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Decision No. 15,108

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Grand Island Central School District regarding residency.

 

Decision No. 15,108

 

(August 31, 2004)

 

Bouvier, O�Connor, LLP, attorneys for respondent, Chris G. Trapp, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Grand Island Central School District (�respondent�) that her son is not a district resident.  The appeal must be dismissed.

Petitioner�s son is a 15-year-old student with a disability who attended eighth grade at respondent�s middle school during the 2003-2004 school year.  Petitioner and her son resided in respondent�s district from December 2003 until February 25, 2004, at which time they moved into her mother�s residence in the City of Buffalo.  At a March 11, 2004 meeting of its Committee on Special Education (�CSE�), respondent learned of petitioner�s relocation outside the district.  By letter dated March 25, 2004, respondent�s Director for Pupil Personnel Services advised petitioner that her son was no longer a resident eligible to enroll in its middle school, and would be excluded from attendance, effective April 2, 2004.  This appeal ensued.  Petitioner�s request for interim relief was granted on April 20, 2004.

Petitioner claims that she left her Grand Island residence because she was the victim of domestic violence at the hands of her partner and housemate.  Petitioner contends that her current living arrangement with her mother in Buffalo is temporary until she can rent an apartment in Grand Island.  Petitioner also argues in this appeal, apparently for the first time, that she and her son should be considered homeless.

Respondent contends that petitioner resides in Buffalo and has not established residency in Grand Island.  Respondent alleges that petitioner voluntarily moved out of Grand Island for her own convenience, but prefers that her son remain in respondent�s district because she feels that he will receive a better education there.  Respondent disputes that petitioner and her son are homeless, and maintains that Buffalo school records indicate that petitioner and her son resided previously in their current Buffalo residence.  Respondent further contends that the appeal should be dismissed for failure to exhaust administrative remedies.

I will first address the procedural issue of exhaustion of remedies.  Section 100.2(y) of the Commissioner�s regulations specifically states that the board of education or its designee may make residency determinations.  Respondent does not deny that its Director for Pupil Personnel Services is its designee for the purpose of making residency determinations.  Thus, respondent cannot now claim that petitioner failed to exhaust her administrative remedies where there is no showing that the Director was not authorized to act for respondent (Appeal of Zavesky, 40 Ed Dept Rep 517, Decision No. 14,543; Appeal of Smith, 40 id. 172, Decision No. 14,452; Appeal of Berliner, 38 id. 181, Decision No. 14,010.

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 Wingert, 43 Ed Dept Rep ___, Decision No. 15,059; Appeal of D.H.C., 43 id. ___, Decision No. 15,053; Appeal of Geithner, 43 id. ___, Decision No. 15,047).  A student�s residence is presumed to be that of his or her parent or legal guardian (Appeal of Wingert, supra; Appeal of D.H.C., supra; Appeal of Geithner, supra).  In this case, petitioner admits that her son is living with her outside the district.  She contends that her absence from the district is temporary and that, under federal and State laws governing homeless children, her son is eligible to attend respondent�s schools.

     Education Law �3209(1)(a), as amended, effective July 1, 2003, defines a homeless child as:

(1) a child or youth who lacks a fixed, regular, and adequate night-time residence, including a child or youth who is:

(i) sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii) living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii) abandoned in hospitals;

(iv) awaiting foster care placement; or

(v) a migratory child� who qualifies as homeless under any of the provisions of clauses (i) through (iv) of this subparagraph or subparagraph two of this paragraph; or

(2) a child or youth who has a primary nighttime location that is:

(i) a supervised publicly or privately operated shelter designed to provide temporary living accommodations�

(ii) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings�.

Section 100.2(x) of the Commissioner�s regulations, as amended, effective March 6, 2003, also contains this definition.  Both the Education Law and Commissioner�s regulations conform to the definition of �homeless children and youths� in the federal McKinney-Vento Homeless Assistance Act (�McKinney-Vento� 42 USC �11302).  McKinney-Vento and Education Law �3209 permit homeless children to attend the school district in which they were last enrolled  if they are temporarily housed in another school district (42 USC �11432[g][3][A]; Education Law �3209[2][a]).

Petitioner�s son does not fit the definition of homeless child under state or federal law.  He has a fixed, regular night-time residence and there is insufficient evidence on record that such residence is inadequate.  The petition includes only conclusory statements by petitioner�s mother that her residence cannot accommodate three additional people on a permanent basis, and by petitioner that a single bathroom for six people is not adequate.  Petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which relief is sought (8 NYCRR �275.10; Appeal of D.R., 43 Ed Dept Rep ___, Decision No. 14,944).  Petitioner has not established that she is sharing the housing of other persons due to loss of housing rather than a preference to move back into her family residence.

     While it is unfortunate that petitioner felt the need to leave her Grand Island apartment, there is no proof in the record that petitioner lost her Grand Island apartment and is required to live in the kind of shelter or other accommodation described in �3209.  Indeed, school records indicate that petitioner and her son previously resided at the same Buffalo address.  Consequently, the provisions of Education Law �3209(2) and McKinney-Vento regarding choice of district for homeless children are not applicable in petitioner�s circumstances (see, Appeal of D.R., supra).

     Therefore, respondent�s determination that petitioner�s son may not attend its schools without payment of tuition was not arbitrary, capricious or unreasonable.  I find no basis on which to substitute my judgment for that of respondent.

     I have considered the parties remaining contentions and find them without merit.

 

THE APPEAL IS DISMISSED.