Appeal of MARY JOHNSON, on behalf of DEVANIER HIGHSMITH, from action of the Board of Education of the Williamsville Central School District regarding residency.

Decision No. 15,415

(June 16, 2006)

Carol R. Rosenthal, Esq., attorney for petitioner

Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioner is a district resident and is the maternal grandmother of Devanier Highsmith.  She challenges a determination by the Board of Education of the Williamsville Central School District ("respondent") that Devanier is not entitled to attend district schools because he is not a resident of the district.  The appeal must be sustained in part.

Devanier is an eighth grade student, and has attended district schools since kindergarten.  On October 19, 2005, respondent's Coordinator of Student Services sent a letter to petitioner questioning Devanier's residence, and giving petitioner until October 28 to submit additional information concerning his right to attend district schools.  Apparently petitioner did not submit any materials.  Petitioner and the Coordinator had a telephone conversation on November 4, during which the Coordinator claims petitioner made certain admissions that would indicate her grandson was not entitled to attend district schools.  On November 8, the Coordinator issued the district's determination that Devanier was not a resident, and advised that he would be excluded from attendance beginning November 28, 2005.

On November 3, 2005, the Surrogate's Court of Erie County issued Letters of Guardianship of the Person Only to petitioner.  Although the district's November 8 determination stated that Devanier's mother "gave" guardianship of Devanier to petitioner "for the purpose of attending school within the Williamsville Central School District," it did not make any specific reference to the Surrogate's Court decree.  It is not known whether the district had the Court's decree at the time of its determination.

This appeal was commenced on December 1, 2005.  On December 8, I issued an interim order directing respondent to admit Devanier to its schools pending the determination of this appeal.

On May 26, 2006, I issued a decision in Appeal of D.R. (45 Ed Dept Rep ______, Decision No. 15,412).  In that decision, I held that where a court of competent jurisdiction has legally transferred custody of a child by court order or by issuance of letters of guardianship, and the child actually resides with the court-appointed guardian, the Commissioner of Education will accept the court's order as determinative for residency purposes, and will no longer "look behind" that order to examine the reasons for the court's action.

In view of that determination and in light of the fact that the district may not have considered the court order in making its initial determination, it is appropriate to remand this matter for reconsideration.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent make a new determination whether petitioner's grandson is entitled to attend respondent's schools, pursuant to �100.2(y) of the Commissioner's regulations and in accordance with the Commissioner's decision in Appeal of D.R. (45 Ed Dept Rep ___, Decision 15,412).

IT IS FURTHER ORDERED that respondent permit Devanier Highsmith to attend respondent's schools, tuition-free, until respondent issues its residency determination.

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