Decision No. 12,765

(July 31, 1992)

SOBOL, Commissioner.--Petitioner appeals from determinations of respondents Valley Stream Union Free School District (the union free school district) and Valley Stream Central High School District (the central high school district) excluding her children from attendance on the ground they are not residents of the respective districts. The appeal must be sustained in part.

In March 1991, petitioner resided at 200 Shaw Avenue, located within both the union free and the central high school districts. Her children, Tony and Jodi, enrolled in elementary school in the union free school district and her daughter, Sonia, entered junior high school in the central high school district. In September 1991, petitioner's landlord decided to sell the building at 200 Shaw Avenue, and petitioner was forced to vacate the premises. As an interim measure, petitioner rented a home located at 20 Everett Street on a month-to-month basis. Although she now admits that this property does not lie within either of the districts, petitioner alleges that, at the time of the move, she believed 20 Everett Street was within their boundaries. Petitioner states she had no intention of leaving the districts to establish residency elsewhere.

By letters dated February 14, 1992 and February 24, 1992, respectively, the superintendent of the central high school district and the superintendent of the union free school district notified petitioner that, as nonresidents, her children would not be permitted to continue in attendance in their public schools. Although both letters advised petitioner of her right to appeal to the Commissioner of Education, as required by '100.2(y) of the Regulations of the Commissioner of Education (8 NYCRR 100.2[y]), the record contains no evidence that petitioner was afforded an opportunity to present information regarding her residency prior to the superintendents' final determinations, as the regulation requires. Indeed, in its answer, the central high school district states:

Petitioner commenced this appeal on March 3, 1992. In her petition, she requested an interim order directing respondents to maintain her children in their schools pending a decision on the merits. The Commissioner granted interim relief on March 10, 1992.

The Regulations of the Commissioner of Education provide:

In this case, neither district provided petitioner with an opportunity to submit information concerning her children's right to attend the districts' schools, before making their determinations of nonresidency. Although the districts advised petitioner of her right to appeal to the Commissioner of Education in a timely fashion, that does not excuse respondents' failure to provide the parent with all due process required by the Commissioner's regulation. Under no circumstances may a district deny a parent the right to submit information under '100.2(y), no matter how obvious the issue of residency may appear. I find that both districts violated the prescriptions of '100.2(y), and admonish each of them to comply henceforth with the procedures established therein (Application of Mandel, 29 Ed Dept Rep 187, 189).

Nonetheless, since the matter is now before me and petitioner has had ample opportunity to present evidence in support of her claim, I will address the merits. In reviewing the record, I find the weight of the evidence to suggest that petitioner's children are not residents of the respondent districts. Although petitioner expresses an intent to obtain permanent housing within the districts, she has not offered any evidence to rebut respondents' determinations that her children do not actually reside there (Appeal of Garland, 30 Ed Dept Rep 209, 211). When, due to circumstances beyond their control, a family is forced to make temporary living arrangements outside their district of residence, they do not necessarily lose their residence if their actions reflect an intent to return (Appeal of Kenneth R., 30 Ed Dept Rep 297, 299). In such cases, however, the family must demonstrate, on the record, evidence of continuing efforts to return to the district of residence (id.). Petitioner supplies no evidence of a continuing effort to return to the respondent districts.

Petitioner also urges that her children be allowed to attend respondents' schools because continued attendance in the districts would be in their best interests. While I recognize that changing school districts can be difficult, I find no basis in this record to order the admission of petitioner's children to the respondent districts without the payment of tuition (Appeal of Kenneth R., supra). The obligation of a school district to provide tuition-free instruction is limited to pupils who reside within the district (Education Law '3202[1]; Application of Mandel, supra). It is undisputed that petitioner's children do not reside in the respondent districts. If petitioner subsequently returns to the districts, nothing in this decision precludes her from submitting to respondents additional documentation to reestablish her children's residency there. On the record before me, however, I find that petitioner's children are not residents of the respondent districts and, consequently, are not entitled to attend the public schools of the districts without the payment of tuition.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED, and

IT IS ORDERED that respondents comply henceforth with all procedures required by the provisions of 8 NYCRR 100.2(y).

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