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Decision No. 17,708

Appeal of J.A.R., on behalf of his children M.R. and M.R., from action of the Board of Education of the Elmont Union Free School District regarding residency.

 

Decision No. 17,708

(July 23, 2019)

Regina Alberty, Esq., attorney for petitioner

Colum P. Nugent, Esq., attorney for respondent

ELIA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Elmont Union Free School District (“respondent”) that his children, M.R. and M.R. (“the students”), are not district residents.  The appeal must be dismissed.

Prior to the events described in this appeal, the students attended respondent’s schools based upon a representation that they resided at an address located within respondent’s district (“the in-district address”).  The record reflects that, at times, petitioner and the students’ mother have lived apart, and that the students’ mother has resided at various locations outside respondent’s district.

On January 8, 2018, the district’s central registrar received information suggesting that the students resided with their mother at a location outside of respondent’s district (“the out-of-district address”).  Respondent thereafter initiated a residency investigation, which included surveillance, at the in-district and out-of-district addresses.

Respondent conducted surveillance of the in-district address on January 18, 19 and 22, 2018.  Petitioner’s family was observed at the in-district residence in the afternoon of January 22, 2018, but not on the remaining three dates.  Respondent conducted surveillance of the out-of-district address on January 25 and 31, 2018, and February 12, 2018.  On two of the three days of surveillance, petitioner, the students’ mother and the students were observed exiting the out-of-district address in the early morning.  On the third morning, the older student and her mother were observed leaving the residence; the younger student was absent from school on this date.

By letter dated February 12, 2018, respondent’s superintendent notified the students’ mother that evidence led him to conclude that the students were not district residents and they would be excluded from respondent’s schools effective February 16, 2018.[1]

By letter dated February 15, 2018, the students’ mother requested an appeal of the superintendent’s residency determination.  Respondent thereafter conducted a formal residency hearing, presided over by a hearing officer (“hearing officer”), on March 26, 2018.[2]  At the hearing, petitioner requested an adjournment to obtain counsel and so that respondent could provide a translator.  The hearing officer granted petitioner’s request and the hearing was adjourned.

According to the record, petitioner thereafter retained counsel, who requested, and was granted, two additional adjournments.  Following the three adjournments requested by petitioner, respondent requested, and was granted, an adjournment for purposes of witness availability.  The hearing officer notified petitioner and respondent that the fourth adjournment would be the final adjournment, and that the residency hearing would be held on July 2, 2018 at 11:00 a.m.

Five minutes prior to the scheduled start of the hearing on July 2, 2018, petitioner’s counsel sent an email to counsel for respondent indicating that she “was ill.”  The hearing officer was not copied on this email.  At approximately 11:30 a.m., the hearing officer contacted counsel for petitioner and inquired as to her and her client’s whereabouts.  According to the record, counsel for petitioner told the hearing officer over the phone that she was unable to attend the hearing “because of a medical issue” and had directed her clients, petitioner and the students’ mother, not to appear at the hearing.  The hearing officer denied petitioner’s request for an additional adjournment and proceeded to conduct the hearing in the absence of petitioner, the students’ mother and counsel for petitioner.[3]

In a written determination dated September 7, 2018, the hearing officer found, based on the evidence adduced at the hearing, that the students did not reside within respondent’s district.  This appeal ensued.

Petitioner contends that he owns property within respondent’s district and, therefore, is entitled to send the students to its schools.  Petitioner states that his family was forced to relocate outside the district to avoid harassment by respondent who, he argues, initiated the residency hearing as retaliation for inquiries regarding an in-school injury incurred by his younger child.  Petitioner also argues that respondent did not adduce sufficient evidence that the students reside outside of respondent’s district at the hearing.  For relief, petitioner seeks a determination that the students “were” residents of respondent district at the time of the events giving rise to this appeal and “[a] determination that [r]espondent conducted an improper investigation of my children’s residence in the school district ....”

