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Decision No. 16,174

Appeal of TANICA LUCAS, on behalf of her daughter VICTORIA J. GORMAN, from action of the Baldwin Union Free School District regarding residency.

Decision No. 16,174

(December 9, 2010)

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

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

On May 10, 2010, the district received an anonymous tip that petitioner was transporting Victoria to the district on a daily basis from Hook Creek Boulevard in Rosedale (“Rosedale”), outside the district.  Since district records showed petitioner’s address as Wilson Street in Baldwin (“Baldwin”), within the district, the district commenced an investigation at both addresses.

Surveillance was conducted on 23 days from May 11 to June 22, 2010.  Surveillance revealed that on seven weekdays from May 11 to June 10, 2010, a vehicle registered to petitioner was observed transporting Victoria to Baldwin in the early morning.  Victoria was seen exiting the vehicle and entering the house there and her description was confirmed by the school later in the day.  Early on nine different weekday mornings from May 25 to June 22, the vehicle was observed parked at Rosedale, and on five of those mornings, the vehicle was observed traveling to and/or arriving at Baldwin with Victoria.  On three consecutive weekends in June, the same vehicle was observed at Rosedale in the early morning on both weekend days.  Additionally, on several mornings, one investigator reported that the vehicle was not observed at Baldwin but was later seen at Rosedale or dropping off at Baldwin.  The investigators’ search of public records also revealed wireless phone records in petitioner’s name at Rosedale.

By letter dated June 21, 2010, the district’s Director of Pupil Services (“director”) notified petitioner that the district was unable to substantiate her residency in the district and that Victoria had been observed traveling to Baldwin from outside the district on a regular basis.  The director informed petitioner that Victoria would be excluded from the district’s schools as of June 30, 2010, but offered petitioner the opportunity to meet with her on June 25, 2010.  Petitioner met with both the director and the district’s registrar on that date.

By letter dated July 1, 2010, the director informed petitioner that Victoria would be excluded from the district’s schools as of July 9, 2010 because she was unable to substantiate petitioner’s residency within the district.  In addition, she informed petitioner that the district’s investigation revealed that her automobile was observed parked at Rosedale on a regular basis; she was observed traveling from Rosedale to the district; Victoria was observed being dropped off in Rosedale; and petitioner admitted sometimes residing there.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 18, 2010.

Petitioner asserts that she resides in Baldwin with her father, stepmother, siblings and daughter, but is the primary caretaker for her grandmother, who resides in Rosedale.  She states that she must transport her grandmother to all her appointments and errands and sometimes stays overnight with her, and that her daughter must accompany her.  She requests that Victoria be permitted to attend the district’s middle school as a district resident.

Respondent asserts that the petition fails to state a claim upon which relief may be granted.  It asserts that neither petitioner nor her daughter reside 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Petitioner submitted with her petition 10 documents with the Baldwin address: registration for a red Toyota Suburban (the vehicle observed in the surveillance report); a New York State commercial driver license; a letter from a law firm dated July 24, 2009; a 2009 1040A IRS form; a July 2010 Sprint telephone bill; a letter from an insurance company dated July 21, 2010; a health insurance letter dated July 9, 2010; an undated health insurance Explanation of Benefits letter for Victoria; a physician’s bill dated July 3, 2010; and an automobile insurance card effective April 18, 2010 – October 18, 2010.

Although petitioner provides some documentation with the Baldwin address, such evidence fails to address the discrepancy between her contention that she resides there and the surveillance report, which clearly demonstrates a regular pattern of her presence at Rosedale and lack of physical presence at Baldwin in the early mornings and weekends.[1]  In addition, much of the documentation is not dispositive in that it predates the surveillance or is unofficial because it did not require official identification to obtain (i.e. bills and letters).  Moreover, petitioner fails to provide any evidence of her grandmother’s illness, that such illness necessitates her presence on a regular basis, or even that her grandmother resides in Rosedale.  Nor does she submit a reply to the proof submitted by respondent.  Based on the record before me, petitioner has failed to meet her burden of proof that she resides in the district.  Accordingly, I cannot conclude that respondent acted arbitrarily or capriciously in determining that Victoria is not a district resident.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] During the 2008-2009 school year, similar residency concerns had prompted the district to conduct surveillance of petitioner and Victoria from March 29 to May 7, 2009, after Victoria had told a teacher that she lived in Rosedale.  Although the surveillance revealed a similar pattern of transport from Rosedale and dropping off at Baldwin, respondent permitted Victoria to remain in the district after petitioner submitted a residency affidavit.