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Decision No. 14,175

Appeal of AUDREY SMITH, on behalf of JAZMYNE, FELEIGHCIA, ALECZANDRIA, JENNIFER and TIFFANY SMITH, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 14,175

(July 28, 1999)

Ingerman Smith, LLP, attorneys for respondent, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the Freeport Union Free School District ("respondent") that she is not a resident of its school district and that, therefore, her children may not attend the public schools of the district without the payment of tuition. The appeal must be sustained.

Petitioner contends that she resides with her children in her mother's home located at 158 North Ocean Avenue within respondent's district. Her five children have been continuously enrolled in the district. Petitioner asserts that, because she attends school during the day and works part-time at night, for purposes of child care her children stay with her cousin during the week. Petitioner's cousin resides at 66 East Clinton Avenue in the Roosevelt Union Free School District.

On November 13, 1998, respondent's attendance officer received information from a staff member that two of petitioner's children had been picked up by a taxi at the Clinton Avenue address and driven to school in respondent's district. As a result of this information, respondent conducted a surveillance of both locations. On February 11, 1999, pursuant to 8 NYCRR "100.2(y), a hearing officer designated by respondent's superintendent of schools held a fact-finding hearing to provide petitioner an opportunity to present information regarding residency. After the hearing, the hearing officer issued a report and recommendation based upon the surveillance, which indicated that petitioner had been observed driving her children from 66 East Clinton Avenue to school in respondent's district, and concluded that her children were not residents of the district.

By letter dated February 11, 1999, respondent's superintendent of schools notified petitioner that she had accepted the hearing officer's findings and determination. The letter further indicated that, as of February 26, 1999, petitioner's children would be excluded from attendance in the public schools in respondent's district. This appeal ensued. As part of her appeal, petitioner requested an interim order pursuant to 8 NYCRR "276.2 directing respondent to permit her children to continue to attend school in its district pending a final determination on the merits. An interim order was issued on March 18, 1999.

Petitioner asserts that she resides at 158 North Ocean Avenue, within respondent's school district, and submits documentary evidence in support of her claim. She seeks a determination that she is a resident of respondent's school district and that her children may continue to attend school there without payment of tuition. Respondent contends that its residency determination is in all respects proper.

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 Murphy, 37 Ed Dept Rep 162, Decision No. 13,831; Appeal of Allen, 35 id. 112, Decision No. 13,482; Appeal of Brutcher, 33 id. 56, Decision No. 12,973). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023).

In support of her position, petitioner submits a copy of her 1998 federal income tax return, an earnings statement from her current employer and items of correspondence. All of these list her address as 158 North Ocean Avenue. Respondent submits no documentary evidence to refute that submitted by petitioner. Instead, respondent relies on a surveillance report indicating that petitioner's children left the East Clinton Avenue address and were driven to school on three occasions in December 1998, two occasions in January 1999, and once in February 1999.

After carefully reviewing the evidence presented by the parties, I find that the record does not support respondent's determination. The documentary evidence submitted by petitioner to support her claim has not been refuted by respondent. Nor has respondent submitted any documentary evidence indicating petitioner's address is other than 158 North Ocean Avenue.

Respondent places great weight on the surveillance report. However, petitioner's statement that she and her children sometimes stay at the East Clinton address for child care reasons sufficiently explains those observations and is not inconsistent with her claim of residency in respondent's district. Moreover, there is no evidence that petitioner has surrendered custody and control of her children to her cousin. Essentially, petitioner has established physical presence in both districts (Appeal of Ifill, 38 Ed Dept Rep 97, Decision No. 13,992; Appeal of Cupid, 34 id. 609, Decision No. 13,426) and has provided a reasonable explanation for the days when her children stay at 66 East Clinton Avenue. She also asserts that she intends to remain in respondent's district, stating that in approximately one and one-half years she intends to move out of her mother's home in respondent's district and purchase a house of her own in the district (See, Appeal of Baguidy, 33 Ed Dept Rep 32, Decision No. 12,965).

In sum, I find respondent's evidence insufficient to support its determination. Respondent's determination is largely based upon the results of the surveillance it conducted. Petitioner provides documentary evidence of her residence and a reasonable explanation for the days in which she drove her children to school from the East Clinton Avenue address. Therefore, I find that the record does not support respondent's decision to deny petitioner's children admission to its schools. Accordingly, it must be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Board of Education of the Freeport Union Free School District admit petitioner's children to the schools of the district without payment of tuition.

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