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Decision No. 13,122

Appeal of LISA B. FERGUSON, on behalf of ROBERT A. ASKEW, JR., from action of the Board of Education of the City School District of the City of Mount Vernon regarding residency.

Decision No. 13,122

(February 28, 1994)

D'Andrea and Goldstein, Esqs., attorneys for respondent, Robert Goldstein, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her son is not a resident of the Mount Vernon City School District. The appeal must be dismissed.

Petitioner's son, Robert, was first registered in the Mount Vernon School District on December 5, 1990. His registration form indicates that he had moved from his mother's residence at Glenwood Gardens, an apartment complex in Yonkers, to live with his grandmother at 15 Williard Avenue in Mount Vernon. In the fall of 1993, an attendance teacher was told that Robert was traveling to Yonkers everyday after school. In response to that report, a school monitor followed Robert after school to a bus stop. He was seen boarding a bus to Yonkers rather than to Mount Vernon. On another occasion, Robert was observed traveling to Yonkers by bus and getting off the bus at Glenwood Gardens in Yonkers.

Based on those observations, the district asked petitioner to submit proof that her son resided in Mount Vernon. In particular, school officials asked respondent to submit copies of any bills, bank statements, pay stubs or W-2 forms which would show residence in Mount Vernon. When she did not submit any such proof, her son was excluded from respondent's schools, effective October 29, 1993. On November 8, 1993, petitioner submitted a notarized statement from herself and her sister stating that petitioner and Robert resided with her sister at 30 Vernon Avenue in Mount Vernon. No mention was made about Robert living with his grandmother. The statement further indicated that petitioner has not relinquished parental or custodial rights regarding Robert. Based on that statement, petitioner requested that her son be readmitted to respondent's schools. That request was denied.

Subsequently, respondent discovered that the Department of Motor Vehicles lists petitioner's address as Glenwood Gardens, Apt. 4C, Yonkers. In addition, during the week of November 15, 1993, petitioner was followed from her place of employment in Mount Vernon to Glenwood Gardens in Yonkers.

In her petition, petitioner stated that her son has not attended school since October 29, 1993, and requested a stay of respondent's decision and an order readmitting Robert to Mount Vernon schools, pending a final decision in this matter. Petitioner's request for a stay was denied on November 19, 1993 and petitioner was requested to enroll her son in her home district.

In this appeal, petitioner maintains that she and Robert reside with her sister at 30 Vernon Avenue in Mount Vernon. Respondent contends that petitioner and her son do not reside in Mount Vernon and, therefore, her son is not entitled to attend Mount Vernon schools tuition-free.

Upon review of the record, I find that there is insufficient evidence that petitioner's son resides in respondent's district. Education Law '3202(1) provides in 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 the statute is to limit the obligation of school districts to provide tuition-free education to those students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446).

Petitioner's mere assertion that she and Robert reside in the Mount Vernon district is belied by their actions. As noted above, petitioner and Robert have been observed traveling from Mount Vernon to their allegedly former residence in Yonkers. Those observations, coupled with information received from the Department of Motor Vehicles, tends to indicate that petitioner and Robert reside in Yonkers. Moreover, the conflicting information on Robert's registration form and the lack of any independent evidence to support petitioner's residency in Mount Vernon, undermine petitioner's claim that she does, in fact, reside in Mount Vernon. Moreover, since Yonkers has a city income tax and Mount Vernon does not, a resident of Mount Vernon who had moved to Yonkers would usually change his or her payroll records quickly to reflect that change and avoid payment of the Yonkers tax if, in fact, the person was living and working in Mount Vernon. Petitioner's failure to provide any payroll information is, therefore, particularly troubling since she claims to have been a resident of Mount Vernon for more than two and one-half years. Accordingly, based upon the record before me, I cannot conclude that respondent's determination was arbitrary or capricious.

Finally, if petitioner has not yet enrolled her son in her home district, I urge her to do so. If she does not, respondent has an obligation to report that fact to the appropriate authorities.