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Decision No. 13,453

Appeal of LUCELLY ROBERTSON, on behalf of her son, GEORGE W. ROBERTSON, JR., from action of the Board of Education of the White Plains Central School District regarding residency.

Decision No. 13,453

(July 14, 1995)

Deren, Genett & Macreery, P.C., attorneys for petitioner, John Brian Macreery, Esq., of counsel

Plunkett & Jaffe, P.C., attorneys for respondent, Phyllis S. Jaffe, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her son, George, is not a resident of the White Plains Central School District, and, therefore, not entitled to attend its schools tuition-free. The appeal must be dismissed.

George is a tenth grade student at White Plains High School. The issue of his residency arose when George was charged with bringing a weapon to school and school officials sought to schedule a superintendent's hearing. In respondent's district, when disciplinary charges seeking a suspension in excess of five days are brought against a student, respondent routinely uses a private investigator to deliver a letter to the student's parent setting forth the charges and the date of the hearing.

On December 14, 1994, when the investigator attempted to deliver the letter to petitioner's address in the district, he was told that no one by the name of Lucelly or George Robertson lived there. The investigator consequently proceeded to petitioner's place of employment to deliver the letter. Although the facts are in dispute, the investigator maintains that petitioner admitted that she lived in Mt. Vernon, outside of respondent's district.

On December 16, 1994, respondent sent petitioner a letter at the Mt. Vernon address pursuant to 8 NYCRR 100.2(y) questioning her residency and informing her that she had the opportunity to submit any information she wished to verify her residency. There is no evidence in the record that petitioner provided respondent with any information regarding her residency. On January 3, 1995, respondent informed petitioner by letter that it had determined that neither she nor her son lived within the White Plains Central School District and that he was not entitled to attend its schools. This appeal ensued. Petitioner's request for an interim order pending a determination on the merits of her appeal was denied on February 17, 1995.

Petitioner maintains that she lives within the district and that George is entitled to attend its schools. Respondent contends that petitioner does not reside in its district and that petitioner has stated her intent to have George remain in district schools until he completes high school.

Education Law '3202(1) provides, in pertinent part:

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; Matter of Buglione, 14 id. 220).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Brutcher, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). Residence for purposes of Education Law '3202 may be established in part based upon physical presence as an inhabitant within the district (Vaughn, et al. v. Bd. of Ed., 64 Misc.2d 60). Although petitioner states that she lives in the district, the private investigator's visit to her alleged address in the district and his subsequent conversation with petitioner indicates that she does not.

Petitioner insists that she is a resident of the district and submits an affidavit from Alberto Marin, who allegedly resides at the White Plains address, which is a single family home. That affidavit alleges that Mr. Marin, his wife and children, his brother and his family and another woman and her child also reside at the White Plains address with petitioner and her son. Other than that affidavit, which alleges that at least six adults and several children live in a two story single family home, petitioner offers no proof of residency.

Based upon the facts as they appear in the record, I find that petitioner has failed to sustain her burden of proof. Consequently, respondent's determination that petitioner's son may not attend its schools without the payment of tuition is neither arbitrary, capricious nor unreasonable and will not be set aside.

THE APPEAL IS DISMISSED.

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