A.P. v. Lower Merion Sch. Dist.
A.P. v. Lower Merion Sch. Dist.
Opinion of the Court
In this action brought under the Individuals with Disabilities Education Act *326("IDEA"), E.F., the mother of a disabled child seeking compensatory education from the Lower Merion School District ("District"), appeals the decision of the Office of Dispute Resolution ("ODR") hearing officer affirming the District's determination that her child was not a resident of the District at the time she attempted to enroll him. Because a school district is obligated to provide a free appropriate public education ("FAPE") only to students who reside in the district, the hearing officer found that the student was not entitled to IDEA services from the District, and dismissed E.F.'s due process complaint without deciding the underlying special education claims.
Both parties have moved for summary judgment. Although E.F. agrees with the hearing officer's finding that she was living in the District on the date of the attempted enrollment, she argues that he erred in applying Maryland law to conclude that she and her son were residents of Maryland and not the District. Although the District disagrees with the hearing officer's finding that E.F. was living in the District on that day, it argues that the hearing officer's ultimate conclusion that its determination of non-residency was supported by substantial evidence was correct.
We find that the hearing officer erred when he limited the time period for assessing where E.F. was living to the date of the attempted enrollment. However, because there is substantial evidence supporting his conclusion that E.F. was not a resident of the District, we conclude that the legal error was harmless. Although the hearing officer did consider Maryland law, he did not, as E.F. argues, apply it in determining E.F.'s residency under Pennsylvania law. Therefore, we affirm the ODR's decision upholding the District's determination of non-residency and grant judgment in favor of the District.
Background
E.F., the mother and sole guardian of A.P. and his two sisters, enrolled her children in the Lower Merion School District during the 2014-15 school year. A.P., a disabled child entitled to special education services under the IDEA, attended middle school, and his two sisters attended elementary school. During that school year, the family lived in their home in Wynnewood, which is located in the District.
Dissatisfied with the District's implementation of A.P.'s individual educational plan, E.F. sought alternate placements or compensatory education. In April of 2015, E.F. informed the District that she wanted it to consider the Ivymount School, a private day school located in Rockville, Maryland, as a placement for A.P.
*327Without reaching an agreement with the District, E.F. enrolled A.P. at Ivymount. On June 19, 2015, she signed a two-year lease for a single-family house in Bethesda, Maryland. The rental was $3,800.00 a month for the term from August 1, 2015 to July 31, 2017.
On August 24, 2015, E.F. moved to Maryland with A.P. and her two daughters. She enrolled A.P.'s sisters in a nearby public elementary school.
During the 2015-16 school year, A.P. attended Ivymount and his sisters attended Maryland public school. During the school week, they slept in Maryland. On weekends and holidays, they stayed in Wynnewood and returned to Maryland on Sunday evenings. E.F. spent school days and nights in Maryland except when she worked in Philadelphia as an emergency room doctor and slept at her District house. For nine months of the year, she worked two blocks of four nightshifts each month, for a total of eight nightshifts per month. In February, July and December, E.F. worked a third block of shifts to cover the Presidents' Day, July Fourth and Christmas holidays. When working in Philadelphia on weeknights, she arranged child care for the children in Maryland.
On October 8, 2015, after receiving E.F.'s request to stop sending her automated notifications of A.P.'s absences from school, the District marked A.P. as "withdrawn" from the District as of the first day of the 2015-16 school year. It noted that "he moved from the district."
In December 2015, midway through A.P.'s school year at Ivymount, E.F. filed a due process complaint against the District with the ODR, seeking reimbursement for the cost of the school's tuition.
On June 1, 2016, E.F. signed an agreement with Ivymount for the 2016-17 school year and paid a $4,685.00 deposit. The enrollment included an extended school *328year programming ("ESY") session in July 2016. On June 9, at the same time she submitted receipts for reimbursement for A.P.'s Ivymount tuition for the 2015-16 school year and for the ESY session in July of 2016, E.F.'s counsel sent the District the enrollment agreement and proof of payment of the tuition deposit for the 2016-17 school year.
From June 10, the last day of Ivymount's 2015-16 school year, to June 20, 2016, her daughters' last day of school, E.F. resided with her children in Maryland.
On June 20, E.F. applied to enroll A.P., but not her daughters, in the District for the 2016-17 school year by completing the online new student registration.
On July 5, 2016, E.F. emailed Fraser to inform her that she had "re-enrolled" A.P. in the District and to request an IEP meeting. She stated that since A.P. "has special needs" the District "cannot meet, I understand he requires a continued out of district school placement." She also noted that "he has thrived at lvymount."
Fraser received A.P.'s enrollment documents from the registrar and E.F.'s July 5, 2016 email a few weeks later.
Several months earlier, when E.F. and the District were negotiating a settlement of the December 2015 Due Process case, it became clear that they disagreed about the family's residency.
One week later, the District notified E.F. that she could challenge the District's non-residency determination by requesting a hearing before the Lower Merion Board of School Directors or an appointed hearing officer. Instead, E.F. filed a due process complaint with ODR. She claimed that the District's failure to offer appropriate extended school year services in the summer of 2016 and a special education placement for the 2016-17 school year constituted a denial of FAPE in violation of the IDEA. The District moved to dismiss the complaint on the basis that E.F. and A.P. were non-residents.
Meanwhile, from July 5 to 15, 2016, A.P. attended Ivymount's ESY session. During *330the weekdays and weeknights during this ESY session, A.P. resided in Maryland. E.F. gave contradictory testimony about where she and her daughters resided at that time.
For the rest of the 2016-17 school year, the living and working arrangements were as they had been during the previous school year. A.P. attended Ivymount and his sisters attended Maryland public schools during the weekdays and slept in their Maryland house on school nights. On weekends and holidays, they went to the house in the District and returned to Maryland on Sunday evenings. E.F. spent school days and school nights in Maryland unless she was working in Philadelphia and sleeping at the house in the District.
On April 3, 2017, E.F. applied online to enroll A.P. and her daughters in the District for the 2017-18 school year. On the application, she indicated that A.P. had been attending Ivymount since August of 2015 and would continue attending until June of 2017. E.F. later met with the registrar to complete enrollment of all three children. On June 14, 2017, Fraser accepted the enrollment of the three children. She based this decision on her knowledge that the Maryland lease was set to expire at the end of the current school year and the fact that E.F. applied to enroll all of her children. Once A.P. was enrolled, Fraser granted permission to re-evaluate him for programming. However, no evaluation was conducted because E.F. refused to consent to it.
By July of 2017, E.F. and the District entered into a new Educational Services Agreement, where the District agreed to reimburse E.F. for tuition for A.P. to attend an educational institution of his choice for the 2017-18 school year. The agreement contained a residency clause, requiring E.F. to reside in the District during the school year. Pursuant to the ESA, A.P. began attending a residential school in Connecticut, for which the District reimbursed E.F. She withdrew her daughters' enrollment in the District because they were attending a private school.
The Residency Proceedings Before the Hearing Officer
The hearing officer issued a preliminary residency determination upholding the *331District's decision to deny enrollment because E.F. was not a resident of the District.
In his preliminary residency determination, the hearing officer concluded that the District's decision to deny A.P.'s enrollment because E.F. was not a resident of the District was supported by substantial evidence. He found that the undisputed evidence demonstrated that E.F. and her children did not reside in the District during the 2015-16 and the 2016-17 school years.
Because E.F. had not made any averments regarding where she resided on the date of the attempted enrollment, the hearing officer granted her leave to move for reconsideration of his preliminary determination to proffer evidence that she resided in the District on June 20, 2016.
In his final decision, the hearing officer changed his preliminary findings regarding where E.F. was physically located on June 20, 2016, the date of the attempted enrollment. This time, he determined that she "was living in her Pennsylvania home" "within the District" on June 20, 2016.
