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Decision No. 13,676

Appeal of SONIA FRANCE, on behalf of her son, MARK WINGFIELD, JR., from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 13,676

(September 14, 1996)

Frederick K. Brewington, Esq., attorney for petitioners

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Baldwin Union Free School District ("respondent") that she and her son are not residents of the district. The appeal must be sustained.

Petitioner is the mother of Mark Wingfield, Jr., who was a third grade student in respondent's Brookside School at the time of this appeal. Petitioner and her son allegedly reside with her parents in respondent's district in Freeport, New York. Questions arose concerning petitioner's residency when respondent conducted an investigation of petitioner's brother, Dexter France, who claimed that he resided in Freeport at his parents' address. Respondent contends that at the conference held with petitioner's brother, respondent contends Mr. France stated that he had driven his son to the Baldwin schools and that he had stopped at his sister Sonia's house in Hempstead to pick up her child to take him to school as well. Petitioner denies that her brother made such a statement.

Consequently, respondent conducted surveillance of the Freeport address on November 2, 3, 8 and 17, 1995. Respondent states that no school-age children were seen at the Freeport address on those dates. Subsequently, an investigation of Mark Wingfield's residence at the Freeport address was conducted on January 16 through 19, 1996. A surveillance was also conducted on January 29, 1996 and petitioner's vehicle was observed at the Hempstead address. According to respondent, neither petitioner nor her son were seen at the Freeport address, yet they were present at the Hempstead address on those dates and seen leaving for school from that location. The Hempstead address is that of a home owned by petitioner's parents; it has been rented to Gale and Nathaniel Young, petitioner's sister-in-law, since September 1992.

On January 22, 1996, respondent sent a letter to petitioner stating that the district's director of pupil services, Dr. Peters, had concluded that petitioner's family did not reside in the district. The letter informed petitioner that she could meet with Dr. Peters to discuss the basis for the district's conclusion on January 30, 1996. Petitioner met with Dr. Peters on February 1, 1996. Petitioner alleges that she was not given any evidence which allegedly existed against her or her son and that her documentation of residence was disregarded by petitioner.

By letter dated February 5, 1996, respondent concluded that petitioner's son was not a resident of the district because "the District has observed your child being transported from the above address to Brookside School," referring to the Hempstead address. The letter also stated that the basis for the exclusion was a telephone listing in the NYNEX directory at a Hempstead address, outside respondent's district. The letter informed petitioner that her son would be excluded from school effective February 16, 1996. On February 15, 1996, petitioner retained the services of an attorney who allegedly contacted the school district's attorney and obtained an extension of the exclusion date. Correspondence dated February 16, 1996 from petitioner's attorney indicates that the exclusion date was extended to February 26, 1996. However, a letter dated February 16, 1996 by the school's attorney indicates that the exclusion date was not extended by respondent but postponed to allow commencement of an appeal by petitioner during the school break to avoid the student's exclusion from school after the break. This appeal was commenced on February 22, 1996. Petitioner's request for interim relief pending a determination on the merits was granted on February 28, 1996.

Petitioner alleges that she and her son are residents of the district, that she has resided with her parents since her divorce and that she shares child care with the residents of the Hempstead address and that is why she is seen leaving that location at times.

Petitioner also alleges that her due process rights under 8 NYCRR 100.2(y) were violated by respondent's failure to notify her of the significance of the February 1, 1996 meeting with Dr. Peters. Respondent contends that petitioner's brother stated that petitioner did not reside in the district, that the surveillance proves that the family is not domiciled in the district and that the district is, therefore, not required to educate petitioner's son.

Before reaching the merits, I will address petitioner's claim that respondent did not provide her with due process of the student residency determination. The regulations of the Commissioner provide:

Determinations of student residency. The board of education or its designee shall determine whether a child is entitled to attend the schools of the district. Any decision by a school official, other than that board or its designee, that a child is not entitled to attend the schools of the district shall include notification of the procedures to obtain review of the decision within the school district. 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 person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child's right to attend school in the district. When the board of education or its designee determines that a child is not entitled to attend its schools pursuant to subdivision (x) of this section, such board or its designee shall, within two business days, provide written notice of its determination to the child's parent, to the person in parental relation to the child, or to the child, as appropriate. Such written notice shall state:

(1) that the child is not entitled to attend the public schools of the district;

(2) the basis for the determination that the child is neither a resident of the school district nor entitled to attend its schools pursuant to subdivision (x) of this section;

(3) the date as of which the child will be excluded from the schools of the district; and

(4) that the determination of the board may be appealed to the Commissioner of Education, in accordance with Education Law section 310, within 30 days of the date of the determination, and that the procedure for taking such an appeal may be obtained from the Office of Counsel, New York State Education Department.

Although petitioner makes a number of objections regarding her due process rights, including her right to counsel and to an evidentiary hearing, the above regulation does not require either. Although I agree with petitioner's contention that the denial of a public education is a substantive right, there is no basis in this record for me to conclude that the procedures followed by respondent in this case were inappropriate. Respondent investigated petitioner's residency, made a determination that petitioner did not reside in the district, informed her of her opportunity to discuss the factual basis for that conclusion and that any documentary evidence petitioner had would be considered by respondent's representative. Respondent also informed petitioner of her right to appeal that determination to the Commissioner of Education. Therefore, I find no basis in the record before me that respondent violated the procedures required under the regulations in this case.

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.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220). A child's residence is presumed to be that of his or her parents or legal guardians, unless rebutted (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Garretson, 31 Ed Dept Rep 542; Matter of Van-Curran and Knop, 18 id. 523).

The record in this case indicates that respondent had questions regarding petitioner's brother's residency which led them to believe that petitioner's residence was not bona fide. Respondent conducted a surveillance and found petitioner and her son at a Hempstead address on several occasions. Although the record is unclear concerning the documentary evidence petitioner produced for respondent, the record in this appeal contains a number of documents indicating that petitioner's legal address is within the district. Petitioner's documentary evidence is significant: a recently reissued social security card, an automobile insurance card, a New York State driver's license, a car registration, a New York Government Employee Benefit card, a 1995 W-2 statement from the Nassau County Comptroller's Office, her 1099 statement from stock held in the Marriott International, Inc., a Macy's account bill, a student loan statement, a tuition bill from New York Fashion Institute of Technology, a credit union statement, a retirement insurance statement, an automobile lease statement and a car lease.

Petitioner explained her presence at the Hempstead address was due to her sharing child care with the occupants of that address, Gale and Nathaniel Young, and that petitioner sometimes spends the night at the Hempstead address instead of returning home very late in the evening. Respondent insinuates bad faith on the part of petitioner for failing to disclose her relationship with Gale Young, who is alleged to be petitioner's sister-in-law. While it would have been prudent for petitioner to reveal that fact, I do not find that failure to clarify the relationship persuasive in determining petitioner's residence. I find her explanations that she spends evenings at the Hempstead address credible, given the child care arrangements that she shares with Mrs. Young. In light of this explanation and the voluminous documentary evidence produced, I conclude that petitioner is a resident of respondent's district.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit Mark Wingfield Jr. to its schools without the payment of tuition.

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