Appeal of NATAASHA HENRY, on behalf of her son DYLAN RUTHERFORD, from action of the Board of Education of the City School District of the City of Mount Vernon regarding residency.

Decision No. 17,471

(August 2, 2018)

Ingerman Smith, LLP, attorneys for respondent, Thomas Scapoli, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the City School District of the City of Mount Vernon (“respondent”) that her son (the “student”) resides outside the attendance zone of the district’s Lincoln Elementary School (“Lincoln”).  The appeal must be dismissed.

Petitioner, the student and the student’s older sister reside within respondent’s district within the attendance zone of respondent's Williams Elementary School (“Williams”).  In an affidavit, respondent’s director of student services (“director”) avers that, since the 2011-2012 school year, the student’s sister has attended Lincoln “pursuant to the school choice option authorized by the No Child Left Behind Act.”  

The record indicates that the student first became eligible to attend public school during the 2016-2017 school year.  During the 2016-2017 school year, the student’s sister ceased attending Lincoln and transferred to a charter school.  According to the record, this charter school is in close proximity to Lincoln.  Petitioner requested that the student be allowed to attend Lincoln so that he could attend school close to his sister and because it was convenient for petitioner.  The director avers that this request was granted and that the student was given “special permission” to attend Lincoln for the 2016-2017 school year.

For the 2017-2018 school year, the student’s sister transferred to a different charter school.  As a result, according to the director, “there was no basis for the [s]tudent to continue to attend Lincoln.”  Nevertheless, the director avers that petitioner “continued to send the [s]tudent to Lincoln and the Lincoln staff permitted the student to attend.”

When the director learned of the student’s circumstances, she took steps to facilitate the student’s return to Williams, the elementary school which he is zoned to attend.  In a letter dated January 3, 2018, the director requested that petitioner submit any documentation substantiating the student’s residency within the Lincoln attendance zone by January 11, 2018.  Petitioner did not respond to this letter.

In a letter dated January 16, 2018, the director informed petitioner that the student did not reside within the Lincoln attendance zone, and that he would no longer be eligible to attend Lincoln as of January 19, 2018.

According to the record, petitioner met with the superintendent on or about January 24, 2018 to discuss this issue.  It appears that, notwithstanding the director’s January 16, 2018 letter, respondent continued to permit the student to attend Lincoln during this time.

In an email to petitioner dated January 25, 2018, the superintendent stated that petitioner had “deliberately misrepresented the facts” and “intentionally provide[d] [him] ... with false information” concerning the student’s circumstances.  Therefore, the superintendent indicated that the student would be excluded from Lincoln after January 31, 2018.

In a letter dated January 31, 2018, the director indicated that the student would be excluded from Lincoln effective February 2, 2018.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 6, 2018.

Petitioner contends that in August 2016, she “went to the board and ... did school choice” and that the director approved this arrangement.  Petitioner further argues that the director verbally agreed to let the student remain enrolled at Lincoln until June 2018.  Petitioner seeks a determination that the student is entitled to attend Lincoln.

Respondent denies petitioner’s contentions and argues that it acted reasonably under the circumstances.  Respondent specifically denies that the student exercised his right to public school choice.  Respondent asserts that petitioner offered no proof that she resides within the Lincoln attendance zone, and, therefore, respondent’s determination of non-residency was neither arbitrary nor capricious.  Respondent further argues that the petition and a statement by petitioner “do not conform to the requirements of 8 NYCRR 275.3(c).”

First, I must address respondent’s procedural objections.  Respondent argues that an unsworn statement submitted by petitioner together with her petition is not verified and should not be considered.  Although respondent is correct that the statement is unsworn, I will nevertheless accept it into the record and afford it the appropriate weight which it is due as an unsworn statement (see Appeal of M.S., 58 Ed Dept Rep, Decision No. 17,430; Appeal of J.D., 57 id., Decision No. 17,295). 

Additionally, respondent argues that the petition and the unsworn statement attached thereto do not comply with 8 NYCRR §275.3(c) but does not clearly specify the basis for its objection.  In this regard, I note that 8 NYCRR §275.3(c) requires, among other things, that all pleadings and affidavits “shall set forth the allegations of the parties in numbered paragraphs.”  In any event, when a petitioner is not represented by counsel, a liberal interpretation of the practice regulations is appropriate, particularly where, as here, there is no evidence of prejudice to the respondent (Appeal of DeGroff, et al., 31 Ed Dept Rep 332, Decision No. 12,657).  While not entirely clear, petitioner’s allegations against respondent as contained in her petition and the attached unsworn statement are discernable and respondent addressed those allegations in its answer (see Appeal of Loughlin, 35 Ed Dept Rep 432, Decision No. 13,591).  On this record, I find that petitioner has substantially complied with §275.3(c) and decline to dismiss the appeal on this basis (see Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Fillie-Faboe, 34 id. 643, Decision No. 13,438; Appeal of DeGroff, et al., 31 id. 332, Decision No. 12,657).

Turning to the merits, “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 admits that she and the student reside outside of the Lincoln attendance zone.  Nevertheless, petitioner argues that the student exercised his right to public school choice, that respondent recognized such in or about August 2016, and that respondent was required to honor such designation while the student completed his education at Lincoln.  Respondent denies that the student exercised a right to public school choice and asserts that the student was merely granted “special permission” to attend Lincoln while his sister attended a nearby charter school.  Respondent further argues that the rationale for this special permission no longer existed once the student’s sister transferred to a different charter school which was not located in close proximity to Lincoln.

I find that petitioner has failed to meet her burden of proving a clear legal right to her requested relief.  Here, petitioner submits an unsworn statement that she “went to the board and ... did school choice” in August 2016.  However, petitioner has produced no proof in support of this assertion, merely submitting a copy of two documents printed from respondent’s website at some time during 2018 which contain general information on public school choice.  Therefore, petitioner has failed to establish that she sought to exercise the student’s right to public school choice.[1]

While the appeal must be dismissed, I note that, according to the director’s affidavit, respondent allows exceptions from its attendance zone “practice” if a student with a disability is required to attend a class in a building other than his or her neighborhood school, for public school choice under the No Child Left Behind Act, or for “some other unique circumstance in the discretion of the [d]istrict.”  However, the record does not indicate whether respondent has an established written policy or other documentation regarding such “practice.”  Indeed, respondent has not introduced any documentation of such “practice.”  To the extent respondent’s attendance zone practices and/or policies are not set forth in board policy or otherwise documented and made publicly available, I admonish respondent to do so (see e.g. 8 NYCRR §100.2[y][2] [“Each school district shall make publicly available its enrollment forms, procedures, instructions and requirements for determinations of student residency and age in accordance with this subdivision.”]).

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE.