside in the Roosevelt district. While the evidence offered by petitioner is not overwhelming, respondent offers nothing to contradict that evidence. Without any evidence to rebut petitioner's assertions and proof of residence, I find that petitioner has proven that she and Job reside in the Roosevelt district. Moreover, as a procedural matter, I note that the record contains no indication that respondent provided petitioner with written notice stating the basis for its determination of nonresidency, as required by 8 NYCRR 100.2(y).

In its answer, respondent contends that petitioner may be renting rooms at 336 Pennsylvania Avenue, a single family dwelling. It further asserts that such a rental violates the local zoning ordinance. Respondent further contends that because Job may be violating the ordinance, it is not required to educate Job. While I appreciate respondent's (unproven) assertion that Roosevelt is not a "rich" district and that some people may be illegally renting rooms in the district, I do not find this a compelling reason to deny Job his right to a free public education.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Board of Education of the Roosevelt Union Free School District admit petitioner's son to the schools of the district without payment of tuition.

END OF FILE