Decision No. 15,462
Appeal of KATHLEEN McCLAIN, on behalf of her daughter SKYE McCLELLAN, from action of the Board of Education of the Williamsville Central School District regarding residency.
Decision No. 15,462
August 29, 2006
Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel
MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Williamsville Central School District (“respondent”) that her daughter, Skye, is not a district resident. The appeal must be sustained.
Skye has attended respondent’s schools since November 1998. Based upon unspecified information received by district staff, respondent’s designee for residency determinations sent a letter dated October 24, 2005 informing petitioner that Skye’s residency was in question and offering her an opportunity to submit additional information. In response, petitioner submitted two letters from the Social Security Administration addressed to her at a residence within the district owned by her mother. Thereafter, the district hired a private firm to conduct surveillance at the district residence.
By letter dated February 15, 2005, respondent’s designee informed petitioner that Skye was not entitled to attend school in the district. The designee based her determination upon the surveillance, the documentation submitted by petitioner which was dated July 2004, information on the Internet indicating that a “K. McClain” resided at an address in Buffalo and vehicle registration information indicating that a “Katie McClain” resided at the same Buffalo address. This appeal ensued. Petitioner’s request for interim relief was granted on March 6, 2006.
Petitioner asserts that she and Skye reside in a house owned by her mother within respondent’s district. Respondent contends that petitioner and Skye are not district residents and that its decision was rationally based on the totality of the evidence.
Initially, I must address a procedural matter. Respondent objects to petitioner’s reply on the grounds that it was premature, contained new allegations and was improperly served. It is undisputed that respondent was served with the reply, albeit prior to service of the answer. It also appears that the answer reiterates respondent’s position as stated in the papers submitted in opposition to petitioner’s stay request. Accordingly, I will excuse petitioner’s minor timing and service errors as she was not represented by counsel and respondent was not prejudiced thereby (seeAppeal of D.K., 44 Ed Dept Rep 47, Decision No. 15,094).
While I have accepted the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).
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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).
Respondent concedes that petitioner’s mother owns a house within the district. In support of her assertion that she resides with her mother, petitioner submits a copy of a New York State identification card issued by the Department of Motor Vehicles in June 2005 and envelopes from the Social Security Administration and the Erie Support Collection Unit. Petitioner also submits copies of statements from a satellite television company and two credit companies and four signed statements indicating that she and Skye reside at the district residence.
Respondent submits a copy of its surveillance report. According to the report, on December 15, 2005, a female departed the in-district residence in a vehicle at 6:42 a.m. and returned at 7:17 a.m.; there were no other departures between 5:15 a.m. and 9:50 a.m. On December 22, 2005, a female departed the in-district residence in a vehicle with an unidentified “small black female approximately 7-8 years of age,” with no other departures between 5:15 a.m. and 8:45 a.m. On February 7, 2006, a female departed the in-district residence at 6:45 a.m. in a vehicle with an unidentified “small black female approximately 8 years of age.” On this occasion, the investigator followed the vehicle to another residence where the child exited and a taller female entered the car before it proceeded.
Upon review, I find the district’s investigation to be inconclusive. The investigator’s report merely offers some evidence that a child did not leave the in-district residence on one school morning in December 2005, and that the only child who left that residence on two other mornings appeared to the investigator to be 7 or 8 years of age. The record contains no evidence regarding Skye’s appearance relative to her age. Accordingly, I cannot conclude that the child seen by the investigator departing the residence was not, in fact, Skye. Moreover, although respondent contends that it has identified petitioner’s residence within the City of Buffalo, the record contains no evidence of surveillance at that residence.
Respondent’s determination that petitioner resides within the City of Buffalo also lacks a rational basis. The record suggests that respondent based this determination upon information on the Internet, indicating that a person with petitioner’s first initial and last name resided at an address in Buffalo, and upon vehicle registration information indicating that a person with a similar first name and same last name resided at the Buffalo address. While such information might suggest further investigation, the information is not conclusive and does not provide a rational basis for excluding petitioner’s daughter.
In sum, I do not find respondent’s surveillance and other evidence to be persuasive proof that Skye does not reside in respondent’s district. Accordingly, I am constrained to find, on the record before me, that respondent’s determination is arbitrary and capricious.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent allow Skye McClellan to attend school in the Williamsville Central School District without the payment of tuition.
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