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Decision No. 13,753

Appeal of MARY LAWRENCE, on behalf of JOHN LAWRENCE, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 13,753

(April 2, 1997)

Douglas A. Libby, Esq., attorney for respondent, Bernadette

Gallagher-Gaffney, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that her son is not a resident of the district. The appeal must be sustained.

Petitioner is the mother of John Lawrence, a student at New Hyde Park Memorial High School. On August 8, 1995, petitioner enrolled her son in respondent's high school. In September 1995, a home visit was made to petitioner's New Hyde Park address to verify petitioner's residence. During that time, respondent received anonymous phone calls that petitioner was not residing in the district but was dropping off her son at the New Hyde Park address and proceeding to work. Respondent surveiled petitioner on March 22, 25, 27 and 28, 1996 and on April 19, 22, 24 and 25, 1996. On May 21, 1996, petitioner was notified that her son was not entitled to attend respondent's schools because he resided outside the district. Petitioner appealed.

On June 4, 1996, respondent's designee conducted a residency review. Petitioner testified that she occupied the home owned by her sister in New Hyde Park, but that she often spent time with her elderly mother in Astoria, Queens, outside respondent's district. She presented documentary evidence listing her address in New Hyde Park, and indicated to respondent that she had been commuting from Astoria early in the school year. Her son had previously attended a nonpublic school in Astoria, and petitioner stated that she moved to the district because her sister had highly recommended the schools. On July 8, 1996, respondent's designee issued his determination that petitioner's son was not entitled to attend district schools because his actual residence was not within the district. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on August 5, 1996.

Petitioner alleges that she resides in the district and respondent's determination is incorrect. Petitioner seeks a determination that her son is a resident of the district and is entitled to attend district schools without the payment of tuition. Respondent contends that its determination was rational and supported by the record. Respondent also contends that its actions were not arbitrary, capricious or unreasonable.

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220).

In this case, petitioner presents significant documentation concerning her residence in the district, including a driver's license, voter registration card, credit card bills, W-2 form, lease, bank statements, auto registration and insurance cards, postmarked mail, notarized affidavit from petitioner's sister concerning her living arrangements and medical receipts. She explained that she visited Astoria frequently since her elderly and infirm mother lived there and she lived in the community prior to moving to New Hyde Park.

Respondent contends that petitioner is not a resident of the district since she does not physically reside there, and points to its surveillances which place petitioner in Astoria. Respondent also notes that petitioner admitted that she commuted to Astoria earlier in the year, that the medical documentation provided by petitioner's mother's physician does not indicate a disabling condition that required petitioner's daily presence, and that the living arrangements at the New Hyde Park address were unrealistic given the number of individuals who claimed to reside there. Finally, respondent relies on petitioner's own admission that her move to the district was motivated by educational considerations.

Based on the record before me, I find that petitioner is a resident of respondent's district. Her documentary evidence of residence is significant, and the information from the surveillance placing petitioner outside the district were explained by her, albeit not to respondent's satisfaction. Respondent attempts to discredit petitioner's statement that she was present in Astoria caring for her elderly mother by reviewing the medical records voluntarily released by petitioner's family. I find unpersuasive respondent's medical testimony that petitioner's mother is not so severely ill as to require her presence in Astoria, noting that respondent's medical expert is respondent's school physician who is a pediatrician and not a gerontologist.

Respondent also focuses its findings on petitioner's statements that she chose to reside in the district due to the schools' excellent reputation. While an individual may not falsify residence to take advantage of district schools, an individual may choose to relocate to a district because the schools in that district have a reputation for academic excellence. The fact that the reputation of the school may contribute to an individual's choice of residence does not invalidate that selection. Furthermore, although not dispositive of the issue before me, the record indicates that during the pendency of this appeal petitioner has obtained another residence within the district.

THE APPEAL IS SUSTAINED.

END OF FILE