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Decision No. 13,817

Appeal of CAROL MAYHEW, on behalf of her son, DONTI PEETS, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 13,817

(August 18, 1997)

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

CATE, Acting Commissioner.--Petitioner challenges the determination of the Board of Education of the Uniondale Union Free School District ("respondent") that her son, Donti Peets, is not a district resident for the purposes of attending its schools tuition free. The appeal must be sustained.

Petitioner contends that she and her son reside at 56 Butler Place, within respondent's school district. Respondent contends that petitioner and her son live at 165 Ellison Avenue, within the Roosevelt Union Free School District.

By letter dated June 6, 1996, respondent notified petitioner that "as a result of the District's investigation," it had determined that her son was not a legal resident and would be excluded from district schools after June 21, 1996. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on August 20, 1996.

As a preliminary matter, although not raised by petitioner, it appears that respondent failed to comply with the procedures required by 8 NYCRR 100.2(y). That section provides, in pertinent part:

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.

In this instance, the record contains no evidence that respondent afforded petitioner the opportunity to submit information concerning her son's residency. Accordingly, I admonish the district to comply henceforth with the procedures established in 8 NYCRR 100.2(y).

Respondent contends that the appeal is untimely. Section 275.16 of the Commissioner's regulations requires that an appeal be instituted within 30 days after the making of the decision or the performance of the act of which the petitioner complains, provided that the Commissioner may excuse a delay in commencing an appeal for good cause. Petitioner commenced this appeal on July 12, 1996, more than 30 days after the district's June 6, 1996 determination. However, in light of the de minimus delay and the fact that respondent apparently failed to afford petitioner the opportunity to present her evidence of residency as required by regulation, the interests of justice would not be served by dismissing this appeal as untimely. Accordingly, I will consider the merits of petitioner's claims.

Petitioner contends that she and her son reside at 56 Butler Place within respondent's school district. In support of this contention she provides copies of her driver's license, a power company statement indicating "Service To Carol Mayhew at 56 Butler Pl Hempstead," envelopes addressed to her at that address from two financial institutions, a personal check with her preprinted name and address, and a deed dated January 20, 1994 transferring the property at 56 Butler Place, Hempstead, to Pierre Peets and Carol Ann Mayhew of 165 Ellison Avenue, Roosevelt.

Respondent contends that petitioner and her son live at 165 Ellison Avenue, Roosevelt, within the Roosevelt Union Free School District. Respondent provides a surveillance report which indicates that on May 31, June 3, and June 5, 1996, a black woman between the ages of 45 and 55 drove a black male, 15 to 16 years of age, from 165 Ellison Avenue, Roosevelt, to Uniondale High School. Respondent concludes that the black male was Donti Peets. The report also indicates that a black female about age 13 wearing what appeared to be a private school uniform was observed at the Ellison Avenue address. Respondent believes that the girl was petitioner's daughter who attends parochial school. Respondent provides a textbook application for petitioner's daughter, indicating the 56 Butler Place address, but a telephone number that is allegedly within the Roosevelt school district. Respondent's representative also confirmed that records of petitioner's employer, the Roosevelt school district, indicate the Ellison Avenue address and the out-of-district telephone number on petitioner's personnel records. Finally, respondent notes that while petitioner's daughter is eligible for transportation to her parochial school, she never uses such transportation.

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 to students whose parents or legal guardians reside within the district (Appeal of Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). Thus, Donti's residence is presumed to be that of petitioner.

Upon review of the record, I find that the weight of the evidence supports petitioner's contention that she, and therefore her son, are residents of respondent's school district. Petitioner provided documentation that she resides at 56 Butler Place -- a driver's license, power company statement, correspondence, deed, and preprinted check. This is far more persuasive than respondent's evidence that she resides at Ellison Avenue -- surveillance reports of unidentified persons on three occasions, assertions that petitioner's personnel records bear the Ellison Avenue address and a textbook application form for petitioner's daughter bearing a purportedly out-of-district telephone number. The surveillance reports make no identification of the individuals described. Furthermore, an individual's location on three mornings within a one-week period is not conclusive evidence of residence, especially when balanced against conflicting documentary evidence. Likewise, evidence relating to petitioner's daughter's residence is not necessarily relevant to the determination of petitioner's residence. Finally, respondent's allegation that Roosevelt's personnel records list petitioner's address as Ellison Avenue does not outweigh the documentation of residence provided by petitioner, particularly since the deed to petitioner's home in respondent's district indicates that she formerly resided at the Ellison Avenue address.

In view of the record before me, respondent's decision to deny petitioner's son admission to school is arbitrary, capricious, and an abuse of discretion. Accordingly, it will be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Donti Peets to attend school in the Uniondale Union Free School District without the payment of tuition.

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