Appeal of KARLA PEREZ and ADAN PADILLA, on behalf of their children WILLIAM PADILLA, JHONATAN AMADOR and LEA AMADOR, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 16,910

(June 6, 2016)

Ingerman Smith, LLP, attorneys for respondent, Diana M. Cannino, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal from the determination of the Board of Education of the Freeport Union Free School District (“respondent”) that their children, William, Jhonatan, and Lea (the “students”), are not district residents.  The appeal must be dismissed.

During the 2015-2016 school year, the students were enrolled in respondent’s district. On September 22, 2015, petitioner Perez went to the district’s central registry office to complete a student information change form asserting that she, petitioner Padilla, and the students had moved to a residence in Freeport, New York (“Freeport address”).  According to respondent, since there are addresses within the Village of Freeport that are not within the geographical confines of the district, its normal enrollment procedure includes a check of the district’s registration system and possibly the county assessor’s office.  In this case, according to respondent, the Freeport address was not listed in the district’s registration system and a search of the county assessor’s office records revealed that it was actually located outside of respondent’s district and within the Roosevelt Union Free School District. 

Petitioner Perez was advised that the district could not complete the information change because the new address was outside the confines of the district.  She was further advised that since she was not the legal guardian of William, his father, petitioner Padilla, would have to complete his information change.  Therefore, petitioner Perez only submitted the student information change form for Jhonatan and Lea.  In early November 2015, petitioner Padilla submitted a student information change form indicating that he and William also lived at the Freeport address.   Petitioners provided numerous documents, including a lease agreement, garage sale permit application, and utility bills, to support their assertion that their family lives at the Freeport address. 

By letter dated November 12, 2015, respondent’s executive director for operations (”executive director”) notified petitioners that the students were not entitled to attend school in respondent’s district because the Freeport address is located outside respondent’s district, and therefore, the students would be excluded from the district on November 25, 2015.  Petitioners were invited to meet with the executive director and to provide documentation to support their claim that the students resided in the district.  The letter notified petitioners that if they did not exercise that option, the letter would act as the district’s final exclusion determination.

On November 13, 2015, petitioner Perez went to the central registry office to inquire as to why the students were not receiving transportation.  She was advised that the change of address could not be completed as the Freeport address was located within the neighboring Roosevelt Union Free School District.  Petitioner Perez stated that the Freeport address was located in Freeport and therefore was within the district.  Neither of the petitioners had further contact with the central registry office, nor did they meet with the executive director.  Therefore, effective November 25, 2015, the students were excluded from the district. This appeal ensued.  Petitioner’s request for interim relief was denied on December 18, 2015.

Petitioners assert that they and the students reside and intend to remain at the Freeport address, which they believed was within respondent’s district. Petitioners request that the students be permitted to attend school in respondent’s district until they are able to move back within the district’s boundaries.

Respondent argues that the petition should be dismissed for failure to state a claim and failure to demonstrate a clear legal right to the relief requested and the facts upon which petitioners seek relief. Respondent contends that, although petitioners have provided sufficient proof that they reside at the Freeport address, such address is not located within the geographical confines of the district. 

Education Law §3202(1) provides, in pertinent part, as follows:

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 petitioners have failed to meet their burden of establishing that the students reside in respondent’s district.  The parties do not dispute that petitioners reside at the Freeport address.  However, as respondent notes, the official records of the district and county assessor’s office indicate that the Freeport address is within the geographical confines of the Roosevelt Union Free School District.  Petitioners did not submit a reply or other evidence to refute respondent’s contentions in this regard.  Rather, petitioners assert that they believed that the Freeport address was within respondent’s district based on a discussion with the owner of the Freeport address and the fact that the property has a Freeport mailing address.  However, petitioners submit no evidence to support their claim and such belief is insufficient to sustain petitioners’ burden of establishing physical presence in the district (see eg. Appeal of Hable, 52 Ed Dept Rep, Decision No. 16,398).

Petitioners also express that they intend to move back within the district.  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 Schmitt, 49 Ed Dept Rep 271, Decision No. 16,022; Appeal of Hussain 47 id. 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450; Appeal of Castro, 45 id. 88, Decision No. 15,266).  A claimed intent to return to the district is insufficient to establish residency, absent evidence of substantial progress toward meeting that objective or, at the very least, a concrete and realistic plan for doing so (Appeal of Cabrera, 54 Ed Dept Rep, Decision No. 16,645; Appeal of Schmitt, 49 id. 271, Decision No. 16,022; Appeal of J.V., 44 id. 421, Decision No. 15,218).  A school district cannot be expected to allow students to continue to attend its schools indefinitely based on an expressed intent to return to the district (Appeal of Cabrera, 54 Ed Dept Rep, Decision No. 16,645; Appeal of Schmitt, 49 id. 271, Decision No. 16,022; Appeal of Weisberg, 39 id. 737, Decision No. 14,365, judgment granted dismissing petition to review, Weisberg v. Mills, et al., Sup. Ct., Albany Co., Special Term [Malone, J.], November 27, 2000, n.o.r.).  Other than their conclusory assertion, petitioners submit no evidence to establish that they intend to return to the district.  Therefore, on this record, I find that petitioners have failed to meet their burden of establishing residency within respondent’s district or that respondent’s decision was arbitrary, capricious or unreasonable.

While the appeal must be dismissed, petitioners retain the right to reapply for admission to respondent’s schools on the students’ behalf at any time, should circumstances change, and present any additional information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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