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Decision No. 15,077

Appeal of VIVIENNE MENDEZ, on behalf of her daughter YANIQUE HAYNES, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

 

 

(July 2, 2004)

 

Ingerman Smith L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Uniondale Union Free School District ("respondent") that her daughter, Yanique Haynes, is not a district resident.  The appeal must be sustained.

In September 2002, petitioner enrolled her daughter in respondent"s schools as a seventh grade student.  On the enrollment application, petitioner listed their residence as Uniondale, within respondent"s district.  The enrollment application indicated a previous address in Roosevelt, within the Roosevelt Union Free School District. 

In September 2003, the district received an anonymous message on its residency "Hot Line" that petitioner and her daughter did not reside in Uniondale.  In response, an investigator conducted two surveillances at the Roosevelt address.  On October 9, 2003 at approximately 7:07 a.m., the investigator observed a green Toyota parked in the driveway.  The investigator learned that the Toyota was registered to petitioner at the Roosevelt address.  On October 22, 2003, at approximately 7:56 a.m., the investigator observed petitioner and her daughter exit the Roosevelt residence and drive the Toyota to respondent"s middle school, where the student was dropped off.  The district also used the computer search engine "Auto Track" to match petitioner"s address to the Roosevelt address as of October 2002.

By letter, dated November 10, 2003, respondent"s administrative assistant for central registration ("registration assistant") and the interim superintendent advised petitioner that her daughter was not entitled to attend district schools because she resided outside the district.  The letter indicated that a meeting could be arranged at which petitioner could provide additional documentation to support her residency claim before a final determination was made.

On November 19, 2003, the registration assistant met with petitioner to consider her evidence of residency.  On November 20, 2003, he advised petitioner by telephone of his determination that she did not reside within the district.  By letter dated December 10, 2003, he confirmed that determination based upon surveillance reports and documentary evidence indicating that petitioner continued to reside in Roosevelt.  The letter advised that petitioner"s daughter would be excluded as a non-resident after December 12, 2003.  This appeal ensued.  Petitioner"s request for interim relief was granted on December 15, 2003.

Petitioner contends that her daughter resides with her in respondent"s district.  To support her claim, petitioner submits a bank statement for a checking account in her name at the Uniondale address.  Petitioner also submits 15 receipts recording cash payments in the amount of $600 per month from August 2002 through October 2003 for an apartment rental in Uniondale.  Petitioner states that her daughter"s grandmother resides at the Roosevelt address and that the student goes there after school.

Respondent contends that it properly determined that petitioner and her daughter are not district residents.  Respondent relies on petitioner"s automobile registration,  driver"s license and computer search that all listed the Roosevelt address and its surveillance.

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 B.C., 43 Ed Dept Rep ___, Decision No. 14,946; Appeal of D.E., 43 id. ___, Decision No. 14,908).  A child"s residence is presumed to be that of his or her parents or legal guardian (Appeal of B.C., supra; Appeal of D.E., supra).  Residency for purposes of Education Law "3202 is established based on two factors:  physical presence as an inhabitant within the district, and intent to reside in the district (Appeal of B.C., supra; Appeal of D.E., supra).

Based on the record before me, I find insufficient evidence to support respondent"s determination that petitioner is not a district resident.  The surveillance, conducted on only two occasions, yielded inconclusive and unpersuasive results in view of petitioner"s statement that her daughter spends time at her grandmother"s Roosevelt residence.  This limited surveillance of the Roosevelt home does not, therefore, establish that petitioner and her daughter reside there.  Moreover, respondent"s investigator did not conduct a surveillance at the Uniondale address, despite petitioner"s claim that she resides there.  The documents listing petitioner"s residence as Roosevelt are also not conclusive proof that she still resides there, particularly in light of the rent receipts and banking records addressed to her Uniondale address.

On the record before me, I find that respondent"s determination that Yanique is not a district resident is based upon insufficient evidence and is therefore arbitrary and capricious.  

THE APPEAL IS SUSTAINED.
 

IT IS ORDERED that respondent permit Yanique Haynes to attend school in the Uniondale Union Free School District without the payment of tuition.

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