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Decision No. 14,911

Appeal of DONNA MARSHALL, on behalf of her children CAMOY and DWAYNE HONEGAN, from action of the Board of Education of the Ossining Union Free School District regarding residency.

 

 

(July 28, 2003)

 

Ingerman, Smith, L.L.P., attorneys for respondent, Christopher M. Powers, Esq., of counsel 

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Ossining Union Free School District ("respondent") that her children, Camoy and Dwayne Honegan, are not district residents.  The appeal must be dismissed.

During the 2002-2003 school year, Camoy and Dwayne  were enrolled in respondent"s district in fourth grade and seventh grade, respectively, and had attended respondent"s schools for two years.  In March 2003, correspondence sent by the district to petitioner at her reported home address in Ossining was returned as undeliverable.  When district staff tried to contact petitioner by telephone at that address, they discovered that the telephone had been disconnected.  Staff then contacted petitioner at her workplace, and petitioner provided a new telephone number with a Peekskill exchange.

On March 28, 2003, the district registrar sent a letter to petitioner, requesting that she verify her address within the district by April 9, 2003.  On April 9, petitioner"s cousin called to schedule an appointment, and the registrar met with petitioner and her cousin on April 10, 2003.  Petitioner stated that she had temporarily moved with her family to Peekskill, but intended to return to Ossining as soon as they could find new living arrangements.  On April 11, 2003, petitioner sent a letter to respondent"s superintendent explaining that she and her children had been displaced from their Ossining apartment in December 2002.  She said that she was currently staying with family and friends until she could make new arrangements, and asked the district to give her some more time to find an apartment.  Respondent avers that, despite a request from the registrar for evidence of the displacement and information about her current living arrangements, petitioner refused to provide any information about her living arrangements, including her new home address in Peekskill.  Petitioner asked the district to continue sending correspondence to her prior Ossining address.

On April 14, 2003, the superintendent issued formal exclusion letters for both students.  He noted that, although petitioner had indicated that her current living arrangements were temporary and that she hoped to resume residence within the district, she had not lived at the Ossining address since December 2002.  This appeal ensued.  Petitioner"s request for interim relief was granted on May 12, 2003.

Petitioner admits in her petition that she has lived in Peekskill since March 2003.  She states that her cousin lives in Ossining, and takes care of Camoy and Dwayne before and after school until petitioner returns home from work.  Petitioner contends that her relocation to Peekskill was due to unforeseen circumstances, and she does not intend to stay in Peekskill.  She seeks an order allowing her children to remain enrolled in respondent"s schools.  Respondent contends that petitioner has not established that her absence from the district is only temporary and, therefore, its determination to exclude the students is not arbitrary and capricious. 

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 B.O. and D.O., 42 id. ___, Decision No. 14,769; Appeal of Metze, 42 id. ___, Decision No. 14,768; Appeal of M.S., 42 id. ___, Decision No. 14,767). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of B.O. and D.O., supra; Appeal of Metze, supra; Appeal of M.S., supra). Moreover, for purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of Metze, supra).

     By petitioner"s own admission, she has not lived at her reported Ossining address since December 2002, and she has lived outside the district in Peekskill since March 2003.  Although petitioner claims that her residence outside Ossining is temporary and that she desires to return to Ossining, she presents no evidence of having secured a residence within respondent"s district or of any ongoing efforts to find such a residence (Appeal of Cavallaro, 42 Ed Dept Rep ___, Decision No. 14,801; Appeal of Curran, 42 id. ___, Decision No. 14,772).  Therefore, on the record before me, I am unable to conclude that petitioner is residing outside the district on a temporary basis.

     In view of the foregoing, I find respondent"s determination to be neither arbitrary nor capricious. Accordingly, it will not be set aside.

 

THE APPEAL IS DISMISSED.

END OF FILE