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Decision No. 14,566

Appeal of DOUGLAS J. HARKLESS, on behalf of Jerome Harkless, from action of the Board of Education of the Uniondale Union Free School District, regarding residency.

Decision No. 14,566

(April 20, 2001)

Ingerman Smith, LLP, attorneys for respondent, Susan M. Gibson, Esq., of counsel

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

Petitioner alleges that Jerome resides with him at his residence within respondent's district. Respondent alleges that the student resides with his mother, Joann McClenic, at an out-of-district address in Hempstead, New York. On November 13, 2000 at a meeting in the office of the district’s administrative assistant for central registrations, petitioner and Ms. McClenic were informed that the results of the district's investigation of Jerome's residency indicated that Jerome was not a district resident and would be excluded from the district's schools effective November 23, 2000. Petitioner commenced this appeal through service of a copy of the petition upon respondent's superintendent on December 11, 2000. By letter dated December 21, 2000, petitioner's request for a stay pending a final determination in this appeal was denied.

Education Law "3202(1) provides in pertinent part

A person over five years 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 Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. ___, Decision No. 14,377; Appeal of Byrd, 38 id. 561, Decision No. 14,093).

For purposes of Education Law "3202, "residence" means "domicile" (Appeal of Ifill, 38 Ed Dept Rep 97, Decision No. 13,992; Appeal of Doyle-Speicher-Maldonado, 35 id. 110, Decision No. 13,481), and is established by a demonstration of one’s physical presence as an inhabitant within the district as well as his intention to remain there (Appeal of Ifill, supra; Appeal of Doyle-Speicher-Maldonado, supra). Further, for purposes of the statute, a person can have only one legal residence (Appeal of Morgan, 38 Ed Dept Rep 207, Decision No. 14,016; Appeal of Daniels, 37 id. 557, Decision No. 13,926).

Upon the record before me, including affidavits from the district’s administrative assistant for central registrations, and Jerome's fifth and fourth grade teachers, it appears that respondent's determination that Jerome is not a district resident is based upon the following facts.

Respondent initiated an investigation of Jerome's residency in January 2000 after the student told his teacher that he lived in Hempstead, New York and was being dropped off at respondent's Smith Street school every day by his mother. The district engaged an investigator to conduct surveillance at the residences of petitioner and Jerome's mother. The investigator reported that he observed Jerome being driven to school from his mother's address outside of respondent’s district at 7:45 a.m. on January 19, 2000, and at 7:44 a.m. on January 20, 2000. The investigator also stated that, while conducting surveillance at petitioner's address at 8:02 a.m. on January 31, 2000, he observed Jerome’s mother drive past the address and he then followed her to the Smith Street school, where he observed Jerome leave his mother's vehicle and enter the school.

The district’s administrative assistant for central registrations advised petitioner in a letter dated February 2, 2000 that Jerome would be excluded from attendance unless additional proof of residency was submitted by February 11, 2000. After petitioner subsequently provided additional proof of residency and stated that Jerome sometimes stayed overnight with his mother, the administrative assistant determined not to exclude the student at that time since surveillance had only been conducted on three days.

According to the administrative assistant's affidavit, in September 2000, after Jerome’s mother was again found to be dropping him off at the Smith Street school, the district conducted another investigation. Surveillance was conducted on the mother's residence from approximately 6:00 a.m. to 8:30 a.m. on five separate days between October 17 to October 24, 2000. Each time, the investigator observed the mother leaving her residence with Jerome at about 7:45 a.m. and driving him to the Smith Street school. Surveillance of petitioner's residence was conducted from approximately 6:00 a.m. to 8:30 a.m. on November 2 and 3, 2000, during which no activity was reported.

The district sent petitioner a letter advising him that unless additional proof of residency was submitted, Jerome would be excluded from attendance effective November 10, 2000. Petitioner subsequently submitted a copy of a bank card invoice addressed to petitioner, a paging service invoice addressed to Jerome at petitioner's address, and a printout of an internet directory listing "J. Harkless" as residing at his mother's address. Petitioner stated that he sometimes worked late and Jerome's mother would take Jerome home with her to help him with his homework, and that Jerome sometimes would stay overnight with her because petitioner was late in returning home from work. The district’s administrative assistant for central registration informed petitioner that the district's determination to exclude Jerome from attendance would stand based upon the results of its surveillance. On November 13, 2000, petitioner and Jerome's mother appeared at the administrative assistant's office. Jerome’s mother stated that Jerome had stayed with her because petitioner had been away and Jerome's grandmother was working. She further stated that she picked Jerome up everyday and reviewed his homework with him, then brought him to his grandmother's house. Respondent alleges that the explanations offered were inconsistent and contradictory and cites the affidavit of the district’s administrative assistant for central registration, in which she states that when petitioner came to her office on November 2, 2000, he never indicated that the explanation now offered by Jerome's mother (that petitioner had been "away") was the reason that Jerome was with her, and that petitioner and Jerome's mother never indicated specific dates when Jerome would stay overnight with his mother or gave specific dates when petitioner was "away." The administrative assistant told petitioner and Jerome's mother that Jerome was never seen leaving petitioner's house at any point during the district’s surveillance and that the district's position is that Jerome actually resides at his mother's address outside the district.

Respondent has also submitted affidavits from Jerome's fourth and fifth grade teachers. The fifth grade teacher states that Jerome was her student from the beginning of the 2000-2001 school year until November 2000, and that all of her communication during this time was with Jerome's mother, that she often used the mother's cell phone number to communicate, and that once when she was confirming her students' current phone numbers, Jerome first recited his mother's phone number, then quickly changed it to another phone number that is neither the petitioner’s nor his mother's cell phone. The fourth grade teacher states that most of her communication during the previous school year was with Jerome’s mother through telephone conversations and that Jerome once told her that his mother picked him up after school, brought him to her residence and dropped him off near the Smith Street school in the mornings.

Based upon the above-described facts, as set forth in the record, I find no basis to conclude that respondent acted arbitrarily or improperly in determining that Jerome is not a resident of the district. Petitioner's allegations in support of his petition are merely conclusory and unsupported by any documentation or other proof to establish Jerome's residency in respondent's district. The weight of the evidence supports respondent's determination that Jerome is not a district resident (Appeal of Saliba, 37 Ed Dept Rep 101, Decision No. 13,814; Appeal of Keenan, 36 id. 6, Decision No. 13,635).

While the appeal must be dismissed, I note that petitioner retains the right to reapply at any time for the admission of Jerome to attendance in respondent's district and if sufficient proof to establish his residency in the district is produced, Jerome would be entitled to attend respondent's schools pursuant to Education Law "3202.