Velazquez v. East Stroudsburg, 1530 C.D. 2007

• Decision Date: 19 May 2008
• Docket Number: No. 1530 C.D. 2007,1530 C.D. 2007
• Citation: 949 A.2d 354
• Parties: Jose VELAZQUEZ, a minor, by his grandmother and next friend, Renee SPEAKS-VELAZQUEZ, Appellant v. EAST STROUDSBURG AREA SCHOOL DISTRICT.
• Court: Pennsylvania Commonwealth Court

949 A.2d 354

Jose VELAZQUEZ, a minor, by his grandmother and next friend, Renee SPEAKS-VELAZQUEZ, Appellant v. EAST STROUDSBURG AREA SCHOOL DISTRICT.

No. 1530 C.D. 2007

Commonwealth Court of Pennsylvania.

Argued March 11, 2008.

Decided May 19, 2008.

Maura McInerney and Deborah Gordon Klehr, Philadelphia, for appellant.

Glenna M. Hazeltine, Huntingdon Valley, for appellee.

BEFORE: SMITH-RIBNER, Judge, and COHN JUBELIRER, Judge, and McCLOSKEY, Senior Judge.

OPINION BY Judge SMITH-RIBNER.

Jose Velazquez (Jose), a minor, by his paternal grandmother and next friend, Renee Speaks-Velazquez (Appellant), appeals from an order of the Court of Common Pleas of Monroe County that affirmed the adjudication of the East Stroudsburg Area School District Board of School Directors (School Board) determining that Jose was ineligible to enroll or to receive free school privileges in the East Stroudsburg Area School District (School District) under School Board Policy No. 202 (Policy No. 202) and Section 1302 of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 13-1302. Appellant's statement of the questions involved includes whether the School Board erred in interpreting Section 1302 of the School Code and 22 Pa.Code § 11.19 as requiring denial of Jose's enrollment based on Appellant's receipt of court-ordered child support from Jose's mother on behalf of Jose and, in the alternative, whether the trial court's interpretation of the School Code violates the Fourteenth Amendment to the United States Constitution.

I

The parties submitted their joint stipulation of the undisputed facts (Stipulation) to the trial court. Jose, whose parents were never married, was born in August 1990 and has lived with Appellant for most of his life, except for short periods when he lived with his mother and/or father. Jose has lived in and out of the School District since 1997 when he was in the second grade. From January 2005 through February 2006 he was enrolled in the Pocono Mountain School District where he lived with Appellant and his father, who has been incarcerated since September 2005. Jose's mother resides in North Carolina or in Florida.

In March 2006 Appellant moved back to East Stroudsburg with Jose and began the re-enrollment process. She submitted Form No. 202-AR ("Sworn Statement by Resident Under 24 P.S. § 13-1302") under Policy No. 202, amended in April 2005 to reflect changes recommended by the Department of Education under Section 1302 of the School Code. Section 1302(a) provides in part:

A child shall be considered a resident of the school district in which his parents or the guardian of his person resides. Federal installations are considered a part of the school district or districts in which they are situate and the children residing on such installations shall be counted as resident pupils of the school district. When a resident of any school district keeps in his home a child of school age, not his own, supporting the child gratis as if it were his own, such child shall be entitled to all free school privileges accorded to resident school children of the district, including the right to attend the public high school maintained in such district or in other districts in the same manner as though such child were in fact a resident school child of the district, and shall be subject to all the requirements placed upon resident school children of the district. Before such child may be accepted as a pupil, such resident shall file with the secretary of the board:

(1) appropriate legal documentation to show dependency or guardianship; or

(2) a sworn statement that he is a resident of the district, that he is supporting the child gratis, that he will assume all personal obligations for the child relative to school requirements, and that he intends to so keep and support the child continuously and not merely through the school term. The school board, pursuant to guidelines issued by the Department of Education, may require other reasonable information to be submitted by the resident to substantiate the sworn statement. (Emphasis added.)

The School District approved Jose's re-enrollment, and he attended school in the School District from March 17 through May 11, 2006. He subsequently was found guilty of disorderly conduct after an altercation with a school police officer in May 2006, for which he attended a program at Vision Quest until September 2006.

