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Decision No. 13,322

Appeal of B.B., on behalf of her daughter, R.B., from action of the Board of Education of the Queensbury Union Free School District regarding residency.

Decision No. 13,322

(December 23, 1994)

Bernadette M. Hollis, Esq., attorney for petitioner

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Martin D. Auffredou, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her daughter, R.B., is not a resident of the Queensbury Union Free School District ("the district") and is, therefore, not entitled to continue to attend its schools tuition-free. The appeal must be sustained.

Prior to September 1992, petitioner and R.B. resided with petitioner's husband and her other children in Chestertown, New York, within the North Warren Central School District. In August 1992, petitioner spoke with Linda Noon, an administrative assistant for the Queensbury district. Ms. Noon explained to petitioner that R.B. could not attend the schools of the district without the payment of tuition unless R.B. were a resident of the district. Ms. Noon further stated that district policy allowed a student to commence attendance as long as residence was established within ninety days. In September 1992, petitioner enrolled R.B. in respondent's schools as a high school freshman. In October 1992, petitioner rented an apartment at the Queensbury Arms, an apartment complex located within the district.

Respondent alleges that in the early spring of 1993, R.B. told a member of the school guidance department that she was no longer living at the Queensbury Arms. Upon investigation, respondent learned that although petitioner had signed a one-year lease in October 1992, she had left the apartment complex in December 1992. Although it is unclear from the record where petitioner lived after the move, R.B. completed the 1992-1993 school year in respondent's school district.

During July and August 1993, Ms. Noon contacted petitioner. According to Ms. Noon's affidavit, petitioner and her daughter at that time resided in Chestertown, but petitioner again decided to enroll her daughter in the Queensbury district. R.B. was allowed to register in September 1993 as a second year student, and petitioner was again told that residence must be established within ninety days after the commencement of the school year. The record indicates that on October 6, 1993, petitioner made a down payment on a townhouse located at 73 Old Mill Lane, Town of Queensbury. Because there had been no closing on the property by December 1, 1993, Lauren R. Rhodes, another administrative assistant in respondent district, notified petitioner and her husband by letter dated December 1, 1993 that R.B. could no longer attend school without payment of tuition. Shortly thereafter, Ms. Rhodes received a check from petitioner in the amount of $1,533.60, covering tuition for the months of September through December. Ms. Rhodes thus agreed to extend the deadline for establishing residency to January 1, 1994.

On or about December 30, 1993, petitioner and her husband took title to 73 Old Mill Lane, within respondent district. After receiving a copy of the deed on January 4, 1994, Ms. Rhodes wrote again to B.B. and her husband and explained that actual residency must be established by January 10, 1994 or the district would either negotiate petitioner's check and continue billing for tuition or R.B. would be excluded from school immediately. Thereafter, petitioner again contacted Ms. Rhodes and persuaded her that she and R.B. were actually residing at the townhouse at 73 Old Mill Lane. Ms. Rhodes subsequently returned petitioner's tuition check.

Respondent apparently considered the matter resolved until several months later, when Ms. Rhodes discovered from school records that the four children of a woman named V.A. were registered in the district, and that registration records listed their address as 73 Old Mill Lane -- the same as petitioner. Because of the shared address, Ms. Rhodes concluded that the 73 Old Mill Lane property was rented to V.A.'s family and that petitioner did not live there. On May 25, Ms. Rhodes wrote to petitioner and demanded a full-year's tuition of $3,834.00. On May 27, petitioner wrote back that she had "a shared living arrangement" with V.A., and that she and R.B. lived in the townhouse together with V.A. and her four children. On June 1, Ms. Rhodes again wrote to petitioner and advised her that the district's decision was final. This appeal was commenced on June 24, 1994. On July 21, I issued a limited stay directing respondent to release R.B.'s grades and transcript upon written request by petitioner, pending the final determination of this appeal.

Education Law '3202(1) provides:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446). Residence is based, in part, upon an individual's physical presence as an inhabitant within the district and upon the individual's intent to remain (Appeal of Stokes, 32 Ed Dept Rep 93; Appeal of Bonfante-Ceruti, 31 id. 38). A child is presumed to reside with her parents (Appeal of Ambris, 31 Ed Dept Rep 41). In cases challenging a student's residency, the party alleging a change in residence bears the burden of proof (Appeal of Lenz, 32 Ed Dept Rep 132).

As noted above, in January 1994, the district accepted petitioner's claim that she resided within the district at 73 Old Mill Lane. It was only once the district learned that another woman and her four children also lived at that address that it doubted petitioner's residence and decided to exclude R.B. from school. Since it is the district that alleges a change in petitioner's residence, respondent district bears the burden of proving that petitioner does not reside at 73 Old Mill Lane. Respondent has not met that burden.

Based upon the record before me, it appears that respondent's decision to exclude R.B. from school rested solely upon its disbelief that petitioner and R.B. could live at the same address as V.A. and her children. Other than mere suspicions, however, respondent proffers no concrete proof to dispute petitioner's residence. For example, there is no evidence of surveillances of 73 Old Mill Lane. Nor is there any documentary proof that petitioner does not reside there with her daughter.

Petitioner, however, has submitted evidence tending to show residency in the district. In her affidavit, she attests that she lives at 73 Old Mill Lane, apart from her husband in Chestertown, due to marital difficulties. Letters from a marriage counselor and the director of a service for women who are victims of domestic violence confirm the marital separation. Petitioner further submits a deed to confirm her part ownership of 73 Old Mill Lane, and avers by affidavit that she and R.B. live there with V.A. and V.A.'s children. Petitioner also submits an affidavit from her estranged husband confirming that they are separated and that R.B. lives with her mother at 73 Old Mill Lane. Petitioner further submits the affidavit of one D.R., whose daughter takes dance class with R.B. in Queensbury. D.R. swears that on almost every Monday, Wednesday and Thursday from September 1993 through June 1994, she personally transported R.B. from dance class to R.B.'s home at the John Burke Apartments until December 31, 1993 and to 73 Old Mill Lane from January 1, 1994 through June 1994 -- sometimes dropping her off as late as 11:00 p.m. Thus, D.R.'s sworn statement tends to support petitioner's claim of residence -- especially in the absence of contrary eyewitness accounts to suggest that petitioner does not reside on Old Mill Lane. Under these facts, I find that respondent acted arbitrarily when it excluded R.B. from the Queensbury schools based upon a mere suspicion that R.B. did not live there.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent immediately admit R.B. to the schools of the Queensbury Union Free School District on a tuition-free basis.

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