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Decision No. 15,088

Appeal of KANISA HOLDER, on behalf of her son CYRUS, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

 

 

(July 16, 2004)

 

Law Firm of Anthony D. Denaro, P.C., attorneys for petitioner, Lawrence S. Lefkowitz, Esq., of counsel

 

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

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District ("respondent") that her son, Cyrus, is not a district resident.  The appeal must be dismissed.

Petitioner enrolled Cyrus in first grade in respondent"s schools in the fall of 2003.  At that time, she indicated that she resided in the district.  In January 2004, the district"s administration commenced an investigation of petitioner"s residency.  By letter dated February 13, 2004, the interim superintendent notified petitioner of his finding that she was not a district resident and that, as of March 5, 2004, Cyrus was ineligible to attend school in the district.  The letter further notified petitioner of her right to present evidence regarding her residency. 

On March 1, 2004, petitioner attended a residency conference.  By letter dated March 2, 2004, respondent"s designee informed petitioner of his decision that Cyrus was not a district resident.  He further determined that petitioner"s primary residence is outside the district in Roosevelt.  This appeal ensued.  On April 9, 2004, petitioner"s request for interim relief was granted. 

Petitioner contends that respondent"s determination is not supported by the evidence in the record and that she was not afforded appropriate due process. Respondent asserts that it complied with the procedural requirements of "100.2(y) of the Commissioner"s regulations and that the record supports its determination that petitioner and her son are not district residents.

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 General, 43 Ed Dept Rep ___, Decision No. 14,948; Appeal of Burnett, 42 id. 208, Decision No. 14,825; Appeal of J.M., 42 id. 80, Decision No. 14,783).  Residency for purposes of Education Law "3202 is established based upon two factors: physical presence and an intent to reside in the district (see, Longwood C.S.D. v. Springs U.F.S.D., 1 NY3d 385; Appeal of General, supra; Appeal of Burnett, supra).  A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Short, 43 Ed Dept Rep ___, Decision No. 14,945; Appeal of Washington, 42 id. 197, Decision No. 14,820).

A residency determination will not be overturned unless it is arbitrary and capricious (Appeal of General, supra; Appeal of Short, supra).  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 she seeks relief (8 NYCRR "275.10; Appeal of General, supraAppeal of Short, supra).

In his March 2, 2004 letter, respondent"s designee indicated that his determination was based on telephone records, a surveillance report, Cyrus"s statement that he had moved to Roosevelt, petitioner"s statement that she sleeps at the Roosevelt address, and the statement of a tenant at the Uniondale address indicating that petitioner did not reside there.

Petitioner asserts that her family owns property in Uniondale, Hempstead and Roosevelt, that she spends time at each of the properties, but that she and Cyrus reside at her father"s house in respondent"s district.  Petitioner asserts that she spends time at her grandparents" house in Roosevelt because she is attempting to open a daycare center at that address.  She maintains that she sometimes sleeps at that address because she occasionally babysits late in the evening or early in the morning.  She submits two letters from individuals for whom she provides child care at her grandparents" house in Roosevelt.

Petitioner also submits a statement from the tenant at the Uniondale address.  The tenant states that she hears petitioner "coming and going but I really do not pay this any attention because it is none of my business.  However, [petitioner] does reside at this address and have [sic] been for quite some time."  Petitioner also submits tax receipts indicating that her father owns the Uniondale property.  Finally, petitioner submits correspondence addressed to her at the Uniondale address.

 In addition to the evidence referred to in the March 2, 2004 letter, respondent submits copies of petitioner"s employment earning statements and vehicle registration data listing the Roosevelt address and utility bills sent to petitioner at a Hempstead address for service provided to her at the Roosevelt address.   

Based on the record before me, I find that respondent"s determination is neither arbitrary nor capricious.  Petitioner has not presented sufficient evidence to establish that she and her son actually reside in respondent"s district.  The correspondence, tax receipts and tenant"s statement are unpersuasive in view of the contrary evidence submitted by respondent.  In addition, petitioner submits a letter dated March 10, 2004 from her then current employer stating that on March 1 petitioner worked from 8:30 a.m. to 2:30 p.m.  This information belies petitioner"s claim that she was present at the Roosevelt address during the relevant period because she provides childcare services from that location.  I also note that petitioner"s application to operate a daycare center was not filed with the New York State Office of Children and Family Services until March 4, 2004 -" two days after respondent"s residency determination.  Accordingly, I find that petitioner has not met her burden of proof and respondent"s determination is supported by the record.    

Petitioner"s assertion that she was not afforded due process is also without merit.  Section 100.2(y) of the Commissioner"s regulations requires that, prior to making a determination of residency "the board or its designee shall afford the child"s parent . . . the opportunity to submit information concerning the child"s right to attend school in the district."  When petitioner"s residency was questioned, petitioner received written notice of the opportunity to provide information and documentation to respondent"s designee, thus satisfying the requirements of "100.2(y).

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of her son at any time should circumstances change (Appeal of Normandin, 43 Ed Dept Rep __, Decision No. 14,950; Appeal of a Student with a Disability, 43 id. __, Decision No. 14,926).

 

THE APPEAL IS DISMISSED.

END OF FILE