In reviewing records from the disciplinary proceedings, the School District questioned Jose's residency in the School District and requested additional documentation from Appellant. Appellant sent the School District notarized letters from Jose's father and mother stating that Appellant had acted as Jose's guardian since his father's incarceration in 1998, that Appellant's continued care of Jose would be in his best interests and that Appellant had their full permission to act as Jose's guardian in school-related matters in their absence. In July 2006 the superintendent informed Appellant that Jose was not entitled to receive free school privileges in the School District because Appellant received court-ordered child support payments from Jose's mother as stated in Form No. 202-AR. The School District waived a tuition payment from March 2006 through the end of the 2006 school year because it failed to recognize Appellant's receipt of child support.

On August 23, 2006, the School Board held a hearing and heard from the School District's superintendent and assistant superintendent, the principal of High School-South and Appellant, proceeding pro se. In its adjudication, the School Board noted its sympathy for Jose's family circumstances. Finding that in the past year Appellant received $1900 in child support from Jose's mother, who still owed a large sum, the School Board nonetheless concluded that Jose was ineligible to enroll or to receive free school privileges under Policy No. 202 and Section 1302 of the School Code. Jose has been out of school since September 29, 2006, and in October the School District sent Appellant a letter stating that she might be subject to a penalty should she not send Jose to school. She receives public assistance for Jose and cannot afford to send him to private school; nor can she provide home-schooling. Stipulation, ¶ 19; Reproduced Record (R.R.) at 10a. The School District refused to provide the necessary papers to enable Jose to work until he returned to school. Stipulation, ¶ 20; R.R. at 10a.

Appellant appealed to the trial court and also filed a petition for stay and injunction pending appeal. The trial court denied the petition and affirmed the School Board's adjudication, rejecting Appellant's argument that her status is analogous to that of a parent receiving child care payments when the term "gratis" in Section 1302(a) of the School Code is read in conjunction with the phrase "as if [the child] were his own." The trial court held that the child support payments are "compensation" under 22 Pa.Code § 11.19(a), which provides in relevant part:

A nonresident child is entitled to attend the district's public schools if that child is fully maintained and supported in the home of a district resident as if the child were the resident's own child and if the resident receives no personal compensation for maintaining the student in the district. Before accepting the child as a student, the board of school directors of the district shall require the resident to file with the secretary of the board of school directors either appropriate legal documentation to show dependency or guardianship or a sworn statement that the child is a resident of the district, the child is supported fully without personal compensation or gain, and that the resident will assume all personal obligations for the child relative to school requirements and intends to so keep and fully support the child continuously and not merely through the school term. The resident's receipt of public payments, such as Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), maintenance on public or private health insurance, pre-adoptive support or other payments for or on account of the child, may not be deemed to be personal compensation or gain under this section. (Emphasis added.)

The trial court further held that "other payments for or on account of the child" under 22 Pa.Code § 11.19(a) are limited to "public" payments; that the phrase "maintenance on public or private health insurance" does not provide an inference that private child support payments are not "personal compensation or gain"; and that the fact that Appellant's receipt of public assistance or Temporary Assistance for Needy Families was contingent upon her receipt of child support payments does not carve out an exception for Jose. It rejected Appellant's argument that the School Board's adjudication violates the Fourteenth Amendment by creating two classes of children without any rational basis: children residing with a caretaker who receives legally mandated child support payments and children residing with a caretaker who does not receive such payments. The court stated that permitting a child living with "whomever" and receiving legally mandated child support to enroll in the School District would not serve the purpose of Section 1302 of the School Code to prevent district shopping and would drain the School District's resources. Trial Court's Opinion, p. 8.¹

II

Appellant argues that she established Jose's entitlement to attend school in the School District under Section 1302 of the School Code and 22 Pa.Code § 11.19. She submits that as sole caregiver she provides full maintenance and support for Jose as if he were her own child; that Section 1302 is intended to enable children living with a caregiver in an alternative family arrangement to attend school in a school district where the caregiver resides; that the caregiver, as any...