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Decision No. 13,826

Appeal of BERNADETTE OGDEN, on behalf of MATTHEW and BRIANNA OGDEN, from action of the Board of Education of the Bayport-Bluepoint Union Free School District regarding residency.

Decision No. 13,826

(August 29, 1997)

Patrick T. McCarthy, R.N., Esq., attorney for petitioner

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bayport-Bluepoint Union Free School District ("respondent") that she is not a resident of the district and that her children are not entitled to attend school within the district on a tuition-free basis. The appeal must be sustained.

Petitioner is the mother of Matthew and Brianna Ogden, who have been students in respondent's district since September 1994. By letter dated March 19, 1997 respondent’s assistant high school principal informed petitioner that, "based on our investigation and information" he initially determined that her son, Matthew, was not a resident of the school district. Petitioner subsequently provided information to the assistant principal attempting to clarify her residence within the district. However, by letter dated April 10, 1997 the assistant principal informed petitioner that based on "interviews with your child, mail being returned to the district and additional information provided by our investigating officials" respondent had determined that she no longer resided within the district and that her children could no longer attend its schools without the payment of tuition. This appeal ensued. Petitioner’s request for interim relief pending a determination on the merits was granted on May 7, 1997.

Petitioner alleges that she resides at 420 First Avenue, Bayport, in respondent's district. She seeks a determination that her children are residents of the district and are entitled to attend school in the district without the payment of tuition. Petitioner also claims that, in making its determination regarding her children’s residency, respondent violated the procedural requirements of 8 NYCRR 100.2(y). Respondent contends that it complied with the regulation and that its determination that petitioner’s children do not reside in the district is supported by the record. Respondent relies on surveillance conducted on February 24, 26, 28, March 17, 18, 19, 25, 26 and 31, 1997, a statement from petitioner’s daughter and correspondence sent to the 420 First Avenue address that was returned to the district.

Petitioner correctly asserts that respondent has not complied with the procedural requirements of 8 NYCRR 100.2(y). That section provides, in pertinent part:

When the board of education or its designee determines that a child is not entitled to attend the schools of such district because such child is [not] a resident of such district . . ., such board or its designee shall, within two business days, provide written notice of its determination to the child’s parent, to the person in parental relation to the child, or to the child, as appropriate. Such written notice shall state:

  1. that the child is not entitled to attend the public schools of the district;
  2. the basis for the determination that the child is neither a resident of the school district nor entitled to attend its schools pursuant to subdivision (x) of this section;
  3. the date as of which the child will be excluded from the schools of the district; and
  4. that the determination of the board may be appealed to the Commissioner of Education, in accordance with Education Law section 310, within 30 days of the date of the determination, and that the procedure for taking such an appeal may be obtained from the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234 or by calling (518) 474-5807. (emphasis supplied)

Both the initial March 19, 1997 letter and the April 10, 1997 notice of determination of residency indicate that respondent's residency decision was based on "information" provided by investigators. The notice fails to indicate what "information" was provided and, as such, fails to sufficiently set forth the basis for respondent’s determination, in violation of the requirements of 8 NYCRR "100.2(y). Moreover, such a vague statement fails to afford petitioner sufficient information to permit her to initiate a meaningful challenge to respondent's residency determination. Consequently, I find that respondent's failure to provide petitioner with the basis for its determination violates her right to procedural due process as well as the requirements of 8 NYCRR "100.2(y).

Petitioner must also prevail on the merits. Education Law "3202(1) provides, in pertinent 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 this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of Bouttry-Martin, 37 Ed Dept Rep ___, Decision No. 13820, dated August 18, 1997; Appeal of Curtin, 27 id. 446; Matter of Buglione, 14 id. 220).

In this case, petitioner presents documentation concerning her residence at 420 First Avenue, including a one year lease executed on September 1, 1996 covering the period from September 1, 1996 to September 1, 1997; 1996 income tax forms; two 1996 W-2 income tax forms from two separate employers; checking account forms; NYS Department of Social Services correspondence dated April 24, 1997; a rent receipt covering the period from February 1, 1997 to March 1, 1997; NYS Department of Motor Vehicles correspondence; school district correspondence and a Town of Islip recreation card with an expiration date of December 31, 1997. Responding to respondent’s surveillance report, petitioner indicates that she regularly stays overnight at the home of her boyfriend in Patchogue outside respondent’s district. This statement is supported by her daughter’s statements to school officials during an interview.

Respondent contends that petitioner is not a resident of the district since its surveillance placed her in Patchogue. Respondent also noted petitioner’s daughter’s statement that her mother frequently stays over at her boyfriend’s home.

Based on the record before me, I find that petitioner is a resident of respondent’s district. She presents documentary evidence of residence and the information from the surveillance placing petitioner in Patchogue outside the district is explained by her admission that she has a boyfriend who lives there. The fact that petitioner frequently stays overnight at her boyfriend’s home does not negate her residency in respondent’s district. Upon reviewing the entire record of evidence before me, I find petitioner has established that she is a resident of respondent’s school district and, therefore, her children are entitled to attend school in the district without payment of tuition.