Despite his finding that E.F. "was physically within the District" on the date she attempted enrollment, the hearing officer reached the same conclusion that he had reached in his preliminary decision - the District's determination of A.P.'s non-residency was supported by substantial evidence because it had established that E.F. was a Maryland resident at the time of the attempted enrollment.
In her appeal to this court, E.F. contends that the hearing officer erred in concluding that the District presented substantial evidence supporting its determination that she was not a District resident in June of 2016. She challenges the hearing officer's determination that the applicable time period for assessing her physical presence in the District to determine residency is limited to the date of the attempted enrollment. E.F. posits that the time period should run from June 20, 2016, the enrollment application date, through July 20, 2016, when the District formally rejected the enrollment, which she refers to as the "Enrollment Period."
E.F. contends that a comparison of the time of her physical presence in Maryland to that spent in Pennsylvania during the Enrollment Period shows that she was "physically present predominantly at the Wynnewood Home." She points to undisputed evidence showing that between June 20 and July 5, and between July 15 and August 12, 2016, she resided exclusively in the District and did not spend any overnights in Maryland, and between July 5 and 15, while A.P. attended the ESY session, she spent at most seven nights in Maryland. She argues that the District failed to rebut her testimony of her "overwhelmingly large physical presence" in the District during the Enrollment Period. She maintains that the District's reliance on the Maryland lease, her failure to enroll her daughters in the District, and Fraser's understanding that she wanted A.P. to attend *333Ivymount in the 2016-17 school year do not support its determination that she was not a District resident because this information pertains to E.F.'s physical presence during the previous school year. E.F. concedes that she "maintained a physical presence in the Maryland Home throughout the 2015-2016 school year," but she argues that where she resided the previous school year is not relevant to the District's residency determination because that is outside the applicable time period.
E.F. also argues that the hearing officer erred when he applied Maryland residency requirements in determining her Pennsylvania residency. She disagrees with his legal conclusions that Maryland law considers her a Maryland resident because her daughters were enrolled in public schools there and that Pennsylvania law precludes her from simultaneously claiming residency in the District. Noting that A.P.'s sisters did not attend any Maryland public school during the Enrollment Period and E.F. sought to enroll A.P. in the District when she was residing there, she argues that her residency status during the school year preceding and following the Enrollment Period has no bearing on her residency status during the Enrollment Period, which she fixes as the limited period of June 20 through July 20, 2016. She also objects to the hearing officer's characterization of her actions as "school shopping" because it is at odds with his findings that she testified credibly and consistently with her affidavit.
The District argues that there is substantial evidence showing not only that E.F. was not residing in the District on the date of the attempted enrollment, but also that she was not a resident of the District during the entire summer of 2016. To show that E.F. was not physically present in the District on the date of the attempted online enrollment, the District points to undisputed evidence that her daughters attended school in Maryland on that day.
The District points out that during the entire summer, E.F. had a year remaining on her two-year Maryland lease, had not attempted to enroll A.P.'s sisters in the District and had paid tuition to Ivymount for A.P. to attend the 2016-17 school year. The District also points to contradictions between E.F.'s pre-hearing affidavit and her hearing testimony, and several inconsistencies in her hearing testimony. For example, in her affidavit E.F. declared that after Ivymount's 2015-16 school year ended on June 10, 2016, she and her family resided exclusively in the District except for when they were on vacation. Yet, at the hearing, both E.F.'s testimony and documentary evidence confirmed that A.P. attended Ivymount's ESY session from July 5 through July 15, during which time he lived and slept in Maryland during the week. E.F. gave conflicting testimony about whether she and her daughters resided with A.P. in Maryland during that session. Additionally, it notes that A.P. attended a camp outside the District for two weeks in July, and the entire family was in Martha's Vineyard for two weeks in August.
