Decision No. 16,939
Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Fallsburg Central School District regarding residency.
Decision No. 16,939
(August 1, 2016)
Ferrara Fiorenza PC, attorneys for respondent, Susan T. Johns, Esq., of counsel
ELIA, Commissioner.--Petitioners appeal a determination of the Board of Education of the Fallsburg Central School District ("respondent") that their son (the “student”) is not a district resident. The appeal must be dismissed.
During the 2015-2016 school year, the student attended ninth grade in respondent’s district. According to respondent, on April 15, 2016, the superintendent received reports that the student was being transported from a residence outside the district to a bus stop located near his grandparent’s residence within the district, and the student subsequently reported to school officials that he resides with his mother in Spring Glen and is transported to his grandparent’s residence each morning.
By letter dated April 15, 2016 to the student’s mother, the superintendent informed petitioners that their residence is not within the boundaries of respondent’s district and that the student would be excluded effective April 29, 2016.
On April 18, 2016, petitioners met with the superintendent. According to respondent, petitioners indicated that neither petitioner resides at the in-district address and that they would drop the student off at his grandparent’s residence so that he could attend the district’s schools. According to respondent, petitioners indicated that the student resides with his mother outside the district in Spring Glen, within the Ellenville Central School District, and the student’s father resides in Monticello, within the Monticello Central School District.
By email and letter dated April 25 and 26, 2016, respectively, the superintendent notified petitioners of his final determination that petitioners’ residency request was denied based on petitioners’ admission that they both reside outside the district, and that the student would be excluded from respondent’s schools effective April 29, 2016. The letter further notified petitioners of their right to appeal to the Commissioner of Education pursuant to Education Law §310. This appeal ensued. Petitioners’ request for interim relief was granted on May 2, 2016.
Petitioners assert that respondent failed to provide a written and specific basis for the student’s exclusion from the district, failed to afford petitioners an opportunity to submit information regarding the student’s right to attend the district’s schools, and failed to include information regarding their right to appeal to the Commissioner of Education, in violation of 8 NYCRR §100.2(y). Petitioners also assert that respondent violated the student’s rights under §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 (“§504”) and “willfully ignor[ed]” a medical recommendation that the student continue his education in respondent’s district without disruption. Petitioners request a determination that the student is a resident of respondent’s district and is entitled to attend respondent’s schools tuition-free.
Respondent asserts that the appeal must be dismissed as moot and that the Commissioner lacks jurisdiction over petitioners’ claims brought pursuant to §504. Respondent contends that petitioners have failed to state a claim upon which relief may be granted and that its determination was neither arbitrary nor capricious.
I must first address the procedural issues. Respondent objects to petitioners’ reply on the grounds that it is untimely, lacks verification, and is not responsive to respondent’s affirmative defenses and includes additional materials and arguments not contained in the petition. A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710). Respondent’s answer was served by mail on May 16, 2016 and petitioners’ reply was served on or after June 1, 2016. Petitioners’ reply is therefore untimely. As such, I need not address respondent’s remaining objections with respect to petitioners’ reply.
Respondent asserts that, to the extent petitioners request a determination that the student is a resident of respondent’s district and is entitled to attend respondent’s schools tuition-free, the appeal must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). According to an affidavit from respondent’s district clerk, on May 4, 2016, the Ellenville Central School District registrar informed her that the student would be enrolling in the Ellenville Central School District for the 2016-2017 school year. However, there is no evidence in the record that petitioners have in fact enrolled the student in that district for the 2016-2017 school year. Therefore, I decline to dismiss the appeal as moot.
However, to the extent petitioners assert claims under §504, enforcement of §504 is within the jurisdiction of the federal courts, the U.S. Department of Justice, and the U.S. Department of Education, and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of K.L., 53 Ed Dept Rep, Decision No. 16,627; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369; Appeal of a Student with a Disability, 36 id. 322, Decision No. 13,736). Therefore, I lack jurisdiction to entertain such claims.
Turning to the merits, Education Law §3202(1) provides, in pertinent part, as follows:
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).
The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773). While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).
Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).
A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).
Petitioners request a determination that the student is a resident of respondent’s district and is entitled to attend respondent’s schools tuition-free. However, petitioners do not assert that they are residents of respondent’s district. In fact, the petition is devoid of any facts or allegations concerning the student’s right to attend respondent’s district based upon residency. Rather, petitioners assert that the student should be allowed to continue his education “without disruption” and that “[c]hanging districts toward the end of the year” would be disruptive to his education. However, as discussed above, petitioners have the burden of establishing that they are physically present as inhabitants of the district and intend to reside in the district and they have failed to carry their burden in this regard.
Petitioners also assert that respondent failed to provide a written and specific basis for the student’s exclusion from the district, failed to afford petitioners an opportunity to submit information regarding the student’s right to attend the district, and failed to provide information regarding their right to appeal to the Commissioner of Education, in violation of 8 NYCRR §100.2(y). 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 (8 NYCRR §100.2[y]). 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 specific basis for the determination, including, but not limited to, a description of the documentary or other evidence on which such determination is based; the date as of which the child will be excluded; and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; see e.g. Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430). The regulation does not require a formal hearing or representation by counsel (see e.g. Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430).
As described above, the record indicates that, by letters dated April 15 and 20, 2016, respondent notified petitioners that the student’s residency was in question and that respondent provided petitioners with opportunities to submit information concerning the child’s right to attend school in the district. Indeed, petitioners assert that they had “two separate meetings with administrators,” including the principal, director of pupil personnel, and superintendent. The record indicates that, following the April 18, 2016 meeting with the superintendent, petitioners submitted a letter from the student’s pediatrician advocating that the student remain in respondent’s schools. However, such letter did not concern the student’s residency within respondent’s district. Further, respondent’s April 25 and 26, 2016 correspondence to petitioners contained its final written determination and the basis therefor as well as information regarding petitioners' right to appeal to the Commissioner pursuant to Education Law §310. Therefore, I find petitioners’ allegations that respondent violated 8 NYCRR §100.2(y) to be without merit.
Based on the record before me, petitioners have failed to meet their burden of proof. On this record, I cannot conclude that respondent’s determination that petitioners’ child is not a district resident and is not entitled to attend the district’s schools tuition-free is arbitrary, capricious or unreasonable.
While the appeal must be dismissed, I note that petitioners retain the right to reapply for admission to the district on the student’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 The letter was subsequently sent to both petitioners on April 20, 2016 at revised addresses that they provided to the district.
 I note that petitioners’ affidavits of service do not indicate the date on which the reply was served or that a copy of the reply was in fact served upon respondent’s counsel. However, they were notarized on June 1, 2016 and respondent’s counsel does not object to the reply for lack of proper service. Moreover, respondent’s counsel did in fact indicate by letter dated June 10, 2016 that she received a copy of petitioners’ reply.
 As noted above, petitioners’ request for interim relief was granted on May 2, 2016, whereby respondent was directed to admit the student to the schools of the district tuition-free, pending an ultimate determination in this matter.