Appeal of TASHIKA TAYLOR, on behalf of her son TERENCE, from action of the Board of Education of the Cheektowaga Central School District regarding residency.

 

 

(July 2, 2003)

 

Quinn, McGarry, Caffery & Patricia, P.C., attorneys for respondent, Thomas J. DeBoy, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cheektowaga Central School District ("respondent") that her son, Terence, is not a resident of the district.  The appeal must be dismissed.

Petitioner enrolled her son in respondent"s Pine Hill Primary Center in September 2002, asserting that she and Terence lived on East Delavan Avenue within respondent"s district.  In the fall of 2002, petitioner"s son allegedly told respondent"s principal that he resided in the City of Buffalo, outside respondent"s district.  Respondent subsequently initiated a residency investigation. Respondent claims that both petitioner and her husband admitted to respondent"s principal that they reside outside respondent"s district and that the in-district address is the site of petitioner"s business.  Respondent retained a licensed private investigator to conduct surveillance.  The surveillance report concluded that Terence did not reside within respondent"s district.

By letter dated February 26, 2003, respondent"s superintendent informed petitioner of his determination that Terence was not a district resident.  This appeal ensued.

Petitioner maintains that she and Terence reside within respondent"s district.  Respondent contends that petitioner and Terence do not reside within respondent"s district and raises several affirmative defenses.  Respondent asserts that petitioner failed to effectuate proper service of the petition and that the petition is not verified.  Respondent further argues that, given the alleged defective service and other irregularities, petitioner has failed to timely commence the appeal and that the petition fails to state a claim on which relief can be granted.  

The appeal must be dismissed.  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.

Petitioner had delivered to respondent on or about March 4, 2003 some documents setting forth her claim of residence.  She also filed them with my Office of Counsel, which returned them and notified her that they did not comply with the Commissioner"s regulations in several respects, including service.  Petitioner was advised that a new petition that conformed to the Commissioner"s regulations could be served on respondent and filed with my Office of Counsel.  Petitioner subsequently filed a new petition with my Office of Counsel, but the record does not establish that the new petition was properly served on respondent.  Moreover, petitioner has failed to reply to respondent"s affirmative defenses.  Therefore, based on the record before me, I am constrained to dismiss the appeal for lack of personal service on respondent (8 NYCRR "275.8[a]; Appeal of K.R., 40 Ed Dept Rep 189, Decision No. 14,457; Appeal of Davis, 39 id. 181, Decision No. 14,207; Appeal of Lee D., 38 id. 262, Decision No. 14,029).

     In view of this determination, it is not necessary for me to address the parties" remaining contentions.

     Although the appeal must be dismissed for the reason set forth above, respondent"s "Statement of Residency" document warrants comment.  That document indicates that respondent will bill the parents/guardians of students illegally attending their schools.  The document further states that the amount charged varies based on whether the child is disabled.  This is legally impermissible.  Even though the actual cost of educating a student with a disability may be higher than that of educating a nondisabled student, to charge a higher tuition for the former student would constitute discrimination solely on the basis of his or her disability (see, Letter from the Assistant Secretary for Civil Rights, United States Department of Education, Office for Civil Rights, August 10, 1994).  Respondent should review and revise its residency policy to ensure compliance with State and federal law and regulations.

 

THE APPEAL IS DISMISSED.

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