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Decision No. 16,390

Appeal of K.S., on behalf of her children C.E. and J.E., from action of the Board of Education of the Williamsville Central School District regarding residency.

Decision No. 16,390

(July 27, 2012)

Hodgson Russ LLP, attorneys for respondent, Emina Poricanin, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Williamsville Central School District (“respondent”) that her children, C.E. and J.E. (“the children”), are not district residents.  The appeal must be dismissed.

Petitioner enrolled the children in respondent’s kindergarten program in the fall of 2011, listing an address in East Amherst within the district (“East Amherst address”).  In November 2011, the children’s teachers reported that each of the children had separately stated that they lived in Buffalo (“Buffalo address”).  C.E. stated that their mother drops them off every morning at their grandparents’ house, which is the East Amherst address, where the school bus picks them up. 

Based on this information, the district commenced a residency investigation and hired an investigator to conduct surveillance of both the Buffalo address and the East Amherst address.  Surveillance was conducted on six days from December 8, 2011 through January 18, 2012, from 6:00 a.m. to approximately 8:30 a.m.  Petitioner was never observed in the early morning at the East Amherst address in the district.  Instead, on three days, petitioner’s vehicle was observed arriving at that address in the morning to drop off the children, where a school bus picked them up and drove them to school.  On another day, petitioner and her children were observed departing from the Buffalo address.  Petitioner then drove the children to the East Amherst address where the school bus picked them up.  On two other days, petitioner’s vehicle was observed at the Buffalo address in the early morning hours. 

By letter dated January 12, 2012, the Coordinator of Student Services (“the Coordinator”) requested that petitioner provide evidence regarding her residency within the district.  Petitioner replied by letter dated January 26, 2012.  In her letter, she explained that she “moved back into [her] parent’s [sic] house over this past summer” and that the children were confused because they “knew [the] previous residence as ‘home’ and [her] parent’s [sic] house as grandma and grandpa’s house”.  By letter dated February 1, 2012, after reviewing documents provided by petitioner and the surveillance, the Coordinator notified petitioner that because her children did not maintain “daily and nighttime residency” within the district, her children would no longer be able to attend respondent’s schools, effective February 27, 2012.  The Coordinator further indicated that petitioner’s primary residency was in the Buffalo City School District.  This appeal ensued, and petitioner’s request for interim relief was denied on March 5, 2012.

Petitioner alleges that C.E. and J.E. are district residents.  She also maintains that they are entitled to attend respondent's schools pursuant to school district policy because petitioner’s address for purposes of voting and filing taxes is the East Amherst address. 

Respondent contends that it properly determined that the children are not district residents.  Respondent maintains that the surveillance indicates that the children reside outside the district and are driven to the East Amherst address within the district solely for the purpose of accessing its schools.  Respondent further contends that its determination is rational, supported by the record and not arbitrary or capricious.

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 residence is not lost until it is abandoned and another is established through action and intent (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Stewart, 46 id. 92, Decision No. 15,450).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).

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 this record, petitioner has failed to establish that she resides in respondent’s district and has abandoned her out-of-district residence in Buffalo.  Significantly, petitioner has not established physical presence at the East Amherst address.  She has failed to present any evidence rebutting the surveillance in which she and the children were observed at the Buffalo address and not at the East Amherst address in the district.  Nor did she present any evidence that she and the children were actually occupying the East Amherst address, such as statements from neighbors, photographs, or any other documentation.  On the contrary, the children admitted to their teachers that they reside outside the district, and the surveillance is consistent with the children’s statements.

The record also contains contradictory statements made by petitioner as to her physical presence at the East Amherst address.  In her January 26 letter to the district, petitioner claims that she and the children had moved to the East Amherst address during the summer of 2011.  In contrast, in her petition, petitioner asserts that she and her children have lived at the East Amherst address for six years.  Taken together with the children’s statements that they live at the Buffalo address, petitioner’s credibility is, questionable.  Although petitioner submitted her voter registration status (which lists a 2004 registration date) and a 2011 W-2 form listing her parents’ East Amherst address, they alone are not persuasive in establishing her physical presence within the district. 

I must also reject petitioner’s claim that her children are entitled to attend respondent’s schools based on district policy.  The policy provides:

Parents who maintain more than one residence, but whose legal residence for the purposes of voting or filing income tax is within the District, are eligible to send their children to District schools. 

Petitioner asserts that, because her W-2 form and voter registration list the East Amherst address, her children are entitled to attend the district’s schools.  However, in an affidavit, the Coordinator states that the policy does not require enrollment of non-resident students merely because their parents list a district address on their income tax or voter registration.  Rather, the policy is permissive in nature and provides the district with discretion to consider other factors in a residency determination.  The Coordinator further asserts that the policy does not apply to petitioner because she has not established that she maintains two residences.

I find respondent’s interpretation of its policy as discretionary to be reasonable and consistent with other provisions which state that the “Superintendent of Schools or designee may grant the approval to permit a non-resident student to enroll in, or continue attending, a district school under [certain] conditions”.  Of greater significance, petitioner has failed to establish that she maintains more than one residence and, as noted above, specifically failed to establish a physical presence within the district.  Therefore, on this record, I cannot conclude that respondent’s determination that the children are not district residents is irrational, arbitrary or capricious. 

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on her children’s behalf at any time, should circumstances change, and to submit any information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.