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Decision No. 14,820

Appeal of DARLENE WASHINGTON, on behalf of her children MODESTI, RETHA and RICHARD KIMBREW, from action of the Board of Education of the Gates-Chili Central School District regarding residency.

Decision No. 14,820

(November 19, 2002)

Harris Beach, LLP, attorneys for respondent, Alfred L. Streppa, of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Gates-Chili Central School District ("respondent") that her children, Modesti, Retha and Richard, are not district residents. The appeal must be dismissed.

On June 3, 2002, the district"s residency officer conducted a hearing to determine whether petitioner"s children resided in the district. Respondent asserts that at the hearing, petitioner stated that she had sole custody of the children, paid all their bills and insurance, and declared them as dependents on her income tax return. Respondent also asserts that petitioner admitted that she resides with her boyfriend on Clay Street in Rochester and that she uses the Clay Street address for her income tax returns, car registration and direct deposit notification from work. Respondent states that the Clay Street address is not within its district, but rather is within the City School District of the City of Rochester.

By certified letter dated June 4, 2002, the residency officer notified petitioner that based on the information presented at the hearing, petitioner"s children were not district residents. Petitioner signed for the letter, addressed to the Clay Street address, on June 6, 2002. This appeal ensued. Petitioner"s request for interim relief was denied on August 9, 2002.

Respondent asserts that the petition is untimely and fails to establish that petitioner or her children are district residents.

The appeal must be dismissed as untimely. An appeal to the Commissioner pursuant to Education Law "310 must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner received respondent"s determination on June 6, 2002, yet she did not commence her appeal until July 25, 2002. Petitioner claims she received late information about how to appeal. However, respondent"s determination letter included information about the appeal process, including the 30-day time period. Accordingly, I find that petitioner has not provided good cause to excuse her delay. Consequently, the appeal must be dismissed as untimely.

The appeal must also be dismissed on 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 Perez, 42 Ed Dept Rep ___, Decision No. 14,779; Appeal of Thomas, 41 id. ___, Decision No. 14,622; Appeal of Oliver, 41 id. ___, Decision No. 14,603). A student"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Donohue, 41 Ed Dept Rep ___, Decision No. 14,601; Appeal of Weaver, 39 id. 588, Decision No. 14,320; Appeal of Williams, 39 id. 73, Decision No. 14,177). For purposes of Education Law "3202, a person can only have one legal residence (Appeal of O'Herron, 41 Ed Dept Rep ___, Decision No. 14,591; Appeal of LaQuerre, 40 id. 565, Decision No. 14,558; Appeal of Embler, 40 id. 17, Decision No. 14,406).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of James, 41 Ed Dept Rep ___, Decision No. 14,752). Petitioner provides three documents with her petition that were not considered at the June 3, 2002 hearing, but are addressed to her at an address on Archer Road in Rochester: an envelope from Valeo Electrical Systems, postmarked June 28, 2002; an envelope from the Monroe County Child Support Enforcement Unit with an illegible postmark; and a bill from Chrysler Financial. I do not find these documents sufficient to overcome petitioner"s admissions at the hearing that she resides on Clay Street, outside the district. Petitioner not only fails to allege that the Archer Road address is within respondent"s district, but she fails to submit any evidence such as a lease or deed that she actually resides there. Accordingly, I find that petitioner has not met her burden of demonstrating a clear legal right to the relief requested and of establishing the facts upon which relief is sought (Appeal of James, supra; Appeal of O'Herron, supra; Appeal of LaQuerre, supra). Accordingly, based on the record before me, I cannot conclude that respondent"s decision was irrational.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission on her children"s behalf at any time and to present any new information for respondent"s consideration (Appeal of Perez, supra; Appeal of Santoianni, 40 Ed Dept Rep 237, Decision No. 14,470; Appeal of D.F., 39 id. 106, Decision No. 14,187).