The parties have filed cross-motions for summary judgment.
Standard of Review
The typical route to contest a district's determination of non-residency is *334to request a hearing before the school board or a hearing officer appointed by the school board. A.P. , 294 F. Supp. 3d at 406, 412 & n.16. Either party may appeal from the school board's adjudication to the Court of Common Pleas of the county in which the school district is located.
In reviewing a school board's adjudication of a residency determination, the Common Pleas court's scope of review is limited to determining whether findings of fact necessary to support the adjudication were supported by substantial evidence or whether "an error of law was committed." Behm v. Wilmington Area Sch. Dist. ,
The purpose of a residency hearing is to ensure that the school district's determination of non-residency is supported by substantial evidence. Whitacker-Reid ,
As the fact finder, the hearing officer assesses credibility. Whitacker-Reid ,
*335Additionally, "when performing a substantial evidence analysis," the reviewing court must consider the evidence in the light "most favorable to the party that prevailed before the fact finder."
Discussion
Pennsylvania law provides that a child who resides in a school district is entitled to attend public schools in that district. See
The purpose of the residency requirement of § 1302 is to prevent "school district" shopping. Velazquez ex rel. Speaks-Velazquez v. E. Stroudsburg Area Sch. Dist. ,
The parent bears the initial burden of proof in school residency disputes. Whitacker-Reid ,
The District concedes that E.F. satisfied her initial burden of proving that she met the District's enrollment requirements. She submitted documents satisfying the registration requirements.
As used in the Public School Code, "resides" means the "place where the custodial parent maintains a residence, and ... it need not be a primary residence or domicile." Cumberland Valley ,
"Domicile," in contrast, is the place where one presently resides coupled with the intent to remain there permanently or for the indefinite future. Cumberland Valley ,
In determining whether a parent resides in the district, courts generally compare the parent's physical presence at the two locations to determine which location is her actual residence. Whitacker-Reid ,
The Pennsylvania Supreme Court's analysis in the factually similar Cumberland Valley case distinguishes between residency and domicile, and shows that where the parent resided in prior years and intended to reside is relevant to the inquiry. There, just before the new school year began in August, the mother, who was the primary caregiver to her two sons, moved with them from the house that she and her husband owned in Franklin County to a townhouse she leased in the Cumberland Valley School District in Cumberland County. She moved to live closer to a private school that the younger son was going to attend. The family's plan was for the younger son to attend a private school for seven years. The mother enrolled her older son, who required special education services, in a public school in the Cumberland Valley School District where the townhouse was located. She moved her and her sons' clothing, books, supplies, furniture and possessions to the townhouse where they spent weekdays and weeknights. They spent weekends and school vacations living with the father at the family's house in Franklin County.
In December, the mother enrolled the older son in a private school for children with learning disabilities located in Montgomery County. The Cumberland Valley School District refused to pay his tuition for past or future school years because it determined that the son was not, and never had been, a resident of the district.
After a residency hearing, the school board issued its adjudication of non-residency. It concluded that the mother "resided" in Franklin County. The school board interpreted the term "resides" in the School Code to mean the custodial parent's "primary residence" or "domicile." The board found that the townhouse was a temporary residence for the mother and her sons "existing only for their temporary convenience" and that the parents did not intend to make the townhouse their primary residence. It also found that the family's primary residence was in Franklin County, making that their domicile.
*337On appeal, the Common Pleas Court reversed the school board's decision, concluding that the board erroneously interpreted the term "resides" by equating it with primary residence or domicile. Instead, the court applied the common law definitions of "residence" and "domicile," defining "resides" as "a factual place of abode evidenced by a person's physical presence in a particular place," and "domicile" as a person's "fixed and permanent home and principal establishment" to which he always intends to return whenever he is absent from there. Cumberland Valley ,
Affirming the Commonwealth Court, the Pennsylvania Supreme Court stated that the lower courts "properly interpreted the term 'resides' as it is used" in the School Code. Cumberland Valley ,
The school and living arrangements in Cumberland Valley were similar to those here. In that case, the mother moved with her children from the house that she owned and had lived in for many years to a house that she leased in another school district for the purpose of sending one of her children to a private school. As E.F. did, the mother enrolled her other child in a public school in the new district. The mother and sons in Cumberland Valley returned to their home in Franklin County on weekends and vacations, just as E.F. and her children returned to the house in the District on weekends and vacations. Thus, as the District decided here, the Cumberland Valley court held that the mother was a resident of the school district in which they were actually living.
