Appeal of J.C., on behalf of her son T.C., from action of the Board of Education of the Gates-Chili Central School District regarding residency.

Decision No. 15,791

(July 28, 2008)

Goldstein, Ackerhalt & Pletcher, LLP, attorneys for respondent, Jay C. Pletcher, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Gates-Chili Central School District (“respondent”) that her son, T.C., is not a district resident.  The appeal must be dismissed.

According to respondent, petitioner registered T.C. in respondent’s district in March 2007 under a Shared Housing Agreement wherein she indicated that she resided with her mother on Lyndale Drive in the district.  That document is not in the record.  Thereafter, at some point, T.C. began attending school in the district.

On October 12, 2007, a caseworker filed a residency referral form regarding T.C.  T.C.’s kindergarten teacher had reported that during a classroom activity for fire safety week, when students were learning their home addresses and telephone numbers, T.C. had given an address on Canton Street, outside the district, rather than the Lyndale Drive address.  T.C. said the Lyndale Drive address belonged to his grandmother.

The record is silent about what transpired between October 2007 and May 2008.  On May 15, 2008, the same caseworker spoke to T.C., who confirmed that he lived on Canton Street.  According to the caseworker, T.C. said his mother told him to lie and give his grandmother’s address if anyone at school asked.

By letter dated May 15, 2008, the district’s Coordinator of Student Support Services (“coordinator”) notified petitioner that the district had information that she was living on Canton Street outside the district and was using her mother’s address in order to allow T.C. to attend school in the district.  The letter informed petitioner that T.C. would be dropped from the district’s schools effective May 23, 2008 unless petitioner could prove that she was residing in the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 27, 2008.

Petitioner asserts that she and T.C. have lived on Lyndale Drive for 18 months and intend to live there for at least another six months.  She states that T.C. also spends time with his father, R.C., from whom she is separated, who resides at the Canton Street address.

Respondent contends that petitioner and T.C. do not reside in the district and therefore T.C. is not entitled to attend school in the district.  Moreover, even if petitioner is physically present in the district, respondent contends that petitioner has no intent to remain in the district.

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 failed to submit any documentary evidence or affidavits in support of her residency claim.  Her mere assertion in the petition that she and T.C. have resided in the district for 18 months and intend to remain there for six more months is insufficient to establish residency.  On the other hand, on at least two occasions, T.C. stated that he resided at the out-of-district address.  In addition, a two-day investigation, conducted following the commencement of this appeal, not only placed T.C. at the out-of-district address before and after school, but also placed petitioner there at those times, and also discovered vehicles registered to petitioner at that address.  Petitioner did not submit a reply to counter or explain these findings.

Based on the minimal record before me, I cannot conclude that petitioner has demonstrated that she is entitled to relief.  Accordingly, I cannot conclude that respondent’s determination was either arbitrary or capricious. 

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 T.C.’s behalf if circumstances change, and to present any new information for the district’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE