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Decision No. 15,468

Appeal of DAHLIA CLARK, on behalf of her son NOWELLE, from action of the Board of Education of the City School District of the City of Mount Vernon regarding residency.

 

Decision No. 15,468

 

(September 6, 2006)

 

Jones, Ferguson & Campbell, LLP, attorneys for petitioner, Donna A. Campbell, Esq. of counsel

 

Aiello & Cannick, P.C., attorneys for respondents, Jennifer Fremgen, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the City School District of the City of Mount Vernon (“respondent”) that her son, Nowelle, is not a district resident.  The appeal must be sustained.

Nowelle is 18 years old and has attended district schools from kindergarten through 10th grade.  Petitioner owns a residence on Rich Avenue in Mount Vernon and claims that Nowelle has resided there with her since 1993.

In January 2006, respondent commenced an investigation of petitioner’s residency after Nowelle provided a school security officer with a copy of his New York State driver’s license listing his address as 2nd Street in Mamaroneck, outside the district.  Petitioner’s driver’s license lists the same Mamaroneck residence.  Petitioner explained to the investigator that she never changed the address on her license after moving from Mamaroneck in 1987.  An attendance teacher visited the Mount Vernon address on February 1 and 2, 2006, observing no one present and the premises to be under renovation and/or construction.  A telephone number inquiry revealed petitioner’s address as 2nd Street in Mamaroneck.  Petitioner’s 2005 federal income tax return listed Rich Avenue in Mount Vernon as her home address and an additional Schedule E form also listed the Rich Avenue house as a three-family rental real estate property that was not used personally for more than 14 days or 10 percent of total days rented. 

On February 8, 2006, respondent’s supervisor of pupil personnel services issued a letter to petitioner stating that Nowelle did not reside in the district, denying him attendance in respondent’s schools, and advising petitioner of her appeal rights.  On March 22, 2006, Nowelle was informed by a security guard and counselor that he was no longer allowed to attend Mount Vernon High School.  On March 24, 2006, petitioner met with the supervisor of pupil personnel services and was provided a copy of the February 8, 2006 letter.  Petitioner provided him with a deed that indicated her ownership of the Mount Vernon residence.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 28, 2006.

Petitioner contends that she did not receive notice and an opportunity to submit proof of residency prior to the determination to exclude Nowelle.  Specifically, petitioner claims that she did not receive the February 8, 2006 letter until the meeting on March 24, 2006, after Nowelle was excluded from respondent’s schools.  Petitioner also contends that she resides on Rich Avenue in Mount Vernon and submitted affidavits of neighbors confirming her presence at that residence, as well as utility bills and her 2005 federal income tax return listing that address as her residence.    In her reply, petitioner contends that she resides on the first floor of her Mount Vernon three-family house and rents the second and third floors, submitting an affidavit from the second floor tenant.  Respondent contends that petitioner and her son reside in Mamaroneck and that she maintains the Mount Vernon property for rental income only.

 

I will first address the procedural issue raised by petitioner.  Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR �100.2[y]; Appeal of Humphrey, 43 Ed Dept Rep 117, Decision No. 14,940; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613).  The regulation does not require a formal hearing or representation by counsel (Appeal of Rosen, 43 Ed Dept Rep 87, Decision No. 14,929; Appeal of Marbury, 41 id. 119, Decision No. 14,634).

 

The record reflects that petitioner was not provided the requisite opportunity to present information prior to the March 22, 2006 exclusion of Nowelle from school.  Specifically, there is no evidence in the record that petitioner received the February 8, 2006 letter or any other notice prior to the March 24, 2006 meeting that was held subsequent to the date upon which respondent excluded Nowelle.  Therefore, I find that respondent failed to comply with the procedures of �100.2(y).  I remind respondent of the need to comply with such procedures in the future.

Because petitioner has now had ample opportunity to present evidence in support of her residency claim, I will address the merits.  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).

On the record before me, I find that petitioner has demonstrated that she owns and resides in the residence on Rich Avenue in Mount Vernon.  She submitted mortgage statements, the deed to the property and neighbors’ affidavits all indicating her residence in Mount Vernon.  Although petitioner’s federal and State tax returns do contain some internal inconsistencies, both list the Mount Vernon address as petitioner’s residence.  Moreover, respondent’s two-day surveillance in February 2006 is insufficient to counter petitioner’s explanation that the renovation observed by the investigator was temporary and did not require her to relocate.  Accordingly, based on the totality of the evidence, I find that respondent’s determination is arbitrary and capricious and must be set aside.

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that respondent permit Nowelle Clark to attend school in the City School District of Mount Vernon without the payment of tuition.

END OF FILE