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Decision No. 14,637

Appeal of RONALD WILKINSON, on behalf of BRITTANY WILKINSON, from action of the Board of Trustees of the Maplewood-Colonie Common School District regarding residency.

Decision No. 14,637

(August 30, 2001)

Tobin and Dempf, LLP, attorneys for petitioner, Kevin A. Luibrand, Esq., of counsel

William M. Hoblock, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Trustees of the Maplewood-Colonie Common School District ("respondent") that his daughter, Brittany, is not a district resident. The appeal must be dismissed.

Respondent"s district is comprised of one school, consisting of grades kindergarten through eight. Upon completing eighth grade in respondent"s school, its resident students are given the option of attending high school, tuition-free, at either Watervliet High School or Shaker High School, pursuant to instruction contracts that respondent maintains with each of those districts. Non-resident students graduating from respondent"s school are not extended the same option of attending those two high schools tuition-free.

Petitioner owns two pieces of residential property -- one located within respondent"s district, and one located just outside of it. Brittany attended respondent"s school from kindergarten through eighth grade. In his affidavit, respondent"s superintendent avers that Brittany attended school as a non-resident student, since she resided with her family outside the district. The superintendent further indicates that petitioner was not charged non-resident tuition for his daughter"s attendance, because the taxes that petitioner paid on his property located within the district offset any tuition that would have been imposed.

Prior to the district"s annual meeting on May 15, 2001, the district notified petitioner that, although he had voted at the previous year"s annual meeting, he would not be permitted to vote at the upcoming meeting, since he was not a district resident. Petitioner met with respondent at its meeting on May 21, 2001 to discuss the matter. In addition to discussing petitioner"s residency and his right to vote at respondent"s elections, the parties also discussed Brittany"s right to attend Shaker High School on a tuition-free basis.

By letter dated May 25, 2001, respondent"s superintendent notified petitioner that respondent was affording him an opportunity to submit any documentary evidence he had in support of his residency claim. By letter dated June 4, 2001, petitioner responded to the superintendent"s invitation. In support of his claim of residency, petitioner cited the following: he has been registered to vote in the district for 31 years, and has voted in every election there during that time; he owns real property within the district, and has paid town and school taxes on that property since 1978; he has been actively involved in civic organizations within the district for many years; the address listed on his driver"s license is his property within the district; his gun is licensed at the address of his property within the district; and the mortgage documents relating to the property he owns outside respondent"s district are sent to him at his property within the district.

By letter dated June 12, 2001, respondent"s superintendent notified petitioner that, at a special meeting held on June 11, 2001, respondent had determined that neither he nor his daughter are district residents. The letter noted that this determination was based on the statements made by petitioner when he met with respondent on May 21, 2001 and on the district"s school records relating to petitioner and his family. The superintendent wrote that respondent"s review of the evidence indicated that petitioner"s true residence, as defined by the Education Law and case law, is outside the district. Accordingly, the letter informed petitioner that Brittany was not entitled to attend Shaker High School on a tuition-free basis. This appeal ensued.

Petitioner asserts that "for purposes of its determination of whether Brittany Wilkinson was eligible to attend Shaker High School, respondent was required to determine the residence of petitioner, as the parent of Brittany Wilkinson. Therefore, respondent"s reliance on old records relating to petitioner"s daughter did not support a finding as to petitioner"s current residence." Respondent asserts that it thoroughly reviewed all of the relevant evidence and made a proper determination with regard to Brittany"s true residence.

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 Karmin, 41 Ed Dept Rep ___, Decision No. 14,618; Appeal of Waters, 41 id. ___, Decision No. 14,616; Appeal of Reynolds, 41 id. ___, Decision No. 14,604). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Karmin, supra; Appeal of Waters, supra; Appeal of Mario D., 41 Ed Dept Rep ____, Decision No. 14,600).

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 Karmin, supra; Appeal of Waters, supra; Appeal of Reynolds, supra). The term "residence" for purposes of the Education Law refers to one"s "domicile" (Appeal of Harkless, 40 Ed Dept Rep ____, Decision No. 14,566; Appeal of Ifill, 38 id. 97, Decision No. 13,992). Furthermore, for purposes of Education Law "3202, a person can have only one legal residence (Appeal of O"Herron, 41 Ed Dept Rep ____, Decision No. 14,591; Appeal of LaQuerre, 40 id. ____, Decision No. 14,558). Simple ownership of property in a school district does not, in and of itself, confer residency status (Appeal of O"Herron, supra; Appeal of Rodriguez, 40 Ed Dept Rep ____, Decision No. 14,496).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Karmin, supra). Furthermore, in an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which relief is sought (8 NYCRR "275.10; Appeal of Reynolds, supra; Appeal of O"Herron, supra). Here, respondent"s superintendent avers in his affidavit that "petitioner expressly stated at the meeting [i.e., petitioner"s May 21, 2001 meeting with respondent] that Brittany resides outside the District..." Petitioner has not responded to this assertion in a reply or otherwise. Furthermore, respondent has provided copies of numerous school records - dating from Brittany"s entrance into kindergarten through eighth grade " and all such records indicate an address for the family outside the district. For example, respondent has provided Brittany"s "emergency form" for the two most recent school years; each of those forms, signed by Brittany"s mother (petitioner"s wife), clearly lists a home address outside of respondent"s district. In addition, the most recent telephone directory lists petitioner"s telephone number at the address outside the district. The same telephone number appears on the district"s records. Although petitioner may own property in respondent"s district, he has not clearly established that he or Brittany actually reside there. Accordingly, I do not find respondent"s determination arbitrary or capricious.

THE APPEAL IS DISMISSED.

END OF FILE