Appeal of ZHAO GUANG LI, on behalf of his son Xiang Heng Li, from action of the Board of Education of the West Hempstead Union Free School District regarding residency.

Decision No. 16,409

(September 6, 2012)

Guercio & Guercio, LLP, attorneys for respondent, John P. Sheahan, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the determination of the Board of Education of the West Hempstead Union Free School District (“respondent”) that his son Xiang Heng Li, is not a district resident.  The appeal must be dismissed.

On or about June 7, 2011, Xiang Heng Li enrolled in respondent’s elementary school based upon petitioner’s representation that they resided on Bedell Terrace (“Bedell Terrace address”) within the district.  On or about January 12, 2012, the district’s elementary school attempted to mail a letter to the Bedell Terrace address, but it was returned.  According to the assistant superintendent, at the same time, “the district was made aware that [p]etitioner and his family ... may have been residing elsewhere.”

By letter dated January 30, 2012, the district requested that petitioner provide proof by February 13, 2012 that Xiang Heng Li was a legal resident of the district.  Apparently, petitioner submitted a lease dated February 23, 2012 for an apartment located on Hempstead Avenue (“Hempstead Avenue address”) within the district.

On March 6, 7 and 8, 2012, the district’s investigator visited the Hempstead Avenue address to verify petitioner’s residency but found it was vacant.

By letter dated March 8, 2012, respondent’s assistant superintendent again advised petitioner that his residency was at issue and that his son may not be entitled to attend the district school’s tuition free.  Petitioner was provided an opportunity to meet with respondent’s designee on March 15, 2012, to provide evidence regarding Xiang Heng Li’s right to attend school in the district.

A residency hearing was held on March 15, 2012.  By letter dated March 19, 2012, the superintendent notified petitioner of his determination that Xiang Heng Li was not a district resident.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 16, 2012.

Petitioner contends that Xiang Heng Li resides at the Hempstead Avenue address in the district and, thus, is entitled to attend respondent’s schools.

Respondent alleges that the petition was not properly served, that the affidavit of service is defective and that the appeal is now untimely.  Respondent asserts that its determination that Xiang Heng Li is not a district resident is in all respects proper.

The appeal must be dismissed for improper service. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

Petitioner’s affidavit of service filed with the petition states that the petition was served on “Zhao Guang Li” as the district clerk on April 2, 2012.  However, I note that it is petitioner’s name herein and not the name of the district clerk.  Respondent denies that service was made upon any person authorized to accept service (see 8 NYCRR §275.8[a]).  A copy of the petition was provided to respondent by my Office of Counsel on April 12, 2012.  Respondent’s district clerk submits an affidavit stating that she has never been served with a petition in this appeal.  Petitioner has not submitted a reply to respondent’s assertions or any other proof that service was properly effected on respondent in accordance with §275.8(a).  Therefore, the appeal must be dismissed.

Even if it were not dismissed on procedural grounds, the appeal would 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).  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 White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

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 has not established that he or his son is physically present in respondent’s district.  According to the transcript of the residency hearing, when Xiang Heng Li arrived from China in April 2011, petitioner lived in the district at the Bedell Terrace address.  However, petitioner admitted that, in May 2011, he and Xiang Heng Li moved to Henry Street in Chinatown (“Henry Street address”), outside respondent’s district.  Petitioner testified that, from May 2011 until the date of the residency hearing he, his son and his wife lived on Henry Street, but that he had recently leased an apartment on Hempstead Avenue in respondent’s district.  The record reflects that petitioner entered into a lease for the Hempstead Avenue apartment on February 23, 2012 when his residency became an issue.  Further, at the hearing petitioner admitted that the Hempstead Avenue property was unfurnished and that neither he nor his wife had moved into it.  This statement was confirmed by surveillance conducted by the district’s investigator in early March who found the apartment was vacant.  Petitioner further stated that he was renting the Hempstead Avenue apartment “out of consideration for [his] son’s education” and that “I want to pay for that studio together with Ms. Chen [his business partner], for the benefit of our children to go to school.” 

Petitioner stated that he intends to remain in Chinatown and, at some future date, send his son to live at the Hempstead apartment  with his wife or his business partner.  Even if petitioner were planning to move with his family to the Hempstead Avenue address, future plans to establish residency in a school district do not satisfy the two-pronged test of physical presence within the district and intent to remain (seeAppeal of Yvsupova, 49 Ed Dept Rep 88, Decision No. 15,966; Appeal of Sigsby, 44 id. 47, Decision No. 15,109).

I find that neither petitioner nor his son was physically present in the district during the period relevant to this appeal.  Therefore, on this record, I am unable to conclude that respondent’s residency determination was arbitrary, capricious or unreasonable.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on his son’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.