Appeal of MIKAYLA WILLIAMS, on behalf of her children, from action of the Board of Education of the Greece Central School District regarding residency.

Decision No. 18,477

(August 20, 2024)

New York Civil Liberties Union, attorneys for petitioner, Emma Curran Donnelly Hulse and Stefanie D. Coyle, Esqs., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Greece Central School District (“respondent”) that her two children (the “students”) are not district residents.  The appeal must be dismissed.

Petitioner and the students previously attended respondent’s schools based on petitioner’s claim that she resided at a location therein (the “in-district address”).  In early 2023, one of the students informed his classroom teacher that he did not reside within the district.  Respondent thereafter conducted surveillance and concluded that petitioner and her family resided at a location outside of the district (the “out-of-district address”).  By letter dated April 24, 2023, respondent’s superintendent informed petitioner that it had determined that the students resided outside of the district.  The superintendent informed petitioner that, prior to exclusion, she had the opportunity to submit information to the district regarding her residence.  Petitioner indicates that she received this letter, which was mailed to the out-of-district address.[1]  Petitioner thereafter submitted additional documents that did not affect respondent’s conclusion.  Thus, respondent excluded the older student[2] as of April 28, 2023.  Petitioner did not appeal this determination.

In September 2023, respondent executed an affidavit indicating that she and the students resided at the in-district address.  Respondent enrolled the student and conducted further investigation into petitioner’s residency.  Over six days of surveillance, neither petitioner nor the students were observed at the in-district address.  By contrast, on four of these dates, the investigator observed a car belonging to petitioner at the out-of-district address.  On one of these days, a neighbor confirmed that “the same woman” (i.e., petitioner) had been living at the out-of-district address “for over a year.”

By letter dated November 27, 2023, respondent again determined that the students were not district residents.  As it had last year, respondent mailed a copy of this letter to the out-of-district address.  Petitioner claims that she did not receive this letter and only received notice of the students’ exclusion on December 4, 2023 from a bus driver.

On December 5, 2023, an assistant superintendent spoke with petitioner and petitioner’s mother (“grandmother”) by phone.  The assistant superintendent indicated that the district had conducted further investigation and determined that petitioner and the students continued to reside at the out-of-district address.  According to respondent, petitioner did not disagree with this assertion, asserting in response that respondent could not “tell [her] where [her] children should sleep at night.”  The grandmother indicated that she believed the students should be allowed to attend respondent’s schools because she (i.e., the grandmother) resided therein and paid taxes.

On January 22, 2024, the school district that serves the out-of-district address agreed to admit the students to its district.  It did so, according to petitioner, on a “temporary basis.”

On February 13, 2024, counsel for petitioner wrote to respondent, requesting the evidence upon which it based its determination (8 NYCRR 100.2 [y] [6]).  When respondent did not provide any additional information, counsel for petitioner inquired again on March 1, 2024.  Having received no response, petitioner commenced this appeal on March 27, 2024.

Petitioner argues that the district’s residency determination is erroneous and that she was given insufficient notice in violation of 8 NYCRR 100.2 (y).  She argues that the appeal is timely as it was commenced within 30 days of her counsel’s last communication with respondent.  Alternatively, petitioner argues that the untimeliness of the appeal should be excused for good cause.  On the merits, petitioner argues that she resides at the in-district address but admits that she and the students spend time at the out-of-district address.  She seeks a determination that the students are district residents.

Respondent argues that petitioner’s claims should be dismissed as untimely, that she failed to state a cause of action upon which relief can be granted, and that she has otherwise failed to meet her burden of proof.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  While petitioner contends that she did not receive respondent’s November 27, 2023 determination, petitioner does not dispute that she received actual notice of respondent’s determination on December 4, 2023.  “It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring an appeal to the Commissioner” (Appeal of J.B., 62 Ed Dept Rep, Decision No. 18,245).  While prior decisions of the Commissioner have excused delays in commencing residency appeals where the facts suggest residency in the district, the delay is minimal, and reapplying at the district level would be burdensome, those factors are not present here (see Appeal of N.H., 59 Ed Dept Rep, Decision No. 17,732; Appeal of Kowalewski, 56 id., Decision No. 17,013; Appeal of Manfredo, 56 id., Decision No. 16,943; Appeal of Jean-Louis, 49 id. 400, Decision No. 16,062).[3]  The instant appeal was commenced over three and one-half months after petitioner received notice of respondent’s determination.  Moreover, respondent based its determination on surveillance evidence, the frequent presence of petitioner’s vehicle, the statement of a neighbor, and petitioner’s tacit admission that she and the students resided at the out-of-district address.  While petitioner contests the probative value of this evidence, she has not demonstrated a clear legal right to her requested relief sufficient to overcome the substantial delay in commencing this appeal (see generally Appeal of Mosher, 46 Ed Dept Rep 334, Decision No. 15,525; Appeals of T.M., Sr., 42 id. 281, Decision No. 14,855).

While the appeal must be dismissed, the record reflects that petitioner attempted to temporarily transfer custody of the students to her mother in January 2024.  Should petitioner effectuate a total transfer of custody and control, she may reapply for the student’s admission on that basis (see e.g. Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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