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Decision No. 16,240

Appeal of TAKIMA GONZALEZ, on behalf of her son JAYLEN ROCKER, from action of the Board of Education of the Ossining Union Free School District regarding residency.

Decision No. 16,240

(June 6, 2011)

Robert M. Tudisco, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent, Emily J. Lucas, of counsel

KING, Jr., Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Ossining Union Free School District (“respondent”) that her son, Jaylen, is not a district resident.  The appeal must be sustained.

On August 16, 2010, petitioner attempted to register Jaylen to attend respondent’s Park Early Childhood School (the “school”).  This was approximately three days after she and her children moved from Georgia to live with Jaylen’s paternal grandmother, a district resident.  The children’s father remained in Georgia attempting to sell their home.  Over the next several days, petitioner submitted a parent residency affidavit; a host residency affidavit completed by Jaylen’s paternal grandmother; a copy of a credit card statement; an interim New York State driver’s license; a copy of her last paycheck from her employer in Georgia and a hand-written letter from Jaylen’s father granting permission for Jaylen to be enrolled at the school.

By letter dated August 24, 2010, respondent’s superintendent notified petitioner that Jaylen was not eligible to attend the school because the documentation provided was not sufficient to establish residency within the district.  This appeal ensued.  On September 27, 2010, I granted a stay directing respondent to accept Jaylen to its schools pending a final determination on this appeal.

Petitioner maintains that Jaylen is entitled to attend the district’s schools because she and Jaylen have resided with his grandmother, a district resident, since mid-August 2010, and they intend to permanently reside there.  Respondent asserts that petitioner has provided inconsistent stories and has not submitted sufficient evidence to establish residency.

With her petition, petitioner submitted a change of address confirmation, BOCES registration documentation and a medical receipt.  Respondent objects to the submission of these documents because they were not before the superintendent at the time she made her determination.  Although this evidence was not previously considered, respondent has had ample opportunity to address it in its answer and, thus, I have considered the documents (seeAppeal of Landon, 49, Ed Dept Rep 23, Decision No. 15,948; Appeal of Short, 43 id. 137, Decision No. 14,945).

Respondent objects to petitioner’s reply and attached affidavit from Mark Rocker, Jaylen’s father.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).  In this instance, I find that that the reply addresses new material and affirmative defenses raised in respondent’s affidavits, submitted in response to petitioner’s stay request, and answer.  Additionally, the exhibits are dated after this appeal was commenced and were not available for submission with the petition.  Moreover, respondent has requested that I accept a sur-reply.  Petitioner does not oppose this request.  The Commissioner, in his discretion, may permit the service and filing of additional affidavits, exhibits and other supporting papers (see 8 NYCRR 276.5).  Accordingly, I have accepted petitioner’s reply and respondent’s sur-reply for consideration.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

Petitioner claims she is a district resident and that she has submitted sufficient documentation to demonstrate residency.  Although respondent does not dispute petitioner’s physical presence in the district, it maintains that she is living there only temporarily and that she failed to provide adequate documentation to establish residency. 

Respondent asserts that petitioner provided inconsistent stories and has not clearly explained why she left Georgia.  Respondent contends that, while petitioner represented that Jaylen’s father was not moving from Georgia and that she was permanently living with Jaylen’s grandmother, an inconsistent statement was made by Jaylen’s father that he intended to move to his mother’s home temporarily until he can buy a new home for his family in Ossining.  Petitioner disputes that Jaylen’s father made this statement.  Regardless of whether this statement was made, both the parent residency affidavit and the host residency affidavit, submitted with petitioner’s initial attempt to register Jaylen, state that petitioner’s residence with Jaylen’s grandmother is permanent.  Respondent also relies on a telephone call made to petitioner’s former employer in Georgia in which the employer did not indicate that petitioner was no longer employed there.  However, a subsequent letter from the employer stating that petitioner’s last day of work was August 13, 2010 should have laid this concern to rest.

Petitioner has documented her residency at the in-district address through her medical statements, New York State driver’s license, Southern Westchester BOCES class registration form and a conEdison bill.  Respondent claims that petitioner is not a district resident because she was unable to provide the necessary documentation when attempting to register Jaylen.  However, petitioner’s lack of documentation at the time clearly was the result of her move to the district just days before she attempted to register her son for school.  As an example, respondent points out that petitioner was unable to provide adequate documentation of residency “despite claiming that she was on public assistance.”  However, petitioner has accumulated additional documentation since her move in August 2010, including New York State benefit identification cards for her children, which were attached to her reply and appear to have been issued September 21, 2010.  Although petitioner may not have been forthcoming with respondent regarding her reasons for leaving Georgia, where her children’s father remains, I do not find this sufficient to overcome the evidence she has submitted in support of her claim.  Moreover, despite its unease with petitioner’s circumstance, respondent submits no documentation that petitioner and Jaylen reside elsewhere.

Thus, I find respondent’s determination that petitioner and Jaylen are not district residents is based on insufficient evidence and is, therefore, arbitrary and capricious (seeAppeal of Landon, 49 Ed Dept Rep 23, Decision No. 15,948; Appeal of Burnett, 42 id. 208, Decision No. 14,825).  On this record, petitioner has established residency in respondent’s district.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Jaylen Rocker to attend school in the Ossining Union Free School District without the payment of tuition.

END OF FILE.