In determining whether the mother and sons "actually lived" in the townhouse, the court considered the family's physical location, living patterns and activities over the course of the prior school year, not just on the date that the district determined them to be non-residents. Additionally, although it did not consider the parents' future intentions as dispositive, the Court also took into account the parents' plans regarding their sons' future education needs, particularly the family's "intention" that the younger son attend the private school in Cumberland County for seven years until he graduated. Cumberland Valley ,
Other courts have considered evidence of where a family resided before the non-residency determination to provide context to the residency inquiry. For example, in Paek ,
At the hearing, the mother testified that she considered the apartment in the Pen Argyle Area School District to be her primary residence. She owned the furnished home, received mail there and paid school taxes. Her driver's license, pay stubs, bank account and electric bill listed that address. The children's friends visited after school, and relatives occasionally visited them there. However, she also testified that she and her children slept there only two nights a week. Additionally, in the mornings after they slept at the apartment, before driving to school they returned to their house in the Pleasant Valley School District to shower, eat breakfast and play with their four dogs. Comparing the mother's contacts and activities in the two homes, the hearing officer determined that the mother resided at the Pleasant Valley home, not the Pen Argyl home.
The Commonwealth Court upheld the non-residency determination, finding that the mother did not maintain a "physical presence" at the home in the Pen Argyl School District as it was not "a residence in any sense of the word." Paek ,
These cases teach that where the living arrangements varied over time, evidence of the family's physical presence during the school year in question and the preceding years is relevant to the residency inquiry. Thus, we conclude that where E.F.
*339resided during the school year preceding the date of the attempted enrollment and where she intended to live after the enrollment date is relevant to the residency determination.
The hearing officer's single-day look at where a parent resides actually facilitates school shopping. Parents who own or rent two homes could stay at the home in the district where they want their children to attend school on the day they apply to enroll their child and then reside in the home outside the district the rest of the year. In that event, parents would be considered residents of a district where they have no intention of living. This possibility demonstrates the relevance of the parents' residency prior to and intended residency after the enrollment date.
Assessing E.F.'s physical presence only as of the date of enrollment does not answer the question of where she intended to reside during the coming school year. Though not dispositive, her intended residence could show whether her physical location at the time of the attempted enrollment and throughout the summer was a real change in her factual place of abode or reflected a temporary, summer residence with plans to resume residing during the next school year in the same place with the same living arrangements outside the District as during the previous school year. Consequently, in determining E.F.'s residency for enrollment purposes, the hearing officer erred in considering only where she was on the day of the attempted enrollment.
E.F.'s second claim of legal error is without merit. Contrary to E.F.'s contention, the hearing officer did not apply Maryland law to determine her residency. Rather, he cited Maryland's residency requirements to show that E.F. was effectively claiming simultaneous residency in two school districts, which Pennsylvania law prohibits. As he stated in his final decision, the
parent cannot simply rent or buy multiple properties in several school districts and then choose between those properties on a given day just to secure tuition reimbursement.... [E.F.] cannot claim residency within the District only during the attempted re-enrollment in the summer of 2016 while simultaneously claiming residency in [Maryland] continuously through the 2015-16 and 2016-17 school years.55
As to E.F.'s claims that the hearing officer committed legal errors, we conclude that the hearing officer erred when he limited the time period for examining E.F.'s physical presence to the day of the attempted enrollment and when he determined that any evidence of where E.F. intended to reside in the future could not be considered. But, he did not impermissibly apply Maryland law in deciding whether E.F. met the residency requirements under Pennsylvania law.
