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Decision No. 18,037

Appeal of CHANDRA BLACK, on behalf of her child, from action of the Board of Education of the Lancaster Central School District regarding residency.

Decision No. 18,037

(August 24, 2021)

Webster Szanyi LLP, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Lancaster Central School District (“respondent” or “district”) that her child (“the student”) is not a district resident and, therefore, not entitled to attend the district's schools tuition-free.  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  In or around August 2020, petitioner registered the student in respondent’s schools, representing that she lived at a location within the district (the “in-district address”).  Respondent thereafter received information suggesting that the student did not reside at the in-district address.  Respondent conducted an investigation during the fall of 2020 and winter of 2020-2021, which included surveillance at the in-district address.  Petitioner and the student were not observed at the in-district address, while a vehicle registered in petitioner’s name was observed multiple times at an out-of-district address in Niagara Falls, New York. 

In a letter dated February 16, 2021, respondent’s assistant superintendent for curriculum, instruction, and pupil personnel services (“assistant superintendent”) informed petitioner of his determination that the student “may not be a legal resident of the District ....”  He invited petitioner to submit additional evidence in support of her claim of residency, which petitioner thereafter provided.

In a letter dated March 11, 2021, the assistant superintendent indicated that, although he had considered the additional information submitted by petitioner, it did not affect his determination that the student did not reside within respondent’s district.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 22, 2021.

Petitioner argues that she and the student reside at the in-district address.  She seeks a determination that the student is a district resident.

Respondent contends that the appeal must be dismissed for, among other reasons, improper service.  On the merits, respondent argues that petitioner has failed to meet her burden of proving that she resides within the district.

The appeal must be dismissed for improper service.  Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).  Here, the petition was served upon the district’s registrar.  The registrar explains in an affidavit that an individual arrived at the school district office where she works on April 13, 2021; told her that he “had paperwork” for her; that he “needed [her] name and what [she] do[es]”; and that he “needed to show that [she] received” the documents.  The registrar complied with the individual’s requests and accepted the documents.  The registrar avers that she is not, and did not represent herself to be, authorized to accept service on behalf of respondent.  Petitioner did not submit a reply or otherwise respond to these contentions.  As such, the appeal must be dismissed for improper service (Appeal of M.C., 59 Ed Dept Rep, Decision No. 17,788; Appeal of Masters, 58 id., Decision No. 17,536).

Although the appeal must be dismissed, petitioner retains the right to reapply for admission to the district on the student’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent's consideration.