Decision No. 13,666

(August 28, 1996)

Paul A. Crotty, Corporation Counsel, attorney for respondent, Kenneth Michaels, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of Community School 26 ("respondent") that her daughter is not a resident of the district. The appeal must be sustained.

Petitioner alleges that she has resided in Fresh Meadows, New York, within respondent's district, with her daughter, Tanisha since May 1994. Tanisha had been attending junior high school in respondent's district since September 1994. Petitioner's residence first became an issue when two letters sent by school officials to Tanisha at the Fresh Meadows address were returned on or about December 2, 1995 and January 11, 1996 marked "attempted, unknown" by the post office. A secretary in respondent's school subsequently questioned Tanisha about whether the letters were properly addressed and Tanisha indicated that they were. Respondent then checked the student's admission records to determine whether proper proof of address had been submitted for her. Those records revealed that Tanisha had been admitted to school using an address in the name of her aunt rather than that of petitioner. On December 11, 1995, respondent's principal sent a letter to the managing agent of the development in which the apartment listed as Tanisha's address was located to inquire as to whether Tanisha actually lived at that address. By letter dated January 19, 1996, the managing agent stated that Tanisha was not a tenant or resident of the apartment. A check of respondent's automated computer system listed petitioner's last known address to be in Brooklyn and discovered that petitioner still had a telephone listing at that address.

By letter dated January 22, 1996, respondent's school principal informed petitioner that Tanisha would be excluded from school based on the fact that letters sent to Tanisha at the Fresh Meadows address were returned to the school by the post office and that the management company of the apartment confirmed that Tanisha did not reside at that address. On January 24, 1996, petitioner came to respondent's office to appeal respondent's residency determination. Petitioner claimed that she had been living with her sister in the district since May 1994, but that her niece resided at her former Brooklyn address and she had not changed the name on the telephone bill. By letter dated January 26, 1996, respondent's superintendent denied petitioner's appeal of the residency determination. In another letter dated January 26, 1996, respondent's principal informed petitioner that Tanisha was discharged to I.S. 218K in Brooklyn. Subsequently, respondent excluded the student from Ryan Junior High School. This appeal ensued. Petitioner's request for interim relief was granted on March 4, 1996.

Petitioner alleges that Tanisha is a resident of respondent's district and seeks a determination that she is therefore entitled to attend school in the district without the payment of tuition. Petitioner alleges that Tanisha has experienced behavioral difficulties in school due to a variety of family tragedies and further asserts that she has frequently received mail from respondent at the Fresh Meadows address as a result of her daughter's disciplinary problems. Petitioner also alleges that she requested the addition of her name to her sister's lease for the Fresh Meadows apartment but was informed that it could not be added until the lease's renewal. Respondent contends that petitioner resides in Brooklyn outside the district and, therefore, should attend school in Brooklyn.

Education Law '3202(1) provides, in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374).

In this case, respondent contends that neither petitioner nor her daughter are residents of the district based on the post office's return of two letters sent to Tanisha at the Fresh Meadows apartment listed as her address and the assertion of the management company for the Fresh Meadows development that its records indicate that Tanisha does not reside in the apartment. Petitioner submits several letters addressed to her that were delivered at the Fresh Meadows address, including a department store bill, a summons and complaint in civil court of the City of New York and correspondence from her other daughter's school. I note that the letters that were returned by the post office as "attempted, unknown," were addressed to Tanisha Stuart and not to petitioner.

Despite the assertions of the management company that Tanisha is not a legal resident of the apartment, petitioner produces a statement from her sister indicating that both petitioner and Tanisha have resided with her at the Fresh Meadows address since July 1994. Although respondent argues that petitioner and Tanisha cannot live at the Fresh Meadows address because that would constitute an over-occupancy of that unit, I do not find that argument persuasive as to their actual residency. Based on the record before me, including the documentation submitted by petitioner, I conclude that respondent had insufficient evidence on which to base its determination that Tanisha's residence is outside the district. Therefore, the appeal must be sustained.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit Tanisha Stuart to its schools without the payment of tuition.

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