The legal error does not affect the hearing officer's conclusion because his findings of fact necessary to support the adjudication were supported by substantial evidence. Although he incorrectly focused only on where E.F. was physically on June 20, 2016, he made factual findings regarding where she resided during the previous and subsequent school years. Because he examined where she and her children slept, what activities they engaged in during the day, what kinds of clothing and furniture were kept at each house and E.F.'s work schedule, he developed a thorough *340record of where they resided the previous year and intended to reside in the coming school year.
Substantial evidence supported the hearing officer's finding that E.F., A.P. and his sisters resided in Maryland during the 2015-16 school year, which ran from August 2015 through June 20, 2016. E.F. spent the school week in Maryland with her children except when she was working in Philadelphia as an emergency room physician. During the school year, she worked only eight shifts per month, and they did not all fall on weeknights. Additionally, she conceded that she "maintained a physical presence in the Maryland Home throughout the 2015-2016 school year."
There is also substantial evidence supporting the District's determination that at the time of the attempted enrollment, E.F. intended to continue the same school, work and living arrangements during the 2016-17 school year that she had in the previous one and that she was still residing in Maryland. E.F. had a two-year lease that was not due to expire for another year. When the 2015-16 school year ended, she did not pack up the house in Maryland or bring any extra belongings to Pennsylvania. Instead, the family left "everything" there so that "it was waiting for [them] when [they] got back." She waited to register A.P. until her daughters' last school day in Maryland. She did not withdraw her daughters from the Maryland public school and did not attempt to enroll them in the District for the next school year.
E.F.'s statement in her affidavit that when she applied to enroll A.P. she "fully intended for [him] to attend school in the District for the 2016-17 school year, based upon the placement options to be presented" is belied by the record. The record shows that she planned to send her son to Ivymount in 2016-17 regardless of what the District offered her. On June 1, 2016, she signed an agreement with Ivymount for the 2016-17 school year and paid a $4,685.00 deposit to secure his enrollment. At the July 1, 2016 enrollment meeting, E.F. told the registrar that A.P. was attending school out-of-state and she wanted to continue sending him there for the upcoming school year because the District was unable to educate him. Four days later, she told Fraser that A.P. has special needs the District "cannot meet," and he requires "a continued out of district school placement." She also told her that "he has thrived at lvymount."
There is also substantial evidence that E.F., A.P. and his sisters resided in Maryland during the 2016-17 school year. The living and work arrangements for the family were no different than they had been during the previous school year. A.P. attended Ivymount and his sisters attended Maryland public schools during the weekdays, sleeping in their Maryland house on school nights. E.F. worked the same limited number of nightshifts in Philadelphia.
Considering the evidence of where E.F. and her children resided the previous school year and where they intended to reside during the next school year together with the other evidence, we hold that substantial evidence supports the District's determination of non-residency. The hearing officer's findings that E.F. and her children resided in Maryland during the 2015-16 and 2016-17 school years are supported by substantial evidence. There is also substantial evidence showing that at the time of the attempted enrollment, E.F. intended to reside in Maryland during the upcoming school year. Thus, although the hearing officer erred when he limited the relevant time period for assessing E.F.'s physical presence to the day she attempted *341to enroll A.P., substantial evidence supports the District's determination of non-residency. Consequently, the error was harmless.
Conclusion
The hearing officer's findings of fact were supported by substantial evidence. However, he erred in limiting the relevant time period for assessing where E.F. was physically residing to the date she attempted to enroll A.P. Nevertheless, because his ultimate conclusion that the District's determination of non-residency was supported by substantial evidence was correct, the legal error was harmless. Therefore, we shall affirm the ODR's decision upholding the District's determination of non-residency and grant judgment in favor of the District.
