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Decision No. 14,531

Appeal of A STUDENT WITH A DISABILITY, from action of the Board of Education of the Greenport Union Free School District regarding residency.

Decision No. 14,531

(January 17, 2001)

Michele Kule-Korgood, Esq., attorney for petitioner

Guercio & Guercio, attorneys for respondent, Vanessa M. Sheehan and Randy Glasser, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Greenport Union Free School District ("respondent") that he is not a district resident. The appeal must be dismissed.

Petitioner is nineteen years old and is identified as a student with a disability by respondent’s Committee on Special Education (CSE). Petitioner attended elementary school in the Oysterponds Union Free School District ("Oysterponds") from kindergarten through sixth grade while residing with his parents on Fire Road #7 in East Marion. He attended respondent’s schools from seventh to eleventh grade pursuant to a contractual arrangement whereby respondent’s district provides educational services for secondary school students residing in Oysterponds. Since 1997, respondent’s CSE has assumed responsibility for making educational recommendations for petitioner. At some point in 1998, petitioner was placed by his parents in DeSisto School, a private residential educational facility in Stockbridge, Massachusetts, which he currently attends. Petitioner left DeSisto School in February 1999, returned to Greenport and requested enrollment and registration information from respondent’s director of guidance and special education. From late March through June 1999, he worked at the East End Marine Supply, Inc. at 230 Corwin Street in Greenport. His W-2 form for 1999 indicates that petitioner earned $3,641.63 and lived at 516 Washington Avenue in Greenport during this period. Petitioner’s tax refund was mailed to 62 Washington Avenue in Greenport.

Petitioner returned to DeSisto School from jail in August 1999 after he was arrested and charged with criminal possession of stolen property in the fourth degree and the unauthorized use of a motor vehicle. He was released on his own recognizance contingent on his attendance at DeSisto School. Petitioner has continued to live at the school since that time.

Petitioner’s mother requested a CSE meeting in August 1999 on petitioner’s behalf and disagreed in writing with respondent after the October 18 meeting regarding potential placements for her son, finding "unacceptable" one private school’s use of aversive therapy and plastic wrist/ankle restraints. An impartial hearing, requested December 10, 1999, was held in February and March 2000 to determine whether respondent should provide reimbursement for the costs of petitioner’s attendance at DeSisto School, approximately $66,795 for the 1999-2000 school year. At the impartial hearing, petitioner asserted residency in respondent’s district.

On March 28, 2000, respondent’s superintendent informed petitioner and his parents that a residency hearing would be scheduled for April 20, 2000. A hearing was held on May 25, 2000 at which petitioner and his parents were present and represented by counsel. The superintendent issued his written decision on May 26, 2000 that petitioner is not a district resident. He found that petitioner’s parents reside in Oysterponds and continue to support him financially by paying the substantial cost of his attendance at DeSisto School and carrying him on his mother’s medical insurance. The superintendent also found that petitioner’s parents continue to actively participate in his education through CSE meetings and activities at DeSisto School. The decision was also based on a finding that petitioner did not register as a Greenport resident with Greenport High School in the spring of 1999 and failed to provide respondent with conclusive documentation of his residency when given the opportunity at that time and at the hearing.

Petitioner commenced this appeal on June 26, 2000. He contends that he no longer resides with his parents in Oysterponds. He admits that he did not return the residency forms provided to him by respondent’s director of guidance and special education in March 1999 but contends that district officials should have assisted him in completing them. Petitioner admits that he currently lives in Massachusetts where he attends DeSisto School but asserts residency in Greenport based on his presence there in the spring of 1999. Petitioner admits that his parents have been paying the cost of his placement at DeSisto School but contends that they are not supporting him and that this money has been "fronted" and that he is slowly paying them back. Petitioner admits that his parents visit him at school, attend CSE meetings and monthly support group meetings at DeSisto School but contends that they exert no control over his activities and make no decisions on his behalf.

Respondent contends that the record supports its superintendent’s determination that petitioner is not a district resident. Respondent asserts that the determination is based upon substantial evidence following a hearing consistent with Section 100.2 of the Regulations of the Commissioner of Education. Respondent contends that petitioner is enrolled in a twelve-month residential placement at DeSisto School in Massachusetts and has not had occasion to live at a physical address within the district or with his parents during most of the 1999-2000 school year. Respondent also contends that petitioner has always maintained his residence with his parents outside the district despite a brief period in the spring of 1999 when he may have lived elsewhere, and that his parents continue to support him financially and participate in CSE and school meetings. Respondent contends that petitioner’s brief period in Greenport in the spring of 1999 does not establish his residency in its district.

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 Zapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. ___, Decision No. 14,377; Appeal of Rosati, 38 id. 216, Decision No. 14,018). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023).

In this case, petitioner admits that his parents reside outside respondent’s district and that he lives in Massachusetts and has not had a physical presence as an inhabitant in Greenport or anywhere else in the State of New York since August 1999.

Petitioner relies upon a brief period in the spring of 1999 when he claims to have lived independently in Greenport but has never produced a deed or lease to property within the district or rent receipts, cancelled checks or statements from the landlord of any address within the district. Respondent considered the evidence produced by petitioner at his residency hearing in May of 2000, including testimony of witnesses called on his behalf and documents such as his social security card and driver’s permit listing his address as P.O. Box 516 in Greenport, his W-2 form for 1999 listing 516 Washington Avenue in Greenport, his 1999 tax refund addressed to 62 Washington Avenue in Greenport and his parents’ tax return for 1999. Respondent’s May 26, 2000 decision found the totality of that evidence was inadequate to establish petitioner’s residence in the district. In view of petitioner’s physical absence from the district and his physical presence in Massachusetts since August 1999, based upon the record before me, I cannot conclude that respondent acted arbitrarily or capriciously in determining that petitioner is not a district resident. Accordingly, respondent’s determination will not be set aside.