Decision No. 15,080
Appeal of ALISHA TUCKER, on behalf of her daughter JAVAYA CARLTON, from action of the Board of Education of the Greenburgh Central School District regarding residency.
Decision No. 15,080
(July 15, 2004)
Keane & Beane, P.C., attorneys for respondent, Mark D. Pellis, Esq., of counsel
MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Greenburgh Central School District ("respondent") that her daughter, Javaya, is not a district resident. The appeal must be dismissed.
Sometime in or around January 2004, petitioner told Javaya"s kindergarten teacher that she lived outside respondent"s district. By letter dated February 2, 2004, respondent"s superintendent offered petitioner an opportunity to submit information concerning Javaya"s residency. Receiving no response, the superintendent notified petitioner by letter dated February 9, 2004 that Javaya would be excluded from district schools because petitioner was not a district resident.
On February 10, 2004, petitioner told the superintendent"s secretary that she was employed as a school bus monitor by the private bus company that transports children to respondent"s schools, and therefore, believed her daughter was entitled to attend respondent"s schools. When advised that her employment with the bus company did not entitle her daughter to attend respondent"s schools, petitioner stated that her daughter stayed with an aunt in the district Sundays through Fridays. When she learned that a transfer of custody and control to her aunt was necessary, petitioner stated that she was moving in with her aunt on February 13, 2004.
On or about February 13, 2004, petitioner submitted a landlord affidavit, a letter from her aunt and a water bill. On February 25, 2004, petitioner met with the district"s director of pupil personnel services. She asserted that her employment previously entitled her to send her daughter to school in the district, but stated that she now resided with her aunt in the district, and submitted various documents including an interim license and a temporary auto insurance identification card with her aunt"s address. Following a review of the information submitted, the superintendent notified petitioner of her final determination that petitioner was not a district resident. This appeal ensued. Petitioner"s request for interim relief was denied on March 12, 2004.
Petitioner asserts that she currently resides with her aunt within respondent"s district. She further states that her daughter attended respondent"s schools by living weekdays with her uncle during the 2002-2003 school year, and with her aunt during the 2003-2004 school year.
Respondent contends that its residency determination should be upheld because petitioner admits that she lived outside the district until February 2004 and submitted unreliable documents to establish residency after that date.
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.O. and D.O., 42 Ed Dept Rep 42, Decision No. 14,769; Appeal of L.W., 41 id. 372, Decision No. 14,717; Appeal of Pierre, 40 id. 538, Decision No. 14,551). Residence is established by one"s physical presence as an inhabitant within the district combined with an intent to remain (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of B.O. and D.O., supra; Appeal of Metze, 42 Ed Dept Rep 40, Decision No. 14,768).
In an appeal to the Commissioner of Education pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Brown, 42 Ed Dept Rep 17, Decision No. 14,760). Furthermore, residency determinations will not be set aside unless they are arbitrary, capricious or unreasonable (Appeal of Gurka, 43 Ed Dept Rep ___, Decision No. 15,072; Appeal of Brown, supra).
Petitioner has failed to meet the burden of proving that respondent"s determination was arbitrary, capricious or unreasonable because she makes inconsistent statements and produces inconsistent documents concerning her residency. Although petitioner states that she lived outside the district from August 2002 until February 2004, she annexed two documents in which she represented to the district that she resided there in 2003 -- a kindergarten registration form dated March 7, 2003, and a landlord affidavit indicating that she rented an apartment from her aunt within the district commencing September 1, 2003. The documentation provided by petitioner is similarly inconsistent and questionable. The water bill contains no name, and the interim license and temporary auto insurance identification were issued after respondent challenged her residency. Moreover, the landlord"s affidavit is inconsistent with petitioner"s statements and with a landlord affidavit previously submitted.
Petitioner has also failed to establish a transfer of custody and control of Javaya to her aunt or uncle. The fact that Javaya may have spent some time with them is not determinative.
Based on the record before me, I find that petitioner has not sustained her burden of establishing that respondent"s determination is arbitrary, capricious, or unreasonable.
THE APPEAL IS DISMISSED.
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