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Decision No. 15,283

Appeal of ARTHURENE DORTCH, on behalf of her son JONATHAN, from action of the Board of Education of the Valley Central School District regarding residency.

Decision No. 15,283

(August 16, 2005)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Krystina E. Cho, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Central School District ("respondent") that her son, Jonathan, is not a district resident. The appeal must be sustained.

Petitioner registered her son in respondent's school district on September 7, 2004. She was asked to provide respondent with documentation of residency, although the record is unclear on when these requests were made. By letter dated February 15, 2005, respondent informed petitioner that a question on her son's residency existed, and a residency hearing would be held on March 3, 2005. Petitioner failed to appear at the hearing.

On March 3, 2005, petitioner's advocate telephoned the district and indicated he would be sending documents by facsimile that would verify petitioner's residency. The documents were not received until March 10, 2005. In the meantime, by letter dated March 7, 2005, respondent's superintendent determined that petitioner's son could not attend respondent's schools after March 23, 2005. After reviewing the documents received on March 10, the superintendent informed petitioner by letter dated March 10, 2005 that he was adhering to his original determination that petitioner was not a resident. This appeal ensued. Petitioner's request for interim relief was granted on March 31, 2005.

Petitioner claims that she and her son are district residents and that she submitted sufficient documentation to demonstrate residency.

Respondent contends that petitioner failed to provide adequate documentation of residency. Respondent also asserts that petitioner's residence continues to be in the Bronx because her 2004 W-2 form reflects that address and because she uses that address for the purposes of receiving mail.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

In support of her claim that she is a district resident, petitioner submitted to the district a bill for cable services dated February 2005, a mobile telephone bill dated February 2005, a telephone bill dated January 2005, a bank statement dated February 2005, a "change of address" confirmation from the U.S. Post Office dated February 4, 2005, and a life insurance policy summary dated February 2005. All of these documents reflect the Walden address and several pre-date the February 15, 2005 notice to petitioner of the residency hearing.

According to respondent, petitioner admitted that her 2004 W-2 reflects a Bronx address due to her employer's requirement that she live in New York City. Respondent argues that the W-2 form is dispositive of her residence. Respondent also relies on one item of certified mail sent by the district to the Bronx address stamped "unclaimed: unable to forward" as evidence that petitioner continues to use that address to receive mail.

While I do not condone petitioner's failure to appear at the residency hearing or her alleged admission that the address on her W-2 form is purposefully incorrect, the actions of his parent should not be held against Jonathan. Rather, based on the record, I find respondent's evidence insufficient to support its determination (seeAppeal of Powe, 37 Ed Dept Rep 657, Decision No. 13,950). Respondent does not report surveillance on either the Walden or Bronx property or submit any other evidence placing petitioner or her son at the Bronx address. Given petitioner's evidence of residence in respondent's school district, and respondent's lack of proof to the contrary, I conclude that respondent's decision to exclude Jonathan is arbitrary and capricious. Accordingly, it will be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Jonathan Dortch to attend school in the Valley Central School District without the payment of tuition.

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