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Decision No. 14,400

Appeal of MINDY and GREGORY ORO, on behalf of SARA ORO and JUSTINE SANTANIELLO, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding residency.

Decision No. 14,400

(July 11, 2000)

Ehrlich, Frazer & Feldman, attorneys for respondent, Christine LaPlace, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Hewlett-Woodmere Union Free School District ("respondent") that their daughter, Sara Oro, and Mrs. Oro’s daughter from a previous marriage, Justine Santaniello, are not district residents. The appeal must be sustained.

Petitioners resided in respondent’s district from December 1991 until May 1999, when they moved to an address outside the district without notifying respondent. Since respondent was unaware of this address change, Sara and Justine were permitted to resume attending school in respondent’s district in September 1999. On or about September 25, 1999, a district letter addressed to Justine’s parent or guardian was returned marked "no forwarding order on file, unable to forward. Return to sender." Upon investigation, Dr. Helene Agatstein, the district’s residency supervisor, learned from Mrs. Oro that the family was no longer living in the district. After Dr. Agatstein discussed the district’s residency policy with Mrs. Oro, Mrs. Oro agreed to remove Justine from the district’s schools. Subsequently, Dr. Agatstein learned that Mrs. Oro had a younger child, Sara, who was also attending school in the district.

On September 29, the attorney for Justine’s natural father requested a hearing. Both children were permitted to remain in school pending the outcome of the hearing, which Dr. David Nydick conducted on October 15, 1999. At the hearing, petitioners admitted that they had not resided within respondent’s district since May 1999. Petitioners stated that they were forced to sell their home in the district because Mr. Oro lost his job, but they always intended to remain in the district. To that end, they attempted to buy a new home in the district in April 1999, but that deal fell through. At the hearing, petitioners presented a contract to purchase a different home in the district at 56 North Pearl Street, Woodmere. That contract specified a closing date on or about November 23, 1999. Petitioners stated that it was in the best interests of their children to remain in respondent’s schools. Petitioners further indicated that they were not trying to deceive respondent by not notifying district officials of their address change in May 1999. Finally, petitioners stated that when they originally moved to the district, they were permitted to enroll their children in respondent’s schools upon presentation of a signed contract to purchase a home in the district.

Respondent indicated that although the district previously had a policy permitting children to attend its schools without the payment of tuition upon submission of a contract to purchase property within the district, an amendment to that policy in 1997 eliminated its extension to future residents. Accordingly, Dr. Nydick determined that petitioners’ children resided with their parents outside the district, were not district residents and were to be excluded from school as of October 25, 1999. This appeal ensued. Petitioners’ request for interim relief was granted on October 26, 1999.

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 Burdi, 39 Ed Dept Rep 176, Decision No. 14,206; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675); Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787).

Respondent asserts that petitioners admitted at the hearing that they do not reside in the district and that they failed to notify the district that they had moved to another district in May 1999. Respondent asserts further that it acted lawfully and in accordance with district policy in determining that petitioners’ children should be excluded from attendance since they reside with petitioners outside the district. Respondents argue that the alleged contract is undated, there is no evidence of a mortgage commitment on the property, and, since the first attempt to purchase a home in the district fell through, there is no guarantee that this sale will be executed. Respondent contends that the alleged contract does not establish petitioners’ physical presence in the district.

Pursuant to a request for information from my Counsel’s Office, in May 2000, petitioners submitted documentation regarding their purchase of the house at 56 North Pearl Street, Woodmere, on December 9, 1999. Such documentation includes a February 2000 electric bill for that address; a mortgage statement from North American Mortgage Company indicating the current amount due and owing and the amount of interest paid in 1999; a copy of the loan commitment; and what appears to be the same undated copy of the contract. In response, respondent submitted an investigator's affidavit and a moving company bill showing that petitioners did not actually move until February 17, 2000, and only began residing at North Pearl Street on a daily basis on February 18. Although an amendment to the contract of sale inexplicably removes Mrs. Oro’s name from the contract as a buyer, documents submitted by both parties provide sufficient evidence of petitioners' current residence within respondent’s district. Accordingly, their children are entitled to attend the schools of the district tuition-free.

In light of this disposition, I need not address the parties’ remaining arguments.

THE APPEAL IS SUSTAINED.

END OF FILE