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Decision No. 14,007

Appeal of JASON (JALALUDDIN) BROWN from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 14,007

(September 4, 1998)

Michael G. Williams, Esq., attorney for petitioner

Ingerman Smith, LLP, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner, Jason (Jalaluddin) Brown, appeals the determination of the Board of Education of the Baldwin Union Free School District ("respondent") that he is not a resident of the school district and is, therefore, not entitled to continue to attend its schools tuition-free. The appeal must be dismissed.

Jason, who is seventeen years old, has been attending respondent’s Baldwin Senior High School since his sophomore year. After his parents separated, he resided with his father at 10 Scott Place in the Baldwin Union Free School District ("Baldwin") until May 1997, when the two were evicted from their residence. The father returned to live with Jason’s mother and siblings at 1154 Cramer Court in the neighboring Roosevelt Union Free School District ("Roosevelt"), and Jason allegedly moved in with his grand-aunt at 965 Linkwood Drive in respondent’s district.

Petitioner alleges that he visits his parents’ home regularly. As Muslims, they meet daily at the home to pray. Each morning, he also baby-sits his younger siblings in his parents’ home while his mother transports his father to work. After school, he returns to the residence and continues his baby-sitting duties.

In November 1997, the district commenced a private surveillance of Jason to determine his legal residence. The surveillance was conducted on three separate mornings, on only two of which -- November 26 and December 4 –- the investigator observed Jason leave his parents’ residence in Roosevelt between the hours of 7:45 a.m. and 8:15 a.m. and travel to school in Baldwin.

Robert Croke, the district’s registrar, reports that on two unspecified mornings in December 1997, he observed Jason walking along Brookside Avenue "in the general direction of Baldwin High School". The registrar opined that if Jason were, in fact, traveling from his legal residence within the district, he would not have been traveling along this route.

By letter dated December 10, 1997, respondent’s director of pupil services wrote to petitioner’s parents. He informed them that he had reason to believe that the family did not reside within the Baldwin school district and, thus, Jason was not entitled to attend school within the district. The director invited the parents to meet with him to discuss the factual basis for his decision, and suggested that they bring with them any documentary evidence of Jason’s residency within Baldwin.

Jason’s parents met with the district’s representatives on December 17 and December 19, 1997. During those meetings, the parents reportedly represented that the Brown family resides at 1154 Cramer Street in Roosevelt and that Jason had remained in Baldwin for "educational continuity."

On December 22, 1997, the district issued its final decision excluding Jason as a nonresident, effective December 23, 1997. The letter enumerated the reasons for Jason’s exclusion, which included, among other things, respondent’s surveillance reports and his parents’ purported representation of educational continuity as the basis for Jason’s living arrangements. Petitioner commenced this appeal on March 20, 1998, and requested interim relief allowing him to remain in school. I granted petitioner’s request for interim relief on March 26, 1998.

Petitioner maintains that he is a resident of respondent’s district and, as such, is entitled to attend its schools tuition-free. In support of this claim, Jason alleges that he currently resides with his grand-aunt at 965 Linkwood Drive, that Linkwood is the only address that he uses, that his parents reside at a different address, that he currently supports himself through employment at the Acclaim Entertainment, Inc. in Glen Cove, New York, and that no one is claiming him as a dependent. Petitioner proffers, as documentary proof of residency, a checking account statement addressed to him at 965 Linkwood Drive; an employment letter from Acclaim, dated December 22, 1997 -- the same date as the district’s letter of exclusion -- offering him a temporary part-time position as a game counselor; and a pay-stub evidencing income which petitioner received for the pay period ending March 13, 1998.

Respondent maintains that its decision was neither arbitrary nor capricious but was proper in all respects. Respondent submitted an additional surveillance report which shows that on April 2, 1998, a surveillance was conducted at the two residences on Cramer Court and Linkwood Drive. That morning, the investigator did not observe Jason leave the Linkwood Drive residence between 6:00 a.m. and 8:00 a.m. However, at 7:19 a.m., he observed Jason depart from his parents’ Cramer Court residence and travel to school.

On April 9, 1998, Jason filed a reply to respondent’s answer, wherein he asserts, for the first time, that he is emancipated. He also explained his whereabouts during the months that he was surveilled. Each morning during November and December 1997, he left the home of his grand-aunt before 4:45 a.m. and accompanied his father to the mosque for prayers. Thereafter, he returned to his parents’ residence where he baby-sat his siblings before leaving for school.