Transcript of June 11, 2018 Due Process Hr'g ("Tr.") 20:21-25 - 21:1-9; Findings of Fact ("FOF") ¶¶ 1-2, Final Decision and Order, ODR No. 20363-1718AS, July 12, 2018 ("Final Decision") (Doc. No. 14-13).
Doc. No. 14-8 at ECF 26; FOF ¶ 3.
Tr. 28:18-25-29:1-3, 158:17-25 - 159:1-8, 186:6-10, 23-25 - 187:1-18; Doc. No. 14-8 at ECF 23, 33-40.
Tr. 28:18-22; Doc. No. 14-7 at ECF 5-11, 20; FOF ¶ 5.
Doc. No. 14-7 at ECF 22-25; FOF ¶ 4.
Tr. 27:4-12, 23-25, 28:1-2, 18-21, 29:16-25 - 30:1-13; FOF ¶ 6.
Tr. 27:23-25, 29:16-18, 24-25 - 30:1-13, 250:25 - 251:1-4, 14-17.
Tr. 21:16-23; 29:11-13, 44:19-25, 45:23-24, 46:1-2, 47:3-22, 48:1-2, 5-18, 49:1-9, 12-16, 23-25 - 50:1, 203:20-25, 254:11-21, 255:5-17; Doc. No. 14-10 at ECF 6; FOF ¶¶ 6, a., b., c., d., e.
Doc. No. 14-7 at ECF 31-32; FOF ¶ 7.
Doc. No. 14-7 at ECF 235-237; FOF ¶ 8.
Tr. 126:10-24, 127:8-25 - 128:1-5; Doc. No. 14-7 at ECF 238-63.
Tr. 128:11-25 - 129:1-20, 132:2-8; Doc. No. 14-7 at ECF 33-41; FOF ¶ 9.
Tr. 130:1-4, 223:4-11, 225:10-21, 234:7-22, 239:25 - 240:1-3, Doc. No. 14-7 at ECF 46-49; FOF ¶ 10.
Tr. 37:10-24, 124:2-7, 240:5-7, 249:7-24; Doc. No. 14-10 at ECF 1-3, 6; FOF ¶¶ 11, f, h.
Tr. 241:22-25 - 242:1-5, 250:25 - 251:1-4, 9-20, 262:3-23; FOF ¶¶ g., i., j.
Tr. 28:3-10, 30:14-25 - 31:1-9, 38:7-25, 61:15-17, 89:20-25 - 90:1-5, 206:21-25 - 207:1-15; Doc. No. 14-7 at ECF 62-66; FOF ¶¶ 12, 13, 17.
Tr. 34:13-20, 39:11-14, 41:24-25 - 42:1, 8-25 - 43:1-4, 10-12, 66:12-25 - 67:1-2, 70:14-25 - 71:1-11, 22-24, 72:2-17, 79:18-23, 99:19-25 - 100:1-8, 13-25 - 101:1-25, 104:17-23, 105:11-25 - 106:1-5, 108:13-19, 115:2-25, 119:1-4, 18-25 - 120:1-3, 121:11-14, 122:11-17, 134:21-24; Doc. No. 14-7 at ECF 61, 69-110, 284; FOF ¶¶ 14, 15, k.
Doc. No. 14-7 at ECF 295; FOF ¶ 20.
Tr. 44:6-15, 130:22-25 - 131:1, 148:24-25 - 149:1-5. Fraser did not view the documents immediately because she had been on vacation in early July. Tr. 144:16-23.
Tr. 126:10-24, 127:8-18, 131:2-25 - 132:1-8, 133:5-25, 143:8-25 - 144:1-4, 19-25 - 145:1-11, 155:15-25, 172:10-16, 181:21-25 - 182:1-4.
This disagreement was the reason the settlement agreement did not require her to be a District resident for the 2015-16 school year.
