Appeal of KERLYN WHITE on behalf of her daughter KIERRA, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 15,863

(January 30, 2009)

Douglas E. Libby Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that her daughter, Kierra, is not a district resident.  The appeal must be dismissed.

Petitioner enrolled Kierra in respondent’s district on May 18, 2007.  At that time, petitioner indicated that the family resided with her mother in the district.  Thereafter, the district’s administration began an investigation of petitioner’s residency, and by letter dated December 10, 2007, notified petitioner that Kierra was not a resident of the district and therefore not entitled to attend respondent’s schools. 

By letter dated December 13, 2007, petitioner appealed the district’s determination.  A residency review was conducted on January 4, 2008, and by letter dated July 9, 2008, the administrative review officer notified petitioner that Kierra was not a district resident.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 8, 2008. 

Petitioner contends that she and her family live in the district with her mother.  Respondent contends that petitioner and her family reside outside 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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

In support of her claim of residency, petitioner submitted a deed dated January 25, 2008 indicating a conveyance of the in-district residence from petitioner’s mother to petitioner and her mother, as joint tenants.  The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of Hensley, 46 Ed Dept Rep 187, Decision No. 15,480; Appeal of Cross, 44 id. 58, Decision No. 15,098; Appeal of O’Herron, 41 id. 1, Decision No. 14,591).  In this case, the property transfer occurred after the residency hearing was conducted, calling into question the real purpose of the conveyance. 

In addition, petitioner’s testimony at the residency hearing was inconsistent and fails to demonstrate actual residence at the in-district property.  At the hearing, petitioner admitted that the family leases an apartment in the Bronx, and that she also temporarily resided at a family residence in Queens during the period in question.  Petitioner also maintains a Maryland driver’s license, which was issued in 2006.

In contrast, respondent submitted surveillance and documentary evidence that petitioner does not reside in the district.  Between October 16 and November 19, 2007, respondent’s investigator conducted surveillance on five occasions, during the hours of 6:00 a.m. and 8:00 a.m. at the alleged in-district residence.  On four occasions, Kierra was not observed leaving the in-district residence.  Kierra was observed on only one day, December 19, 2007, leaving the in-district residence during the morning hours.  Between May 13 and May 30, 2008, respondent’s investigator conducted surveillance four more times, during the early morning hours before school at the alleged in-district residence.  Kierra was not observed leaving the residence on any of those occasions, yet she arrived on time at school on those days.  Further, the school district provided documentary evidence, including checks and a daycare registration form completed by petitioner in September, 2007 listing the out-of-district Bronx address.

While petitioner states that a personal hardship required her to temporarily reside with her grandparents in Queens during October and November of 2007, petitioner fails to provide any explanation for the surveillance results of May 2008.  In sum, I find that petitioner’s evidence is insufficient to support her claim of residency.  Accordingly, I cannot conclude that respondent’s determination was arbitrary or capricious. 

THE APPEAL IS DISMISSED.

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