Appeal of KESHA GREENE, on behalf of her son RAQUAN GREENE and her nephew MAURICE VANN, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 15,817

(August 12, 2008)

Ingerman Smith, L.L.P., attorneys for respondent, Alla Brodsky, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District (“respondent”) that her son, Raquan, and nephew, Maurice, are not district residents.  The appeal must be dismissed.

Raquan and Maurice[1], were registered in respondent’s schools in September, 2006.  At that time, petitioner listed an address on School Street, in Baldwin, within respondent’s district.  On or about January 8, 2008, the district initiated a residency investigation after mail addressed to Maurice at the School Street address was returned marked “undeliverable.”

By letter dated March 6, 2008, respondent’s director of pupil services (“director”) notified petitioner that she had reason to believe that petitioner was not a district resident and, barring additional documentation, Raquan and Maurice would be excluded from the district’s schools as of March 14, 2008.  By letter dated March 13, 2008, the director confirmed her determination that petitioner was not a district resident.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 21, 2008.

Petitioner contends that she resides on School Street within the district, and therefore Raquan and Maurice are entitled to attend respondent’s schools tuition-free.  Respondent maintains that petitioner actually resides on Eddy Road in Roosevelt, outside respondent’s 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).

Respondent submits an extensive surveillance report, documentation from the Nassau County Office of Housing and Intergovernmental Affairs, automobile registration records, and an Auto Track Internet report all indicating that petitioner resides on Eddy Road in Roosevelt, outside respondent’s district.

According to the surveillance report, a total of 22 surveillance observations were made between January 28 and March 13, 2008.  On 14 occasions, a vehicle registered to petitioner was observed at the Eddy Road address during the early morning hours and on weekends.  Petitioner was also observed driving from Eddy Road toward Baldwin on seven of the 14 occasions and driving one or both of the boys from there toward Baldwin on four occasions.  The investigator confirmed that the boys were in attendance in school on those days.

In addition, surveillance of the Baldwin address was done on six occasions.  Neither petitioner, Raquan or Maurice was ever observed there.  Furthermore, respondent submits documentation showing that petitioner is registered for public housing at the Eddy Road address in Roosevelt.

In support of her residency claim, petitioner submits four unsworn, handwritten letters stating that petitioner resides on School Street.  Three of the letters are from unidentified individuals.  One of the letters is from an individual who claims that petitioner, Maurice, and Raquan live with her on School Street.  Petitioner fails to provide any other documentation or any response to the surveillance report.

On the record before me, petitioner has not provided persuasive evidence to support her claim that she resides in the district.  Accordingly, I cannot conclude that respondent’s determination to exclude Raquan and Maurice from district schools was either arbitrary or capricious.

THE APPEAL IS DISMISSED.

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