Appeal of WANDA HUMPHREY, on behalf of JELANI WASHINGTON-CRUM, from action of the Board of Education of the Pittsford Central School District regarding residency.

 

Decision No. 14,940

 

(August 26, 2003)

 

Dibble & Miller, P.C., attorneys for petitioner, Michael A. Burger, Esq., of counsel

 

Harris Beach, LLP, attorneys for respondent, Laura M. Purcell, Esq., of counsel

 

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

Jelani has lived with petitioner since August 22, 2002.  Prior to that date, he lived with his mother, Claire Washington, in Philadelphia, Pennsylvania.  To enroll Jelani in respondent"s schools, petitioner completed a Residential Custodial Affidavit dated August 24, 2002, indicating that Jelani would be living with her until his mother relocated to respondent"s district.  This affidavit also indicated that parental custody and control had not been transferred to her.

Jelani"s mother submitted a Natural Parent Affidavit indicating that she would be relocating to respondent"s district later in the school year and that Jelani would live with petitioner until then.  She also indicated that she provided Jelani with financial support in the amount of $200 a month.

Respondent"s Director of Pupil Services ("director") reviewed the affidavits and notified Jelani"s mother that if she could provide proof that she was moving to the district, Jelani could enroll in respondent"s school.  Ms. Washington and petitioner gave the director a copy of a contract with a real estate broker dated August 28, 2002, listing for sale her home in Philadelphia.  Petitioner also completed a Shared Housing Affidavit dated August 29, 2002, indicating that Jelani and his mother would be living with her.  Petitioner stated the reason for shared housing was the family decision to relocate.

By letter dated September 4, 2002, the director notified Ms. Washington that Jelani"s school admission was approved for the 2002-2003 school year "pending your relocation" by January 24, 2003."  The letter also stated, "If relocation occurs after this date, Jelani may only continue to attend Pittsford Central Schools on a tuition-basis."  The director applied respondent"s written non-resident student policy in Jelani"s case.  That policy states:

Parents or guardians who have proper written verification that they will become residents of the District after the beginning of a school year and who want to enroll students as soon as possible at the school they will be attending may do so after all arrangements are made with the Assistant Superintendent for Pupil Services and Special Education.  Tuition will not be charged for the semester in which the student"s parents or guardians move into the district. Tuition will be charged thereafter if residency is not established during the semester in which the student commences attendance.

On December 17, 2002, the director e-mailed Ms. Washington to inquire about her relocation but received no response.  The director also attempted unsuccessfully to contact Ms. Washington by telephone.

On January 24, 2003, the director and petitioner met to discuss Jelani"s residency. The director informed petitioner that she needed proof that Ms. Washington would be relocating for Jelani to continue attending respondent"s schools.  The director states that she advised petitioner that if such proof were not provided, Jelani would be excluded from respondent"s schools on January 30, 2003.  The director received no further information from petitioner or Ms. Washington.  Jelani attended school on January 31, 2003.  School staff called petitioner to pick him up because he was no longer entitled to attend respondent"s schools.  When picking up Jelani, petitioner informed the director that Ms. Washington would not be moving to the district after all.

Petitioner appealed to respondent"s superintendent.  On February 3, 2003, the superintendent and director met with petitioner.  Petitioner reiterated that Ms. Washington would not be moving to the district.  However, she stated that she was pursuing a transfer of guardianship, which would not be completed for two weeks.  The superintendent and the director advised petitioner that Jelani would still not be eligible to attend respondent"s schools.  The director states that she provided petitioner with written notice of her right to appeal this determination to the Commissioner.  Apparently several attempts by petitioner"s counsel to resolve the dispute with respondent, including offers to pay tuition, were unsuccessful.

Petitioner commenced this appeal on or about February 27, 2003.  Petitioner"s request for interim relief was denied on March 7, 2003.

Petitioner maintains that Jelani"s only residence is with her and that his mother is willing to make a permanent and total transfer of custody and control to petitioner, which she is willing to accept.  Petitioner also contends that respondent failed to provide a hearing before excluding Jelani or proper written notice of its determination to exclude Jelani from school.  Finally, she contends that the director"s September 4, 2002 letter requires respondent to enroll Jelani upon payment of tuition.

Respondent asserts that petitioner has failed to demonstrate that Jelani is entitled to attend respondent"s schools under its policy regarding non-resident attendance.  Moreover, respondent maintains that petitioner has not demonstrated that Ms. Washington has given complete custody and control of Jelani to petitioner, or that Jelani is emancipated.

Respondent contends that petitioner"s memorandum of law raises new facts and arguments.  A memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Decastro, 41 Ed Dept Rep 415, Decision No.14,730).  Therefore, I have not considered those portions of petitioner"s memorandum of law that relate to issues not part of the pleadings.

Education Law "3202(1) provides in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Burnett, 42 Ed Dept Rep ___, Decision No. 14,825; Appeal of J.M., 42 id. ___, Decision No. 14,783).  Residency for purposes of Education Law "3202 is established based upon two factors: physical presence and an intent to reside in the district (Appeal of Burnett, supra).  A child"s residence is presumed to be that of his or her parent or legal guardians (Appeal of Washington, 42 Ed Dept Rep ___, Decision No. 14, 820; Appeal of Gimenez, 42 id. ___, Decision No. 14,812).  This presumption may be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of M.S., 42 Ed Dept Rep ___, Decision No. 14,767).  Moreover, where the sole reason that the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of T.B. and N.B., 42 Ed Dept Rep ___, Decision No. 14,803, Appeal of Maxwell, 42 id. ___, Decision No. 14,799).

I do not find that respondent was arbitrary or capricious in its determination that Jelani is not a district resident.  The director permitted Jelani to attend respondent"s schools based upon petitioner and Ms. Washington"s representation that Ms. Washington would be relocating to respondent"s district.  While respondent"s non-resident policy is not entirely clear, once district officials were advised that Jelani"s mother would not be relocating to the district, it was reasonable for respondent to conclude that Jelani was no longer eligible to attend its schools.  Petitioner"s statement that Ms. Washington is willing to transfer custody and control of Jelani to her, and that she is willing to accept that responsibility, is not sufficient to establish Jelani"s residence in the district. 

Moreover, petitioner has not established that Jelani is emancipated, which would rebut the presumption that he resides with his mother (Appeal of Swezey, 39 Ed Dept Rep 81, Decision No. 14,180).  For purposes of establishing residency under Education Law "3202, a student is considered emancipated if he or she is beyond the compulsory school age, is living separate and apart form his or her parents in a manner inconsistent with parental custody and control, is not receiving financial support from his or her parents, and has no intent to return home(Appeal of Swezey, supra).  A child is required to attend school full-time from age 6 to 16, and must remain in school for the entire school year during which he or she turns 16 (Education Law "3205).  Jelani turned 16 in October 2002 and, therefore, was required to remain in school until the 2002-2003 school year ended.  Thus, at the time of respondent"s determination and the commencement of this appeal, Jelani was not beyond the compulsory school age and could not establish emancipation.

     Section "100.2(y) of the Commissioner"s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools. Among other things, this provision requires a board or its designee to provide the parent with the opportunity to submit information concerning the child"s right to attend school in the district prior to making a determination.   It also requires the district to give the parent written notice of its determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded and the parent"s right to appeal the determination.

     Petitioner met with the director on January 24, 2003 and was advised that additional information was needed to establish Jelani"s right to attend respondent"s schools.  Petitioner did not supply additional information.  Respondent then excluded Jelani as of January 31, 2003, apparently without providing petitioner with prior written notice.  Petitioner met with the director and superintendent on February 3, 2003.

The record does not contain the written notice of the appeal rights that the director allegedly provided to petitioner on February 3, 2003.  It does reflect that information on the appeal process was later provided to petitioner"s attorney.  I remind respondent to fully comply with the regulation in the future.

     Based on the record before me, I find that respondent"s determination that Jelani is not a district resident is neither arbitrary nor capricious.  Although the appeal is dismissed, I note that petitioner is free to reapply for Jelani"s admission to respondent"s schools at any time.

 

THE APPEAL IS DISMISSED.

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