Appeal of LYNETTE STEWART, on behalf of her daughter JASMINE NICOLE, from action of the Board of Education of the Malverne Union Free School District regarding residency.

Decision 15,637

(August 16, 2007)

Ehrlich, Frazer & Feldman, attorneys for respondent, James Pyun, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that her daughter, Jasmine Nicole, is not a district resident.  The appeal must be dismissed.

Jasmine Nicole attended school in respondent’s district during the 2006-2007 school year.  In March 2007, respondent commenced an investigation into petitioner’s residency. Respondent’s investigator conducted surveillance on seven instances between March 8 and March 22, 2007.  At approximately 6:00 a.m. on three mornings during this period, the investigator observed petitioner leaving an apartment building in Far Rockaway, outside respondent’s district, and driving Jasmine Nicole to a daycare center within respondent’s district.  One evening during this period, the investigator observed petitioner picking Jasmine Nicole up at the same daycare center and then driving to the Far Rockaway address.  On each occasion, petitioner drove a car that is registered in Virginia.

By letter dated March 22, 2007, respondent’s Director of Pupil Personnel Services (“director”) notified petitioner that the district had become aware that she resided outside the district and that Jasmine Nicole would be excluded from school as of April 5, 2007.  In response, petitioner submitted a notarized statement from her father that she and Jasmine Nicole lived with him within respondent’s district.  By letter dated April 25, 2007, respondent notified petitioner that it had affirmed the director’s decision.  By letter dated May 11, 2007, respondent agreed to extend Jasmine Nicole’s exclusion date to June 30, 2007.  This appeal ensued. 

Petitioner argues that she is a district resident and that Jasmine Nicole is entitled to attend respondent’s schools tuition-free.  Respondent contends that petitioner has failed to establish that she and Jasmine Nicole are 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 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).

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).

Petitioner has produced several documents to support her claim that she resides within respondent’s district.  These documents include copies of petitioner’s New York State identification card (issued on April 3, 2007), payroll statements from 2002 through 2007, W-2 forms from 2003 through 2006, Social Security statements from 2001, 2002, 2005 and 2007, bank statements, health insurance claim statements, voter registration records, library records, and a jury summons, all reflecting her father’s address.

While these documents do indicate that petitioner uses her father’s in-district address as her mailing address, they are not dispositive of petitioner’s residency, particularly in light of the district’s investigation, which included approximately seven surveillances during a two-week period.  Those surveillances found petitioner and her daughter to be staying outside the district, in Far Rockaway, and petitioner offers no explanation for her presence there.

Based on the record before me, I find that petitioner has failed to establish actual physical presence in the district.  Accordingly, respondent’s determination is neither arbitrary nor capricious and will not be set aside.

Although the petition must be dismissed on the record before me, I note that petitioner has the right to reapply to the district for admission on her daughter’s behalf if circumstances have changed.

THE APPEAL IS DISMISSED.

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