School district's residency determination overturned

by Kimberly A. Fanniff

On Board Online • September 4, 2017

By Kimberly A. Fanniff
Senior Staff Counsel

After an investigator observed two children leaving for school from an out-of-district residence and returning to the same home on six dates, a school district began a residency proceeding.

Upon learning of the challenge to the students' residency, the parents' attorney provided additional documents including utility bills, a credit card statement, dental bills for the students and a mortgage bill for the in-district residence. The district determined this additional documentary information did not refute the investigatory evidence that the students did not live in the district.

In Appeal of Mirza, the father appealed to the commissioner of education. He submitted evidence that he owned two homes, one of which was located within the district, and he explained why they had been using the out-of-district house for the period of surveillance.

Generally, a child's residence is presumed to be that of his or her parents or legal guardians. To be considered residents, there must be evidence of both physical presence and intent to remain in the school district.

In his appeal, the father stated that he owned a home in the district as his primary residence and that the home outside the district had been purchased in 2000 by him and his mother as a residence for his parents and siblings.

According to affidavits from family members and a report from a physician, the children's paternal grandmother was recovering from surgery and undergoing cancer treatment during the time of surveillance, and the children's mother was providing daily care for her mother-in-law. While this evidence was not submitted to the district, the commissioner may consider it in an appeal.

The district noted that a search of the LexisNexis database revealed that the students' uncle resided at the in-district residence. The uncle accepted delivery at the in-district residence of the letter challenging residency and the students' mother accepted delivery of the same letter at the out-of-district residence.

According to the commissioner, the documents initially submitted to the district in support of the claim of residence failed to rebut the district's investigatory evidence. However, based upon the documents and affidavits submitted as part of the appeal there was a sufficient explanation for the family's presence at the out-of-district residence. Furthermore, the commissioner found that because the district only conducted surveillance at the out-of-district residence, such evidence does not support the conclusion that the students were not physically present at the in-district residence.

The father stated that his brother resides with him and his family at the in-district residence in a finished basement, and the district failed to refute that assertion. Based upon the foregoing, the commissioner ordered the district to admit the students without the payment of tuition.

The commissioner noted, however, that nothing in her decision limits the district's authority to investigate further to determine if petitioner and his children actually reside in the out of district residence. If the district has concerns regarding petitioner's residence it may collect further evidence through surveillance, a home visit or other means such as affidavits.

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