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Decision No. 13,926

Appeal of YOLANDA S. DANIELS, on behalf of HASSAN M.G. DANIELS, from action of the Board of Education of the Uniondale Union Free School District regarding student residency.

Decision No. 13,926

(April 22, 1998)

Ingerman Smith, L.L.P, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's determination that her son, Hassan, is not a resident of the Uniondale Union Free School District ("district" or "Uniondale District"). The appeal must be dismissed.

In October 1997, district representatives became aware that Hassan was not residing in the district. His cousin, Nina, with whom he lived at 64 Teresa Place, Hempstead, within the district, was withdrawn from district schools after her parent informed special services that they had moved. Apparently, district officials knew that Nina and Hassan resided together. Gloria Lebby, the district residency officer, commenced an investigation. She asked a secretary at Northern Parkway Elementary School, where Hassan was attending fourth grade, to ask him where he lived. He indicated that he resided at 41 Villa Court, Hempstead, which is within the Hempstead Union Free School District ("Hempstead District").

On October 8, 1997, Ms. Lebby wrote to Linda Friedman, Acting Building Principal at Northern Parkway, informing Ms. Friedman of her determination that Hassan was not a district resident and recommending that he be excluded from district schools as of October 24, 1997. On October 9, Ms. Friedman and respondent’s superintendent jointly informed petitioner, by letter, that Hassan could no longer attend district schools after October 24, 1997, because he was not a district resident. The letter also informed petitioner of her right to appeal the determination to the Commissioner of Education.

Petitioner admits that she and her son Hassan reside with petitioner’s mother and Hassan’s cousin Nina, at 41 Villa Court, Apt L-2, Hempstead, which is within the Hempstead District. According to the petition, petitioner and her son had resided at Villa Court for three months prior to the filing of the petition on October 23, 1997, and intend to reside there for an indefinite period of time. Petitioner states that it was not her choice to move to Villa Court, but that she had to relocate from her previous residence nine blocks away at 64 Teresa Place, Hempstead, within the Uniondale District, because the owner was selling the property. Petitioner requests that Hassan be allowed to return to and continue his education at Northern Parkway School in the Uniondale District. She submits examples of Hassan’s schoolwork at the Northern Parkway School to demonstrate how well he was performing in that school. She also submits a telephone bill from June-July, 1997 and a 1996 New York State Tax form, both showing her address as 64 Teresa Place. Petitioner’s request for interim relief was denied on November 7, 1997.

Respondent asserts that petitioner fails to state facts sufficient to constitute the basis for any relief. Moreover, since petitioner admits that she and Hassan reside at the Villa Court address, which is within the Hempstead District, she is not a resident of the Uniondale District. Respondent also maintains that petitioner is not a homeless person within the definition of "100.2(x) of the Commissioner’s regulations. Furthermore, respondent argues that petitioner does not indicate an intention to relocate within the Uniondale District, but rather states that she and Hassan intend to reside at Villa Court indefinitely. Accordingly, respondent asserts that petitioner's son is not entitled to attend Uniondale schools. Respondent also notes that although petitioner contends that she had to relocate from Teresa Place, she submits no evidence to support that claim other than a letter stating that "Ms. Weeks will be allowed to rent on a month-to-month basis at the above address while she continues to look for another place to live."

I must first address a preliminary procedural matter. Although not raised by petitioner, it appears that respondent failed to comply with the procedures required by 8 NYCRR "100.2(y). That section provides, in pertinent part:

Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child's parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child's right to attend school in the district. 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 neither a resident of such district nor entitled to attend its schools . . ., 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 (emphasis added).

Section 100.2(y)(2) also provides that the written notice must state, among other things, " . . . the basis for the determination that the child is neither a resident of the district nor entitled to attend its schools . . . ."

The record contains no evidence that respondent afforded petitioner the opportunity to submit information concerning her son’s residency prior to the final residency determination contained in the October 9, 1997 letter. That letter appears to be the first and only written communication in the record to petitioner regarding residency. Moreover, the October 9 determination letter failed to state an adequate basis for the determination of non-residency, other than to state that it was "[a]s a result of the Uniondale School District’s investigation . . . ." Accordingly, I admonish the district to comply henceforth with the procedures established in 8 NYCRR "100.2(y).

Turning now to 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 to students whose parents or legal guardians reside within the district (Appeal of Keenan, 36 Ed Dept Rep 6; Appeal of Brutcher, 33 id. 56). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Keenan, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district (Vaughn, et al. v. Bd. of Educ., 64 Misc. 2d 60; Appeal of Varghese, 34 Ed Dept Rep 455; Matter of Whiteman, 24 id. 337) and an intent to reside in the district (Appeal of Varghese, supra; Matter of Whiteman, supra; Matter of Manning, 24 Ed Dept Rep 33). Moreover, for purposes of Education Law "3202, a person can have only one legal residence (Appeal of Britton, 33 Ed Dept Rep 198; Appeal of Wadas, 21 id. 577).

Petitioner makes no attempt to rebut the presumption that her son resides with her. Since she admits in the petition that she and Hassan are residing at an address outside the district, I am compelled to uphold the district’s determination of non-residency and dismiss the appeal.

However, absent petitioner’s admission, respondent’s evidence is far from overwhelming. Indeed, respondent provides no substantive evidence regarding its investigation of petitioner’s residence other than Hassan’s statement to a school secretary. In another case involving this district, I declined to find the statements of a second grader regarding his residence outside the district determinative (Appeal of Bouttry-Martin, 37 Ed Dept Rep 125). Although in this appeal petitioner admits her residency outside the district, I am nonetheless troubled by respondent’s initial reliance on the statements of a fourth grader.

I am also compelled to note that the instant case is not the first time respondent has been advised recently of the inadequacies of its investigative techniques or its procedures. (See, e.g., Appeal of Bouttry-Martin, supra; Appeal of Mayhew, 37 id. 110; Appeal of Monteiro, 35 id. 346). I remind respondent of its duty to comply with all applicable procedures regarding residency, and to conduct thorough and verifiable investigations in the future.