Residency investigation found inadequate |
On Board Online • September 3, 2018
By Kimberly A. Fanniff
Senior Staff Counsel
After a community member informed a superintendent that a parent was driving her children to school from New Jersey, the school district began an investigation. Over four days, an investigator monitored either a home in New Jersey or an in-district residence that was listed on a lease agreement and bank statement that the family had submitted as proof of residency.
Neither the mother nor the students were observed at the in-district residence. But on two mornings, the investigator observed the mother and students exit the New Jersey residence and drive to school. On another occasion, the investigator observed the mother picking up the students from school and driving to New Jersey.
The superintendent informed the mother by letter dated Nov. 20, 2017 that the students were not district residents and would be excluded from school effective Jan. 29, 2018. When the mother appealed to the commissioner of education, the commissioner found the district's actions were arbitrary and capricious.
In Appeal of Students with Disabilities, Decision No. 17,467, the commissioner faulted the district for failing to provide the parent the opportunity to submit information concerning her children's right to attend school in the district, as required by state regulations.
The decision noted that a student's residence is presumed to be that of his or her parents or legal guardian. Residence is established by one's physical presence as an inhabitant within the district and intent to reside therein.
In ruling on the merits, the commissioner determined the mother provided sufficient evidence of her residence within the district. She submitted a copy of her lease as well as mail addressed to her at the in-district address.
Furthermore, the commissioner found that the mother submitted a reasonable explanation regarding the students' presence in New Jersey - that she helps to care for her elderly mother, who lives in New Jersey and is ill. Moreover, the students' father resides in New Jersey and the students visit him there pursuant to a court-ordered visitation schedule.
The commissioner was unpersuaded by the district's argument that two returned pieces of mail indicated the petitioner did not reside at the in-district address, as the mother had asked the district to send all mail to a post office box.
While ordering the district to allow the continued attendance of the students, the commissioner indicated the district was free to conduct additional surveillance, or schedule a home visit if residency concerns persisted.