Skip to main content

Search Google Appliance

Search Google Appliance

Decision No. 17,133

Appeal of A.S., on behalf of her child J.H., from action of the Board of Education of the City School District of the City of Mount Vernon regarding residency.

Appeal of A.S., on behalf of her child J.H., from action of the Board of Education of the City School District of the City of Mount Vernon regarding residency.

Decision No. 17,133

(July 25, 2017)

Ingerman Smith, LLP, attorneys for respondent, Cliff A. Christophe, Esq., of counsel

Elia, Commissioner.--In two separate appeals, petitioner challenges the determination of the Board of Education of the City School District of the City of Mount Vernon (“respondent” or “board”) that her children (the “students”) reside outside the attendance zone of the district’s Lincoln Elementary School (“Lincoln Elementary”).  Because the appeals arise out of the same facts and circumstances and present similar issues of fact and law, they are consolidated for decision.  The appeals must be sustained.

At all times relevant to this appeal, petitioner and the students resided within respondent’s district.  At some point prior to the events described in this appeal, petitioner and the students came to reside at an address which is located within the attendance zone for the district’s Hamilton Elementary School (the “Hamilton address”).  Petitioner alleges that, on or about September 1, 2016, she and the students came to live at an address located within the attendance zone for Lincoln Elementary (the “Lincoln address”). 

In two letters dated November 22, 2016, the district’s director of student services (“director”) informed petitioner of her determination that the students did not reside at the Lincoln address and, instead, resided at the Hamilton address.  Accordingly, the director informed petitioner that the students would attend Hamilton Elementary effective December 5, 2016.  These appeals ensued.

Petitioner asserts that she and the students reside at the Lincoln address and, therefore, the students are entitled to attend Lincoln Elementary.  Petitioner further asserts that the students are currently “homeless” and live “with a family member who resides within the Lincoln School district.”

Respondent denies that petitioner and the students reside at the Lincoln address and contends that they instead reside at the Hamilton address.  Respondent further contends that petitioner has failed to show that she and the students are homeless.[1], [2]

First, I must address a preliminary matter.  It is clear from a review of the record that petitioner, who is appearing pro se, is appealing from the district’s November 22, 2016 residency decision.  Thus, although petitioner states that she is homeless in her petition, the bulk of her allegations and supporting evidence relates to her claim that she resides at the Lincoln address, which is within the attendance zone for Lincoln Elementary.  Therefore, I will proceed to address petitioner’s residency claim.

Petitioner asserts, and respondent admits, that the Lincoln address is zoned for Lincoln Elementary.  Therefore, the sole issue in this proceeding is whether petitioner resides at the Lincoln address.  “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). 

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).

Here, petitioner has sufficiently proven that she and the students reside at the Lincoln address.  Petitioner submits unsworn, signed statements from her former landlord at the Hamilton address and a family member with whom she and the students currently reside.  The former landlord states that petitioner and the students no longer reside at the Hamilton address,[3] and the family member states that petitioner and the students currently reside with her at the Lincoln address.  Petitioner further asserts that both students intend to remain at the Lincoln address “indefinitely.” 

In response, respondent denies that petitioner and the students reside at the Lincoln address but provides no evidence to support its contention or to rebut petitioner’s evidence.  Thus, although the record in this proceeding is sparse, petitioner has, nevertheless, submitted sufficient evidence to meet her burden of proof.  Respondent’s November 22, 2016 determinations that the students do not reside at the Lincoln address are not supported by the record and must be set aside.

Nothing in this decision shall be construed to prevent respondent from conducting a further investigation to determine whether the students actually reside at the Lincoln address.  Given this disposition, I need not address the parties’ remaining claims.

 

THE APPEALS ARE SUSTAINED.

 

IT IS ORDERED that respondent permit the students to attend Lincoln Elementary School without the payment of tuition unless and until there is a subsequent determination that the students no longer reside within the attendance zone of such school.

END OF FILE

 

[1] In this regard, respondent represents that it “temporarily designate[d]” the students as homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC §11431 et seq.), thus allowing them to continue to attend Lincoln Elementary, “pending further investigation.”

 

[2] Respondent originally contended that the appeal must be dismissed for failure to exhaust administrative remedies because board policy required petitioner to appeal the adverse residency decision to respondent.  However, respondent expressly withdrew that affirmative defense in a letter dated June 30, 2017.

 

[3] In this regard, I note that “evidence of the physical presence of the parent(s) or person(s) in parental relation and the child” within a district may consist of “a statement by a third-party landlord, owner or tenant from whom the parent(s) or person(s) in parental relation leases or with whom they share property within the district, which may be either sworn or unsworn” (8 NYCRR §100.2[y][3][i][b][2]).