Tr. 131:15-25 - 132:1-8, 170:4-17, 183:11-19, 184:1-5; Doc. No. 14-7 at ECF 111-112, 295; FOF ¶ 21.
A.P. by E.F. v. Lower Merion Sch. Dist. ,
A.P. ,
Tr. 22:8-14, 50:16-23, 218:3-18, 244:14-21, 247:4-8, 256:8-25, 262:24-25 - 263:1-15; Doc. No. 14-10 at ECF 5; FOF ¶ l. As explained later, where E.F. resided during the summer of 2016 is not relevant to our determination of whether the District's non-residency determination is supported by substantial evidence.
Tr. 21:24-25 - 22:1-7, 24:6-15, 26:11-17, 27:25 - 28:1-13, 51:4-6, 219:3-25, 221:4-8, 245:3-19, 25 - 246:1-5, 247:10-25 - 248:1-20, 259:1-10, 265:18-25; FOF ¶¶ m., n., o., p.
Tr. 22:8-10, 51:7-14; Doc. No. 14-10 at ECF 5; FOF ¶¶ o., p.
Tr. 83:13-25 - 84:1-19, 87:3-21, 134:1-19, 135:8-21, 150:15-25 - 151:1-5, 24-25, 154:1-10, 185:23-25; Doc. No. 14-8 at ECF 105-109.
Tr. 136:4-25 - 137:1-15, 142:5-20, 185:1-4, 8-25 - 186:1, 187:1-18, 193:5-7.
Prelim. Residency Determination, ODR No. 20363-1718AS, Apr. 3, 2018 ("Prelim. Decision") (Doc. No. 14-3).
Prelim. Decision at 8 and Order ¶ 2; Pet'r's Aff. of Add'l Facts (Doc. No. 14-4).
Final Decision at 8.
Prelim. Decision at 8.
Id. at 6, 8.
Id. at 6.
Id. at 8; Order ¶ 1.
Prelim. Decision at 8; Order ¶ 2.
Pet'r's Aff. of Add'l Facts (Doc. No. 14-4) ¶¶ 3-4.
Id. ¶ 10.
Final Decision at 6.
Id. at 6-7.
Id.
Id. at 7.
Id.
Id. at 8.
Id.
Pl.'s Br. (Doc. No. 17) at 6, 10-13.
Pl.'s Br. at 14-16.
Def.'s Br. (Doc. No. 16-1) at 2-3, 10-13, 15.
Neither party complied with the court's requirement to file a Statement of Undisputed Facts in support of the summary judgment motion.
E.F. took a different route. She filed a FAPE due process complaint with the ODR. As we previously determined, the ODR Hearing Officer had jurisdiction to hear and decide the residency dispute. A.P. ,
A "capricious disregard of evidence" means a "willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result." Agostino v. Twp. of Collier ,
See Def.'s Br. at 6; Tr. 72:2-17, 115:2-18.
When analyzing the competing residency requirements of Pennsylvania and Maryland, the hearing officer quoted this admonition by the Paek Court and concluded that it applied to E.F. He stated that she could not "simply rent or buy multiple properties in several school districts and then choose between those properties on a given day just to secure tuition reimbursement." Final Decision at 7 (emphasis added).
Final Decision at 7 (emphasis added). In discussing the competing residency requirements of the two states, the hearing officer revealed the pitfalls in limiting the residency inquiry to the date of application for enrollment.
Because the question of where E.F. resided on June 20, 2016 alone does not control the residency determination, it is unnecessary to consider the factual disputes about where E.F. and her children were physically located on the single day that she applied online to enroll A.P. in the District. Thus, even if A.P. had not attended an ESY session that summer and E.F. had not spent any time in Maryland that entire summer, the evidence supports a finding that E.F. resided in Maryland during the prior school year and intended to continue residing there in the coming school year.
Reference
- Full Case Name
- A.P., a Minor, BY His Parent, E.F. v. LOWER MERION SCHOOL DISTRICT
- Status
- Published