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Decision No. 15,449

Appeal of ROBERT DOERRSAM, on behalf of his son BRYANT, from action of the Board of Education of the Williamsville Central School District regarding residency.

 

Decision No. 15,449

 

(August 21, 2006)

 

Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Williamsville Central School District (“respondent”) that his son, Bryant, is not a district resident.  The appeal must be sustained.

In September 2005, petitioner registered Bryant to attend high school in respondent’s district.  In February 2006, respondent’s Coordinator of Student Services (“coordinator”) received information that Bryant may not be a district resident.  By letter dated February 16, 2006, the coordinator asked petitioner to submit proof of residency.  Therefore, petitioner spoke with the coordinator by telephone.  By letter dated March 10, 2006, respondent determined that Bryant was not a resident of the district and would be excluded from its schools as of April 3, 2006.  In response to this determination petitioner submitted a lease agreement and a bank document.  By letter dated April 3, 2006, respondent’s coordinator once again notified petitioner that Bryant was not a resident and excluded him from school as of April 24, 2006.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 27, 2006.

Petitioner claims that he and Bryant are district residents and maintains that he submitted sufficient documentation to demonstrate residency.

Respondent denies that petitioner provided adequate documentation.  It asserts that petitioner’s lease is not valid, since he lives in a home with another family, in an area zoned for single family residences.  It also claims that the $300.00 per month rent he pays is substantially below market value.  Respondent maintains that petitioner’s car is registered in Canada, that his cell phone number is Canadian, that he has not paid New York State income taxes, that his daughter lives with her mother in Canada and attends school there and that petitioner has not produced any documentation regarding his marital status.

I must first address a procedural issue.  Petitioner submitted an unverified reply.  Since the reply and attached exhibits do not comply with the verification requirement for a reply (8 NYCRR �275.5), I have not considered them in this appeal.

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 Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

In support of his residency claim, petitioner submitted to the district a copy of a lease for an in-district residence.  He also submitted copies of visas for himself and Bryant, which indicate that they are Canadian citizens, legally residing in the United States.  While he admits that his car is registered in Canada he explains that his employer, a Canadian company, provides the car and requires it be registered in Canada.  He further explains that his cell phone number is Canadian because he has worked all over North America for the past 10 years and has always maintained this number.  Petitioner also acknowledges that his wife and daughter live in Niagara Falls, Ontario.  He explains that he and his wife are currently separated, but that he has no legal documentation of the separation because it is amicable and informal.  He also states that his United States and Canadian taxes are in order.

Based on the record, I find respondent’s evidence insufficient to support its determination (seeAppeal of Dortch, 45 Ed Dept Rep 138, Decision No. 15,283; Appeal of Powe, 37 id. 657, Decision No. 13,950).  Respondent does not report surveillance on either the in-district address or the Canadian address or submit any other evidence placing petitioner or his son at the Canadian address.  I further find petitioner’s explanation of the Canadian car registration and phone number to be reasonable, and respondent presents no evidence refuting it.  Moreover, respondent’s allegation concerning the legality of the lease and the amount of rent charged is mere speculation.  Given petitioner’s evidence of residence in respondent’s school district and respondent’s lack of proof to the contrary, I conclude that respondent’s decision to exclude Bryant is arbitrary and capricious.

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that respondent allow Bryant Doerrsam to attend school in the Williamsville Central School District without the payment of tuition.

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