I will first address a procedural issue before reaching the merits of the appeal. Pursuant to section 275.16 of the Commissioner’s regulations, an appeal to the Commissioner of Education under "310 of the Education Law must be brought within thirty days of the action complained of. Delay in commencing an appeal may be excused by the Commissioner for good cause shown, and the Commissioner has previously excused delays in residency cases where, interalia, the facts suggest residency in the district, the delay is deminimis, and requiring the student to reapply at the district level before appealing to the Commissioner would not promote judicial economy (see, e.g., Appeal of Mitchem, et al., 37 Ed Dept Rep 231; Appeal of Murphy, 37 id. 162). None of those factors are present here. Accordingly, inasmuch as petitioner did not commence this appeal until March 20, 1998, nearly three months after respondent rendered its final decision on December 22, 1997, and, because I find no reason to excuse the delay, I must dismiss the appeal as untimely.

The appeal must also be dismissed on the merits. I find that there is insufficient evidence in the record to support a finding that Jason resides in respondent’s district. 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 Kucherovsky, 37 Ed Dept Rep 241; Appeal of Revella, 37 id. 65; Appeal of Keenan, 36 id. 6; Appeal of Brutcher, 33 id. 56). A child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Revella, supra; Appeal of Simond, 36 Ed Dept Rep 117; Appeal of Gwendolyn B., 32 id. 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted in a proper case (Appeal of Walsh, 26 Ed Dept Rep 379). To rebut the presumption, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Revella, supra; Appeal of Garretson, 31 Ed Dept Rep 542; Matter of Van-Curran, et al., 18 id. 523). The presumption may also be rebutted by establishing that the student is an emancipated minor (Appeal of Caban, 35 Ed Dept Rep 532; Appeal of Diaz, 33 id. 38; Appeal of Werher, et al., 31 id. 186). However, when the sole reason an unemancipated child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residency (Appeal of Brutcher, supra; Appeal of Ritter, 31 Ed Dept Rep 24; Appeal of McMullan, 29 id. 310).

Petitioner has not rebutted the presumption of legal residence with his parents. In the first place, I find that there has been no total and permanent transfer of custody from Jason’s parents to his grand-aunt. The arrangements by which Jason lives with his aunt do not appear to be sufficiently permanent to rebut the presumption that he has the legal residence of his parents. The record contains an affidavit from the grand-aunt in which she represents that she permitted Jason to live with her when, following the eviction, Jason refused to live with his parents because he would have to share a room with his siblings. The aunt attests that Jason is not obligated to pay her rent and that he can remain in her home for "as long as he wants." Thus, it appears that Jason is free to return to his parents at any time. The aunt "tr[ies] to assist Jason", but she is "not responsible for his medical or educational bills." While it has been determined that it is not necessary to establish a transfer of parental custody and control through a formal guardianship proceeding (Appeal of Pernell, 30 Ed Dept Rep 380; Appeal of Tunstall, 27 id. 144), it is necessary to demonstrate that a particular location is a child’s permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child’s support and custody. (Appeal of a Student with a Disability, 37 Ed Dept Rep 173; Appeal of Garretson, supra; Appeal of Pernell, supra). None of these factors are demonstrated here.

Furthermore, Jason has not refuted his parents’ alleged representation that he remained in the district for "educational continuity", and he has offered no other legitimate reason for his continued presence there. Accordingly, I must conclude that Jason has failed to rebut respondent’s determination that he is not a resident of the district and, consequently, that he has failed to establish facts upon which relief may be granted (see, Appeal of Ritter, supra).

Jason claims, for the first time in this appeal, that he is emancipated. Purportedly in support thereof, he relies on the fact that, since his exclusion from respondent’s schools on December 22, 1997, he has been gainfully employed and supports himself financially. However, I cannot ignore the fact that this employment was temporary only and that Jason was able to work full-time for the period he was not in school. The record before me bears no proof of Jason’s means of support before his exclusion or after he was readmitted to respondent’s school pursuant to my order of March 26, 1998. Indeed, by Jason’s own admission, he was unemployed before December 22, 1997, and it is clear that his grand-aunt did not support him financially. In short, the documents which petitioner submits as evidence of emancipation, while relevant, are not conclusive.

Under these circumstances, I find that Jason has not sufficiently established that he is emancipated and, thus, has not succeeded in rebutting the presumption that his residence is with his parents. Accordingly, there is no basis for me to overrule respondent’s decision that he is not a resident of the district. The appeal, therefore, is dismissed.

THE APPEAL IS DISMISSED.

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