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Decision No. 14,187

Appeal of D.F., on behalf of S.F. and M.F., from action of the Superintendent of Schools of the Pawling Central School District regarding residency.

Decision No. 14,187

(August 6, 1999)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the superintendent of schools of the Pawling Central School District ("respondent") that petitioner's children, S.F. and M.F., are not residents of the district. The appeal must be dismissed.

S.F. and M.F. have attended school in the Pawling Central School District ("the district") since September 1998. Prior to that, petitioner and her children resided in Las Vegas, Nevada.

In February 1999, one of the district's teachers reported to respondent that on two separate occasions she observed an adult driving S.F. to school from a point outside the district. That same month, it was reported to the principal and the special education director at S.F.'s school that S.F., who receives special education services, had been upset for several days and had told a teacher's aide that he was concerned about having to move out of the district. The special education teacher spoke to petitioner about this and petitioner informed him that she rented an apartment outside of the district that she and the children sometimes used as a weekend retreat. Petitioner, however, strongly asserted that she and her children resided with her parents within the district.

Later that week, in response to a question from his principal, S.F. reported his new address as the apartment. The telephone company confirmed to S.F.'s principal that petitioner had a telephone number listed at the address outside of the district. S.F.'s principal telephoned petitioner to inform her of these findings and to notify her that she needed to make arrangements to transfer her children out of the district. Petitioner again asserted that the apartment was only used on weekends and occasionally during the school week, but that their primary residence was with her parents within the district.

On two separate occasions -- once to his special education teacher and once to a guidance counselor -- S.F. reported that he was upset because his grandfather and his mother had told him to lie if anyone asked him where he lived.

In an attempt to ascertain the true residence of petitioner and her children, S.F.'s principal hired a private investigator, who conducted surveillance on four days. On three of those occasions, the investigator observed and videotaped petitioner and her children leaving the apartment located outside the district and driving the children to the home of petitioner's parents, where they were then picked-up by the school bus.

By letter dated April 6, 1999, respondent notified petitioner of its determination that petitioner's children were not residents of the district. Respondent's letter also informed petitioner that S.F. and M.F. would be allowed to attend school in the district through April 14, 1999.

On April 8, 1999 petitioner spoke to respondent. During this conversation, respondent informed petitioner that if she filed a stay request and an appeal with the Commissioner of Education challenging the residency determination, respondent would allow S.F. and M.F. to complete the school year in the district's schools.

On April 23, 1999 petitioner commenced this appeal. By letter dated April 27, 1999 respondent notified petitioner that S.F. and M.F. could remain in the district's schools during the pendency of this appeal.

Petitioner contends that she and her children live with her parents within the district and, as such, her children are entitled to attend the district's schools without the payment of tuition. While admitting that she rents an apartment outside the district, petitioner contends that she and her children use that apartment only for weekend getaways and occasionally during the week, when S.F. has a doctor's appointment. Other than this assertion, petitioner submits no evidence in support of her claim. Petitioner seeks interim relief and a ruling from the Commissioner that her children are residents of the district.

Respondent alleges that, based upon its investigation, petitioner and her children reside outside of the district at an address in Pleasant Valley, New York. In support of its answer, respondent submits an affidavit from respondent superintendent; letters and memoranda from four employees of the district; and the report of a private investigator. Respondent seeks to have the petition dismissed.

Before reaching the merits, I must address two procedural issues. The first relates to petitioner's request for interim relief. Because the 1998-1999 school year has concluded, and because petitioner's children were permitted to attend the district's schools through the end of the year, the issue of interim relief is moot.

The second issue involves respondent's failure to fully comply with all of the requirements of 8 NYCRR "100.2(y) ("Determination of student residency"). This regulation requires, inter alia, that "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 opportunity to submit information concerning the child's right to attend school in the district." While petitioner was given the opportunity to present her position during the course of several telephone conversations with district personnel, she was not afforded a formal opportunity to submit information in the manner provided by 8 NYCRR "100.2(y). Accordingly, I admonish respondent to fully comply with the procedures established in 8 NYCRR 100.2(y) in the future. However, because the matter is now before me and petitioner has had ample opportunity to present evidence in support of her claim, I will address 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 Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926; Appeal of Simond, 36 id. 117, Decision No. 13,675). Residency, for purposes of Education Law "3202, is established based upon two factors: physical presence as an inhabitant within the district (Appeal of Dimbo, supra; Appeal of Daniels, supra) and an intent to reside in the district (Appeal of Dimbo, supra; Appeal of Anand, 35 Ed Dept Rep 65, Decision No. 13,466).

Other than her bare statements that she and her children reside at her parent's address within the district, petitioner offers no evidence in support of her position. In contrast, respondent offers significant evidence of petitioner's residence outside the district. I therefore find respondent's determination that petitioner and her children are not residents of the district to be neither arbitrary, capricious nor unreasonable. Accordingly, respondent's determination will not be set aside (Appeal of Digilio, 37 Ed Dept Rep 25, Decision No. 13,795; Appeal of Garbowski, 36 id. 54, Decision No. 13,653).

While the appeal must be dismissed for the above reasons, I note that petitioner retains the right to reapply to the district for admission on her children's behalf at any time (Appeal of Blagrove, 32 Ed Dept Rep 629, Decision No. 12,937).