Appeal of WALEED and ADRIANA SIMREEN, on behalf of their children YASMEEN and KHALID, from an action of the Board of Education of the Dobbs Ferry Union Free School District regarding residency.

Decision No. 15,659

(September 13, 2007)

Arthur Morrison, Esq., attorney for petitioners

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal a determination of the Board of Education of the Dobbs Ferry Union Free School District (“respondent”) that their children, Yasmeen and Khalid, are not district residents entitled to attend district schools tuition-free.  The appeal must be sustained.

Petitioners’ children attend the Dobbs Ferry High School based on their representation that they reside on Beacon Hill Drive in the district (“in-district residence”).  Based on the district’s receipt of returned, undeliverable mail sent to the petitioners at the in-district residence, the district hired a private investigator to investigate petitioners’ residency.  The investigator’s report, dated March 4, 2007, concluded that petitioners were not district residents.  By letter dated March 6, 2007, the district requested that petitioners provide information in support of their residency by March 23, 2007.

On March 22, 2007, petitioners asked what type of information was requested as proof of residency. Having not received evidence from petitioners, by letter dated March 26, 2007, the district notified petitioners that the students were not district residents and that they would be excluded from school as of April 16, 2007.  On the same date, the district received a letter from petitioners indicating that they would submit a lease agreement and a Con Edison bill demonstrating their in-district residency.

Petitioners, by and through their legal counsel, submitted an April 5, 2007 request to the district seeking an “appeal” or reconsideration of the district’s determination.  By letter dated April 10, 2007, petitioners submitted a lease agreement, a Con Edison bill and a copy of Mrs. Simreen’s interim driver’s license.  By letter dated April 12, 2007, the district notified petitioners of its decision that the students were not district residents.  This appeal ensued. 

Petitioners claim that the district’s residency determination was arbitrary and capricious and seek a determination that their children are district residents entitled to attend district schools tuition-free.  Respondent contends that petitioners are not district residents and that the district’s residency determination was correct.  It argues that although petitioners and their children have an apartment in Dobbs Ferry within the district, they have been residing in the Bronx and driving the children to school.

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). 

Here, the district based its residency determination on its receipt of returned mail, the March 4, 2007 investigation report and its assessment of the documentation that petitioners submitted to the district.  First, respondent argues that the returned mail demonstrates the petitioners’ absence from the in-district residence.  I find that it does not. The completeness and accuracy of the addresses indicated on the envelopes are questionable.  One envelope addressed to the Beacon Hill Drive address is marked “Return to Sender/No Such Street/Unable to Forward.”  However, respondent acknowledges that Beacon Hill Drive does exist.  From the copy of the second envelope, it is not possible to ascertain the full address that appeared on the envelope.  The copy of the third envelope submitted by respondent reflects an incorrect apartment number and lists “DF” as the city.  The fourth envelope that was returned does appear to have a complete and correct address. However, petitioners apparently received the letters sent to them at that address concerning the residency determination.  Also, petitioners submit a lease, a utility bill and a driver’s license reflecting the Beacon Hill Drive address.  Moreover, respondent acknowledges that petitioners lease an apartment at that address.  Therefore, the returned mail, while raising questions, does not establish that petitioners do not reside at the Beacon Hill Drive address.

     The March 4, 2007 investigation report indicates that no name was listed for petitioners’ alleged apartment in the lobby of the apartment building on Beacon Hill Drive.  The investigator also searched the family’s emergency contact number and found it to be listed to Abdelrahem Sulaiman in the Bronx. The investigator placed a call to that number and spoke with petitioner Adriana Simreen.  On the mornings of March 1 and 2, 2007, the investigator observed Mrs. Simreen and her children leave the Bronx residence in the morning and return in the afternoon.  On Saturday, March 3, 2007, the investigator observed petitioners’ vehicles at the Bronx address.

First, petitioners may have simply elected not to, or mistakenly failed to, display their name on the mailbox. Further, petitioners’ failure to do so offers an additional explanation for the district’s receipt of return mail.  Nonetheless, absence of a name on a mailbox does not demonstrate absence from the district residence.

Also, I find the surveillance insufficient. Although the report indicates petitioners were observed departing from an out-of-district residence with students before school and returning to such residence after school, the investigation was conducted only over two school days.  Moreover, the out-of-district residence was discovered to be the residence of Mrs. Simreen’s parents.  Petitioners explain that they spend time there assisting her parents and that their children receive religion and language lessons at their grandparents’ house on Thursday and Friday nights. 

In support of their claim of residency, petitioners submitted to the district a lease agreement for rental property in the district, a Con Edison bill for such residence and an interim driver’s license for Mrs. Simreen. On the record before me, I find respondent’s evidence insufficient to prove that petitioners are not district residents and its residency determination to be arbitrary and capricious.  The lease agreement indicates renewal of a year lease agreement at the in-district residence, and the electricity bill demonstrates usage of electricity at such residence.  While petitioners’ change of address is belated and may have been completed in response to the residency inquiry, it demonstrates petitioners’ intent to permanently reside in the district.  Furthermore, Mrs. Simreen explains that she did not realize that she needed to change her driver’s license to be considered a district resident.  

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allows Yasmeen and Khalid to attend school in the Dobbs Ferry Union Free School District without the payment of tuition.

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