Appeal of a STUDENT WITH A DISABILITY by her parents, from action of the Board of Education of the North Syracuse Central School District regarding residency.

Decision No. 16,956

(August 26, 2016)

Tully Rinckey, PLLC, attorneys for petitioners, Giancarlo Facciponte, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the North Syracuse Central School District (“respondent”) that their child (the “student”), is not a district resident and therefore, is not entitled to attend respondent’s schools.  The appeal must be dismissed.

The student was enrolled in the district’s kindergarten for the 2015-2016 school year and received accommodations under section 504 of the Rehabilitation Act of 1973 (“Section 504”).  There is no evidence in the record that the student has been deemed eligible for special education services under the Individuals with Disabilities Education Act (“IDEA”).

The student attended school in respondent’s district during the 2015-2016 school year.  On March 9, 2016, the district received an email from a district resident alleging that petitioners and the student lived outside of the district.  A district employee contacted the student’s mother to verify the student’s residence.  The student’s mother stated that petitioners were building a house outside of the district, but that they and the student still resided at the in-district residence.  The district requested documentation regarding the student’s residency, but no further documentation was provided.  Two subsequent telephone calls to petitioners were not returned.

On April 1, 2016, petitioners’ attorney contacted the district and, although he did not address the residency issue, he stated that the student could not be excluded from the district’s school due to her medical condition.  On April 1, 2016, the district informed petitioners of its determination that the student was not a resident of the district and would be excluded from its schools on April 15, 2016.  Petitioners’ request for interim relief was granted on April 14, 2016.

Petitioners’ papers on appeal do not challenge respondent’s residency determination other than including a conclusory request for relief seeking a determination that their daughter is a resident of respondent’s school district.  Petitioners provide no documentation regarding their residency.  Instead, it appears that petitioners only argue that their daughter has a disability and therefore, is entitled to remain enrolled in respondent’s schools “pending a decision on the merits of this appeal.” 

Respondent contends that petitioners have failed to state a claim upon which relief can be granted.  Respondent maintains that petitioners have not challenged its residency determination and that petitioners’ belief that, despite respondent’s residency determination, the student may not be dis-enrolled due to her status as a student with a disability under section 504, is erroneous.

I note that, regardless of the student’s receipt of accommodations under a 504 plan, to remain enrolled in respondent’s school district she must meet the residency requirements set forth in Education Law §3202.  Petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  Petitioners have put forth no arguments or evidence regarding their residency in respondent’s district.  Therefore, to the extent that petitioners intended to appeal respondent’s residency determination, they have not met their burden here and the appeal must be dismissed.

To the extent that petitioners seek to enforce rights under Section 504, such claims must be dismissed on jurisdictional grounds.  Enforcement of Section 504 is within the exclusive jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 108, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369). 

Similarly, although there is no indication that the student is a student with a disability under the IDEA, to the extent that petitioners intend to assert a claim under the pendency provisions of that statute, I lack jurisdiction to entertain such claims.  Claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA (20 USC §1415) and Education Law §4404; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of R.J.K. and L.K., 50 Ed Dept Rep, Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500).  Because petitioners are raising special education placement claims governed by the IDEA and Education Law, Article 89, they are properly the subject of an impartial hearing brought pursuant to Education Law §4404(1) and §200.5(j) of the Commissioner’s regulations.  Therefore, the appeal must be dismissed for lack of jurisdiction.

In light of the above disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE