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Decision No. 14,769

Appeal of B.O. and D.O., on behalf of their daughters, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 14,769

(August 8, 2002)

McGuire, Kehl & Nealon, LLP, attorneys for respondent, Terri E. Simon, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge a determination of the Board of Education of the City School District of the City of New Rochelle ("respondent") that their daughters are not district residents. The appeal must be dismissed.

Petitioner D.O. enrolled her daughters in respondent"s schools in August 2001. At that time, she claimed that she and her family moved from a residence within the Mount Vernon City School District to a residence at Horton Avenue, within respondent"s district.

Subsequent to their enrollment, respondent"s attendance officer went to petitioners" alleged district residence on a number of occasions, but did not find petitioners or their daughters present. Respondent"s attendance officer telephoned the New Rochelle Municipal Housing Authority, which manages the apartment building at the Horton Avenue address, and was told that no one in petitioners" family was listed in their records as residents at that address.

On January 7, 2002, the district"s director of pupil services ("director") sent a letter to petitioners stating that she had been informed that petitioners and their daughters were not district residents and invited them to submit information regarding their residence by January 18, 2002.

On January 17, 2002, D.O. met with the director and told her that the apartment at Horton Avenue belonged to her husband"s mother and that the family was staying with her temporarily. D.O. was asked to complete a district residency form. In completing the form, D.O. listed a male child who receives pre-school special education services through the Mount Vernon City School District in addition to her two daughters. The only evidence of residence submitted by D.O. was some mail addressed to her and her husband at the Horton Avenue address.

By letter dated January 28, 2002, the director informed petitioners of respondent"s determination that they and their daughters were not district residents. This appeal ensued. Petitioners" request for interim relief was granted on March 7, 2002.

Petitioners allege that they are homeless and that B.O. went to live with his mother in respondent"s district to establish residency for the family. Petitioners concede that D.O. still resides in Mount Vernon and state that D.O. failed to inform respondent of their situation out of embarrassment and because she "thought it would jeopardize the school district situation." Petitioners request a determination that their children are district residents who may attend New Rochelle schools without the payment of tuition.

Respondent submits that petitioners reside in the Mount Vernon City School District. Respondent maintains that Mount Vernon considers petitioners residents of that district and provides special education services to their son through the Mount Vernon City School District"s Pre-School Committee on Special Education. Moreover, respondent claims that petitioners have failed to provide any evidence that B.O. or their daughters reside within respondent"s district. Respondent argues that its residency determination is neither arbitrary nor capricious and must be upheld.

Before addressing the merits, I must address a procedural matter. On March 19 and April 11, 2002, my Office of Counsel received requests from respondent to file supplemental affidavits from the director and an attendance officer. Petitioners have not opposed respondent"s applications. Pursuant to "276.5 of the Commissioner"s regulations, the Commissioner may permit the filing of additional exhibits or papers. I will grant respondent"s applications in light of the fact that they contain relevant information obtained after respondent filed its answer.

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 Laquerre, 40 Ed Dept Rep 565, Decision No. 14,558; Appeal of Green, 40 id. 525, Decision No. 14,545; Appeal of Whitfield, 40 id. 32, Decision No. 14,412). Residency, 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 within the district (Appeal of Green, supra; Appeal of Whitfield, supra).

In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Kim M. Teri, 41 Ed Dept Rep ___, Decision No. 14,626; Appeal of S.H., 40 id. 661, Decision No. 14,578; Appeal of Laquerre, supra).

Based on the record before me, I find that petitioners have failed to demonstrate that any member of their family resides within respondent"s district. First, petitioners" son is receiving special education services through the Mount Vernon City School District"s Committee on Pre-School Special Education. Second, on two occasions in March of 2002, petitioners" daughters were seen leaving their prior address in Mount Vernon to travel to school within respondent"s district. And finally, in a sworn affidavit, the director states that she spoke with petitioners" alleged host within the district who indicated that no member of petitioners" family resided within her household. Moreover, I find it significant that B.O. has failed to furnish any sworn statements in support of this petition, although he is the parent who allegedly moved into respondent"s district to establish residency for the family. There is simply no evidence in the record to support the allegation that anyone in petitioners" family resides within respondent"s district.

In view of the foregoing, I find respondent"s determination to be neither arbitrary nor capricious. Accordingly, it will not be set aside (Appeal of Green, supra; Appeal of D.F., 39 Ed Dept Rep 106, Decision No. 14,187).