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Decision No. 15,285

Appeal of TERESA SHEEHAN, on behalf of JOSEPH MONTECLARO, from action of the Board of Education of the Merrick Union Free School District regarding residency.

Decision No. 15,285

(August 17, 2005)

O'Connor, O'Connor, Hintz & Deveney, LLP, attorneys for petitioner, Kevin J. Murtagh, Esq., of counsel

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

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

In October 2003, Joseph's cousin, a third grade student in respondent's Chatterton School, informed her teacher that Joseph and petitioner had moved in with her family at their house on Bedford Avenue in respondent's district. At the beginning of the 2004-2005 school year, Joseph's cousin told the same teacher that petitioner and Joseph no longer resided with her family, although Joseph went to the Bedford Avenue home after school and was picked up at night by petitioner.

In November 2004, the school nurse telephoned petitioner at the Bedford Avenue residence, but Joseph's cousin answered and did not understand why the nurse was calling the house. On another occasion when Joseph needed clean clothes, Joseph's aunt answered and told the nurse that petitioner would be contacted because Joseph had no clean clothes available at that location.

The principal reported these incidents to the assistant superintendent, who began a residency investigation. A search identified petitioner's residence as Ott Lane in North Merrick, outside respondent's district. Surveillance of the Ott Lane address on November 10, 17, 19, 22, 29 and December 1, 2004, revealed petitioner and Joseph exiting the home at about 8:15 a.m., and driving to the intersection of Babylon Turnpike and Bedford Avenue, where Joseph boarded a school bus. During surveillance conducted on January 6 and 27, 2005, petitioner was observed arriving with Joseph at the Ott Lane residence at 8:35 p.m. and 9:10 p.m., respectively.

By letter dated April 21, 2005, respondent's assistant superintendent informed petitioner that Joseph was not a resident and would not be permitted to attend school after May 4, 2005, if information establishing residency was not provided by April 28, 2005. Petitioner telephoned the assistant superintendent to explain that she takes Joseph to Ott Lane to visit his father, but claimed that they do not live there. On April 26, 2005, petitioner submitted a letter and affidavit stating that she and Joseph are residing with her brother on Bedford Avenue until they are able to move with Joseph's father to a house within the district. Petitioner's letter further stated that Joseph's father rents a home in North Merrick because there is not enough room for him in her brother's house.

The assistant superintendent advised petitioner that respondent would review the information at its meeting on May 9, 2005 and make a determination. On May 12, 2005, the assistant superintendent advised petitioner by telephone and letter that respondent determined that Joseph is not a resident and would be excluded from its schools after May 18, 2005. This appeal ensued. Petitioner's request for interim relief was granted on May 20, 2005.

Petitioner asserts that Joseph lives with her at her brother's Bedford Avenue residence. Petitioner contends that she intends to rent a house within the district and reside there with Joseph and his father. Petitioner also contends that respondent did not give her an opportunity to provide supporting information to establish residency.

Respondent denies that petitioner was not given an opportunity to submit supporting information and asserts that it complied with the procedures in �100.2 of the Commissioner's regulations. Respondent contends that its determination is not arbitrary or capricious.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

Section 100.2(y) of the Commissioner's regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools. This provision requires that prior to making a determination, the board or its designee must provide the child's parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child's right to attend school in the district. It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR �100.2[y]; Appeal of Humphrey, 43 Ed Dept Rep 117, Decision No. 14,940; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613). The regulation does not require a formal hearing or representation by counsel (Appeal of Rosen, 43 Ed Dept Rep 87, Decision No. 14,929; Appeal of Marbury, 41 id. 119, Decision No. 14,634).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

In this case, petitioner admits that Joseph's father resides at the Ott Lane residence in North Merrick, but claims that they plan to move with their son to a house within respondent's district. However, petitioner presents no lease or purchase offer for such alleged future move. Neither has petitioner provided a lease or other proof of current residence within respondent's district. Moreover, the record reflects that petitioner was provided an opportunity to submit documentation to support her claim of residency but has not done so. I, therefore, find respondent's determination to be neither arbitrary nor capricious.

While the appeal must be dismissed, I note that petitioner has the right to reapply to the district for admission of her son at any time should circumstances change (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of Holder, 44 id. 32, Decision No. 15,088).

THE APPEAL IS DISMISSED.

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