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Decision No. 16,183

Appeal of TAMARA BRAXTON-STROHMAN, on behalf of her daughter SIMYRA STROHMAN, from action of the Board of Education of the Uniondale Union Free School District regarding residency.

Decision No. 16,183

(December 9, 2010)

Ingerman Smith, L.L.P., attorneys for respondent, Susan E. Fine, Esq., of counsel

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

Simyra began attending respondent’s schools in the 2008-2009 school year.  Sometime during the 2009-2010 school year, respondent received information that Simyra might not be a district resident.  As a result, respondent conducted surveillance at both the Uniondale address petitioner had provided and a Far Rockaway address located outside of the district.  Simyra was not observed leaving the Uniondale address during surveillance on the mornings of April 23, 26, May 3, 7, 11 and 19, 2010.[1]  However, on the mornings of May 4, 5, 6 and 21, 2010, Simyra was observed leaving the Far Rockaway address with petitioner and/or her husband (Simyra’s father).

By letter dated May 21, 2010, hand-delivered to petitioner at the Far Rockaway address, the superintendent advised petitioner that Simyra was not eligible to attend respondent’s schools because she was not a district resident.  Petitioner appealed this determination and, on May 25, 2010, a hearing was held at which both petitioner and her husband testified.  By letters dated May 26 and June 14, 2010, an administrative assistant for central registration notified petitioner that Simyra was not eligible to attend respondent’s schools.  This appeal ensued.  Petitioner’s request for a stay was denied on August 9, 2010.

Petitioner contends that she is separated from her husband, that the Far Rockaway address is an investment property owned entirely by him, and that she resides with Simyra at the Uniondale address.  Petitioner indicates that she visits the Far Rockaway address, sometimes for up to a week, and maintains that, during the period of respondent’s investigation, she and her husband were attempting to reconcile.  Petitioner requests a determination that Simyra is a district resident entitled to attend school without the payment of tuition.

Respondent denies that petitioner and Simyra reside at the Uniondale address and asserts that the property is actually owned by petitioner’s parents.  Respondent maintains that its determination was not arbitrary, capricious or an abuse of discretion.

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).

On the record before me, petitioner has failed to meet her burden of proving that she and Simyra reside in respondent’s district.  Petitioner submits a number of documents in support of her claim of residency, including a voter registration certificate, bank statements, social security statements, tax information, credit card bills, cell phone bills, a library card and a driver’s license which all reflect the Uniondale address for her or Simyra.  However, it is undisputed that the Uniondale address is owned by petitioner’s parents and petitioner’s use of that address on the documents submitted in this appeal is not dispositive, particularly in view of the surveillance evidence.  Surveillance conducted at the Uniondale address on six separate mornings did not observe Simyra there, and petitioner was briefly observed at that address only once.  In contrast, both petitioner and Simyra were observed at the Far Rockaway address numerous times.  Petitioner attempts to explain her presence at the Far Rockaway address by contending that it is her husband’s property and that they are attempting to reconcile.  However, I am unable to determine on this record petitioner’s actual physical presence and intention to reside at the Uniondale address.  Accordingly, I cannot conclude that respondent’s determination in this matter was arbitrary or capricious.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of Simyra at any time should circumstances change (Appeal of Li, 49 Ed Dept Rep 289, Decision No. 16,029).

THE APPEAL IS DISMISSED.

END OF FILE.

[1]Petitioner also was not seen at the Uniondale address except on May 19, 2010, when she was briefly observed arriving at the address at 8:39 a.m., dropping off a man (identified by respondent as petitioner’s husband) and leaving one minute later.  Although not addressed in the petition, petitioner’s husband indicated to respondent’s personnel at a May 25, 2010 hearing that he had been staying at the Far Rockaway address