Respondent argues that the appeal must be dismissed as moot because, as petitioner admits, he and the students now reside outside respondent’s district.  Respondent denies petitioner’s allegations of harassment and retaliation and argues that its residency determination, which was based upon the evidence adduced at the hearing, is neither arbitrary nor capricious.

First, I must address a procedural matter.  Petitioner submitted a reply in this matter.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  In the petition, petitioner states that he and the students no longer reside in respondent’s district and that the students attend school in a neighboring district.  Specifically, petitioner states that he and his spouse “decided to register [their] children at another school,” and that the students “now reside with [petitioner] and their mother” at an address located outside of respondent’s district.  Additionally, petitioner seeks a determination that the students “were” residents of respondent’s district during the events which gave rise to this appeal.  Any determination as to whether the students lived at the in-district address at a prior time is academic in light of the students’ new residence.  Therefore, the appeal must be dismissed as moot.

Petitioner also alleges that respondent initiated an investigation into the students’ residency for improper reasons.  Specifically, petitioner alleges that one of his children sustained an injury on school grounds; that respondent refused to furnish information or pay medical bills associated with this incident; and that respondent initiated a residency investigation as retaliation for petitioner’s inquiries regarding the injury.  However, petitioner submits no proof in support of these allegations, which are not supported by the evidence in the record.

At the residency hearing, the central registrar testified that the district has an internal procedure for district employees to report concerns related to students’ residency.  Specifically, district employees may complete a form entitled “Request for Verification of Residence” and submit it to the district registrar for investigation.  Here, the principal of the school which one of the students attends completed the form, attaching an email from a district employee.[4]  In this email, the employee reported that one of the students “told her classroom teacher that she moved” out of respondent’s district, and the student would “become [] very nervous when arriving to school late.”  There is no evidence in the record suggesting that anything other than the employee’s email caused respondent to initiate an investigation into the students’ residency.  Therefore, petitioner has not met his burden of proving that respondent initiated the residency investigation for improper or harassing purposes.[5]

Petitioner also alleges that his children were harassed by district employees.  Petitioner specifically alleges that a teacher told his son “you don’t belong here,” characterizing such activity as “bullying” of his children.  While this allegation is concerning, petitioner has produced no proof on this record.  Thus, I cannot find that petitioner has established, on this record, that such a comment was made, or that his children were otherwise bullied or harassed by respondent or any of its agents or employees.

Finally, to the extent petitioner alleges that he and his family were the victims of unlawful discrimination, the record is devoid of any support for this allegation.

Although the appeal must be dismissed for the reasons set forth above, I note that petitioner retains the right to reapply for the students’ admission to respondent’s schools at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] This letter was sent to the students’ mother at the out-of-district address.  Petitioner claims that he only received a copy of the letter because it was placed in one of the student’s backpacks.  The method of delivery is corroborated by a notation on the letter, which indicates that the letter was sent certified mail, return receipt requested as well as “[p]laced in student’s backpack.”

 

[2] While not required by 8 NYCRR §100.2(y), it appears that respondent’s practice is to conduct a formal, hearing on the record presided over by an impartial (i.e., non-district employee) hearing officer when a parent appeals a district-level residency decision (see Appeal of Ulloa, 58 Ed Dept Rep, Decision No. 17,479).

 

[3] The hearing officer identified the reasons for denying this request in his written decision, which included his prior ruling that no further adjournments would be granted and that the district had spent substantial time and money preparing for the hearing, including arranging for the presence of the hearing officer and an interpreter on June 2, 2018, as well as each of the previously canceled dates.

 

[4] Although it appears that this individual is a district employee, the record is unclear as to this individual’s title or role within the district.

 

[5] In any event, I note that, even if petitioner met his burden of proof as to this claim, it would not result in an automatic finding that the students are residents of respondent’s district, which requires one’s physical presence therein (see Appeal of Students with Disabilities, 59 Ed Dept Rep, Decision No. 17,687).