Appeal of CHERIESE WILLIAMS, on behalf of her daughter DESTINEE MALCOLM, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 16,302

(September 6, 2011)

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

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

Destinee was a kindergarten student who was enrolled in respondent’s Meadow Elementary School (“school”) at the beginning of the 2010-2011 school year.  According to the record, Destinee’s bus driver began seeing Destinee being transported to and from her address of record in respondent’s district (“in-district address”) in September 2010.  Based on this information, the district commenced a residency investigation in October 2010.

Between October 21, 2010 and November 24, 2010, respondent conducted surveillance at a number of locations, including the in-district address and an address located in Valley Stream, New York, outside respondent’s district (“Valley Stream address”).[1] A surveillance report (“report”) submitted by respondent indicates that, among other things, Destinee was observed leaving the Valley Stream address on two mornings (October 22 and 26, 2010), arriving at the in-district address on another two mornings (November 15 and 16, 2010), and both leaving the Valley Stream address and either arriving at school or boarding the bus at the in-district address on five mornings (November 1, 8, 9, 10 and 12, 2010).  In addition, the report indicates that investigators observed vehicles owned by petitioner, or thought to be used by her, at or near the Valley Stream address on a regular basis, while observations made at the in-district address on the mornings of October 21, 29, November 3, 4 and 11, 2010, revealed no such vehicles.  The report further notes that no one answered the door at the district address on the mornings of November 4 and 22, 2010.

By letter dated November 16, 2010, respondent’s Director of Pupil Services (“director”) notified petitioner that she did not believe that Destinee was a district resident and requested a meeting to discuss the “factual basis” for her conclusion.  Thereafter, the record indicates that on November 22, 2010, the director and petitioner had a telephone conversation during which petitioner allegedly admitted to having a telephone in her name at the Valley Stream address.[2]  By letter dated November 24, 2010, the director notified petitioner of her determination that Destinee was not a district resident and would be excluded from respondent’s schools effective December 2, 2010.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 25, 2011.

Petitioner contends that she and Destinee reside at the in-district address which she indicates is owned by her mother.  In support of this contention, petitioner submits rent receipts that she claims are for room and board at the in-district address, and a notarized letter from her mother “verifying” that petitioner and her children reside at that address.  In addition, petitioner submits a number of records, including 2009 tax records, a New York State identification card, a bank statement, a cell phone bill, and a notice from the Nassau County Board of Elections, which all list her address as the in-district address.

Respondent denies petitioner’s allegations and maintains that she and Destinee reside at the Valley Stream address.  In addition, respondent claims that its determination regarding Destinee’s residency was neither arbitrary nor capricious, and that the petition fails to state a claim upon which relief may be granted.  Respondent also claims that the petition is defective because it was not served with an affidavit of service.

I must first address respondent’s claim that the petition is defective.  Specifically, respondent appears to suggest that petitioner was required by §275.9 of the Commissioner’s regulations to provide it with an affidavit of service in this matter.  However, §275.9 of the Commissioner’s regulations contains no such requirement, and provides in relevant part only that “[w]ithin five days after the service of any pleading or paper ... the original, together with the affidavit of verification and an affidavit proving the service of a copy thereof, shall be transmitted” to my Office of Counsel.  Here, petitioner complied with this requirement by submitting an affidavit of service to my Office of Counsel indicating that her petition was served on respondent’s district clerk.  Respondent does not dispute that it received the petition.  Accordingly, I am unable to find that the petition is “defective,” and I decline to dismiss the appeal on that basis. 

The appeal, however, must be dismissed on the merits.  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, I find that petitioner has failed to meet her burden of proving that she and Destinee reside in respondent’s district.  Specifically, I note that the rent receipts submitted by petitioner do not contain an address and have no probative value for purposes of determining residency.  Moreover, while the statement from petitioner’s mother and the other records submitted by petitioner show or reflect her address as the in-district address, I am unable to find that these documents are dispositive of petitioner’s residency and/or establish her physical presence or intent to remain in respondent’s district.  This is especially true where, as here, it is both undisputed that the in-district address is owned by petitioner’s mother, and respondent has produced evidence - including the observations made by both Destinee’s bus driver and its investigators, and evidence that petitioner maintains a telephone in her name at the Valley Stream address - which indicates that petitioner is living at the Valley Stream address.  Petitioner has submitted no reply or other evidence to explain or refute respondent’s evidence.[3]  

Accordingly, I am unable to determine on this record petitioner’s actual physical presence or intention to reside in respondent’s district and, therefore, cannot find 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 Destinee at any time should circumstances change, and to present any new information or documentation for respondent’s consideration (seee.g.Appeal of Braxton-Strohman, 50 Ed Dept Rep, Decision No. 16,183).

THE APPEAL IS DISMISSED.

END OF FILE.